Alimony - For Better or Worse
The “good old days” while certainly older, were not necessarily better when it comes to the subject of alimony. Of course, whether years past were better than today often depends on your perspective - whether you are the spouse seeking the alimony or paying the alimony.
When I first began practicing law in 1979, the purpose of alimony was to maintain the economically dependent spouse’s standard of living. But the passage of the Maryland Alimony Act in 1980 changed all that. The Alimony Act changed the focus of the purpose of alimony from maintaining a certain standard of living to “rehabilitating” the economically dependent spouse. Since 1980, the Courts and the legislature have re-examined awards of alimony and fine-tuned the factors which the Courts must consider in granting alimony. Alimony is no longer viewed as a lifetime pension for the dependent spouse, but rather as a tool to assist the economically dependent spouse in his or her transition to life after divorce. The Courts today clearly favor temporary rather than permanent alimony.
Currently, there are only two situations in which a Court may award indefinite alimony. The first is fairly straightforward. If the Court finds that a spouse, because of age, illness, infirmity or disability cannot reasonably be expected to make substantial progress towards becoming self-supporting, then indefinite alimony may be appropriate. It is fairly easy to accept the idea of indefinite alimony where one spouse has only a high school education, has been married for thirty years, has not worked outside of the home during the marriage and either has no special skills or is disabled and therefore, unable to work full-time or at all.
It is the second exception which requires a more detailed analysis. If the Court determines that even after the spouse seeking alimony will have made as much progress toward becoming self-supporting as can reasonably be expected, the respective standards of living of the parties will still be unconscionably disparate, then an award of indefinite alimony is appropriate. It is not enough to demonstrate a difference in income, even if the difference is substantial. To establish that there is an “unconscionable disparity” you also have to prove that the standards of living of the parties are fundamentally dissimilar, as well.
These are the factors that the Court must examine and determine before it awards indefinite, permanent alimony:
(1) the ability of the party seeking alimony to be wholly or partly self-supporting;
(2) the time necessary for the party seeking alimony to gain sufficient education or training to enable that party to find suitable employment;
(3) the standard of living that the parties established during their marriage;
(4) the duration of the marriage;
(5) the contributions, monetary and non-monetary, of each party to the well-being of the family;
(6) the circumstances that contributed to the estrangement of the parties;
(7) the age of each party;
(8) the physical and mental condition of each party;
(9) the ability of the party from whom alimony is sought to meet that party's needs while meeting the needs of the party seeking alimony;
(10) any agreement between the parties;
(11) the financial needs and the financial resources of each party, including:
(i) all income and assets, including property that does not produce income;
(ii) any award made under section 8-205 [monetary award] and section 8-208 [use and possession] of the Family Law Article;
(iii)the nature and amount of the financial obligations of each party; and
(iv) the right of each party to receive retirement benefits; and
(12) whether the award would cause a spouse who is a resident of a related institution as defined in [section] 19-301 of the Health General Article and from whom alimony is sought to become eligible for medical assistance earlier than would otherwise occur.
You may be asking yourself, what does all of this mean? Well, the truth of the matter is that every case will turn on its facts and each case is different. The easy cases are just that - easy. Where a wife has been married for 21 years, never worked outside the home after the children were born, assisted the husband so that he could be successful in his career and cannot be expected to earn more than $45,000 per year while the husband earns $260,000, indefinite alimony will likely be awarded. In contrast, where a wife is 45 and earns $45,000 per year and the husband earns $350,000 each year, but there were no children and the parties have been married only 2 years, it is unlikely that indefinite alimony will be awarded.
For all of the factual scenarios that fall in between the above two examples, the issue of whether a dependent spouse seeking alimony will be granted indefinite alimony or rehabilitative alimony is unknown. The burden of proving the need for indefinite alimony is on the spouse who is seeking the alimony and with the Maryland Courts favoring temporary, rehabilitative alimony, financially dependent spouses may not be able to rely on receiving financial support from their spouse in the future if they get divorced.