It’s a fortunate confluence of events when my Netflix viewing neatly aligns with my legal blogging–something like bacon and chocolate (see my prior efforts here). It doesn’t happen often, but when it does…well, like I said, bacon and chocolate.

But as I binged my way through Season 3 of House of Cards, I wasn’t expecting lightning to strike. After all, political intrigue and anxiety-laden musical scores aren’t usually where I find my inspiration.

Until somewhere around this monologue:

Something about Frank and Claire Underwood’s diabolically captivating rise to power left me thinking: this may be the future of our alimony laws.

Seriously?!

I know.

I can feel the side-eye laden skepticism radiating through the internet. But give me a chance, because if you can get past Kevin Spacey’s Machiavellian soliloquies, the Underwoods may actually have a lot to teach us about the sort of fundamental change our alimony laws need.

(Sidebar: while my own state uses the term “spousal maintenance” rather than “alimony” I don’t want to get bogged down in the legalese, so potato potahto)

Alimony Reform: A National Movement

For those who haven’t been following the issue, alimony reform (a term I use only begrudgingly since “reform” connotes progress and I’m not so sure) is quickly becoming a national issue.

With changes to alimony laws already in effect in Massachusetts and New Jersey, Florida appears to be the latest battle ground for the continuing debate between proponents of ending alimony, and those who argue that change will disproportionately disadvantage women and children.

Florida’s H.B. 943 introduced just a few weeks ago, provides formulas for determining “presumptive alimony amounts” and “presumptive alimony durations,” based on the partners’ incomes and years of marriage. In essence the bill creates an alimony calculator that Judges can turn to in deciding how much alimony to award and for how long.

While there are also changes afoot in Minnesota, they’re far more modest.

HF 1333 sponsored by Representative Peggy Scott, provides for the mandatory suspension of spousal maintenance upon evidence of cohabitation with another individual (with no exceptions for adult children, parents or other relatives). What might be most notable about the bill, though, is how little it aims to achieve, in contrast to more comprehensive efforts in other states.

What’s Wrong with Alimony Calculators

The idea of presumptive alimony awards (akin to the child support calculators employed in many states, including Minnesota) appears to be gaining broad traction.  Much like their child support counterparts, alimony calculators promise certainty and predictability against what has often been perceived as the unpredictable turns of judicial discretion.

So if the concern is ensuring similar results in similar cases–and by similar, I mean the most banal sort of similarity based solely on income and length of marriage–then a calculator can be a great tool. Attorney and legal blogger Lee Rosen (@LeeRosen) even provides an alimony calculator on his firm website, and it’s one of most helpful online resources I’ve seen yet.

But not every problem can be solved with a calculator.

Florida’s bill, and others like it, represent little more than a predictable next step in what’s shaping up to be a broader fight against judicial discretion.  We no longer expect our judges to be wise. Instead, we provide guidelines and presumptions to ensure predictability: Child support. Parenting time. Soon alimony. The notion seems to be that families will be better off if we turn divorce and separation into a math problem (and not one of those tricky, college-level math problems either).

Unfortunately, this sort of paint-by-numbers divorce skips over that whole “court of equity” notion, that is part of family law’s life blood. See DeLa Rosa v. DeLa Rosa, 309 N.W.2d 755 (Minn. 1981). Sure, you always know what you’re getting, but the finished product is hardly anything to brag about.

And alimony, even more than other aspects of family law, is particularly inimicable to this watered down version of justice-as-math-problem.

For years alimony has stymied practitioners and policy makers as they struggle to find new rationales for spousal support laws in light of evolving social trends and marital roles.  The concept made sense when divorce was fault-based and property often went to the title-holding spouse (usually the husband). But as marriage rapidly re-invented itself (no-fault divorce, same-sex marriage, gender parity) the equitable principles underpinning alimony began to seem more and more shaky.

So in lieu of defending alimony as a concept with continuing viability, we’ve abandoned the field, instead viewing these payments as practical necessity: a safety-net meant to help stay-at-home parents or lower wage earning spouses transition back to self-sufficiency.

And if that’s all alimony is–a safety net–maybe a calculator makes sense.

It’s not fair, it’s not equitable, it’s just math.

Maybe it’s because I was a humanities major, but I’d prefer to keep math as far away from my relationships as possible. Which may be why Frank Underwood really got me thinking.

Alimony Works, or the Claire Underwood Plan

The essence of Frank’s pitch in the clip above is that we have to fundamentally re-think the system if we’re going to make progress.  For his part, Frank would burn and pillage his way through America’s entitlements to fund a new New Deal with the promise of full employment. Which is precisely the sort of radical up-ending our alimony laws may need.

As it stands in most states (including mine), alimony is about three things: incomes, budgets, and the length of the marriage. See Maeder v. Maeder, 480 N.W.2d 677 (Minn. Ct. App. 1992) (“The essential consideration in the award of maintenance is the financial need of the party receiving maintenance and his or her ability to meet that need balanced against the financial condition of the spouse providing the maintenance.”)

The first two usually determine “how much” while the third goes to “how long.”

But what if we stopped making spending and income our starting point?  What if we looked less at what you spent as a couple, and more at what each of you invested?

Did you take a pay cut to move across the country so your spouse could take their dream job?  Did you pull back at the office to focus on the kids?  Did you put off saving for retirement to help pay down your partner’s student loans?

Like Underwood’s America Works, this theory moves away from thinking of alimony as entitlement and instead reframes it as a return on investment (and investment that presumably isn’t already reflected in the property accumulated during the marriage). For some couples, a huge investment might be made just in a few years, say, by putting a spouse through professional school. For others, a fifty-year marriage may not yield any meaningful sign that one spouse sacrificed for the other.

Did you marry well, quit your job, and spend the next thirty years acquiring a taste for the finer things? Sorry.

But did you…I don’t know…say, put your entire career on the back burner to support your husband’s unholy rise from a backwoods redneck congressman to majority whip to POTUS? You better expect to see a serious ROI.

That’s Alimony Works.

Not As Crazy As It Sounds.

Two obvious criticism prevent themselves:

Objection 1: Don’t credit yourself with any kind of originality, Boulette. Ira Ellman started making this argument in the late ’80’s.  But no one thinks it’s practical to start compensating spouses for missed chances.

Point taken. But this isn’t about do-overs. It’s about investment, a term Ellman also uses and which I don’t think has been taken seriously enough in policy debates. We all make choices, forgo opportunities. The path not taken and all that. But where a spouse puts his/her own financial interest on the back burner for the benefit of the family, our laws should recognize that investment upon divorce. That doesn’t mean a life time profit-sharing plan, but it does mean some reasonable rate of return for the opportunity cost that only one partner paid.

In fact, if the goal of our divorce laws is to encourage altruism and reward spouses for putting their families–rather than themselves–first, isn’t this exactly the sort of threshold question we want to be asking?

Objection 2: But this won’t fit into our calculator.

Exactly.  Families aren’t math problems. So it shouldn’t surprise us that–unlike our grade school math homework–the answers aren’t in the back of the book.

If all we want is a system that’s predictable, efficient, and completely insensitive to considerations of fairness and equity, you’re right, forget it, build a calculator.

But let’s not give up just yet.

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