Justice standards

Implicit within partnership models is the notion of compensation for investments made to the marriage. Investments are the sacrifices of time and labor made by family members for the common good of the family, which are made with the expectation of shared benefit or higher income in the future (Shehan et al. , 2008). At divorce, investments that have not been “paid off’ constitute a debt that must be compensated. Justice standards based on restitution would also fit into this category (Shehan, et al. , 2008). Williams (2000) suggested the joint property theory as a new rationale for sharing income post-divorce.

She suggested that because both partners contributed to the joint property during marriage (through market work and through domestic work) that both partners equally own family assets, and thus both partners should jointly own family wealth at divorce. Implicit within the partnership model is the idea that family care should be valued just as market labor is valued. Estin (1993) suggested that family care needs to be “rehabilitated,” by taking family care more seriously and identifying all the various forms of family care.

Equity and partnership models may cause problems by imposing a financial connection between divorcing parties which makes a “clean break” impossible. Those who value the individualistic perspective, that each person should be independent, and that each person should have the financial resources to support her or himself independently, may oppose the partnership model. If the partnership model was legally adopted, it may create problems with spousal support enforcement, continued litigation, increased demands on the courts, and difficulties with legal representation.

The need standard. Justification for the need standard stemmed from the belief that additional income should be given to the spouse who was in need (Rutheford, 1990). The conceptual basis for support has often been to help the lesser earning spouse maintain a similar level of living that she or he became accustomed to during the marriage. In additional to maintaining the pre-divorce level of living, spouses may be in need because they may be unable to support themselves or their children after divorce.

Reasons that spouses may be in need vary from discontinued workforce employment, to lack of training, or promoting the other’s training, or providing domestic care for children. Several different labels have been used for spousal maintenance awards based on need. “Sustenance” awards (Spillane, 1998) are founded on the concept of need, when one spouse is unable to completely support her/himself. A “reasonable reliance” award may be awarded in marriages of more than 25 years, because spouses have relied upon the marital level of living to continue, and are thus entitled to each others income (Spillane, 1998).

A “rehabilitative” award would be awarded if the lesser-earning spouse needed training to increase her or his earning capacity. The Minnesota Statutes and other current methods for determining spousal maintenance are based primarily on need justifications. There are several problems with the need standard. The American Law Institute (2002) explained that there are no consistent principles to determine how, when, or to what extent an ex-spouse is needy, or whether they deserve an award.

There are too many possible definitions of need. Is someone in need if they are living below the poverty level? Are they in need if their level of living has decreased from upper class to middle class? Where should the line be drawn? The level of living approach is unrealistic because it freezes the couple at a specific moment in time, perhaps before returns on human capital investments, and because both spouses cannot maintain their pre-divorce level of living without new sources of income.

It is usually impossible for both parties to maintain the same level of living after separation (Cipriani, 1991; Rutheford, 1990) due to establishing an additional residence and paying child support. The best the law can do is to order support payments to the extent that the obligor (the person who owes support) is able to provide. This may be very little or nothing at all, which does not help the person who is in need. Rutheford (1990) explained that when spouses devote efforts to their relationships they expect to share in future profits, and they do not expect to limit their future profits to ‘need’ should the marriage end.

Denigrating one spouse to “need,” while enabling the other to improve their level of living, is a problem with the need standard, because one spouse may have barely enough to meet their needs while the other has plenty (Rutheford, 1990). Further, there is no satisfactory explanation for placing the obligation of support for a “needy” person on their ex-spouse as opposed to on their parents, friends, or the government (American Law Institute, 2002).