A primary problem with the current methods for determining spousal maintenance is the lack of theoretical consensus regarding the purposes of spousal maintenance. In order to establish a clean break, spousal maintenance is rarely ordered (Cipriani, 1991; Kelly & Fox, 1993; Rettig, Yellowthunder, & Christensen, 1989), and marital partnerships are dissolved without distributing important financial assets of the economic partnership (Williams, 1994).
According to Starnes (1993), “Adherence to this clean-break principle of partnership law, however, without regard to related partnership principles essential to its fair application, has made divorce a financial disaster for homemakers. ” (p. 108) Lack of spousal maintenance orders continues to place spouses who contributed household labor and services at a distinct financial disadvantage when the economic partnership of marriage is dissolved (Ellman, 1999; Goldfarb, 1989; Williams, 1994).
In the event of a divorce, persons who have contributed to household production of goods and services may suffer economically because of the opportunity cost of time lost in market production activities (Blau, Ferber, & Winkler, 1998; Folbre, 2004), the loss of job skills (deterioration in human capital) (Blau, Ferber, & Winkler, 1998), and the loss of professional networks (loss of social capital) that are needed for finding employment.
To avoid penalizing partners who produce goods and services in the household, the theoretical bases and rules for ordering spousal maintenance that more fairly represent the economic contributions of both spouses to the economic partnership should be established (Goldfarb, 1989; Singer, 1989). It very difficult to determine the proper method for establishing the correct amount and duration of spousal maintenance (American Law Institute, 2002; Collins, 2001) because of the lack of theoretical justification, complicated by insufficient information, and the lack of a numerical formula.
How should spousal maintenance be determined? When should it be ordered? How much should be ordered? How long should it be ordered? Currently the determinations of spousal maintenance amounts are usually discretionary and subjective, based on a statutory list of criteria without formulas to determine whether, and how much money should be transferred between parties (Collins, 2001). Discretionary and subjective decisions often create inconsistencies across cases and the decision procedures do not achieve income equivalence for both parties.
According to Collins (2001), awards are determined on approximations of past expenditures, projections of future expenses, and conjectures of future incomes, which are all impossible to determine with any degree of certainty. Collins (2001) explained that the lack of direction for applying statutory criteria results in inconsistent rulings by judges, even within the same jurisdiction. If a judge makes a ‘mistake’, it is very difficult for appeals courts to reverse idiosyncratic awards because it is necessary to declare an abuse of discretion (Collins, 2001).
States that do not award spousal maintenance to a spouse that is financially self-sufficient may not offer any mechanism for equitable adjustments, even if one spouse’s income is substantially less than the other’s (Collins, 2001). In cases where spousal maintenance is awarded, problems with remarriage, and changes in income or circumstances in later years, create problems for equitable distributions. Currently, there are no comparable rules to those established for child support, such as set formulas that provide standard guidelines for the determination of spousal maintenance, or compliance policies, or enforcement policies.
Contrary to discretionary criteria, child support orders are based on mandated, numeric formulas for guidelines. Some scholars (Collins, 2001; Rutheford, 1990; Singer, 1989; Williams, 1994) have suggested that establishing a numeric formula, similar to those used to determine child support, would produce more reliable and consistent spousal maintenance decisions. A set formula limits guessing about how to determine an award or how much an award should be, eliminating the unpredictability, uncertainty, misinterpretation, and inconsistency (Collins, 2001).