The Theory of Marital Residuals: Applying an Income Adjustment Calculus to the Enigma of Alimony 24 Harvard Women's Law Journal 2001

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24 Harv. Women's L.J. 23 (2001)
The Theory of Marital Residuals: Applying an Income Adjustment Calculus to the Enigma of Alimony

handle is hein.journals/hwlj24 and id is 29 raw text is: THE THEORY OF MARITAL RESIDUALS:
APPLYING AN INCOME ADJUSTMENT CALCULUS
TO THE ENIGMA OF ALIMONY
ROBERT KIRKMAN COLLINS*
INTRODUCTION
Of the three financial issues raised by divorce-asset division, child
support, and spousal maintenance-the question of alimony is typically
the least predictable and the most contentious. With assets, judges even
in equitable distribution jurisdictions tend to apply a presumption of
equal division in most marriages of significant duration so that, at the
very least, there is a point of reference for negotiations. On the issue of
child support, while there remains room for bargaining by higher-income
parents, most couples settle within the shadow, if not by strict applica-
tion, of statutory child support guidelines. Only with regard to alimony is
there no fixed frame of reference for discussions.
Spousal support negotiations are particularly difficult because of the
absence of any objective standard for judging fairness or predicting out-
comes. Statutes simply list factors for trial courts to consider without
providing any guidance as to how the judge should weigh or apply them.
Without predictable judicial parameters, the parties cannot readily assess
the risks and benefits of pushing forward to trial, thereby making private
resolutions problematic.
This lack of certainty is not the only difficulty inherent in the present
system of spousal support, however. Alimony negotiations focused on
spousal need are rendered needlessly complex by requiring decisions
based on speculative projections of each person's future expenses and
income. Those spouses looking to alimony as compensation for past ef-
forts must reach consensus-or risk adjudication-on notoriously sub-
jective issues regarding marital contributions. For those couples with a
significant disparity in income where the lower-salaried spouse is none-
theless self-supporting, there may be no mechanism for addressing
post-separation economic inequalities. The net result is a national system
for assessing alimony that is neither predictable, accurate, satisfactory,
nor fair.
* Adjunct Professor, Seton Hall University School of Law. B.A., Yale College, 1972;
J.D., University of Pennsylvania Law School, 1975.