Spillane’s Proposal

The principles were intended to create an equitable sharing of post-divorce losses, based on demonstrable losses, as opposed to trying to determine relative needs (Shehan, et al. , 2008). A major goal of the principles was to establish consistency and predictability. ALI principles were grounded on the basis of entitlement. Because the principles only provided a framework, and left the details to the states, the principles are still discretionary, without any set formulas to guide the establishment of awards.

A critic of the ALI principles suggested that the principles should be based on an equal partnership model instead of on a victimization model (Starnes, 2001). Starnes explained that a woman’s right to income sharing depended on proving her loss, as opposed to validating her status as an equal stakeholder in the marriage. Focusing on loss casts women as victims. Instead, income sharing should be based on spouses as equal partners with mutual emotional, spiritual, and financial commitments.

Starnes also criticized the ALI principles for the “breeder/non-breeder” dichotomy, the remarriage penalty, and ALI’s quantification methodology. The breeder/non-breeder dichotomy explained how ALI provided reimbursement for women who have born children as opposed to women who have not had children. Starnes suggested that if ALI considered justification based on an equal partnership, then reimbursement would not depend on whether or not there were children. Starnes also questioned why income sharing terminated at remarriage, since obligations for the partner’s loss may not end at remarriage.

Starnes (2001) mathematical criticisms were: (a) The ALI principles do not compensate marriages of less than five years, which is problematic because commitment, partnership, and reliance begin at marriage and not five years afterwards, and (b) the formula suggesting ‘a duration factor’ leaves discretion to the states because it does not specify what the durational factor should be, and when calculated using the drafter’s suggestion, provides disturbing results that do not adequately compensate martial partners, (p. 147)

ALI principles have also been criticized because of the injustices that would occur because the “principles assume that the lower income-earning spouse only deserves compensation if that person’s income is substantially below that of the other spouse” (Parkman, 2001, p. 157). If a spouse deserves to be compensated for loss, then their respective income levels should not be a consideration. Under the ALI principles, a primary caretaker, whose income is not substantially below the other spouse, would not receive compensation for the loss of future income incurred because of the person’s care taking sacrifice (Parkman, 2001).

Spillane (1998) suggested that a main problem of set mathematical formulas is that they fail to take into account any theoretical or rational basis for the award and they do not allow for differences in marital circumstances. Spillane (1998) suggested five rational bases for awards, as well as formulas to accompany each, however, she did not specify whether gross or net income should be used to determine the award. The courts would take each case and determine if an award was justified, based on five theoretical justifications.

In effect, Spillane’s proposal combined current discretionary approaches with mathematical formulas. The categories that would qualify for spousal maintenance awards were discussed above (with the exception of bargained-for awards): sustenance awards, rehabilitative awards, compensatory awards, reasonable reliance awards, and bargained-for awards. A sustenance award, would be awarded when the lesser earning party was unable to sustain him/herself, and would be calculated by one-fourth of the income differential of the parties for a duration of one-fourth the length of the marriage.