Alimony is court-ordered support paid by one spouse to another in the event of a divorce. Permanent alimony is just what it sounds like: following divorce, one spouse pays the other spouse periodically—for the rest of their lives—until the receiving spouse remarries or one of them convinces the court to change the arrangement. It has been likened in the media to a life sentence, squelching the freedom sought in divorce, or to adopting a full-grown adult. Lately, the concept of permanent alimony, or rather the reform of it, is making headlines near and far across the states.
We can easily imagine a time in our history when alimony, even permanent alimony, made solid sense: a time when the family norm was a bread-winning husband and a home-making wife. When a wife had little or no formal education beyond high school and devoted her married life to her home and family, while her husband moved up the career ladder. Now, throw a divorce into the works of such an arrangement and we end up with a wife with little or no potential to support herself and their children (of whom she would likely win custody). And we have a husband with the same earning and career potential he enjoyed prior to the divorce. Could permanent alimony from husband to wife make sense here?
But, the family norm changed over time. Flash forward to the mid-to-late 1970s and the 1980s, when women sought out higher education and careers, and when some men devoted themselves to home and family. The alimony norm changed a bit, too. It was not unheard of for wives to pay husbands alimony where the husband forwent his own career potential for the wife’s success. Same question with a twist: could permanent alimony from wife to husband make sense here?
Then, consider the onset of double-income marriages—with or without kids. Both spouses are now working, realizing career potential, capable and able-bodied to support themselves and their children in the event of divorce. In 2012, women made up 46.9% of the U.S. labor force, and 51.5% of management and professional positions.¹And, of all 2012, U.S. high school graduates who enrolled in college, 71.3 % were women and 61.3% were men.² Women now make up almost half of the workforce, slightly more than half of the professional workforce, and significantly more women than men are entering college after high school graduation. Has the playing field leveled to the point where permanent alimony from either spouse to the other makes less and less sense?
Finally, ponder this: we have a once-capable, now-totally-disabled spouse, or a divorcing retirement-age couple who planned financially for retirement together. A divorce in these situations could render one spouse essentially incapable of moving on financially. And again, could permanent alimony make sense here?
One common starting point for legal reform exists when states vary in how they apply laws. Residents of State “A” see that the grass is greener over the state border in State “B” where State B’s courts, for example, do not award permanent alimony as easily as State A’s courts. Whether and how permanent alimony is awarded currently varies state to state: some states award it automatically or without much analysis or limitation. Other states use distinct criteria, limiting formulas, or require the underlying marriage to have lasted a certain number of years before the question of alimony is even entertained.
Another impetus for reform arises when courts within a state do not apply the state’s laws uniformly. Or, where the state’s laws give the courts such discretion in deciding alimony awards that we end up with widely varying, or simply “unfair” results.
The debate surrounding reform includes the following questions or topics:
• Should the spouse paying alimony have the right to retire? In doing so and moving to a fixed income, he/she may not be able to continue paying alimony at the ordered rate.
• Is alimony appropriate where the receiving spouse committed abuse or neglect of the paying spouse or the children?
• Should alimony sustain basic needs or continue the lifestyle the receiving spouse enjoyed during the marriage?
• In the case of a remarriage of the paying spouse, should financial situation of the paying spouse’s new partner have a bearing on how much alimony is paid?
• Should the details of how alimony is awarded be specified in the law, or left to the discretion of the court?
• Remarriage of the alimony-receiving spouse can bring an end to permanent alimony awards. Should living with a romantic partner also have this effect on permanent alimony? Are alimony-receiving spouses purposefully avoiding remarriage in order to continue receiving alimony?
• Is receiving permanent alimony a “women’s issue?” Should capable women be ashamed to receive this level of support rather than move on?
A quick internet search reveals that many states in the U.S. have “alimony reform” websites. Some are clearly more active sites, boasting proposed legislation, petitions to sign, and updates on reform efforts elsewhere in the country. Some sites feel more like “start ups.” But, one thing is undeniable: there is a movement afoot.
Alimony reform legislation recently passed in Massachusetts (2011) and Florida (2013). In Massachusetts, reform brought an end to most permanent alimony. It also defined different categories and durations of alimony according to how long the marriage lasted and the financial circumstances of the divorcing spouses. In Florida, reform also means an end to permanent alimony except in defined “special circumstances.” Florida will now cap alimony based on the length of the marriage and the paying spouse’s income. Further, the paying spouse in Florida may now ask the court to change the alimony payments when she or he retires.
New Jersey still has legislation pending before the State Assembly to reform its alimony laws. Some highlights of the New Jersey proposed legislation include:
• References to permanent alimony would be deleted from the statute;
• Indefinite alimony awards may be granted for marriages of more than 20 years;
• Limited-duration alimony would be tailored to a receiving spouse’s need or the amount of the alimony payment would be arrived at by a specific formula. Courts would have discretion to work outside of need or the formula in certain circumstances including: advanced age, chronic illness, unusual health circumstances, or the receiving spouse’s inability to become self-supporting based upon abuse by the paying spouse;
• If the receiving spouse were to live with a romantic partner for a certain period of time, even if he or she does not remarry, this would be grounds for changing, suspending or terminating the alimony award, though it could be reinstated if the couple stops living together;
• Duration of alimony payments would depend upon the length of the marriage;
• Payment of alimony would terminate at retirement age of the paying spouse.
• Existing alimony awards would or could be modified to the proposed provisions.
Pennsylvania is not as far along in any reform process as New Jersey. There is a petition or two for Pennsylvania reform floating around on the internet—the beginnings of a rumbling—but no proposed legislation under consideration. In Pennsylvania, the courts decide alimony awards by considering seventeen specific factors. With a great deal of discretion, the courts churn out awards that vary widely from situation to situation. Pennsylvania courts generally limit the duration of the alimony award, but an award of permanent alimony is permitted under the current law. Given its proximity to New Jersey, could alimony reform sweep through Pennsylvania, too?
Looking back through history as we have done here, we are now in an era where permanent alimony only makes sense in very specific cases. In general, in states where reform has taken hold, there are carve-outs built in for specific kinds of cases, such as disabled or otherwise incapable, abused, or elderly alimony-receiving spouses. It does not appear as if the reform movement intends to slash and burn or produce an inequitable result where permanent alimony makes sense. Rather, it seems as if those who favor permanent alimony reform intend to bring about predictable, logical results that will allow alimony law to catch up to the times.
¹ Bureau of Labor Statistics, Current Population Survey, “Table 3: Employment Status of
the Civilian Noninstitutional Population by Age, Sex, and Race,” and “Table 11: Employed Persons by Detailed Occupation, Sex, Race, and Hispanic or Latino Ethnicity,” Annual Averages 2012 (2013), see www.bls.gov
²Bureau of Labor Statistics, College Enrollment and Work Activity of 2012 High School Graduates, April 17, 2013, see www.bls.gov