Eliminate Permanent Alimony In Favor of Flexible System, Lawyer Recommends

Published on Apr 3, 2009 - 6:36:33 AM

By: Sherwood Ross

Society needs to reconsider laws that allow former spouses that cohabitate rather than remarry to go on collecting alimony, a Massachusetts attorney that has made a study of the alimony laws writes.

"Co-habitation, rather than marriage, as a means to retain alimony, is a common scheme that permits former spouses to take two bites of the proverbial apple," writes Barbara von Hauzen in the winter issue of "The Reformer" magazine, published by the Massachusetts School of Law at Andover. The author is a management consultant in private practice specializing in government contracting and program management.

When circumstances change---including when children become emancipated or job training yields results--alimony needs to be reconsidered, von Hauzen writes. "Permanent alimony should move from being a presumptive award to being the exception, recognizing that a shift of this magnitude is akin to a cultural tsunami."

"The continuance of a permanent, unrevised alimony award perpetuates unfairness on the obligor. This stifles the obligor's ability to financially reposition him or herself or may shutout other relational or vocational opportunities," von Hauzen writes.

"In essence," she continues, "the award becomes a permanent penalty to the payor and a windfall to the payee. Although we recognize that alimony is a civil matter, it is fair to say that the permanency of today's alimony award results in incarceration with no chance of parole."

In an article titled, "Should Permanent Alimony Be Eliminated?" the attorney argues, "The focus of the courts should shift from alimony awards that are designed to maintain a spouse's standard of living during the marriage to assisting a spouse in achieving post-divorce financial and psychological independence."

"When parties are self-sufficient with independent means or earning capacity," von Hauzen continues, "alimony should not be a consideration. Its goal is not to equalize wealth or earning power, but to equitably distribute assets and hold the parties accountable for their post-dissolution self-sufficiency."

At present, awards that provide spousal alimony for indefinite periods of time "are common and presume and foster the inability of each party to take fiscal responsibility for his or her future needs in perpetuity," von Hausen says.

The law, she says, needs to recognize the circumstances under which alimony is awarded are different for short-term marriages, marriages between double-income earners, and those marriages in which the parties have independent sources of income.

"Positing that alimony is a short-term need until such time that the oblige can become self-sufficient moves the argument for alimony from permanent to short-term and rehabilitative," von Hausen writes. "Life-time or indeterminate alimony awards no longer reflect the nature of many modern marriages and socio-economic trends. Continued judicial adherence to the presumption that such an award is warranted leaves many litigants tied to each other well beyond a reasonable period of time and causes extreme frustration with the legal system."

However, spouses that have given up promising educational or career opportunities to raise children make good candidates for short-term alimony, the lawyer writes. "Job skills are outmoded, business contacts are lost, and competition with younger workers may appear daunting. Rehabilitative alimony provides the opportunity for the affected spouse to gain education and training to rejoin the marketplace with the goal of attaining economic and psychological self-sufficiency," she says.

Author von Hausen, a Maryland resident, is a graduate of the Massachusetts School of Law. MSL was founded in 1988 to provide a quality, affordable legal education to students from minority, immigrant, and financially challenged households that would otherwise not be able to afford a legal education. The law school is an acknowledged leader in the reform of legal education and Lawrence Velvel, its cofounder and dean, has been honored for his contributions by the National Law Journal and cited for his leadership by the National Jurist magazine.

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