Reconstructing Alimony and Spousal Maintenance

The Origins of Debate

The genesis of the current discussions can be found in the American Law Institute's (“ALI”) Principles of the Law of Family Dissolution: Analysis and Recommendations (2002) (“Principles”). The ALI's Principles took an approach to what we in New York term “maintenance” (i.e., alimony or spousal support) that is premised on a much different concept than that which has prevailed over the course of matrimonial law history in this country. In the past, maintenance was either viewed as a reasonable needs-based support concept that took into account the standard of living established during the marriage, or as a rehabilitative concept designed to prepare the non'income-producing spouse to become essentially self-supporting. The ALI's approach did away with these concepts and, instead, suggested that compensation for losses sustained as a result of the marriage (e.g., foregone and, thus, lost economic opportunities of homemakers such as career advancement that would have resulted from employment outside of the home) should be the basis for the payment of spousal support as if “marriage” in and of itself were akin to “personal injuries” sustained in an accident or as the result of medical malpractice. The compensation approach was rejected by the American Academy of Matrimonial Lawyers in a recent report by its Commission that is reviewing the ALI's Principles. See Mary Kay Kisthardt, Re-Thinking Alimony: The AAML's Considerations for Calculating Alimony, Spousal Support or Maintenance, 21 J Am. Acad. Matrim. Law 61 (2008); See also Penelope Eileen Bryant, Vacant Promises?: The ALI Principles of the Law of Family Dissolution and the Post-Divorce Financial Circumstances of Women, 8 Duke J. Gender L & Pol'y 167 (2001).