WEEK 9

Understanding the law of alimony or maintenance means understanding the history of feminism, Hardisty said. He began his review with the year 1776, the date named in the Washington reception statute, and built upon out last historical point of reference, 1492. In 1776, Hardsity said, families were mostly nuclear and patriarchal. Grounds for divorce et mensa thoro, the eccleiastical court's form of separation, were adultery and cruelty. Defenses were recrimination, conduation, collusion and conivance (See the notes for Tuesday, November 9 for a review of these terms). In 1776, a woman's legal identity was largely subsumed within that of her husband, who became the owner of her personal property upon the marriage and who maintained control over her real property (though he could not sell it without her permission).

The consequences of a divorce et mensa thoro granted in the ecclesiastical (Anglican, by 1776; Roman Catholic in 1492) courts were different for the man and the woman. The parties were considered still married, but it meant that neither party had a duty to live with the other. There was no property division (all the property was his, essentially) and the woman could not receive maintenance if the husband was the successful plaintiff. In other words, if the wife were guilty of cruelty or adultery and could not invoke one of the four defenses, she was left without the personal property she brought to the marriage (unless the parties agreed otherwise). She could only receive alimony if she were the successful plaintiff in a suit, but even then the husband could pay her alimony in the form of the property that was previously hers before the marriage.

Women would bring suit under this system in order to be entitled to live apart from her husband while he still had a right to support her and to remove any right of self help the husband might exercise (kidnapping under the color of law, essentially). Husbands would bring suit to be relieved of any duty of support to his wife and live apart from her.

The situation remained this dire for women (absent agreement, it should be stressed) until the 19th century, when state legislatures began passing the Married Womens' Divorce Act.

Nevertheless, this common-law notion that a husband had a duty to support his wife was carried over into American jurisprudence in the form of permanent alimony or maintenance. In Washington, RCW 26.09.090 permits maintenance to be awarded in four circumstances: (1) dissolution of marriage; (2) legal separation; (3) legal separation and (4) "in a proceeding for maintenance following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse."

In Washington, marital fault is not a factor in the determination of whether maintenance should be awarded; in 6 states (according to Westfall), marital misconduct serves as a bar to alimony or maintenance.

Caveat: This figure of 6 states is questionable. Westfall incorrectly lists Idaho as one of the states in which fault bars maintenance (page 878, 3d full paragraph, 1st sentence). Idaho's § 32-705 was amended in 1990 to "eliminate fault as a prerequisite, relegating it to one of many factors to be considered." Tisdale v. Tisdale, 127 Idaho 331, 333 (1995). Sources conflict as to the other states which bar maintenance to the "guilty" spouse, but suffice to say, the trend has been in the direction of eliminating fault as a consideration in determining whether maintenance should be paid.

WILLIAMS: A spouse is considered dependant for the purposes of North Carolina law if that spouse's income apart from alimony is not enough to support the spouse in to the standard of living the spouse became accustomed to during the marriage. Dependant spouse should be determined by earning capacity and income, not by the size of the estate a spouse must deplete in order to maintain the same standard of living.

KAY: Faced with a husband's presentation of evidence which tends to obscure rather than clarify his true economic status, a cout is entitled to make and award based upon the wife's proof of her needs.

Where a husband has acquiesced in and benefitted from his wife's role as a wife and mother for 23 years, he may not upon divorce, for his own economic reasons, force her into a different role (that of a salaried worker) without demonstrating both that it has ecnomic vitality and that the children will not suffer any detriment from it.

OTIS: Trial court did not abuse its discretion in limiting maintenance for a spouse where it was shown that she had the capacity to hold down a job.

CLASSIFICATION OF ALIMONY:
1. Alimony awarded during litigation
   1. Temporary alimony
      1. Awarded on an interim basis for the duration of the litigation.
      2. Also called alimony pendente lite.
      3. One of the two traditional types of alimony.
      4. Addressed in R.C.W. 26.09.060.
      5. Usually addressed in different stautes than permanent alimony.
      6. Can be modified in Washington per R.C.W. 26.09.170
      7. In Washington, factors the court should consider are listed in R.C.W. 26.09.090.
2. Alimony awarded post-litigation
   1. Permanent alimony
      1. Awarded upon dissolution of marriage.
      2. Ends upon the death or remarriage of the payee (unless by prior agreement).
      3. Can continue beyond the life of the payor.
      4. Authorized in Washington by R.C.W. 26.090.050.
      5. Second type of traditional alimony.
      6. Can be modified in Washington per R.C.W. 26.09.170
   2. In Washington, factors the court should consider are listed in R.C.W. 26.09.090.
   3. Alimony for a term of years
      1. An invention of the latter half of the 20th century (not a traditional form of alimony).
      2. Preferred by the Uniform Marriage and Divorce Act, which encouraged those dependent spouses who could work to work.
      3. In Washington, factors the court should consider are listed in R.C.W. 26.09.090.
      4. Can be modified in Washington per R.C.W. 26.09.170

MODIFICATION OF MAINTENANCE IN WASHINGTON:

1. Governed by R.C.W. 26.09.170.
2. Requires a "substantial change of circumstances".
3. Does not include property judgments (not modifiable, for the most part).
4. It is implied under this section that maintenance can go beyond the life of the obligor.
5. Voluntary unemployment or underemployment is not considered a significant circumstance.
6. The word "expressly" as used in subsection (2) ("Unless otherwise agreed in writing or expressly provided in the decree the obligation to pay future maintenance is terminated upon the death of either party or the remarriage of the party receiving maintenance.") is critically important and means what it says, according to the Washignton Supreme Court.

The Uniform Marriage and Divorce Act was aimed at ending the idea of permanent alimony. It was designed to place an emphasis on the self-sufficiency of the dependant spouse by requiring that she work. Part of this was based on the idea that women were not helpless wards of their husbands.

The UMDA was written by men at a time in which men ran the legal system. With the infusion of more women in the legal profession as lawyers, judges and students, there has been a shift back to the idea of permanent alimony as a way of equalizing the standard of living of the two spouses post-divorce. Historically, we have seen, the standard of living of the husband increases after divorce while the standard of living of the wife decreases, partly because she has often sacrificed her job to shoulder more domestic duties during the marriage, partly because women are generally paid less for the same work as men and partly because women are typically awarded custody of any children resulting from the marriage.

HOW TO DISTINGUISH OTIS FROM KAY AND WILLIAMS:

• Mrs. Otis seemed more employable, having once held a "promising career as an executive secretary" 20 years ago prior to her marriage to Mr. Otis.
• Minnesota had adopted the Uniform Marriage and Divorce Act, which placed an emphasis on the independence of the post-divorce woman. This was in vogue in the 1970s, but had fallen out of progressive favor by the 1980s. Minnesota might have fancied itself progressive in the adoption of the act, but was really just reactionary in adopting it when it did. (Modern progressive trend is back toward permanent alimony).
• There was no fraud on the court in Otis, while there was in Williams (husband purchased a condo in another name and didn't report it as property to the court) and in Kay (husband obfuscated the liabilities to his income, then plead the Fifth Amendment right against self incrimination when asked to come clean).
• In Williams and Kay, there were minor children in the marriage.
• In Williams, there was an aspect of repayment to the wife for her role in her hsuband's wealth-building. She was wealthy when they married and contributed to the marriage from her own estate while he was out building his wealth.
• Minnesota had equitable distribution at the time Otis was decided (meaning she was able to get property out of the dissolution); there was no equitable distribution of property in North Carolina at the time of Williams nor in New York at the time of Kay; those states followed the common-law rule of separate property. Both later shifted from this property principle to a family principle.

BRANTNER: Court abused its discretion in limiting alimony to a term of years where the wife suffers from an incurable condition in both eyes that might result in blindness, where the woman is middle-aged and essentially unemployable in part because she stayed home to raise the couple's children during the marriage.

WILSON: Not an abuse of discretion to not modify an alimony judgment by eliminating the provision terminating alimony after 58 months where the marriage was only 70 months long, where there were no children borne of the marriage and where the ages of the couple at the time of the marriage indicated they had established their lives before they married.

Notes on this case:

1. The woman at first stipulated to a fixed term, then received a modification of the final decree, then sought to modify the decree again by eliminating the termination provision.
2. This is a modification of a decree, not an intial decree (why is it in this section?).

M.I. v. A.I.: Husband cannot invoke religious preferences to avoid his obligation to support his wife and children. Permitting the husband to not support his wife and children because he is not earning any money due to total devotion to his religious beliefs would constitute a violation of the Establishment Clause, the Court said, because the state would be subsidizing his practice of religion by supporting his wife and children.

ISABELLITA S: Husband has a duty to support pregnant estranged wife, including assisting her with medical expenses and covering for her decreased earning capacity, regardless of the parternity of the child or the voluntariness of her condition.

DOES THE HUSBAND IN THIS CASE HAVE A CAUSE OF ACTION AGAINST THE FATHER OF HIS WIFE'S THREE CHILDREN? Quite possibly, according to recent case law. See In re Marriage of Smith, 1999 WL 976630 (Colorado Court of Appeals, 1999), in which the husband of a wife who had three children by another man during their marriage was awarded retroactive payment of child support against the father.

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