A New York Times op-ed column by 2011 Yale Law School graduate Alexandra Harwin recommends states provide a more uniform formula for calculating permanent alimony. Harwin praises the Maryland Court of Appeals’ 2010 decision in Boemio. She writes that alimony after divorce is so subjective that parties are deterred from divorcing, judges lack adequate guidance, and lawyer fees are excessive.
I share the goals of economy and predictability in setting alimony. But I would add some caveats:
1. A Best Practice in Awarding Alimony Weighs Mandatory, Non-Exclusive Statutory Factors.
An issue in Boemio was whether the trial court had improperly consulted guidelines of the American Academy of Matrimonial Lawyers (“AAML”), in calculating permanent alimony.
The Court of Appeals affirmed the trial court in ruling that Maryland’s statutory factors for calculating alimony are non-exclusive. Moreover, the trial judge had stated explicitly that AAML guidelines were neither authoritative nor subject to the Maryland Code. Maryland’s high court further noted that there is nothing wrong with secondary sources — including AAML — so long as they are reasonable and do not supplant or contradict state law.
A judicial roadmap for permanent alimony cannot be made any clearer, in my opinion, than what was set forth in this appellate opinion: Boemio reaffirms the need to consider statutory factors without prioritization. It validates trial judges’ subjective discretion in weighing those factors, considering secondary sources, and determining the length of an award. It surveys non-legislative support formulas throughout the United States (including the one developed by the Bar Association of Fairfax County, Virginia) to demonstrate the flexibility available to Maryland judges, though at the same time it does not recommend one over another. Finally, the Court of Appeals restates the general rule that fact-based decisions will not be reversed unless they are arbitrary or plainly wrong.
2. Triage for the Uncontested.
The fashioning of an alimony award will always be an uncertain science. More than equitable distribution or child support, the process calls for detailed factual analysis. But lack of predictability in advance is a good thing: It is a worthwhile price for fairness and equity in weighing complex, non-economic factors in the dissolution of marriage such illness and abuse – factors that can never be adequately addressed in a formula.
Rather than focusing on the scope of a judge’s latitude in fashioning a support decree — as Harwin does in her opinion piece — I believe we should promote public awareness of pre-marital agreements and mediation while at the same time simplifying the uncontested divorce process.
Stepping back from the debate about end-of-marriage support, I have a more general comment:
States need to do more to educate people up front about what it means to be married, balance a budget, and raise a child. Marriage is more than legislation and a definition. If people were better informed before their weddings about the responsibilities and consequences of their relationship, I expect we would see fewer costly subjective alimony determinations when marriages end.