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Thursday, May 27, 2010

We've Come a Long Way, Baby - or Have We? Spousal Maintenance in the 21st Century

It's all about choice. For hundreds of years, women have fought and shed blood, sweat and tears to lay claim to the rights and choices that men have always had. The ability to be a part of the workforce, to vote, to be employed in any field of their choosing- even to become President and fight on battlefields. Why, now that we have made such tremendous strides in many of those areas, do many women still feel that it is necessary to seek spousal maintenance?

Some may argue that the true freedom is in choosing any employment, and women's studies majors would argue with me that one such choice is to work in the home raising a family and keeping house, which has for time immemorial been an unpaid and thankless job that is woefully undervalued in our world at large. Raising children and keeping house are both truly noble pursuits (if the woman in question is actually rising to the occasion) and are worthy of great praise. But when does the choice to stay home, especially once children are in school, become the right to collect spousal maintenance (alimony) if the marriage ends?

New York State Domestic Relations Law section (hereinafter DRL) 236(B)(6)(a) states the following: "...the court may order...maintenance in such amount as justice requires, having regard for the standard of living of the parties established during the marriage...." [Emphasis supplied] But what, exactly, does justice require? I have heard it said that the trend is that the courts are shifting away from awarding maintenace in divorce actions due to the increasing ability of women to become self-supporting, but this has not exactly been my experience.

This is a huge topic to take on in this limited amount of space, but some of the issues are these: If a woman has been home of her own choosing and has never sought employment, has she really helped to "establish" the standard of living of the parties during the marriage? Many argue yes, the old "behind every great man is a great woman" theory. Maybe. And sometimes men insist that their wives remain home with the children, and even after the children have entered school, to maintain an orderly and beautiful home so the hard-working husband can truly have a home that is his sanctuary- his haven. In those cases, perhaps there is more rationale behind wives seeking maintenance. After all, they have forsaken the opportunity to pursue education and career for the care of home and hearth at their husband's insistence. My real question is, does the request for maintenance in a divorce action simply perpetuate the longstanding prejudice against women that depicts them as helpless frail creatures who need supporting? Or is payment of maintenance one way of valuing work that has conventionally been "women's work" monetarily as it never has been in days past?

If a court decides that a woman should be paid maintenance following divorce, how much should she be paid, and how long should her ex-husband be forced to pay her? Should it matter who divorces whom? And especially in cases where women do have expertise in a particular field, or advanced degrees for that matter, should they still be granted maintenance? Some of the factors considered by the court are: the income and property of the parties; the duration of the marriage and the age and health of both parties; the present and future earning capacity of both parties; the ability of the party seeking maintenance to become self-supporting; reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, career opportunites, etc.; the presence of children of the marriage in the homes of the parties; the tax consequences to each party; contributions of the party seeking maintenance as a spouse, parent, wage-earner, and homemaker to the career potential of the other party; the wasteful dissipation of marital property by either spouse; and any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration. (See New York DRL section 236B(6)(a)(1)-(10))

These factors leave a ton of wiggle room for judges, however, and the result, more often than not, is that even those spouses who are seemingly able to be self-supporting are awarded some form of maintenance if they have been married for any substantial length of time. In fact, in a recent case of mine, the wife was seeking maintenance for six years even though she held an advanced degree and there were no children of the marriage. In a conference in chambers with the judge's law clerk, she told me point blank that it is customary (at least in that court) for the amount of maintenance to be paid for approximately one quarter of the duration of the marriage. In that case the parties were married for twelve years, so maintenance, if ordered after trial, would probably be ordered to be paid for at least three years. This was a surprising mathematical formula that as far as I can see, cannot be found within the confines of the DRL. But such liberal discretion is afforded in this area that once custom is developed in a particular court, such custom is unlikely to be contradicted.

To be fair, occasionally, it is the husband who seeks spousal maintenance, but I have never had such a case, nor have I heard of one being handled by any of my peers. Those men are usually the ex-husbands of movie stars and female moguls...not work-a-day people. No, typically, women are the ones who want the state to intervene and tell their ex-spouse that there is a price on having had the privilege to be married to them, a price on bearing children and keeping house. Maybe that is as it should be. Though I can't help but wonder if in our struggle to progress we haven't actually regressed. The pendulum always swings too far and then comes sailing back in a reactionary rebellion to past practices. Are women simply selling themselves short, or is this really about placing monetary value on jobs that have traditionally been held by women and therefore have never really been recognized as work that is worthy of pay?

My mother's generation saw women who were able to come out from under their fathers' or husbands' thumbs and finally have the ability to make a successful career in a male dominated field of their choosing. But in the midst of the feminist haze did we lose what we were really after: The freedom to choose our futures? And are we losing more of that freedom by sacrificing to the gods of divorce law by suggesting that because we choose to be caregivers we must be subsidized by father government in the form of maintenance checks from ex-husbands? I am not offering an answer, but I believe it is most important to ask the questions.

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