From a historical standpoint, women have been the stay-at-home moms; the underemployed or unemployed spouse in a marriage; and the lesser paid sex in the workforce (the latter is still largely true). These realities – the “Leave It To Beaver” family model – were the backdrop to why women typically received spousal support (also known as “alimony”) when a marriage ended. I think most people agree this made sense 50 years ago; but does it make sense today? How prevalent is June Cleaver in the modern family?
The Changing Face of a Family
As more and more women attain high levels of education, high levels of employment and stature − and as balancing work and family through flex schedules becomes the norm − serious questions are raised with regard to spousal support and how much protection women need after divorce. But, really, the conversation must be gender neutral in the modern family because as more and more women are reaching high levels of employment, the modern family often involves the men staying at home to raise the children or to care for the household. Increasingly we see men being displaced from the workforce and therefore seeking – and needing – spousal support when the financially supportive structure of the marriage ends.
While many people will frame the discussion around women and the traditional family, as suggested by my example above, the discussion should be framed in the terms of breadwinner and non-breadwinner – gender neutral. With that being said, whichever spouse or domestic partner is the non-breadwinner, the question is: how long should the non-breadwinner be supported and how will the non-breadwinner pay his or her attorney’s fees in connection with the divorce?
Spousal Support Reform
The spousal support laws are under fire. There are now five states which have significantly reformed their laws to limit and/or eliminate spousal support. Interestingly, California is not one of those states, but I suspect it is only a matter of time before California faces reform in this area of the law. The good news is that those states which have enacted such reform still allow the court to have discretion in each individual case. This is important − just because two couples are married for the same number of years, it does not necessarily make the marriages the same and warrant equal treatment through a generic spousal support law. For example, the situation where two people marry when they are 25 years old and then divorce when they are 40 years old is very different from the situation where two people marry when they are 50 years old and then divorce at the age of 65. The 40 year olds statistically will be in better health than the 65 year olds and will have better opportunities to re-enter the workforce. The 65 year olds do not have these same “pluses” when they divorce. In both situations, the marriages are of equal duration, but the circumstances are incredibly different when looking at their needs for spousal support.
The Non-Breadwinner’s Ability to Pay Attorney’s Fees
Often the non-breadwinner pays for his or her attorney’s fees by allowing the attorney to obtain a lien on one-half of the community interest in the family residence as security for payment of the fees. However, a recent Los Angeles County case, which has been affirmed by the court of appeal, has created a situation where these liens are essentially illusory and subject to removal by the court before the attorney gets paid. This means it just got more difficult for the non-breadwinner to pay for his or her attorney’s fees while their “right” to spousal support is under fire. Some people view this decision to be negative toward women, but it is really negative toward the non-breadwinner. The California Supreme Court has been asked to review this decision because of the extraordinarily poor public policy it creates.
The Lesson
Are women, or even better said, non-breadwinners under fire by the family courts? Possibly. So, the message to the non-breadwinner is to know and understand that it is more critical than ever to remain marketable in the workforce and to have an equitable arrangement with your partner with regard to child care, work life and household contributions. While it may be that one person is the primary breadwinner during the marriage, the goal should be that, if there is a divorce, the lesser-earning person will not be left wholly dependent upon the breadwinner. The tide is no doubt shifting as society changes and people are expected to be self-supporting. Of course, each situation is different and issues of age, disability and poor health will complicate support considerations. That is why, no matter how much reform occurs, the court must still retain discretion to consider each case individually.