The History of Spousal Maintenance

Historically, marriages were entered into with the understanding and agreement that only death could terminate the bond. This was taken very seriously by society as a whole, and by the courts enforcing the laws of the day. Because of the permanence of the marriage covenant, a divorce was only possible when there was evidence of marital misconduct, or fault. Before the advance of our current no-fault divorce system, the court looked to punish the party guilty of destroying the marriage.

At a time when wives did not commonly work outside the home, a divorced woman with homemaking skills had very few opportunities for employment. The older she was, the less likely she was to find paying work sufficient to support herself, even marginally. The courts were unwilling to let a husband impoverish his wife when he was the one guilty of marital misconduct. Alimony was necessary for the wife — who held true to her marriage vows — and punishment for the husband who violated the marriage covenant.

In this fault-and-punishment divorce system, when a wife was at fault for the marital breakdown, she was in serious trouble. The court felt little compassion and alimony was not generally available to her. Her subsequent financial woes, even if extreme and she was left homeless, were essentially a direct consequence of her guilty actions.

Because men were typically the only wage-earners in the family, when the husband was at fault for breaching the marriage covenant, the court granted the divorce and ordered him to continue supporting his ex-wife. This support was in the form of alimony. Wives, through no fault or guilt of their own, could starve without some kind of financial support. The guilty ex-husband could not escape his obligation to support his wife, even after the marriage was dissolved. Alimony was an economic solution to a very real problem. The supplementary support came in the form of weekly or monthly payments sufficient to keep the woman in the standard of living to which she had become accustomed during the marriage.

One party or the other had to be found guilty before the court would dissolve the marriage. If the parties were unhappily married, but there was no fault, no adultery, no marital misconduct, then they didn’t have grounds for a divorce. This led, not surprisingly, to a lot of fictional “bad acts” by one spouse over the other in order to get their desired result, a dissolution of the marriage they both wanted out of. If both parties were at fault, then they were unlikely to be granted a divorce as they deserved each other, a form of shared punishment.

By the middle of the 20th Century, sensibilities about the traditional marriage had evolved significantly. Wives increasingly became wage-earners alongside their husbands. The stigma of divorce lessened. Couples became unwilling to remain married for life in an unhappy relationship. The laws of divorce and alimony were in need of legislative reform to meet more modern societal realities. In this effort, Arizona adopted the Uniform Marriage and Divorce Act (UMDA) along with Colorado, Illinois, Kentucky, Minnesota, Missouri, Montana, and Washington.

Under the UMDA, early precepts of divorce were abandoned, starting with fault as the only basis for marital dissolution. The UMDA allowed for the irretrievable breakdown of a marriage without any marital misconduct. Alimony became “spousal maintenance” — a clear transition away from punishment for guilty behavior. The UMDA allowed a spouse to seek support when lacking property to provide for his or her reasonable needs, and unable to support himself or herself through employment, or unable to work outside the home for reasons of child custody and care.

The laws controlling awards of spousal support have come a long way, and for the better. One significant change is that we no longer include gender as the basis for an award of spousal maintenance. Another improvement is that we no longer look to alimony as a method of punishing one of the spouses for a failed marriage. That is not to say, however, that spousal maintenance issues are easy to work through. On the contrary, spousal support disputes can be among the most highly contested issues in a divorce. Compounding that is the absence of mandatory spousal maintenance guidelines, which could provide much needed predictability and fairness for the parties, their attorneys, and the courts. Although the amounts awarded vary from one couple to the next, the maintenance eligibility requirements and factors to be considered in deciding an award apply equally to all divorces.