Current Practices For Determining Spousal Maintenance

It was expected that the husband should continue his financial obligation in circumstances where a husband and wife divorced. Weitzman (1985) provided five historical bases for alimony: (a) continue to maintain husbands’ responsibility to provide for the family and prevent women and children from becoming a burden to society, (b) reward honorable marital behavior and punish wrong-doing, (c) maintain wives’ standard of living post-divorce, (d) provide compensation for womens’ domestic duties, and (e) continue the view of marriage as a partnership.

“The historical bases for alimony reflected gender inequality in property ownership and potential for income” (Shehan, et. al. , 2008, p. 309). The historical standards/assumptions for spousal maintenance have varied throughout the years. Originally fault or marital misconduct was an accepted factor in determining the economic issues of divorce (Spain, 2001). However, according to Spain, after the no-fault divorce laws were accepted, influenced by the Uniform Marriage and Divorce Act, marital misconduct was no longer considered relevant.

Justifications for awarding support have shifted in conjunction with the different laws that were in effect. The no-fault laws reduced blame assessment, which may have decreased wives’ benefits, they may have received under fault-based laws (Jacob, 1988). The focus of spousal maintenance shifted from fault to economic need (American Lawyer Media, 2002). Historically, spousal maintenance was relatively rare. Weitzman (1992) reported that between 1887 and 1992 only 16% of the divorces in the United States had awards of permanent maintenance.

Further, according to, et. al. (2008) few wives actually applied for spousal maintenance, possibly because they did not want anything to do with their ex-husbands. Current assumptions of spousal maintenance are discussed in the following paragraphs. There are two categories of spousal maintenance: Temporary spousal maintenance may be initiated with the temporary order prior to the actual divorce. Spousal maintenance may also be ordered with the final divorce decree (Cipriani, 1991).

State statutes generally have time limits for duration of payments, such as until remarriage or cohabitation, and most final divorce decrees specify a time limit for the maintenance order. Permanent spousal maintenance orders are rare, and courts usually opt for “rehabilitative support” that provides an award for a “sufficient” duration for the spouse to become self-supporting (American Lawyer Media, 2002; Cipriani, 1991). Divorce law in the United States is determined at the state level. Currently, each state follows it’s own guidelines that offer a set of criteria forjudges to consider when making spousal maintenance decisions.

The criteria are discretionary, which means it is completely up to the judge to determine what, if any part of the statutes, she or he deems appropriate. Non-discretionary criteria, on the other hand, would provide some formula or guideline that would make the determination of spousal maintenance more consistent. Criteria used to assess when spousal maintenance should be awarded, as well as the duration and level of support, can significantly differ from state to state. However, financial need and the ability to pay are primary considerations (Elrod & Spector, 2007).