Few words in the English language are as loathed as the word “alimony.” Perhaps bankruptcy and incarceration fall into comparable categories of words to be avoided during high tea and first dates. Alimony, however, is a term unavoidable in divorce mediation. Regardless of how gingerly approached by the mediator, it almost invariably triggers some version of explosion — much like a tripped wire on a minefield.

The facts dictate whether or not alimony will be a fundamental issue in a particular divorce. Nonetheless, some of the general concepts are useful precepts for everyone trying to make sense of their own situation. Together, like those steady-handed, competent sorts called on to dismantle bombs, let’s try here to disassemble the tight and dangerous wires comprising alimony, rendering it no less complex, but possibly less enigmatic and explosive.

A good starting place is with these three questions.

• What if the alimony payor starts earning more money after the marriage? Does alimony increase?
• What if I (the payor) lose my job and can’t afford to pay alimony?
• 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?

If the payor gets a substantial raise after the divorce, is the payee entitled to more alimony? 

The short answer is no. Alimony is based upon the standard of living enjoyed during the marriage. Alimony is determined, among umpteen other things, through analyzing the marital lifestyle. That is, how the parties lived during the term of their marriage — lavishly or modestly, one home or several, ‘va’- or ‘stay’-cations, and so forth. The post-divorce lifestyle is supposed to reflect the marital lifestyle, to the extent that this is feasible, for BOTH parties. The income of the higher-earning spouse, i.e. the alimony payor, is primarily evaluated on historic, not projected compensation. The most recent, or average of the past several years of income, is normally the basis. For example, if the payor spouse averaged $150,000 in income, that amount would be used in computing an alimony award. 

This sounds reasonable so far. 

But what if we add the following to our fact pattern: A year after the marriage, the Husband’s career suddenly rockets him into exponential earnings. The increase is not the result of actions he took post-divorce, but simply a culmination of his prior efforts that matured post-divorce. During the course of the marriage, the Husband’s income never peaked above $150,000, however, the seeds of his later, post-divorce successes were indisputably sowed during the marital years. Is it fair that he be the only benefactor of this primarily marital investment?

Is this fair, or even logical? Explanations and Policy Concerns:

Law is always haplessly aiming to balance competing interests and conflicting values. In this instance there are two main concepts at odds:

• The future earnings of the payor spouse cannot be severed from the efforts, sacrifices, and choices made by both parties during the marriage. The 20 pre-divorce years could be seen as the foundation upon which all future career success and financial rewards are merely the fruits. If the marriage was a partnership, should not all of its dividends be shared in some equitable manner?
• In order for the divorce to be, well, divorce, there must be a cutting off point. The instability of leveling a marriage must be restructured through finality and certainty. The law aims to provide/impose these. The obligee should have a known quantity and term to work from, and the recipient should have something to rely upon, some solid ground to build a secure financial future. Otherwise, the payor is disincentivized to fully realize his potential, and inhibited from contributing to the greater good knowing whatever he achieves, it will always be taxed by an unsatisfiable obligation (referring here to the ex-spouse, not the IRS). If no divorce ever represents a true severing, if a paying spouse is forever obligated regardless of what his or her future life brings, he is indentured to the past in a way that is unAmerican (actual, indentured servitude was American a couple of hundred years ago, but I digress).

The problem is that a divorced person is never fully divorced. He is always going to be financially weighed down by a prior relationship, even many years after moving on and beginning another life with new obligations.

And for the alimony recipient, she doesn’t have a reliable amount to work within creating a sound and separate financial future. She is still obliged to ride all the financial waves, remaining bound to the very person from whom she needs to disengage. 

As a matter of public policy, (and capitalism), while a divorced person is required to meet obligations from the past, she is also encouraged to be free and separate, to produce and enjoy the benefits of her success and to live fully.

Society loves people to be married, and if they can’t stay married, then to remarry. We are organized through our social compacts — these stand between us and open rebellion, Lord of the Flies, and becoming disenfranchised Unabomber types.

If we can’t benefit from our labors, capitalism loses hold; if we are unable to get ahead regardless of our efforts, hopelessness, and futility set in; we have little to lose. If we cannot dislodge from the past, we have no way to invest in the future and may divest from our social obligations, causing the social threads that hold us all civilly in place to weaken and eventually lose all form. Soon all of society is an ill-fitting sweater, saggy and unflattering. Before long we are naked heathens.

So, we don’t want somebody weighted or enslaved in such a way that every future success or stroke of good fortune remains tied to insurmountable obligation.

A divorce settlement in NJ should be equitable considering what the future could hold but primarily based upon the history of the marital years.

In mediation, we aim together to go beyond the formulaic and design an alimony structure that is fair under all the circumstances. We are able to include terms that make room for predictions, the unforeseeable, sharing of later benefits as well as risk. When people work together instead of at odds, much is possible.  Even when confronting the noxious topic of alimony.

Note 1: In NY, where a higher degree is earned during a marriage, the degree is subject to equitable distribution. The primary factor in valuing the degree is the increased earnings it will afford its recipient.

Note 2: The use of his/her is for the purpose of clarity only, it is in no way intended to promote or promulgate gender biases or “traditional” marital and/or gender roles. The pronouns were alternated when possible with the aim of demonstrating this, without introducing confusion. 

Making Sense of Alimony: Question 2

The current series of blogs is exploring three frequently asked questions regarding alimony. This article discusses the second 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?

In every divorce mediation, the payor of alimony is afraid of becoming unable to meet their obligation. This is invariably based on a fear of job loss. 

It’s true: If you lose your job, the obligation to pay alimony doesn’t go away automatically. 

Even if the job loss is through no fault of your own, such as an industry-wide layoff, your obligation remains. You are expected to find a comparable, replacement job as soon as possible. Easier said than done, of course. However, best efforts must be made to secure employment at the same level. In traditional litigation, you would have the option to petition the court for alimony modification or relief. The court would require tangible proof of diligent, exhaustive efforts to secure comparable income — resumes submitted, interviews attended, online job searches completed, etc.

Why does the onus remain with the alimony payer? For a couple of reasons. First, the recipient of alimony is relying, often trepidatiously, on an ex-spouse to provide the regular, necessary support. As goodwill, good faith and good feelings may be lacking, the recipient often must place faith in the strength of the legal system to ensure regularity of payments — which form the basis of meeting his/her own financial obligations. 

Second, as the alimony payor has far more direct control over his or her employment, it is logical that he/she carries the responsibility for it as well. A resentful payor could deliberately sabotage her own livelihood in an effort to unburden herself of a duty she perceives as oppressive and unfair. In order to balance two risk factors inherent in alimony payors — control and high emotionality — the legal system demonstrates more rigidity than flexibility when holding the payor to his/her commitment. 

The good news, as usual, comes in the option of mediation. In mediation, spouses can consider significant changes of circumstances when formulating their settlement agreements, before a crisis ensues. In the event of a job loss, rather than having to petition the court for relief, parties can return to mediation to create an interim support and financial restructuring until gainful employment is restored.

Loss of a job is not going to relieve the payor of an alimony obligation, but in mediation, even post-divorce, we can approach economic vicissitudes in a civilized manner intended to address the needs of both parties. 

Making Sense of Alimony: Question 3

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.