An Overview of the Rules in the USA regarding the Award of Post-Divorce Spousal Support in 2019

By Oldham, J. Thomas | Houston Journal of International Law, Summer 2019 | Go to article overview

An Overview of the Rules in the USA regarding the Award of Post-Divorce Spousal Support in 2019


Oldham, J. Thomas, Houston Journal of International Law


I. INTRODUCTION  II. RULES FOR THE AWARD OF SPOUSAL SUPPORT IN THE USA        A.   Entitlement             1.   Majority Rule             2.   Minority Rule        B.   The Amount of Spousal Support             1.   The Majority View             2.   The Minority View        C.   The Duration of the Spousal Support Award             1.   Majority View             2.   Minority Rule             3.   The Effect of the Retirement of the Obligor        D.   The Ambiguous Standards Being Utilized to             Award Spousal Support in the U.S. Today        E.   Spousal Support Guidelines in the U.S             1.   Determining the Amount of the Award Under                  Guidelines             2.   Determining the Award Duration Under                  Guidelines             3.   Determining Entitlement to Support Under the                  Guidelines  III. CONCLUSION 

I. INTRODUCTION

It is difficult for a few reasons to attempt to describe the "rules in the U. S. regarding the award of post-divorce spousal support." First, the award of spousal support is governed by state law. So, while the applicable state statutes have some similarities, each statute is somewhat different. (In a recent study I conducted, I concluded that different states are implementing very different policies regarding the award of spousal support.) (1) Second, as will be discussed below, in many states a judge has a great deal of discretion regarding the award of spousal support, so as a result, the standards for the award of support are not consistent even in the same state. Any attempt to summarize the rules in the U. S. that currently apply to the award of spousal support, therefore, will inevitably be somewhat imprecise.

In any event, I will try to summarize below what I believe to be the current "majority view" in the U. S. regarding the award of spousal support. When there are obviously contrasting minority approaches, I will mention them.

In the U.S., there are a number of different types of spousal support. "Reimbursement" spousal support is awarded to compensate a spouse for supporting the other while he or she obtained an education. (2) "Rehabilitative" support is awarded in order for the claimant spouse to obtain education or training after divorce. (3) "Durational" or "indefinite-duration" support is awarded to a spouse who needs support after divorce. (4) This article will not discuss reimbursement support or rehabilitative support.

II. RULES FOR THE AWARD OF SPOUSAL SUPPORT IN THE USA

A. Entitlement

1. Majority Rule

In most states divorce courts are instructed, when making a determination whether to award spousal support, to consider numerous factors. (5) Common factors include, for example, the duration of the marriage, the parties' health, ages, needs, debts, and earning capacities. (6) Some factors allow the court to consider the parties' relative fault in ending the marriage. (7) In a few states, the claimant spouse is barred from receiving spousal support if the claimant spouse is found to be at fault. (8) After considering these enumerated factors, the court is directed to award spousal support if the court concludes that such an award would be appropriate.

When determining whether the award would be appropriate, in many states the court is instructed to consider whether, among other factors, after considering the claimant spouse's earning capacity and all property awarded to the spouse in the divorce, the claimant spouse will not be able to satisfy his or her "reasonable needs." (9) Under the majority view, the spouse's "reasonable needs" are determined based upon the standard of living of the couple during the marriage. (10) (While Ira Ellman valiantly devoted much of his career attempting to convince judges that a decision regarding entitlement to support should focus on the claimant's losses and not need, (11) U.S. judges still seem to focus on the "need" of the claimant spouse. …

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