In Search of a Theory of Alimony

Maine\u27s alimony statute is full of good advice. It directs judges who hear requests for alimony to “consider” all kinds of things, from the parties\u27 individual wealth to their individual health, from their respective ages to their respective wages, from the length of their marriage to the strength of their educations. And, as if to subdue any doubt about the breadth of this assignment, the statute then invites judges to take into account “any other factors the court considers appropriate.” In short, the statute grants judges almost unlimited discretion in awarding alimony. Power notwithstanding, however, anyone who reads the statute looking for a reason for awarding alimony will search in vain. Having effusively advised judges on what to consider in contemplating an award of alimony, the statute is silent on the greater issue: why award alimony at all? What theoretical purpose is alimony supposed to serve; for what theoretical end is alimony a means? The Maine Legislature\u27s failure to define the purpose of alimony shifts the obligation to do so to the courts. By giving trial judges broad discretion to award alimony while leaving unstated alimony\u27s ultimate purpose, the alimony statute implicitly assigns judges the responsibility for discovering and articulating the justification for their use of such power. The benefit of assigning this analysis process to judges is that a reasoned, informed consensus about the purpose of alimony ought to emerge, without the distorting influence of partisan politics. The disadvantage, on the other hand, is that the consensus will not emerge quickly or efficiently. Rather, the courts will grope and feel their way in a glacially-paced, stop-and-go, case-by-case effort to formulate social policy without appearing to legislate. Our aim in this Article is to reduce the groping by providing some illumination. We believe that a nationwide consensus about the purpose of alimony, in broad outline, may be emerging, and we propose here to report our interpretation of it. As it is presently understood, the purpose of alimony is the prevention of unfairness by forcing ex-spouses to share all of the economic gains and losses that have been produced by the marriage but that are realized after the divorce. Alimony, therefore, serves a purpose that is distinct from that served by splitting up the parties\u27 real and personal property in the divorce order. Statutes that provide divorce courts with this latter power are, to be sure, usually designed to promote fairness between the parties. Thus, a court may award to the homemaker spouse a share of the wage earner spouse\u27s pension in order to recognize and protect the homemaker\u27s contribution to the marital enterprise. However, the scope of such statutes (or the interpretation of that scope by the courts) is often too narrow, and the remedies they authorize are often too few, to do ultimate fairness to divorcing spouses in all cases. This is because there are economic consequences to a marital relationship that have nothing to do with property or that may not appear until well after the divorce court has lost the authority to distribute property. For example, the wage earner may have improved his or her own earning power during the marriage while the homemaker did not; increased earning power is not a property issue, but it is a palpable economic consequence of the marital relationship of which the homemaker cannot fairly be denied a share. Similarly, a post-divorce custodial parent\u27s employment options may be severely limited by the very inconvenience of custody; not only is this not a property issue, but it is a consequence that may not materialize for years after the divorce. Absent alimony, there may be no statutory remedy for inequities such as these. In the end, we conclude that alimony is a vehicle, peculiar to divorce, by which courts may prevent the variety of forms of unjust enrichment that are the peculiar consequences of marriage. This characterization of alimony as preventing unjust enrichment facilitates a variety of interesting discoveries about the nature of our subject. Perhaps the least surprising is this one: alimony has nothing to do with the historically affirmative duty of men to support women. More subtle is this point: the only post-divorce economic need that alimony addresses is that created by the termination of the marriage; alimony is not available as a panacea for post-divorce need in general. And Maine\u27s droll apothegm on alimony, “[a]limony is intended to fill the needs of the future, not to compensate for the deeds of the past,” is misleading