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Making Sense of Alimony — Question 3

Rachel Alexander Oct. 13, 2019

{5 minutes to read}  The current series of blogs is exploring three frequently asked questions regarding alimony. This article discusses the third of those questions:

1. What if the alimony payor starts earning more money after the marriage? Does alimony increase?

2. What if I (the payor) lose my job and can’t afford to pay alimony?

3. What if she (the payee) is the one who wants the divorce AND the one who had the affair — am I still required to pay alimony? 

Alimony is needs-based and unrelated to fault

•She left, why do I have to pay alimony? 

•She wants the divorce, why do I now have to pay? 

•The divorce is his fault, why should I pay him? 

In our country, at least at the time this article is being written, marriage is still voluntary. Everybody has the right to enter and leave a marriage by their choice. You’re not supposed to be imprisoned in marriage because of economics. You don’t have to stay because you can’t afford to leave. Lack of financial self-sufficiency should not trap a person in an unhappy marriage.

The right to support arises out of marriage conceptualized as an economic partnership. There is a presumption that each party contributed to the success of the venture, whether it was middle-of-the-night feedings, homework, carpooling, working long hours, commuting, traveling, schmoozing, and whatever else was needed to bring in money and run a home. Regardless of the particular role each played, both partners are entitled to a fair share of what they created together.

Even when divorce is not a mutual decision but instead driven by the wish or particular action of one spouse, that spouse does not forfeit his or her rights. Those rights were earned during the tenure of the marriage. One spouse could be moved to leave a marriage for an incalculable number of possible reasons — many of them perhaps based on abuses, unkindnesses or misdeeds suffered at the hand of the spouse who is willing to remain married! It would be injustice itself to assume the “leaver” is somehow in the wrong and therefore renounces all rights by leaving.

The “Wrongdoer” 

In marriage, one is hard-pressed to find only one “wrongdoer.” Regardless of whose indiscretion, temper tantrum, drink in face, was “the” thing that is called the last straw or the “why” of the divorce, there are typically thousands of straws between the first and the last. I’ve yet to run into a situation comprised of one at-fault spouse and one who is entirely blameless. I’m thinking that a marriage of two blameless people might only be possible between a devout nun and Jesus Christ, but that has both some built-in advantages and special circumstances that would require exploration beyond our sphere.

For those of us moderately devout mortals, we have marriage and tend to bang one another up pretty well along the way. In spite of our best efforts, our love tends to hurt more than save.

Without deconstructing a marriage, who is to say where the blame lies? Perhaps one person had an extramarital affair, but not before the other had his entire family from overseas overtake the household and marginalize the wife in her own home and marriage? Unless the “fault” can be clearly linked to a financial consequence (see our articles on dissipation: Equitable Distribution in NJ & NY, The Dissipation of Marital Assets, Dissipation Revisited), compensation is not handed out in the form of economic sanctions, tax or tariff; the “better” spouse doesn’t get a larger share of the marital estate or more alimony. Retribution is not found in the alimony awarded or denied. The punishment was often baked into the marriage and/or into its end — we tend to manage that between ourselves. The courts aim to keep the economics and financial responsibilities born from the marriage, separate from the emotional penalty one party may wish to hammer upon the other.

Regardless of who finally calls for the end of the marriage, that person does not shoulder all fault nor exclusively bear the key to why the marriage failed. Alimony remains a matter of necessity and financial fairness. I think we are still a good distance from constructing laws that govern the places we most seek repair.