American Lawyer

None of the states had fault-based divorce laws in 1999. However, fault-based divorce was a major foundation that previously influenced courts to award spousal maintenance to the person who was not at fault for the divorce. The problem inherent with fault theory was determining which spouse was more at fault. Additionally, some of the spouses who were in need were also at fault. As a result of law reforms, financial settlements encouraged a “clean-break” at divorce, which influenced one-time awards aimed at rehabilitating a financially dependent spouse (Starnes, 1993).

The preference for divorcing partners to have a “clean break” and the belief that they were better off without financial ties to their ex-partners after the legal divorce, have significantly influenced legal practices regarding spousal maintenance (Williams, 1994). Proponents of the clean break theory argued that transferring money continued an unwanted connection between divorced spouses (Fraser, 1996), and they advocated awarding as little money as possible for as short a time as possible.

Critics of the clean break theory have suggested that marriage should be considered a commitment in which an economic partnership has been formed, and an obligation to dissolve that partnership in an equitable manner should continue financial responsibility after divorce (Rutheford, 1990). Financial independence at divorce has been valued in the United States, perhaps because of individualistic values, despite the number of years spent in an economic partnership. Shehan, et. al. (2008)

discussed some early marriage and family specialists’ opinions who suggested that self-sufficiency could eliminate economic ties that create hostility and bitterness between the parties and that negatively impair psychological well-being. Also tied to the clean break theory and the value of independence was the idea that whoever earned the income in the marriage should be entitled to own the income after the marriage ends (Ellman, 1999; Williams, 1994). This perspective represented the ownership principle in distributive justice theory (Leventhal, 1980).

Principles for Ordering Spousal Maintenance Determining whether spousal support is justified is a difficult matter. There are many competing theories, assumptions, rationales, and justifications in contemporary law regarding whether spousal support should or should not be ordered (Shehan et al. , 2008). In fact, a sole theory outlining the purposes of spousal maintenance does not exist. The differing statutes create awards that vary considerably in amount and duration.

It is difficult to determine whether support is or is not deserved, how much the support should be, and how long it should last. Competing ideas of spousal support may be one of the reasons that current law has not been able to establish consistent methods for determining and awarding spousal support. Justifications for spousal maintenance have the common foundation of entitlement, because of the status principle of distributive justice theories, but they differ regarding the reasons that spouses should be entitled to support.

There are four basic categories of entitlement, beyond having the legal status of spouse: Equity, needs, contributions, and compensation for losses. The equity standard Spousal maintenance is has been justified based on equity; assuming that marriage is a partnership and thus both partners are entitled to an equitable distribution of the family resources. Williams (1994) suggested that spousal maintenance should be based on entitlement (of legal status as a spouse) instead of need.

Using entitlement acknowledges the different gender role contributions to the marital partnership and women’s household labor contributions would be valued just as are market labor contributions. The equity standard represents the status principle of distributive justice (Leventhal, 1980). Equity and partnership models (American Lawyer Media, 2002) assume that spouses have jointly contributed to and formed an economic unit, in which the financial and non-financial services are equally valuable (Goldfarb, 1989).

Therefore, regardless if one partner earned more income, the contributions to the family were made based on a partnership, which should entitle both partners to an equal share of the property and post-divorce incomes. Spouses who made contributions to the other’s career would be compensated through the equal sharing of property and income (Singer, 1989). Further, equal sharing would serve to “rehabilitate” those who have forgone career advancements to invest in the human capital of their spouse.