In resurgence of alimony, new view of women

After two decades of decline, alimony has begun to make a resurgence in American divorce law, due in part to a renewed focus on the job sacrifices women often make throughout a marriage and the value of their traditional role as family caretakers.

Originally conceived as a support system for homemaking spouses unable to make a living for themselves, alimony had fallen out of favor since the advent of feminism in the early 1970s.

Indeed, since then women have made great strides toward self-sufficiency. Yet for women 25 and older, the earning gap has remained nearly 76 cents on the dollar earned by men, supporting the notion that many women make sacrifices in their marriage years that significantly reduce their earning power.

As a result, some courts and state legislatures are rethinking alimony law. The notion of short-term awards, aimed at nudging divorced homemakers into the workplace and toward economic independence, is being tempered by the idea that ex-wives sometimes need long-term support from former spouses.

"We're moving into a new discussion about [alimony]," says Mary Frances Lyle, co-chair of the American Bar Association's alimony committee. "At the peak of the women's movement ... there was a strong attitude of 'You want equality and independence, you got it baby,' " she says. "But now we're beginning to see that it's a much more complex issue than that."

The shift has been gradual, slowly and inconsistently filtering into family-law courts. Even so, it signifies a growing desire to compensate spouses who make career sacrifices to support a marriage that fails, regardless of their ability to support themselves at a certain minimum level.

Renewed focus

Several factors are working to bring renewed focus on alimony in divorce law, family lawyers say. One is the wage gap. Another is the nationwide effort to trim welfare rolls. It has prompted a realization that spouses who don't provide for exes often leave the state holding the tab.

Trial judges have been known to show sensitivity to this issue, says Steven Fuchs, a Boston lawyer and general manager of the DivorceNet Web site. "If a woman is going to be destitute, judges will often consider that in her award even if they don't think she really deserves it," he says. "They'd rather [put the burden on] the ex than put the woman on the public [dole]."

But alimony is a fractured area of law, in part because state officials have been reluctant to take up the issue. Therefore, alimony rules are often the result of judicial interpretation. That can result in considerable variation from region to region and even courtroom to courtroom.

Several state Supreme Court decisions earlier this decade, however, have laid the groundwork for the new interpretation of alimony's purpose. In recent months, courts and state officials have added to the momentum with a handful of decisions.

*Last month, California Gov. Gray Davis (D) signed a bill allowing former spouses to receive alimony payments longer. The legislation overturned a law that said alimony payments should continue for only half the length of a long-term marriage (one that lasted more than 10 years).

*In September, New Jersey Gov. Christine Todd Whitman (R) signed a law formally codifying "limited-duration alimony," a type of alimony for shorter-term marriages that had been used in case law for some time. And last year, in a closely watched case, the state Superior Court determined that a woman who had been married for a relatively short 10 years should receive permanent alimony.

*In May, an Illinois appellate court gave $4,500 a month to a woman who had been married 19 years, tripling the $1,500 a month laid out by the trial judge.

*Earlier this month, Texas voters approved a constitutional amendment that would give the state more authority to garnish paychecks of exes who don't pay up.

The Texas vote deals only with the enforcement, not the scope, of the state's alimony law, which is the stingiest in the country. But it's a sign that even Texas is coming around, say some activists.

"Finally, law is recognizing that the work women do in the home and raising children is extremely valuable work for society," says Hannah Riddering, president of the Austin (Texas) chapter of the National Organization for Women. "This, at least, is a small step in the right direction."

Unfair targets?

Perhaps not surprisingly, men's organizations are less enthused about the new direction the law is taking. Almost exclusively, alimony recipients are women.

Although the bar association has no exact figures, Ms. Lyle notes that in 20 years of divorce-law practice, she has not handled a single case in which the man received an award. Nationally, she estimates that the figure is "easily under 1 percent of all cases."

So Hugh Nations, executive director of the Austin-based Men & Fathers Resource Center, calls the new Texas law "another arrow in the quiver of women's advocacy groups directed at fathers."

"I don't think I have ever encountered a case where the mother stays home to support a child that she did not say she did so at the insistence of the husband," says Mr. Nations. "It's always the husband's fault that she's behind the curve in the job market. It never seems to be have been their personal preference once the marriage ends."

To others, though, the evolving concept of alimony is resulting from a more nuanced understanding by states and judges of the financial sacrifices women make through marriage.

Indeed, they are now considering the question of how much a woman "gives up" by being the primary parent, says University of Texas family law professor Jack Sampson, who wrote Texas' alimony statute.

"You have one party relying in the deal in a manner that's clearly to their detriment when the deal ends," says Mr. Sampson. "And whether it's a written agreement between the couple, or they talk about it - or even not - that deal amounts to a contract. So you have to have some sort of fair compensation based on that standard."

(c) Copyright 1999. The Christian Science Publishing Society