Alimony Reform—Is It Necessary?

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Nationally, states vary in how they treat alimony, or what we call maintenance in Missouri. Some states allow alimony for long periods of time, some for less duration; some have guidelines as to amounts; all allow a party to return to court to modify non-contractual maintenance (contractual maintenance is, as it sounds, a written agreement between the parties to pay maintenance in certain sums for a certain period of time).

Alimony began as a necessary means of support in an era where women were expected to be homemakers who raised the children and did not have full-time jobs (and if they did work, the pay was unequal to men and not sufficient to support a family). This gendered concept of alimony has a paternalistic purpose – to assure that women do not become de facto wards of the state because former husbands failed to provide support. In an era that still frowned upon divorce, if a man left his marriage, he still owed the former wife a duty of support so she could live as she did during the marriage, until she chose to remarry or passed away.

Many believe that alimony makes little sense in today’s world because the gendered origins have disappeared. While women still choose to be homemakers or caregivers to their children, they also have careers. The idea of someone supporting a former spouse who could otherwise be self-sufficient seemed unfair, and states began rewriting statutes to meet the modern way of life.

Missouri is one of these states. First, maintenance is not based on gender – a spouse who earns less and needs assistance to meet reasonable needs would qualify for maintenance. Second, the amount of maintenance should generally be enough only to fill the gap between what the recipient could earn and that person’s reasonable expenses. A court has significant discretion to evaluate what constitutes reasonable, including the standard of living during the marriage. Third, maintenance is not intended as a permanent payment because the recipient has a duty to become self-sufficient. If a party intentionally chooses not to pursue adequate employment, a court could modify maintenance downward (or terminate entirely) by imputing income to the underemployed recipient.

Is Missouri sufficiently modern? One way to answer that question is to look to Florida. Unlike Missouri, Florida allows a court to order permanent lifetime maintenance that terminates only upon death or remarriage. It is intended for a spouse in a marriage of long duration (defined as at least 17 years), though it could be awarded to marriages of shorter duration on a higher standard of proof or showing of extenuating circumstances. But as written, if a person stays married for 17 years and lacks the financial ability to meet reasonable needs, the court can award permanent alimony. As one lawyer in Florida has noted, this statute can lead to inequitable results, requiring paying maintenance for 30 or more years in some marriages, and can strain the finances of the paying spouse. It creates negative incentives with regard to work and self-sufficiency. The Florida lawyer recommends reforming alimony to eliminate permanent maintenance, establish clear guidelines for duration and amount, with flexibility for extenuating circumstances, and to allow those paying alimony to retire from work at the federal retirement age, at which point the maintenance obligation terminates.

Does Missouri need these reforms? Some argue we should have stricter guidelines on duration and support of maintenance. But it is difficult to paint with such a broad brush. If a couple agree to have one spouse serve as homemaker and caregiver for the children, giving up work or a career, is it fair to then require that spouse immediately become self-sufficient or do so in a short period of time? Reform would need to account for these decisions during marriage. Also, courts in Missouri disfavor not working toward self-sufficiency, so modifications could and do handle abuses, as well as changes in the ability of the obligor spouse to pay.

Maintenance is more complicated that many realize and involve too many different family structures to handle with a one-size-fits-all formula. Giving judges flexibility to handle these different scenarios while still making sure no one abuses the system by imposing a duty to work when capable, as Missouri currently does, seems a suitable middle ground.

If you have questions about maintenance, contact us – we can help.

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