The Problems with Alternative Strategies

Rehabilitative awards would be awarded when a lesser earning spouse needed training and would be determined in the amount of the actual training, not to exceed 30% of the payer’s disposable income, and not to exceed four years. A compensatory award would be determined if a spouse suffered a loss in earning capacity by remaining unemployed or underemployed in order to accommodate marital responsibilities.

The amount of the award would be the actual loss of earning capacity (if proven), or the amount shall be her/his actual earning capacity multiplied by 1.7%, multiplied by the number of years unemployed or underemployed during the marriage. The duration would last until the obligee (person who receives the support) retired. A compensatory award could also be awarded if one spouse contributed to the education of the other. The amount of the award would equal 50% of the monetary contribution plus 10% simple interest. A reasonable reliance award would be awarded in marriages of 25 plus years, equal to 35% of the parties combined income. Bargained for awards, where the parties come to their own agreement, can be awarded by the court if found to be fair.

If a spouse is entitled to more than one award, then the highest of those awards would be used to determine the amount of the award. The above maintenance award categories suggested by Spillane (1998) provided separate rationales for the different types of awards, as well as non-discretionary formulae, but they did not eliminate discretionary judicial decisions. For example, it would be very difficult to determine one’s actual loss of earning capacity or the exact number of years unemployed or underemployed.

Without eliminating discretionary criteria, the same risks of the current system exist, and the threat to equity remains. The drawback to the alternative strategies is that they do not allow for case-by-case variations, for individual circumstance, and do not allow for privacy, because they may require an ongoing exchange of income information after divorce (Collins, 2001). However, some authors believed that non-discretionary methods could avoid injustice to a greater extent than discretionary methods (Collins, 2001).

Establishing consistent theories and methods for determining spousal maintenance orders may produce more equitable distributions for both spouses when dissolving economic partnerships. The Need to Evaluate Alternative Strategies Empirical research has not examined how alternative strategies for income distributions might influence the financial outcomes of divorce with actual rather than hypothetical cases. Alternative strategies must be considered, compared, and evaluated in order to make reasoned choices for change.

It has been suggested that public discourse regarding spousal support will increase in coming years because of women’s poor, post-divorce economic conditions (Kelly & Fox, 1993). Recent literature has advocated a theoretical shift for awarding spousal maintenance from principles of need, to justifications of loss and compensation (or equity). Based on loss and compensation principles, alternative strategies for dissolving the economic partnership of marriage have been suggested.

In addition, alternative strategies have been not that long ago presented by the American Law Institute (ALI), that have the potential to reform the legal system (Shehan et al. , 2008). However, these alternative strategies for dissolving economic marital partnerships have not been empirically compared or evaluated and it is difficult to determine which alternatives would be most effective and most fair. Furthermore, there are many values regarding the meanings of fairness for decision procedures (Tyler, 1987) and the meanings of justice for resource distributions (Deutsch, 1985; Reis, 1984).