I have spent almost 25 years studying and writing about alimony as both a law professor and The John F. Schaefer Chair in Matrimonial Law at Michigan State University College of Law. If I have learned anything during this time, it is that alimony is complex. Reform can have unintended consequences and so should be the product of a careful, deliberative effort to understand and improve the law rather than a one-sided push to protect alimony payors by kicking recipients off the so-called “alimony gravy train.”
I am writing to encourage Floridians to urge Florida’s governor to veto Florida Legislature’s Family Law/Alimony Reform bills SB668/HB455 and to establish a task force to study options for alimony reform. For the sake of the many Florida mothers and grandmothers who have invested in their families rather than a career or job, Florida’s governor should not sign either of these bills into law. The bills are full of problems, but I’ll limit this op-ed to three critical points:
1. Why Alimony Matters. Alimony has an awful reputation, partly because its roots lie in old notions of wives as inevitable dependents. But contemporary alimony is not about dependency; it is about partnership. In a recurring script, family life involves teamwork: one parent prioritizes paid labor while the other (typically a mother) prioritizes family labor. This sharing enables the couple to enjoy a home and family; it also benefits the primary wage-earner by allowing him to maximize his investment in paid labor. Meanwhile, the primary caregiver who takes on the lion’s share of family responsibilities incurs invisible costs. Whether or not she also works for a paycheck, the primary caregiver typically experiences an earning capacity loss as a result of her family labor. This phenomenon is so well know it has a name: “the motherhood penalty.” So long as the marriage remains intact and income is shared, the primary caregiver’s earning capacity losses are invisible. But if divorce prematurely ends the partnership, these losses are fully exposed. The longer the marriage, the more likely the primary caregiver’s earning capacity losses will be unrecoverable.
This reality explains why divorce tends to impact women more harshly than men. When marital property is scant, as it is in most divorces, alimony is the only judicial tool for addressing the earning capacity losses stemming from the marital division of labor. If marriage is a partnership, if marriage is about sharing the joys and sorrows, the risks and costs and benefits of life together, these losses should be shared. This is why alimony matters.
2. Kicking Grandma Off the “Alimony Gravy Train.” In a significant change from current law, bills SB668/HB455 create several strategic pro-payor presumptions that facilitate downward modification or termination of alimony awards. These modification presumptions apply to existing alimony orders as well as new ones. Their purpose and effect is to place the burden of protecting an existing award, and of assuming the financial costs necessary to do so, on the alimony recipient. As a practical matter, this means that if the alimony recipient cannot come up with the funds to hire an attorney and finance a defense, she will lose her alimony or at least a chunk of it. This is a foreseeable and likely outcome since alimony recipients are by definition less able to bear the costs of litigation than payors.
The likelihood that an alimony recipient will be unable to resist a petition to terminate or modify alimony is increased by an alarming provision in SB668/HB455 that, in cases of a payor’s retirement, allows a court to reduce or suspend alimony while a modification petition is pending. Stripped of alimony, how can the already-financially-strapped recipient come up with the cash necessary to resist termination? Many cannot and will give up without a fight, even though the payor is asset-rich and the marriage was long.
There is more. If the alimony recipient does somehow finance a defense to modification, she may be liable for the payor’s attorney fee if her resistance is deemed “unreasonable.” It’s not much of a leap to suppose that even a mildly risk-averse alimony recipient with few financial resources will be intimidated into giving up her award without a struggle. This seems to be the plan and it will likely work.
3. Why No Task Force? The egregious outcomes of the modification presumptions of SB668/HB455 may have been overlooked by the Florida Legislature. Maybe not. Either way, extensive reform of the economics of divorce should have been undertaken only after careful deliberation and consideration of the impact of reform on various groups—not just on payors, but also on mothers and grandmothers and children, on the state (which may be asked to support the former spouses of asset-rich payors), and on the institution of marriage itself. Fairness demands that every affected party have a voice. Some charge that SB668/HB455 is the product of one-sided advocacy by wealthy alimony payors. A task force inquiry into alimony reform would go far in quelling this concern. The task force might be composed of men’s rights groups, women’s rights groups, judges, attorneys (those who specialize in high-asset divorces and also those who deal with low-income and middle-income clients), law professors, and other volunteers.
A task force could prove invaluable in thinking through another portion of the bill—the presumptive guidelines for calculating the amount and duration of an initial alimony award. Guidelines may increase the consistency and predictability of alimony awards, but guidelines themselves are empty sets: it is the numbers that populate them that ensure either consistent equity or consistent inequity.
Several states and municipalities across the nation have drafted alimony guidelines, but the formulae used to populate these guidelines differ dramatically. Did the Florida Legislature pick the “right” formula? Did they compare the size of alimony awards under SB668/HB455 with current Florida practice? If the outcome is different, was this intentional? Is it an improvement? Where did the numbers in SB668/HB455 come from? The guideline formula is, of course, Florida’s choice, but that choice should be informed, deliberate and careful—not hasty and certainly not the result of a special-interest group dedicated to limiting alimony awards. Grandma deserves better.
In conclusion, I am personally asking Florida Gov. Rick Scott to please veto SB668/HB455 should either come before him and appoint a bipartisan task force of experts to explore the complex issue of alimony reform. Florida has this opportunity to raise the bar on thoughtful, studied and equitable reform. Now is the time to do so.
Cynthia Lee Starnes is a professor of law at Michigan State University’s College of Law where she holds the John F. Schaefer Chair in Matrimonial Law.