Introduction
There seems to be little controversy over the supposition that one of the greatest sources of litigation in domestic cases is the issue of alimony. In many cases, the parties may easily resolve all of the remaining issues of property and debt division, child support, future retirement income, etc. However, you can be quite assured the case will go to trial if the issue of alimony remains.
Why is that? The legislature and the Supreme Court in Nevada have set clear guidelines as to the other issues so that, for the most part, the results are predictable. We know that absent "compelling" reasons the community property and debt will be divided equally. Child support is determined by formula, leaving the court with discretion to determine appropriate deviations. Retirement income is determined by formula using a Q.D.R.O. (Qualified Domestic Relations Order). Only the issue of alimony remains completely unpredictable and inconsistent from court to court.
In order to gain an understanding as to perceptions of alimony awards from court to court or even from attorney to attorney, a hypothetical, based on a divorce scenario, was distributed to judges and attorneys throughout the state. The responses, derived from the same fact pattern, varied from one extreme to the other.
Our Supreme Court has wrestled with this problem over the years and has attempted to offer certain guidelines to assist the trier of fact. Nevertheless, even with these guidelines, the results remain varied from court to court and county to county.
One of the most controversial issues facing the Nevada Bar over the past ten years is whether or not to add a formula to the "guidelines" in considering alimony. After all, formulae considerably reduced litigation in child support issues, as well as retirement income issues. Why wouldn't it have a similar effect on alimony issues?
This article will discuss the issue of alimony from a brief historical perspective. The results of a survey using a divorce hypothetical will be reviewed. Finally, the issue of the feasibility of implementing a formula will be discussed. If consistency, uniformity, and predictability are goals of our courts which cause less litigation and more resolution, we must look at ideas "outside the box" as possible alternatives. We have made great progress over the course of the last ten years by looking at ideas that benefit the public by providing better and more efficient court services. The ideas of drug courts, mediation of pending Supreme Court cases, mediation services for child custody issues, and community services which provide alternatives to litigation are examples of thinking outside of the box. We need to continue to debate, develop, and refine new ideas to provide the kind of court services the public deserves. Using a formula as a guideline for determining alimony should not be summarily rejected without investigating its possible benefits as well as its risks.
History of Alimony
The origins of alimony, as we know it in the United States, can be traced back to the ecclesiastical courts in England.1 Because the husband was the property owner, and the wife depended upon him to provide for her sustenance, the English ecclesiastical courts consistently ruled that the husband had the duty to provide for the wife after divorce.2
Even though the courts in America continued that tradition, there were some critical distinctions between American society and society in England. England, at that time, only granted divorces "a mensa et thoro," while the American courts granted absolute divorces.3 A divorce "a mensa et thoro" (from bed and board) allowed a husband and wife to live apart, due perhaps to abuse or danger inflicted by the husband, but the two parties were still tied together in the bond of marriage.4 At common law, a single woman was considered a whole person with rights as such, but once married, a woman could not enter contracts or be sued.5 The rights of a woman to personal property and profits from realty were vested in her husband by law after the marriage.6 The husband was seen as the ruler of the family and responsible for management of the marital property. Therefore, to protect the wife, a common law duty of support from the husband arose.7
Consequently, an English divorce meant that the woman was still married, but separated from her husband; the rights of a single woman were not restored to her; and she was forever dependent upon her husband for support.
Obviously, in America, the divorce is absolute, but we have carried with it the ecclesiastical court's policy of assisting with the support of the wife after the marriage is dissolved through what we call "alimony".8
The first reported case of alimony in Nevada involved a wife, in a divorce action, who petitioned the court for alimony pendente lite. Although the court denied her motion because of untimely notice, there apparently was recognition by the Nevada Supreme Court that the wife had the right to request an "alimony" award for the purpose of prosecuting the action. This award at that time was considered money for attorney's fees.9 One year later, in 1867, the court expanded the concept of alimony pendente lite to assist the wife with travel expenses of witnesses.10
As the years went by the Nevada Supreme Court opinions reflected what the court, at that time, believed to be the purpose of alimony. As one reads the court opinions, it is apparent that the purpose changed from time to time and those changes reflected society.
Because of the divergence of opinion from court to court as to the appropriateness of alimony awards, the Supreme Court from time to time has attempted to assist the trier of fact by specifying guidelines.
Initially the decisions emphasized the "bad acts" of the husband11 and the "necessitous circumstances" of the wife.12 In the 1974 case of Buchanan v. Buchanan,13 the Supreme Court for the first time in more than a hundred years delineated specific factors for the trial court to consider in determining an award of alimony. The court emphasized that the trial court had broad discretion in determining whether alimony should be paid, as well as the amount thereof.14 The Supreme Court listed six factors that the trial court should consider when determining alimony. They are as follows:
- The financial condition of the parties;
- The nature and value of their respective property;
- The contribution of each to any property held by them as tenants by the entirety;
- The duration of the marriage;
- The husband's income, his earning capacity, his age, health, and ability to labor;
- The wife's age, health, station, and ability to earn a living.15
The court said in Buchanan that the trial court continues to have broad discretion in determining alimony; however, the court should at the very least evaluate the six factors.16
In 1994 the Supreme Court in Sprenger v. Sprenger17 referred to its decision in Fondi v. Fondi18 in articulating seven relevant factors in determining the appropriate alimony award:
- The wife's career prior to marriage;
- The length of the marriage;
- The husband's education during marriage;
- The wife's marketability;
- The wife's ability to support herself;
- Whether the wife stayed home with the children in lieu of work; and
- The wife's award, besides child support and alimony.
The Supreme Court concluded that the District Court had abused its discretion in awarding alimony and remanded the case, with instructions to "increase and extend Barbara's alimony award such that Barbara is able to live as nearly as fairly possible to the station in life she enjoyed before the divorce, for the rest of her life, or she remarries or her financial circumstances substantially improve."19
More recently, in Rodriquez,20 the Supreme Court clarified the issued of "fault" or "bad acts" by holding that the trial court was no longer permitted to consider misconduct of either of the parties when considering alimony. This decision was based on the legislative revision of the statute. The court stated, "Along with other changes, the legislature simply deleted the phrase, 'having regard to the respective merits of the parties' from NRS 125.159 (1)."21 The court said, "Nevada has well settled case law that provides guidelines for the trial court to consider when making a just and equitable alimony award. Consequently referred to as the 'Buchanan factors.'” 22
As the reader can see, the Supreme Court has gone to great pains over the years to delineate specific "guidelines" to the trial court for the purpose of arriving at more consistent alimony awards. Notwithstanding these "guidelines" and directions by the Supreme Court, wide divergence in alimony awards still exists. Is it time now to take the next step and expand the "guidelines" by developing a formula which would promote consistency and predictability?
Survey
A survey was distributed to judges and attorneys throughout the state of Nevada. That survey presented a hypothetical outlining a fact pattern from which alimony was to be determined. The responses were surprisingly quite varied.
SPOUSAL SUPPORT HYPOTHETICAL
Suppose the following hypothetical and determine what spousal support should be awarded:
John and Mary had been married for 27 years when John filed for divorce. He is 52 years old and she is 50. John had devoted his time and attention to his practice throughout the marriage with little time for his family. Recently, John discovered that Mary was having an extramarital affair with a local gynecologist.
John is a licensed psychologist and has a gross earning of $163,760 after business deductions and a net earning of $125,000 after taxes. Mary hasn't worked outside of the home for many years, but worked as a secretary for a law firm in order for John to complete his master's degree and a Ph.D as well as licensing requirements. Since the parties separated six months ago, Mary has started working as a teacher's aide making $7 an hour for a 25-hour week.
The couple has two children, a 20-year-old daughter who attends college, and a 16-year-old son who is in high school. Both children live with Mary.
Mary wishes to go back to school and get a degree in physical therapy, a four-year program. Once she completes the program she will have the potential, after building her business, of earnings up to $75,000. She has heard that, because of her age, she might not be accepted into the program. If she is accepted, the cost of tuition and books is estimated to be about $40,000.
The net assets of the marriage, other than John's practice, are valued at $300,000.
Mary is requesting spousal support, both rehabilitative and long-term. John opposes paying Mary anything, arguing that her affair is with a wealthy doctor and he will provide for her better than John can. John feels that she caused the divorce by her dirty deeds, and he should not have to reward her for cheating on him.
Please determine what spousal support, if any, you would award to Mary, and for what duration. I would appreciate a brief explanation of how you arrived at that determination. Thank you for your participation.
The majority of responses indicated the wife should be awarded "rehabilitative alimony" based upon her enrollment in the education program identified in the fact scenario. Additionally, the judges and attorneys identified the need to award the wife "permanent alimony" based upon the length of marriage, the ages of the parties, the respective earning capacity, and the financial condition of each party after the divorce.
Interestingly enough, the judges tended to award higher permanent alimony than the attorneys, but lower rehabilitative support. Twenty percent of the judges surveyed incorporated the use of a formula as a "guideline" in their determination of alimony while only 8.3 percent of the attorneys incorporated a formula.
For those judges who awarded "permanent alimony," the amount ranged from $1,500 per month to $5,000 per month with a length of time from 10 years to 30 years (or indefinite length).
The survey showed that there was significant inconsistency from court to court throughout the state of Nevada in determining alimony.
Is Alimony Reform Needed?
"Litigant satisfaction in divorce matters is far lower than in any other type of case. Most judges who are murdered by dissatisfied customers are killed by irate domestic litigants, not by criminals. The reason is simple: in other litigation fewer emotional issues are involved; more importantly, the judge has less discretion."23
This fact has a great impact on our judicial system and our society in that nearly half of all civil litigations in state courts in the United States are family law cases.24 Because of the emotional nature of family law cases, there tends to be a great deal of litigant dissatisfaction. "A vital source of litigant dissatisfaction stems from judicial arbitrariness in ordering maintenance or alimony awards."25 This fact raises concerns among the nation's judges who understand the need for uniformity and predictability regarding such volatile issues.
The impact on our judicial system is not limited to those cases that are litigated, but also impacts those cases that settle.26 Certainly, the overwhelming majority of domestic cases are settled. Those parties who settle their cases usually suffer the most harm from the unpredictability and inconsistency in alimony or maintenance laws.27 "The lack of adequate guidance by maintenance statutes damages settling parties even more so than those parties who go to trial to allow a judge to apply his or her unfettered discretion in awarding maintenance. The settling parties and their counsel have no predictable guidelines to apply to their specific circumstances. Thus, they are unsure about what amount of maintenance the trial court may award, if any. Maintenance unpredictability leads to uninformed and often inequitable settlements that are inconsistent with the general purposes of maintenance statutes..."28
The unsettled issue of maintenance inconsistency and unpredictability impacts family law by increasing the cost of obtaining a divorce, the emotional strain on the parties, and the burden on the court system. The likelihood of settlement is minimal because of the uncertainty of predicting maintenance awards from case to case. Moreover, litigating a divorce case with maintenance as a contested issue is expensive and becomes especially burdensome for low-income families.29 Consequently, whether couples litigate their issues through trial or whether they settle to avoid trial, it appears clear that the area of alimony needs reformation to make it more predictable and consistent.
To Formulize Or Not To Formulize, That Is The Question.
What do we do then, to increase the uniformity and predictability of alimony awards? According to George Norton, "The solution to our present alimony confusion is to agree on a sensible support theory by political consensus and develop mathematical formulas and rules as guidelines for spousal support. A cohesive theory of spousal support could be implemented by a schedule understandable by judges, lawyers, and people in the divorce process and would increase predictability and uniformity of results."30
Some members of the Nevada bar consider the implementation of a formula for alimony as the root of all evil. They suggest that this takes all discretion away from our judges. They argue that some judges will blindly follow the formula and fail to look at other factors, which may dictate deviations. Interestingly enough, these same arguments were heard when the child support formula was proposed to the Nevada Legislature in 1987. One could not argue convincingly today that the child support formula hasn't increased predictability and decreased litigation.
If we were to adopt a formula as a guideline in Nevada to assist in determining alimony awards, we would not be reinventing the wheel. Farsighted judges and practitioners in Santa Clara, California, implemented such a guideline in 1977. Now, over 25 years later, much of the state of California has adopted the use of this formula as a guideline. Now that says something. If such a formula was irrelevant or of little use, or subverted the discretion of the court, or concluded in an unfair or unrealistic award of alimony, one would think that some time prior to the passage of 25 years these problems would have been discovered and the grand experiment would have been trashed. To the contrary, the use of the formula as a guideline has expanded outside of Santa Clara County and eventually outside the state of California.
In reporting on the "California Formula," George Norton concludes that, "Guidelines promote uniformity of result and hence predictability. Experienced attorneys in California, where guidelines have been used for years, have found clients accept the concept of guidelines much more readily than broad ranges of results when guidelines are not used."31
There have been a number of proposed guidelines throughout the country. This article will not discuss the merits of each proposal. Indeed, in Nevada, along with the "California Formula," some judges have used the "Tonopah Formula." What is more important than the content of the rules is the concept of having support guidelines to provide predictability and uniformity of result, which should in turn reduce the transaction costs of divorce.32
The “California Formula”
For the sake of clarification to the uninitiated reader, the following is a brief explanation of the "California Formula." First it must be understood that the word "Formula" is a misnomer. It is used as a "guideline." It is not set in stone. When circumstances arise, as they most often do, proper deviation is used.
Payor Net Income - Child Support x 40% = XXXXX
Minus Payee Net Income x 50% = XXXX
(Starting amount before deviations) = XXXX
The Net Income is derived by taking the payor's gross monthly income and deducting income tax and Social Security payments. Child support is appropriately deducted from the payor's spendable income and not added to the payee's income. The presumption is that child support is used in total for the benefit of the children.
After arriving at the Net Income of the payor, less child support obligation, that amount is multiplied by 40%. The payee's Net Income times 50% is then subtracted from that figure which results in the beginning guidelines figure.
From that figure, other considerations are then made. Is the payor making additional payments for the children's benefit such as private school tuition? Is the payor responsible for all or most of the community debts, thus relieving the payee? Has the payor accepted the responsibility of certain debts directly benefiting the payee which might further the payee's education or job training or leisure activities or trips with the children? Is the payor or the payee earning up to his or her potential? Etc., etc., etc. The list could go on ad infinitum. Suffice it to say that the initial formula figure is a beginning point from which deviations can be made to arrive at a fair alimony award.
The "California Formula" also provides guidelines for the duration of alimony. It considers that "...unless otherwise agreed, future reduction or termination in an initial order must be accompanied by provisions for modification of support to a period not less than:
- (1) Half the length of the months married for marriages of less than 10 years.
- (2) For marriages of 10 to 20 years duration, not less than the number of months in the following formula: minimum period = (months married/240) x (months married)
- (3) All support orders shall terminate after the number of months equal to the length of the marriage unless otherwise agreed."33
For example, if the marriage lasted 15 years the duration formula would be: 15 yrs. x 12 months = 180 months. 180 months would be divided by 240 months resulting in a percentage, i.e., 75%. 75% is multiplied by the total months married (i.e., 180), resulting in a duration of 135 months or 11.25 years.
Conclusion
"Many lawyers and judges will oppose support schedules for the same reasons that they opposed child support schedules: reduced judicial discretion, fear of blind following of schedules, lack of individual justice, etc. The California experience has convinced many lawyers that the beneficial trade-offs of schedules outweigh the objections. Results are more consistent. Predictability reduces litigation. Legal transaction costs for clients are reduced when results are predictable.
The proposed alimony guidelines provide judges and lawyers with a substantially more specific means of setting support and making settlements that presently exist. Reasonable judicial discretion would be retained."34
The results of the recent survey emphasized the point that when considering the same factual patterns, the results in determining an alimony award vary greatly from court to court. This results in unpredictability and causes long-term expensive litigation.
Alimony guidelines are a possible answer to this predicament. They have been in California. This means readjusting our thinking and considering new, innovative ideas to solve a problem. That's not always an easy adjustment to make.
Endnotes
1. Clark, Homer H., Jr., Law of Domestic Relations, p. 20, 1968.
2. Id.
3. Bishop, Joel P., Marriage, Divorce and Separation, New Commentaries, pp. 852-857, 1891.
4. Id.
5. Tabac, William L., "Alimony and Child Support in Ohio: New Directions After Dissolution", 26 Clev. St. L. Rev., 395, 396, (1977).
6. Id.
7. Id.
8. The word "alimony", is derived from the Latin word "alimonia" which means sustenance. Black's Law Dictionary, 73 (6th ed. 1990).
9. Cynthia A. Wilde v. Jonathan S. Wilde, 2 Nev. 306, 1866.
10. Sheckles v. Sheckles, 3 Nev. 404, 1867.
11. Wuest v. Wuest, 17 Nev. 217 (Oct. 1882) @ 222.
12. Cunningham v. Cunningham, 61 Nev.93 (1941) @ 95.
13. Buchanan v. Buchanan, 90 Nev. 209 (1974).
14. Id. @ 215.
15. Id.
16. Id.
17. Sprenger v. Sprenger, 110 Nev. 855 (1994).
18. Fondi v. Fondi, 106 Nev. 856 (1990).
19. Sprenger, (Supra @ 857)
20. Rodriques v. Rodriques, 116 Nev. Adv. Op. No.1 107, 13 P3rd 415 (Nov. 2000).
21. Id. @ 113.
22. Id. @ 114.
23. R. Neely, The Divorce Decision 9, 168 (1984).
24. Mary Ann Glendon, "Fixed Rules and Discretion in Contemporary Family Law and Succession Law," 60 Tul. L. Rev. 1165, 1169 (1986).
25. Marti E. Thurman, "Maintenance: A Recognition of the Need for Guidelines," 33 U. of Louisville J. of Fam. L. 971 (Fall, 1994-95).
26. Robert H. Mnookin & Lewis Komhauser, "Bargaining in the Shadow of the Law: The Case of Divorce," 88 Yale L.J. 950, 951 n.3 (1970).
27. Glendon, supra note 68, at 1170.
28. Thurman, supra note 69, at 972.
29. Id., citing, Jane C. Murphy, "Eroding the Myth of Discretionary Justice in Family Law: The Child Support Experiment," 70 N.C.L. Rev. 209, 219-20 (1991).
30. George Norton, "The Future of Alimony: A Proposal for Guidelines," Alimony, New Strategies for Pursuit and Defense, Section of Family Law, American Bar Association (1988).
31. Id. at 184.
32. Id. at 182.
33. Id. at 185.
34. Id. at 186.
