The Need to Evaluate Current Legal Decisions

There is a need to evaluate current divorce decisions because of problems with current methods for determining spousal maintenance, which result in post-divorce financial difficulties for families. Court orders that allocated the incomes of spouses may not have been equitable, and current legal decisions may not have met the financial needs of custodial and non-custodial households, even when the incomes were sufficient to do so.

Research that explores income distributions at divorce is critical because of the documented financial hardships that women have experienced after divorce (Ellman, 1999; Fraser, 1996, Holden & Smock, 2001; Kelly, 2001; Mahoney, 1996). Research can provide factual information about men and women’s conditions after divorce. Dividing assets and allocating incomes for support typically makes it impossible for both parties to maintain the same level of living that was experienced during the marriage.

Both parties may perceive legal decisions as unfair (American Law Institute, 2002) because of differing meanings of fairness and justice and the economic challenges they face after divorce. Financial consequences of current legal decisions need to be evaluated Alternative Strategies State Formulas A few states have established formulas for determining spousal support awards in order to reduce discretion and improve problems found in current methods.

State formulas, however, have not been widely adopted (Shehan et. al. , 2008). These formulas are based on the justifications of compensation and loss. A formula is intended to minimize judicial discretion and establish consistency across cases. One advantage of using a formula is that formulas provide greater predictability and uniformity (Spillane, 1998) across cases.

Pennsylvania provided 30% of the difference in net incomes if the obligor had dependent children, after adjusting the income for child support payments (Collins, 2001; Thompson, 2001). Kansas had a formula of 20% of the difference in the gross incomes of the parties prior to subtracting child support (Thompson, 2001). The Maricopa County Family Court, which has jurisdiction over Phoenix, Arizona, and the surrounding region, has utilized another formula called the Maricopa Guidelines (Ellman, 1999).

The Maricopa Guidelines recommended multiplying the difference between the parties’ post-dissolution incomes, at the date of divorce, by a marital “duration factor” lasting between . 3 to . 5 times the marital duration. A survey of Ohio decision-makers found that 37% of the decision-makers used a “rule of thumb” to determine a spousal maintenance awards, such as 25% of the income differential, paid for a period equal to 25% of the length of the marriage (Spillane, 1998). Alternative Strategy Suggested by Scholars

In addition to state formulas, scholars have suggested some alternative strategies for allocating incomes to improve the equity of court decisions due to the documented problems with spousal maintenance and its infrequent use (Collins, 2001; Ellis, 1993-1994; Ellman, 1999; Rutheford, 1990; Singer, 1989; Williams, 1994). These solutions suggested various formulas to determine income transfers between parties. The strategies suggested by scholars are based on either compensatory/loss or equity/partnership justifications for entitlement.

Income would be transferred between parties in order to produce equitable levels of living. Like the state-used formulas, these alternative strategies would also decrease the subjectivity created by current discretionary guidelines. Income Sharing Formulas. Rutheford’s (1990) income sharing formula proposed that family members equally share available incomes by dividing the total money income of both spouses by the number of people to be supported (per capital income).

This income sharing pattern would continue for an unspecified number of years. Rutheford’s income sharing formula was based on the principle of equality and the assumption that each person in the family deserved an equal share of the income. No matter who earned incomes, the incomes should all be equally divided, although she did not comment about incomes earned by children. Income sharing was also based on the concept that marriage established a future economic partnership.