Various alimony guidelines have been developed around the country.  The American Academy of Matrimonial Lawyers (AAML) has developed a guideline that uses incomes and length of marriage to calculate the starting point for determining alimony.  The Kaufman guidelines, developed by a Michigan divorce attorney and initially published locally by the Montgomery County Commission for Women, use income, length of marriage, education, income potential and child custody to generate a  recommended amount and duration of alimony.  Last year, the Maryland Court of Appeals approved a trial judge’s reference to the AAML alimony guidelines for informational purposes in Boemio v Boemio, 414 Md. 118, 994 A.2d 911 (2010) .

In Virginia, the Fairfax County Circuit Court has by rule adopted guidelines for pendente lite alimony determinations.  It is commonly understood that those guidelines have some influence on final alimony settlements and determinations.

There may someday be statutory alimony guidelines in each state the way there are now statutory child support guidelines but it is not likely to be anytime soon.  The driving force behind the universal adoption of statutory child support guidelines was the federal interest in making child support more predictable and more collectible across state lines.   It does not appear there is any similar overriding federal concern with alimony.  So divorcing spouses and divorce lawyers will continue to settle alimony cases based on all the circumstances with non-statutory guidelines playing an increasingly important role in negotiations.  Those cases that do not settle will be tried before judges who may or may not consider the various guidelines in deciding the cases.

In the Holston case, the Maryland Court of Special Appeals explained the general rule that alimony is for the purpose of helping a dependent spouse become self supporting so it should be for a limited time and not permanent in most cases.  But there are some circumstances when that may be impractical or unfair.  The exceptions are in Article 16, § 1(c)(1) of the Maryland Code, which provides:

The court may award alimony for an indefinite period when it finds as a fact that:

(i) the party seeking alimony, by reason of age, illness, infirmity, or disability, cannot reasonably be expected to make substantial progress toward becoming self-supporting; or

(ii) Even after the receiving party will have made as much progress toward self-support as can reasonably be expected, the respective standards of living of the two parties will be unconscionably disparate.

The Court of Appeals found from the evidence that the trial court’s award of alimony for three years would have left Mrs. Holston with a standard of living greatly below that enjoyed during the marriage and unconscionably disparate from the standard of living available to Dr. Holston.  Therefore the judges remanded the case to the lower court with instructions to grant Mrs. Holston permanent alimony.

Holston v. Holston, 58 Md. App. 308; 473 A.2d 459 (1984),  Cert. Denied (1984).

When Eileen Holston appealed her alimony award of $150 a week for three years, the Maryland Court of Special Appeals said that alimony in Maryland used to be for the joint lives of the parties so that the dependent spouse could maintain the same standard of living as when married.  That changed with the enactment of Md.Ann. Code Art. 16, § 1 in 1980, so that the principal function of alimony is now rehabilitation.  The Court said:

“Thus, when awarding alimony, the chancellor is required to consider not only those factors relating to the financial situation, age and health of each party, their standards of living, the duration of marriage and the contribution of each party to its well being but also the ability of the party seeking alimony to be wholly or partially self-supporting and the time deemed necessary for the party seeking alimony to gain sufficient education or training to enable that party to find suitable employment. It is apparent, therefore, that the concept of  alimony as a lifetime pension enabling the financially dependent spouse to maintain an accustomed standard of living has largely been superseded by the concept that the economically dependent spouse should be required to become self-supporting, even though that might result in a reduced standard of living.”

There are some exceptions, however, and I’ll discuss those next week.

When Eileen and Alvan Holston were married in 1967, she was a secretary making $5,000 a year and he was in dental school.  They had five children together.  When they got divorced in 1982, Eileen had not worked for years and Alvin was a dentist and a professor making over $86,000 a year.

The chancellor awarded Eileen alimony for three years at a rate of $ 150 per week in order “to allow her the opportunity to either go back and complete her education, since she did not finish college . . . or to train herself or retrain herself for appropriate work,  because ultimately there is no question she has to provide for herself .”

Eileen appealed, claiming she should have been awarded indefinite alimony.  Let me know how you think this case turned out in the comments section.  Next week, I’ll tell you what happened.

Recently I wrote regarding using life insurance to assure payment of child support.  Another scenario is life insurance to protect the alimony payment – the spouse being the beneficiary of the policy.  This is a straight forward consideration flowing from payer/insured spouse to payee/beneficiary spouse.  The insured wants less coverage and less premium, the payee/beneficiary spouse wants more coverage.

            Premiums on a policy of life insurance on the alimony payer benefit the alimony payee.  Payments to a third party on behalf of or for the benefit of a spouse or former spouse can qualify as alimony.  Paying insurance premiums can qualify if the payer spouse is not obligated to pay under the insurance contract – because in that situation he or she is not simply paying his or her own expense.  Generally, the owner of the policy is the person who is obligated to pay the premiums.  So in order for premiums on the life of the insured/alimony payer’s life paid by the insured/alimony payer to be deductible as alimony, the alimony payee must be the owner of the life insurance policy.  The parties’ Agreement should require the insured/alimony payer to pay the premiums on the payee’s behalf and the parties’ Agreement should state that such payments are alimony.

            Another situation where life insurance can be appropriate is to replace a survivor annuity if it is unavailable or available only on undesirable terms.  A traditional defined benefit pension pays a lifetime annuity to the retiree.  Federal law generally requires married persons to elect what is known as a joint and survivor annuity payment option, unless the employee’s spouse agrees otherwise in writing. In divorce, the parties can agree to a joint and survivor annuity or the court can order it.  Under this option, if the non-employee spouse survives the employee spouse, the pension payer continues the annuity payments at a reduced rate to the non-employee spouse for his or her life. 

            The initial payment (during the joint lives) under a single life annuity payment option is higher than the initial payment under the joint and survivor annuity option.  Depending on the amount of that payment reduction, it may make financial sense to elect the single life annuity and buy life insurance on the employee’s life to protect the income stream for the non-employee in the event that he or she is the survivor. The advice of an experienced life insurance professional can be very useful in doing this analysis.

Years ago Maryland and Virginia added no-fault divorce grounds to the traditional fault grounds.   DC has moved completely to no fault grounds.  However, even if you file on no-fault grounds, marital misconduct still comes into play in all three jurisdictions.

Alimony. In each jurisdiction, the law provides a list of factors the court must court must consider in determining alimony.  In Maryland and DC, one of the factors is circumstances surrounding the estrangement of the parties.  In Virginia, adultery can prevent a spouse from receiving alimony unless the court finds that would create a manifest injustice.

Property. In determining how marital property is to be equitably distributed, each jurisdiction has another list of factors the court must consider.  In Maryland, there is a catch all provision that includes any other factors that the court considers appropriate.  In Virginia, one factor is circumstances contributing to the dissolution of marriage.  In DC, it is circumstances contributing to the estrangement.

Custody. Marital misconduct does not necessarily make you a bad parent.  The test is best interest of the children.  But the parties think it is important that the judge know what a scoundrel the other parent is, especially if the other parent is slinging mud, too.

As a result, the parties spend 90% of their time in discovery and trial trying to prove fault.  While most of the judges I’ve talked to say it affects their decision by 10% or less.

Alimony in Maryland is decided by considering twelve factors set forth in Family Law Section 11-106.  There is nothing in the statute that quantifies the dollar amount or duration of alimony.

Alimony guidelines have been in existence for some time.  The American  Academy of Matrimonial Lawyers publishes alimony guidelines and the Women’s Law Center has a program called the Kaufman Alimony Guidelines Calculator.  Even though the twelfth alimony factor is “anything else the court wants to consider”, it was not clear whether that included alimony guidelines or not.

The Maryland Court of Appeals ruled recently that the guidelines may be used by the judge as an aid so long as they do not replace the twelve factors or frustrate them.  So now divorce lawyers in Maryland will be presenting guidelines in settlement discussions, mediation and court.  Boemio v. Boemio, CA No. 57, September Term, 2009, May 11, 2010.

by Michael F. Callahan

Last week we discussed how to pick a court in which to file your uncontested divorce case.  This is the first of several articles in which we’ll talk about circumstances in which a case would be decided differently depending on which local jurisdiction’s court hears the case.

There is no bar to alimony in the District of Columbia or Maryland for adultery.  Fault is only one of many factors that a court may consider in deciding whether to award alimony and, if so, how much and for how long.

However, in Virginia the court cannot award spousal support (alimony) at the conclusion of the divorce case from a spouse who has proven adultery of the other spouse as a ground for divorce, unless the court determines based on clear and convincing evidence that it would be a manifest injustice to deny support.

So there is more at stake when Virginia spouses, who suspect their spouses of cheating hire private detectives and snoop, electronically and otherwise.  This is because solid evidence of adultery strengthens the potential support paying spouse’s hand in negotiations and at trial.

It is necessary to find such evidence because you cannot rely on forcing your spouse to admit adultery by asking him or her under oath.  Adultery is a crime in Virginia, seldom prosecuted but still on the books.  Accordingly, your spouse can “take the fifth” when questioned about adultery.

Once adultery has been established, to overcome the adultery evidence and be awarded spousal support, the prospective support payee must establish by clear and convincing evidence that it would be a manifest injustice to deny support.   The statute provides that the court is to look at the spouses’ respective degrees of fault and relative economic circumstances.  So to prevail the adulterous support-seeking spouse needs to show (1) he or she  really needs support and the other spouse really can afford to pay, and (2) looking at the entire marriage and the conduct of both spouses, the other spouse’s conduct is really more culpable than the adultery of the spouse seeking support.  In short, it is very difficult burden.

If your spouse moves out of the Virginia marital house and into D.C. or Maryland, he or she may be forum shopping to avoid the Virginia adultery bar to alimony.  In that case you would be wise to file a divorce case in Virginia promptly.

(To the tune of “Santa Baby” by Joan Javits)

Lawyer baby, just slip a complaint across your desk, for me
So I can get my divorce quickly
Lawyer baby, so hurry file the complaint today

Lawyer baby, a ’54 convertible too, light blue,
And half the other property
Lawyer baby, so hurry file the complaint today

Think of all the fun I’ve missed,
Think of all the fellows that I haven’t kissed
Next year I could be just as good
With everything on my divorce list

Lawyer baby, I want a yacht and really that’s not a lot
Been an angel all year
Lawyer baby, so hurry file the complaint today

Lawyer honey, one little thing I really need, the deed
To a platinum mine,
Lawyer baby, so hurry file the complaint today

Lawyer cutie, and fill my stocking with a duplex and cheques,
Sign your x on the line
Lawyer cutie, and hurry file the complaint today

Come and let me pay your fee,
With the cash you will collect for me
I really do believe in you,
Let’s see you get me alimony

Lawyer baby, forgot to mention one little thing, a ring,
I don’t mean on the phone,
Lawyer baby, so hurry file the complaint today

Hurry file the complaint today
Hurry, today.

  • Americans paid $9.4 billion in alimony to former spouses in 2007.  (IRS)
  • That’s up from $5.6 billion a decade earlier.  (IRS)
  • 97% of alimony-payers were men last year.   (U.S. Census)
  • The percentage of women supporting ex-husbands is increasing.  (U.S. Census)
  • Women made up 46.7% of the work force last year.  (DOL)
  • That’s up from 41.2% in 1978.  (DOL)
  • Women, 45 to 54 years old, earn 75% as much as men the same age.

– from “The New Art of Alimony” by Jennifer Levitz for the Wall Street Journal