Cynthia Lee Starnes: Rick Scott should block alimony reform, appoint task force

I have spent almost 25 years studying alimony and if I have learned anything, it’s that alimony is complex.

Reform can have unintended consequences and so should be the product of a careful, deliberative effort to understand and improve the law rather than a one-sided push to protect people who pay alimony by kicking recipients off the so-called “alimony gravy train.”

I encourage Floridians to urge Gov. Rick Scott to veto the Family Law/Alimony Reform bill that is working its way through the Legislature and to establish a task force to study options for reform.  For the sake of the many Florida mothers and grandmothers who have invested in their families rather than a career or job, Scott should not sign alimony reform into law.

Here are three reasons:

1. Why alimony matters.

Alimony has an awful reputation, partly because its roots lie in old notions of wives as inevitable dependents.  But contemporary alimony is not about dependency; it is about partnership.

Family life involves teamwork:  one parent prioritizes paid labor while the other (typically a mother) prioritizes family labor.  This sharing enables the couple to enjoy a home and family. It also benefits the primary wage-earner by allowing him to maximize his investment in paid labor.

Meanwhile, the primary caregiver incurs invisible costs.  Whether she also works for a paycheck, the primary caregiver typically experiences an earning capacity loss that is known as “the motherhood penalty.”  So long as the marriage remains intact and income is shared, the primary caregiver’s earning capacity losses are invisible.  But if divorce prematurely ends the partnership, these losses are fully exposed.  The longer the marriage, the more likely the primary caregiver’s earning capacity losses will be unrecoverable.

This reality explains why divorce tends to affect women more harshly than men.  When marital property is scant, as it is in most divorces, alimony is the only judicial tool for addressing the earning capacity losses.  If marriage is a partnership, these losses should be shared.  This is why alimony matters.

2. Kicking Grandma off the “alimony gravy train.”

In a significant change from current law, the proposed reforms create several strategic pro-payor presumptions that facilitate downward modification or termination of alimony awards.  These presumptions apply to existing alimony orders as well as new ones.

Their purpose and effect is to place the burden of protecting an existing award, and of assuming the financial costs necessary to do so, on the alimony recipient.  As a practical matter, this means that if the alimony recipient cannot come up with the funds to hire an attorney, she will lose her alimony or at least a chunk of it.  This is a likely outcome since alimony recipients are by definition less able to bear the costs of litigation than payors.

The likelihood that an alimony recipient will be unable to resist a petition to terminate or modify alimony is increased by an alarming provision in the proposed reforms that, in cases of a payor’s retirement, allows a court to reduce or suspend alimony while a modification petition is pending.

Stripped of alimony, how can the recipient come up with the cash necessary to resist termination?  Many cannot and will give up without a fight, even though the payor is asset-rich and the marriage was long.

There is more.  If the alimony recipient does somehow finance a defense, she may be liable for the payor’s attorney fee if her resistance is deemed “unreasonable.”  It’s not much of a leap to suppose that even a mildly risk-averse alimony recipient will be intimidated into giving up her award without a struggle.

3. Why No Task Force?

Legislators may have overlooked the egregious outcomes of the modification presumptions in the reforms. Maybe not.  Either way, extensive reform of the economics of divorce should have been undertaken only after careful consideration of the impact of reform on various groups –not just on payors. Legislators also need to assess the effect on mothers and grandmothers and children, on the state (which may be asked to support the former spouses of asset-rich payors), and on the institution of marriage itself.

Fairness demands that every party have a voice.  Some charge that the reforms are the product of one-sided advocacy by wealthy alimony payors.  A task force inquiry into alimony reform would go far in quelling this concern.  The task force might be composed of men’s rights groups, women’s rights groups, judges, attorneys, law professors, and volunteers.

A task force could prove invaluable in thinking through another portion of the bill — the guidelines for calculating the amount and duration of an initial alimony award.  Guidelines may increase the consistency and predictability of alimony awards, but guidelines themselves are empty sets.  It is the numbers that populate them that ensure either consistent equity or consistent inequity.

Several states and municipalities have drafted alimony guidelines, but the formulae used to populate these guidelines differ dramatically.  Did the Florida Legislature pick the “right” formula?  Did they compare the size of alimony awards under the new proposals with current Florida practice?

If the outcome is different, was this intentional?  Is it an improvement?  Where did the numbers come from?  The guideline formula is, of course, Florida’s choice, but that choice should be informed, deliberate and careful — not the result of a special-interest group dedicated to limiting alimony awards.  Grandma deserves better.

I urge Scott to veto any alimony reform that reaches his desk and appoint a bipartisan task force of experts to explore alimony reform.  Florida has this opportunity to raise the bar on thoughtful, studied and equitable reform.  Now is the time to do so.

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Cynthia Lee Starnes is a Professor of Law and The John F. Schaefer Chair in Matrimonial Law at the Michigan State University College of Law, Column courtesy of Context Florida. Column courtesy of Context Florida.