Divorce. File photo
Divorce. File photo

By Brian Cook

Spousal support is one of the most contentious issues in a divorce proceeding, perhaps second only to child custody and visitation. The amount of spousal support is certainly a contentious issue, but the duration is perhaps more so.

In marriages of short duration, less than ten years, the length of spousal support is limited to one-half the length of marriage. There is minimal controversy concerning this law. In fact, the certainty of the law serves to guide expedient spousal support settlements.

However, in marriages of ten years or more, there is no statutory limit. The lack of a limit provides great uncertainty, and exposes clients to multiple, and oftentimes protracted, court proceedings. In fact, without a set limit, both spouses have reason to litigate. Paying spouses are told that, to limit the length of their obligation, they should file motions to modify “early and often.” On the other hand, spouses who receive spousal support have no incentive to make realistic efforts to support themselves because they are told that there is potentially no limit to how long they will receive support.

And, indeed, lifetime spousal support is possible under existing law. That can be unfair. Take, for example, the following hypothetical case. The parties were married for 15 years.  They married when they were 20 and divorce when they are 35.  One party works. The other does not. The judge orders one spouse to pay the other spousal support of $2,500 each month, but doesn’t order an end date because it’s a marriage of long duration. Two years later, the spousal support recipient develops a medical condition that prevents the spouse from working.

Brian M. Cook

What happens if the non-working spouse’s medical condition never improves and that spouse is never able to work? Should the payor of spousal support be required to pay $2,500 per month for the rest of the non-working spouse’s life, potentially another 40 years or more? Or, should the burden at some point shift to society to support the spouse unable to work?

Under existing law, the judge has discretion to require the other party to pay lifetime support, even though the ailment is a completely separate issue from the failed relationship. This unfairly burdens individuals for the care of their ex when the responsibility should more appropriately reside with society. It’s an easy decision for many courts to make, but one that puts many individuals at a clear disadvantage from moving on with their lives.

All this is not to suggest that a lifetime spousal support order isn’t warranted in certain egregious instances. For example, in the above hypothetical, if the payor of spousal support caused the other spouse to not be able to work (e.g., spousal abuse), that could certainly constitute a justifiable reason to require lifetime spousal support. However, these types of cases are the exception and are not the norm.

To create certainty regarding the length of spousal support in marriages of long duration, there should be a presumption that one-half the length of marriage is sufficient for the supported spouse to become self-supporting. If that presumption is rebutted, there should be a mandated termination date on the date that is equal to the length of the marriage (e.g., if the marriage is 20 years, spousal support will terminate at 20 years).  There would be exceptions only for egregious circumstances (e.g., spousal abuse), and the burden to prove the egregious circumstance would be placed on the spousal support recipient.

If these changes to the law were made, there would be far greater certainty, less litigation, less expense and courts would be happily relieved of numerous contested spousal support proceedings.

Brian M. Cook, a family law attorney at Higgs Fletcher & Mack, navigates the complicated and often emotional practice of divorce law with focus and empathy. He can be reached at cookb@higgslaw.com.