Spousal Support: A Paradigm Switch

Thanks to a case out of Tennessee, the topic of spousal support is garnering national media attention.  The outcome of that case is consistent with obervations I have been commenting on in this blog, and warrant further discussion.

I have been practicing divorce law in California for three decades.  Some things have stayed the same.  Other things have changed.  Spousal support has done a bit of both.  When I was a new lawyer, the wife -- and only the wife -- always got spousal support.  That is now changing by virtue of husbands actually getting spousal support.  The law never said men could not get it, they just never asked for it before.  Now they are asking for it, and the law being gender neutral, supports an award to them if the wife is in a superior position financially.

Historically, whether she needed it or not, if the wife asked for spousal support she got it.  With time the amount that was awarded has gone down.  Also, California courts have been quicker to impose seek work orders, and to otherwise constrain spousal support awards to wives.  I attribute this to several social developments.  As an example, the number of male judges is decreasing, and the number of female judges is increasing.  In my opinion there is more political fall-out if a male judge affronts a female's request for spousal support.  That same pressure does not stick to female judges.  Also, again in my opinion, female judges are not as receptive to the idea of spousal support as a need.  Female judges have accomplished a lot on their own, and the idea of dependency on a spouse may not resonate as loudly with female judges.  Also, with the passage of time, economic opportunities outside of the home have increased for women, and as a society the need for spousal support may not be as strong.  Still the presumption that spousal support will be awarded to the wife controls as a norm in family law.

However, a spousal support case out of Tennessee has garnered national attention because what it did was so unusual, and because it brings a new focus to spousal support as a potential consequence of divorce rather than an entitlement.  The Tennessee Supreme Court denied a wife's request for spousal support. To be technically precise the Tennessee Supreme Court reversed a lower appeals court's decision to award long-term and lump-sum alimony to a suburban Nashville woman who is in good health, has a stable and relatively well-paying job and received significant assets in the divorce. The Supreme Court's unanimous decision Friday reinstated the trial court's decision not to award lifetime alimony and substantial attorneys fees to the wife even though she earned less than her husband of 21 years.

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