Formulaic Maintenance

Before looking at the history of alimony and maintenance, let us first understand how the formula approach operates. Harry and Sally, two young and sparkling law students, seemed to have little in common. Harry went to law school so that he could go to work for a non-profit legal service provider to look after the poor. He wanted to do “good.” Sally aspired to the Wall Street firms. She wanted to do “well.” In their third year, they found themselves sitting together in the matrimonial law course. Overcome by the romanticism of the subject, cartoon hearts burst above their heads, and they fell madly in love. Having listened carefully to the lectures, however, they waited until after they were fully licensed before tying the knot.

Both spouses got their dream jobs. Harry was working in public service, and Sally landed on Wall Street. Their marriage lasted five years. They had no children. Neither spouse did anything to advance the career of the other; neither sacrificed anything in deference to the other's career. When the divorce festivities began, each was doing precisely what he or she would have been doing if the marriage had never occurred.

Harry was earning $100,000 per year. Sally was earning $300,000 per year. Determining income for the purpose of applying the formula is a complex undertaking because it incorporates the definition of income set forth in the Child Support Standards Act. DRL ' 240(1-b). In the interest of simplicity and brevity we will assume that the above-stated incomes are the applicable incomes to be subjected to the formula. On these numbers, Sally would owe Harry annual maintenance of $60,000. (The computations required by the temporary maintenance formula are exceedingly complex and beyond the scope of this article to delineate. It should also be noted that while this example is calculated using the existing temporary maintenance methodology, a permanent maintenance formula will not necessarily replicate the existing approach.) In other words, Harry, who is precisely where he would have been financially had there been no marriage, just hit the lottery!

While the statute allows the court to deviate from the formula method based on one or more adjustment factors set forth in the formula, the mere fact that the formula is shifting significant wealth from one spouse to the other is not itself a basis for deviation. As will be seen, this redistributive thrust is extremely foreign to the original purpose of spousal support.

Genesis and Evolution

American domestic relations law was imported largely from English common law, which held that “the wife's legal personality merged into the husband's.” Turner, B.R., “Equitable Distribution of Property,” Third Ed., ' 1:3 (Thomson Reuters 2012). Upon marriage, the wife's personal property became that of her husband. So long as she remained married, she could not own property in her name. Under this paternalistic system the wife had “no independent legal existence at all.”

From this ancient doctrine of deprivation, the remedy of alimony was devised. Alimony was designed as a partial palliative to the blanket deprivation of the wife's property rights during the marriage, requiring that the husband support the wife during the marriage. To appreciate how this transposed into a remedy attendant upon divorce one must understand that in early England there were two forms of marital dissolution.

The most common was the ecclesiastical or religious divorce from bed and board, known as divorce a mensa et thoro. This was roughly equivalent to what modern jurisprudence recognizes as a decree of separation. DRL ' 200. While the ecclesiastical decree sanctioned separate living arrangements, the marriage and its obligations remained intact, a result consistent with the religious principle that marriage was indissoluble. The second type of divorce was civil divorce, called divorce a vinculo matrimonii. Civil divorces severed the bonds of marriage but, because they required an act of Parliament, they were extremely rare.

Alimony

Because almost all divorce decrees were really but decrees of separation, which left the marriage intact and left the wife still subject to the common law disabilities of marriage, she could receive none of the property acquired during the marriage. It continued to be the husband's property. The flip side was that because “the marriage continued ' , the marital support duty continued and the husband was required to pay permanent alimony.” Turner, B.R., supra. In other words, the wellspring of alimony was the fact that the marriage still existed. There was no need to divine or devise a rationale for post-divorce alimony because the marriage remained extant. Once absolute divorce became the norm, however, the alimony remedy lost its original rationale. Yet no one seemed to notice. As New Jersey's high court phrased it:

Alimony was granted ' on the theory that husband was obliged to continue to support his wife as long as they remained married. Somehow, with the passage of time, the distinction between true divorce and mere separation was obliterated and alimony began to be awarded in all cases. No rationale was advanced to explain why parties, who were no longer married, remained economically bound to one another.

Mani v. Mani, 183 N.J. 70, 78, 869 A.2d 904 (2005)

Potentially attenuating the rationale for alimony further, the married women's property acts adopted across America in the 19th century relieved married women of the pre-existing common law disabilities. As one renowned scholar noted, however, “the achievement of legal status by women was for many the granting of title without office,” (Henry J. Foster Jr., Preface to I. Baxter, Marital Property at vi n. 7 (1973)), as cultural and economic forces continued to limit the ability of women to acquire income and property. Notwithstanding the removal of legal disabilities, women nonetheless labored under profound handicaps in the cultural and economic circumstances of the era. In many marriages, property remained titled primarily ' if not exclusively ' in the name of the husband and under the prevailing common law title system of the day belonged to the husband upon divorce.

Thus, one could posit that alimony was justified “to prevent impoverishment of divorced women.” Turner, B.R., supra. In a word, the rationale of spousal support in the post common-law era was need. For much of the 20th century, alimony continued to be granted on the gender-based precepts of the past, as a discretionary remedy operating exclusively for the benefit of wives in need. When the U.S. Supreme Court in Orr v. Orr, 440 U.S. 268, 280, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979) struck down a gender-based alimony statute strikingly similar to New York's, the floodgates of change gaped open.

Reform Brought Maintenance

Orr v. Orr provided the catalyst for sweeping reform of the economic aspects of divorce. The Divorce Reform Act of 1980 not only gender-neutralized the spousal support remedy, replacing the term alimony with “maintenance,” it also ushered in equitable distribution. This represented a massive shift from the common-law title precepts that previously governed divorce litigation and which often resulted in wives leaving the marriage with few, if any, assets simply because title was held by their husbands and the title system left them as they found them.

With respect to spousal support, maintenance was to be more than a change in terminology; it was supposed to be a conceptual shift away from the assumption that an ex-spouse would be forever dependent upon the former marital partner. Adding force to that concept was that times were changing in the wake of a new wave of feminism aimed at alleviating gender-based disparities in the marketplace.

Under the maintenance provisions adopted in 1980, the award was to be based upon “reasonable needs” rather than upon the pre-separation standard of living. The latter was but one factor among many to be considered, and then only in those cases where it was “relevant and practical.” This was a legislative recognition of the reality that except in cases of very wealthy parties, the pre-separation standard is an unattainable ideal. Parties who have been barely able to keep body and soul together on the strength of two incomes, while enjoying the economy of scale realized by living in one household, are not able to perpetuate that standard when they face the sudden need to support two households. As originally conceived, the statute recognized that the court can move money around, but it cannot create additional income.

In 1986, the Legislature amended the maintenance statute by reasserting the pre-separation standard of living as the standard for maintenance. This so fundamentally altered the maintenance landscape that it propelled a pointed response by Professor Henry H. Foster, a principal architect of the 1980 reform legislation. Foster saw the turnabout as a bad-faith negation of the original reform package.

There is also the matter of good faith and the question of whether the change in standard was not a renege on prior commitments. It was no easy task to get what was considered to be a pro-wives equitable distribution law on the floor of the Senate in New York ' . To simplify matters, roughly, the deal was that in return for a share of what had been the husband's separate property and for eliminating the automatic bar of alimony for a 'guilty' wife, we would have a new concept of 'marital property' ' and maintenance would be awarded 'on a reasonable needs basis. To raise the level for maintenance, yet retain all the 'goodies,' is taking back the quid for which was given for the quo.

Foster, H.H., “New York's New Factors for Maintenance: Out of This World?” Fair Share, Vol. 6, No. 10 (Prentice Hall Law & Business, October 1986).

Professor Foster's rebuke was as prophetic as it was stunning. He
predicted that the changes of 1986 were setting the stage for “equalization of future income even though the former spouse no longer contributes anything to the income producer.”

Conclusion

The formula approach to maintenance clearly embraces the “equalization” theory feared by Professor Foster. As legislators consider extending this approach to post-divorce maintenance, they would do well to ask themselves the central question: What is its rationale? Some who support it may see it as a boon for women, but that is both anachronistic and myopic. Many wives today, like Sally in our example, earn more than their husbands and the formula redirects their income to their less successful spouses with full gender-neutral force.

Legislators would also do well to ask themselves whether this income redistribution does violence to the existing framework of divorce economics. The Holy Grail of the past three decades has been that marriage is an “economic partnership” and income redistribution hardly fits elegantly within that model. If Harry and Sally had not married but instead entered into a real partnership, say a law practice, and then dissolved it, what court would take seriously a claim by Harry that Sally should have to support him into the future simply because she earns more money than he did? Why should the result be different merely because they said “I do”?

Timothy M. Tippins, a member of this newsletter's Board of Editors, is an adjunct professor at Albany Law School and author of New York Matrimonial Law & Practice, published by Thomson Reuters ('1986-2011). This article also appeared in the New York Law Journal, an ALM sister publication of this newsletter.

In 2010, the New York State Legislature adopted a formula method for computing the presumptively correct amount of temporary maintenance, similar to that employed in the calculation of child support. The Legislature considered adoption of the formula approach for post-divorce maintenance but did not do so. It did, however, direct the Law Revision Commission to “review the maintenance laws of the state” to determine their impact “on post marital economic disparities.” Domestic Relations Law ' 236(B)(6-b). Indications are that the commission's report will be forthcoming soon.

Given that the Legislature may be poised to extend the formulaic approach to post-divorce maintenance, this is a propitious point to pause and consider the history of spousal support as well as its underlying rationale. The history of alimony is enlightening, not as an exercise in academics, but because it underscores the truly radical nature of the formula method under consideration.

When Harry Met Sally

Before looking at the history of alimony and maintenance, let us first understand how the formula approach operates. Harry and Sally, two young and sparkling law students, seemed to have little in common. Harry went to law school so that he could go to work for a non-profit legal service provider to look after the poor. He wanted to do “good.” Sally aspired to the Wall Street firms. She wanted to do “well.” In their third year, they found themselves sitting together in the matrimonial law course. Overcome by the romanticism of the subject, cartoon hearts burst above their heads, and they fell madly in love. Having listened carefully to the lectures, however, they waited until after they were fully licensed before tying the knot.

Both spouses got their dream jobs. Harry was working in public service, and Sally landed on Wall Street. Their marriage lasted five years. They had no children. Neither spouse did anything to advance the career of the other; neither sacrificed anything in deference to the other's career. When the divorce festivities began, each was doing precisely what he or she would have been doing if the marriage had never occurred.

Harry was earning $100,000 per year. Sally was earning $300,000 per year. Determining income for the purpose of applying the formula is a complex undertaking because it incorporates the definition of income set forth in the Child Support Standards Act. DRL ' 240(1-b). In the interest of simplicity and brevity we will assume that the above-stated incomes are the applicable incomes to be subjected to the formula. On these numbers, Sally would owe Harry annual maintenance of $60,000. (The computations required by the temporary maintenance formula are exceedingly complex and beyond the scope of this article to delineate. It should also be noted that while this example is calculated using the existing temporary maintenance methodology, a permanent maintenance formula will not necessarily replicate the existing approach.) In other words, Harry, who is precisely where he would have been financially had there been no marriage, just hit the lottery!

While the statute allows the court to deviate from the formula method based on one or more adjustment factors set forth in the formula, the mere fact that the formula is shifting significant wealth from one spouse to the other is not itself a basis for deviation. As will be seen, this redistributive thrust is extremely foreign to the original purpose of spousal support.

Genesis and Evolution

American domestic relations law was imported largely from English common law, which held that “the wife's legal personality merged into the husband's.” Turner, B.R., “Equitable Distribution of Property,” Third Ed., ' 1:3 (Thomson Reuters 2012). Upon marriage, the wife's personal property became that of her husband. So long as she remained married, she could not own property in her name. Under this paternalistic system the wife had “no independent legal existence at all.”

From this ancient doctrine of deprivation, the remedy of alimony was devised. Alimony was designed as a partial palliative to the blanket deprivation of the wife's property rights during the marriage, requiring that the husband support the wife during the marriage. To appreciate how this transposed into a remedy attendant upon divorce one must understand that in early England there were two forms of marital dissolution.

The most common was the ecclesiastical or religious divorce from bed and board, known as divorce a mensa et thoro. This was roughly equivalent to what modern jurisprudence recognizes as a decree of separation. DRL ' 200. While the ecclesiastical decree sanctioned separate living arrangements, the marriage and its obligations remained intact, a result consistent with the religious principle that marriage was indissoluble. The second type of divorce was civil divorce, called divorce a vinculo matrimonii. Civil divorces severed the bonds of marriage but, because they required an act of Parliament, they were extremely rare.

Alimony

Because almost all divorce decrees were really but decrees of separation, which left the marriage intact and left the wife still subject to the common law disabilities of marriage, she could receive none of the property acquired during the marriage. It continued to be the husband's property. The flip side was that because “the marriage continued ' , the marital support duty continued and the husband was required to pay permanent alimony.” Turner, B.R., supra. In other words, the wellspring of alimony was the fact that the marriage still existed. There was no need to divine or devise a rationale for post-divorce alimony because the marriage remained extant. Once absolute divorce became the norm, however, the alimony remedy lost its original rationale. Yet no one seemed to notice. As New Jersey's high court phrased it:

Alimony was granted ' on the theory that husband was obliged to continue to support his wife as long as they remained married. Somehow, with the passage of time, the distinction between true divorce and mere separation was obliterated and alimony began to be awarded in all cases. No rationale was advanced to explain why parties, who were no longer married, remained economically bound to one another.

Mani v. Mani , 183 N.J. 70, 78, 869 A.2d 904 (2005)

Potentially attenuating the rationale for alimony further, the married women's property acts adopted across America in the 19th century relieved married women of the pre-existing common law disabilities. As one renowned scholar noted, however, “the achievement of legal status by women was for many the granting of title without office,” (Henry J. Foster Jr., Preface to I. Baxter, Marital Property at vi n. 7 (1973)), as cultural and economic forces continued to limit the ability of women to acquire income and property. Notwithstanding the removal of legal disabilities, women nonetheless labored under profound handicaps in the cultural and economic circumstances of the era. In many marriages, property remained titled primarily ' if not exclusively ' in the name of the husband and under the prevailing common law title system of the day belonged to the husband upon divorce.

Thus, one could posit that alimony was justified “to prevent impoverishment of divorced women.” Turner, B.R., supra. In a word, the rationale of spousal support in the post common-law era was need. For much of the 20th century, alimony continued to be granted on the gender-based precepts of the past, as a discretionary remedy operating exclusively for the benefit of wives in need. When the U.S. Supreme Court in Orr v. Orr , 440 U.S. 268, 280, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979) struck down a gender-based alimony statute strikingly similar to New York's, the floodgates of change gaped open.

Reform Brought Maintenance

Orr v. Orr provided the catalyst for sweeping reform of the economic aspects of divorce. The Divorce Reform Act of 1980 not only gender-neutralized the spousal support remedy, replacing the term alimony with “maintenance,” it also ushered in equitable distribution. This represented a massive shift from the common-law title precepts that previously governed divorce litigation and which often resulted in wives leaving the marriage with few, if any, assets simply because title was held by their husbands and the title system left them as they found them.

With respect to spousal support, maintenance was to be more than a change in terminology; it was supposed to be a conceptual shift away from the assumption that an ex-spouse would be forever dependent upon the former marital partner. Adding force to that concept was that times were changing in the wake of a new wave of feminism aimed at alleviating gender-based disparities in the marketplace.

Under the maintenance provisions adopted in 1980, the award was to be based upon “reasonable needs” rather than upon the pre-separation standard of living. The latter was but one factor among many to be considered, and then only in those cases where it was “relevant and practical.” This was a legislative recognition of the reality that except in cases of very wealthy parties, the pre-separation standard is an unattainable ideal. Parties who have been barely able to keep body and soul together on the strength of two incomes, while enjoying the economy of scale realized by living in one household, are not able to perpetuate that standard when they face the sudden need to support two households. As originally conceived, the statute recognized that the court can move money around, but it cannot create additional income.

In 1986, the Legislature amended the maintenance statute by reasserting the pre-separation standard of living as the standard for maintenance. This so fundamentally altered the maintenance landscape that it propelled a pointed response by Professor Henry H. Foster, a principal architect of the 1980 reform legislation. Foster saw the turnabout as a bad-faith negation of the original reform package.

There is also the matter of good faith and the question of whether the change in standard was not a renege on prior commitments. It was no easy task to get what was considered to be a pro-wives equitable distribution law on the floor of the Senate in New York ' . To simplify matters, roughly, the deal was that in return for a share of what had been the husband's separate property and for eliminating the automatic bar of alimony for a 'guilty' wife, we would have a new concept of 'marital property' ' and maintenance would be awarded 'on a reasonable needs basis. To raise the level for maintenance, yet retain all the 'goodies,' is taking back the quid for which was given for the quo.

Foster, H.H., “New York's New Factors for Maintenance: Out of This World?” Fair Share, Vol. 6, No. 10 (Prentice Hall Law & Business, October 1986).

Professor Foster's rebuke was as prophetic as it was stunning. He
predicted that the changes of 1986 were setting the stage for “equalization of future income even though the former spouse no longer contributes anything to the income producer.”

Conclusion

The formula approach to maintenance clearly embraces the “equalization” theory feared by Professor Foster. As legislators consider extending this approach to post-divorce maintenance, they would do well to ask themselves the central question: What is its rationale? Some who support it may see it as a boon for women, but that is both anachronistic and myopic. Many wives today, like Sally in our example, earn more than their husbands and the formula redirects their income to their less successful spouses with full gender-neutral force.

Legislators would also do well to ask themselves whether this income redistribution does violence to the existing framework of divorce economics. The Holy Grail of the past three decades has been that marriage is an “economic partnership” and income redistribution hardly fits elegantly within that model. If Harry and Sally had not married but instead entered into a real partnership, say a law practice, and then dissolved it, what court would take seriously a claim by Harry that Sally should have to support him into the future simply because she earns more money than he did? Why should the result be different merely because they said “I do”?

Timothy M. Tippins, a member of this newsletter's Board of Editors, is an adjunct professor at Albany Law School and author of New York Matrimonial Law & Practice, published by Thomson Reuters ('1986-2011). This article also appeared in the New York Law Journal, an ALM sister publication of this newsletter.