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>> 65 Part II Alimony Mechanics Alimony is a concrete thing around which all the feelings concerning the divorce or separation are likely to gather. —Catherine Groves Peele, “Social and Psychological Effects of the Availability and the Granting of Alimony on the Spouses,” Law and Contemporary Problems 6 (1939): 283 As we have seen, despite the rhetoric of gender equality, the reality in many U.S. homes is that one spouse, usually a mother, serves as a primary family caregiver. This role often leads caregivers to disinvest in market labor, a move that over time reduces a caregiver’s earnings and ultimately her earning capacity. We have also seen that most divorcing couples have little property, which leaves alimony as the only judicial tool for addressing income disparities linked to marital roles. Early no-fault divorce laws gave courts broad discretion to award alimony, but no-fault’s clean-break philosophy simultaneously discouraged courts from doing so. This part explores some of the changes in the law of alimony since the beginning of no-fault divorce forty years ago. Of these changes, the most significant is the alimony guideline movement, which has recently been energized by alimony reform groups dedicated to halting “alimony abuse.” These groups have sprung up in several states to popularize alimony horror stories and push for state guidelines that limit the duration and amount of alimony awards. Their efforts have begun to pay off, and the guideline movement in the United States is in danger of being co-opted by a new generation of anti-alimony fervor. 66 > 67 4 The Contemporary State of Alimony Alimony remains broken—without a rationale, unpredictable, uncertain , and uncommon. In 2006, the Census Bureau counted 9,261,000 divorced women aged eighteen or older.1 That same year, only 382,000 persons (male or female) aged fifteen or older were receiving alimony income.2 The rarity of alimony is partly a testament to the continuing dominance of no-fault’s clean-break, fresh-start philosophy; to alimony ’s terrible reputation; to the broad judicial discretion over alimony decision making that invites judges to rely on personal codes of fairness driven by misconceptions about primary caregiving; and to a new movement to limit alimony that is curiously reminiscent of the antialimony attitudes of forty years ago. If much remains unchanged since the dawn of no-fault, much has changed, and so we take a closer look at the contemporary state of alimony law. 68 > 69 the partnership metaphor that so attracted the drafters of the 1970 Uniform Marriage and Divorce Act, which, as we saw in chapter 2, inspired many a state to authorize no-fault divorce. The usefulness of a 50–50 starting point, however, is limited by the unfortunate reality that most divorcing couples have little or no property to divide. Prior to the 2008 downturn, if a couple had a significant asset at all, it was probably the equity in the marital home. In 2002, for example, the median net worth of married couples in the United States was $101,975, but when home equity was excluded, net worth was only $25,950.9 With the most recent recession, the net worth of many couples has fallen. Overall, median household net worth declined 35 percent between 2005 and 2010, from $102,844 to $66,740.10 The housing bust has made home equity less likely; indeed, many couples are upside-down on their home mortgage. Since 2007, “about 39 percent of all Americans have been foreclosed upon, unemployed, underwater on a mortgage” or are more than two months behind on their mortgage payments.11 Retirement plans too have been hard-hit by the recession. No matter how well-crafted the property distribution tools, a skimpy or empty property pot gives a court little or nothing to work with. What all this means is that alimony remains important. As we saw in chapter 1, family roles often leave divorcing spouses with disparate earning capacity, and in these cases alimony is likely to be the only available tool for avoiding a lopsided, inequitable divorce outcome. 2. General Alimony Statutes: Discretionary Equity Most contemporary alimony statutes, much like the UMDA model of the early 1970s, vest trial courts with broad discretion to determine alimony eligibility and to fix the amount and duration of an alimony award. Many statutes distinguish between indefinite-term and fixedterm awards. Indefinite alimony that specifies no duration is sometimes termed “permanent” or “lifetime” alimony. These latter two labels...

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