Lifetime alimony payments may soon be a relic of the past. A growing number of states are considering laws that would generally end permanent spousal support. Instead, they would create formulas to determine the amount and duration of awards. Some proponents of alimony-law reform are seeking to make the elimination of permanent alimony retroactive. The proposals have triggered heated debate: payers who criticize what they call unjust and outdated awards are pitted against family law attorneys who say the measures are punitive to women. One twist: an increasing number of those seeking reform are women who out-earn their ex-husbands. Diane and her guests discuss the future of alimony.

Guests

  • Judith McMullen professor of law, Marquette University Law School.
  • Alan Frisher certified divorce financial analyst and president, Florida Alimony Reform.
  • Ann Sundt retired circuit court judge. Headed Montgomery County, Md., family division court from 2002-2008.
  • Warren Farrell activist and author of several books, including, "Why Men Earn More and What Women Can Do About It."
  • Cheryl Lynn Hepfer past president, American Academy of Matrimonial Lawyers.

Transcript

  • 10:06:55

    MS. DIANE REHMThanks for joining us. I'm Diane Rehm. Gov. Rick Scott recently vetoed a bill that would have effectively ended lifetime alimony in Florida. A similar measure took affect in Massachusetts last year. Comparable bills are pending in New Jersey, Connecticut and Oregon. Joining me to talk about the purpose of alimony, how it's awarded and whether it should be changed: Cheryl Lynn Hepfer, past president of the American Academy of Matrimonial Lawyers and Ann Sundt, a retired circuit court judge.

  • 10:07:37

    MS. DIANE REHMJoining us from a studio in San Francisco: activist and author Warren Farrell. I'm sure many of you have been involved in such situations. Do join us, 800-433-8850. Send us an email to drshow@wamu.org. Follow us on Facebook or send us a tweet. Good morning, all.

  • 10:08:07

    MS. CHERYL LYNN HEPFERGood morning.

  • 10:08:08

    MR. WARREN FARRELLGood morning.

  • 10:08:09

    MS. ANN SUNDTGood morning.

  • 10:08:09

    REHMGood to have you with us. Before we begin our conversation here on the studio and with you, Warren Farrell, we are joined by phone from Milwaukee, Wis. by Judith McMullen. She's professor of law at Marquette University. Good morning, Judith.

  • 10:08:33

    PROF. JUDITH MCMULLENHi, Diane.

  • 10:08:34

    REHMI'd appreciate getting some basic statistics here. The – for example, the percentage of American marriages that end in divorce today, give us that figure.

  • 10:08:51

    MCMULLENThe figure you'll usually hear is 50 percent. That's 50 percent of first marriages. The rate tends to go up a bit with second and third marriages. Second marriage is somewhere in the 60s. Third marriage is somewhere in the 70s.

  • 10:09:05

    REHMWow.

  • 10:09:06

    MCMULLENAnd there is some difference in demographic groups. The rate of divorce has been dropping slightly among college-educated partners, for example.

  • 10:09:14

    REHMAnd the percentage of divorcing spouses who receive alimony.

  • 10:09:23

    MCMULLENThat varies a lot from state to state. It's been going down over time nationally. So, for example, in the early part of the 20th century, very early in the 20th century, maybe around nine or 10 percent of divorces had permanent alimony. By around 1950, the rate was about 25 percent of divorces getting some alimony. But the range was huge. It was from -- there's only one or two studies. It ranged from, like, 7 percent in Florida to 48 percent in Kansas.

  • 10:10:02

    REHMI see. And...

  • 10:10:04

    MCMULLENNow, it's much less. Now, it's closer to depending on the state you're in. In Wisconsin -- I did a study in 2005 -- and it was 8 percent alimony, about 11 percent if you counted a hybrid form of alimony that we have here.

  • 10:10:21

    REHMAnd how many states have actually ended permanent alimony?

  • 10:10:30

    MCMULLENBy statute, only a handful of them. You mentioned Massachusetts. Texas has greatly limited it to hardship cases. Kansas and Utah have not abolished alimony per se, but they have put time limits on it. So permanent alimony is gone. You can go into court and ask for modifications later if some hardship comes up. But I should say that a lot of states have de facto limited alimony by simply applying it mainly in situations that include hardship, that include – that --where people need rehabilitation, basically.

  • 10:11:16

    REHMI see, I see. And is alimony still primarily going to women?

  • 10:11:27

    MCMULLENYes. In the study that we did in Wisconsin in 2005, there were 64 cases in our sample that alimony. Only of two of them were husbands getting alimony. There's probably – theoretically, alimony statutes are gender-neutral. There's probably still some social prejudice against it. Wives probably make the claims more. And it is a changing landscape because there are more stay-at-home dads than they're used to be.

  • 10:12:02

    REHMJudith McMullen, she's professor of law at Marquette University. Thanks so much for joining us.

  • 10:12:12

    MCMULLENThank you for having me.

  • 10:12:13

    REHMAnd turning to you now, Cheryl Hepfer, why the push by more states to end lifetime alimony?

  • 10:12:26

    HEPFERWell, I think that there have been some changes in the way we function as a society over recent years. More women are joining the workforce, although I will tell you that the 2011 U.S. Census Bureau report indicated that women earned 77 cents to every dollar a man earns. And it's very interesting that even in categories that we would think of typically as being careers for women like nursing, actually, pursuant to that same U.S. Census Bureau report, male nurses earn $60,700 per year whereas women earned $51,100 a year.

  • 10:13:12

    HEPFERBut I believe that there is significant incentive on the part of young women to secure an education. We know that more women are completing their college educations than men now. And I think young women want to be financially independent. So there is certainly a move culturally and in society for women to be more financially independent than they have been in my mother's years and in my grandmother's years. And I believe that we've also seen a significant change in the number of women staying home when their children are young, and now we see some men actually sharing those responsibilities.

  • 10:13:52

    REHMOf course. Yeah.

  • 10:13:54

    HEPFERSo I think that there have been some significant changes in our society recently.

  • 10:13:58

    REHMCheryl Lynn Hepfer, she is past president of the American Academy of Matrimonial Lawyers. She's a family law attorney practicing in Bethesda, Md. Turning to you, Ann Sundt, as a retired circuit court judge, talk about the purpose of alimony and why it is that more and more women are paying alimony today.

  • 10:14:35

    SUNDTWell, the purpose of alimony has radically changed. It changed by a legislative fiat back in 1980 because the governor commissioned a group to study alimony. And previous to that, it really was a gender sort of thing. It was an amount being paid to women. And I think it was based on assumptions that have changed radically. The assumptions for 200 years, from the 1700s, were that women didn't work and that they were entitled, they had a right to be supported by their spouses.

  • 10:15:19

    SUNDTAnd as Cheryl commented, all of that has changed. I think I was probably part of the last generation of women who had choices. We like the idea of a career, but it wasn't required of us. There was still that idea that you would be taken care of by your spouse. So those assumptions now have changed. And the new alimony statute, which is now about 35 years old, really says right up front, we expect people to be self-supporting.

  • 10:15:58

    SUNDTAnd the purpose of alimony, really, is to enable people to be more self-supporting. And we'll give you a limited amount of time if you need training, if you need education, hence that really pejorative word rehabilitative alimony, like you need to be cured or straightened out. But the concept is we'll help you make that transition from a family to people working together to two single separate lives, but we expect you to be self-supporting.

  • 10:16:38

    REHMAnn Sundt, she's a retired circuit court judge. Turning to you, Warren Farrell, do you believe that an alimony award should have a fixed termination date?

  • 10:16:59

    FARRELLYou know, I think that it's probably helpful to have a guideline of about 10 to 15 years. I do think there is a purpose to alimony. I don't think permanent alimony is really a useful concept, and it usually tends to engender entitlement. But I think that we're going to be seeing -- and just to give a little bit of clarifying comments to a few things that have been said, nationwide, it's 4 percent of the -- of alimony goes to men, 3.6 percent in more precise terms. And -- but women earn -- about 20 percent of the time, women who -- earn more than their husbands do in marriages.

  • 10:17:35

    FARRELLAnd 38 percent of the time when both sexes work, the women earn more. But alimony is still a fairly gendered thing. You -- and the reform in alimony will really be the reform of second wives fighting with first wives or women who are earning more than men. Men have, for a long period of time, accepted alimony as sort of part of the cost of love, a little bit like diamonds and drinks and dinners and dates and flowers and Valentines Day. They're all sort of the cost of love that men and women...

  • 10:18:04

    REHMRight, right.

  • 10:18:05

    FARRELLIt's part of the process. But -- so men are not fighting that nearly as strongly as second wives will be fighting that and that women earning more than men will be fighting that, and so that's -- I think the -- part of that transition. On the issue of the genders earning $1 versus 76 cents, this is one the most destructive to women statistics and most erroneous pieces of information that we believe.

  • 10:18:33

    REHMAll right.

  • 10:18:33

    FARRELLFor example, in the nurse's case...

  • 10:18:35

    REHMOK.

  • 10:18:36

    FARRELLGo ahead. Sorry.

  • 10:18:36

    REHMWarren, we've got to take a short break here. So we'll talk more about your views on that disparity in earning when we come back.

  • 10:20:05

    REHMAnd, of course, in this hour, we are talking about alimony. There are some states which have declared that the idea of permanent alimony will no longer be part of divorce settlements. Warren Farrell is on the line with us. And, Warren, just before the break, you were talking about the skewed, I gather, statistics, as you see them, in regard to women's earnings versus men's earnings.

  • 10:20:46

    FARRELLYes. When you look at the – not just the category like nurse or doctor, you will find that men – male doctors and male nurses both earn more than female doctors and female nurses. When you look more closely at the category, you find that the sub-specializations that men and women earn -- work in tend to lead -- for example, men are far more likely, as doctors, to be cardiologists.

  • 10:21:08

    FARRELLWomen are far more likely to be general practitioners. Male nurses are more likely to be a nurse anesthesiologist. As a rule, nurse anesthesiologists earn over $100,000 a year. And so what's really helpful to our daughters is to teach them which specialties earn more and which specialties earn less if we want them to earn more.

  • 10:21:28

    FARRELLBut when we look – when we control for the specialties, the number of years worked, the number of hours worked per week and the willingness to go to places that people don't want to go to, locations that they don't want to move to which pay more, when you control for variables like hazardous work and so on and you put the 25 major variables together, only about seven or eight of which are normally controlled for, then you have women and men earning about equal, maybe women earning a little bit more for the same work, same time, et cetera.

  • 10:21:56

    REHMOK. Then get back to the issue of a fixed termination date for alimony.

  • 10:22:08

    FARRELLI think 10 to 15 years is really a very valid time. I think alimony does have a useful purpose, and we shouldn't go from one extreme to the other. When a woman or a man takes off to be full-time involved with the children, he or she does take – lose many years that are useful in the workplace. And when – my father, for example, was – he left a job 'cause my mom wanted him to leave a job because she was depressed in Europe, came – left a job as a manager of major company, came back and sold foil brushes.

  • 10:22:43

    FARRELLNow, he wouldn't have applied for alimony. But it's an example of when he was 50 years of age, it was difficult for him, as it would be for a woman, to find a job when you've been – even when he was productively in a managerial position for a long period of time.

  • 10:22:59

    REHMAll right. Warren Farrell, he is an activist and author of several books, including "Why Men Earn More and What Women Can Do About It." Ann Sundt, I recognize that awards differ from state to state. But how do you, as a judge, approach these various cases when perhaps a woman has not been working? Her husband or she wants the divorce, but the woman clearly has no income yet. How do you deal with that?

  • 10:23:50

    SUNDTMay I just very quickly say that, whatever I say here, I'm speaking only for myself…

  • 10:23:56

    REHMAbsolutely.

  • 10:23:57

    SUNDT...because, clearly, if you had five judges sitting in this room, you would get five different opinions.

  • 10:24:03

    REHMFive.

  • 10:24:04

    SUNDTSo my experience, both as a lawyer and as a judge and then recently as a mediator, has made me very allergic to alimony. I worry about alimony. I – when Warren says 10 to 15 years, I picture a cliff. What happens at the end of 10 or 15 years? She just falls off the edge, or he falls off the edge if he's the recipient. So I'm always looking for a more long-term solution.

  • 10:24:38

    SUNDTAnd if you have parties who have means, then you have really all kinds of options available to you as a judge or even as a mediator to suggest that maybe one spouse should take 90 percent of the assets, put them in a bank, get a financial advisor and look to see if the assets can generate sufficient income because the difficulty with alimony is not just that it's such a variable and not just that five different judges will make five different decisions. But it's also an ongoing binding of parties who are generally trying to separate their lives.

  • 10:25:23

    REHMSo what you're saying is rather than assessing a particular rate or a particular length for alimony, you're saying look at the assets, look at what one person is capable of having earned during the time of that marriage and then award the person who has not earned the money, but perhaps has stayed behind to raise the children, keep the home and so on while the other individual who has earned that money is going to likely go on to earn even more money.

  • 10:26:13

    SUNDTContinue.

  • 10:26:16

    REHMSo you're saying separate the two, but give one 90 percent of the asset. Cheryl, how does that sound to you?

  • 10:26:27

    HEPFERWell, first of all, the significant majority of cases are resolved by agreement without ever getting into the court system.

  • 10:26:36

    REHMI'm glad to hear that.

  • 10:26:38

    HEPFERAnd they are solved with creative, thoughtful assessment and, generally, by people trying to be fair to each other. Courts tend to be required to do equity, certainly family law courts. Equity is fairness. And what's fair can be significantly different one case to the next, which is why general rules and following very firm guidelines don't work in those few cases that require court involvement. They are normally the extreme cases. They are normally the cases that have the greatest degree of hostility and bitterness.

  • 10:27:19

    HEPFERThey are often the cases that have unique circumstances that require some additional evaluation. The parties are unable to proceed on their own, and the court then tends to try to come up with a fair and equitable resolution. And sometimes they do a good job of that, sometimes they don't. That's why we have appellate courts. But the reality is that there are benefits to using alimony. Alimony is deductible to the payor. The person receiving alimony pays taxes on that.

  • 10:27:56

    HEPFERAnd when there is significant disparity between the tax rate of the person who's earning the significant income and the person who will receive alimony, creative measures between attorneys, financial planners and accountants can actually keep more money in the family by using that very appropriate process of paying alimony.

  • 10:28:19

    REHMSo what are your specific concerns about ending permanent alimony as an option?

  • 10:28:29

    HEPFERWell, my concern is that it's not going to solve the problem. Currently, almost every situation involving alimony is modifiable so that if the payor becomes ill or retires, has an accident, something significant occurs that hadn't been contemplated, the parties, generally on their own, come to an agreement to modify.

  • 10:28:52

    HEPFERAnd in those few cases that go to court, the court has the ability to modify based upon what's fair, to have an absolute cutoff date when one party is predicted to be prepared to be able to meet their own needs because the court assumes or the law assumes that after a period of 10 years, let's say, they're going to be just fine. The reality is that in many cases, 10 years is just not appropriate to terminate all alimony.

  • 10:29:25

    HEPFERSo having the ability to predict the future is not something that most judges are capable of doing, and certainly, we lawyers aren't capable of doing that, which is why modification and the ability for people to sit down and try to resolve situations where there had been changes or the court of necessity seems to me to be much better than having an absolute cutoff after a period of time. When...

  • 10:29:52

    REHMLet me turn to you, Ann. Were there any circumstances under which you did award permanent alimony?

  • 10:30:03

    SUNDTAbsolutely.

  • 10:30:04

    REHMCan you give me an outline?

  • 10:30:06

    SUNDTSure. The statute really does provide for that. We have -- we really have a fairly kind statute because although it sets out this aspiration of a limited alimony, it does provide that even if somebody who has made best efforts to become self-supporting isn't, or even if they're self-supporting. I'm not sure what that means, for instance, in an affluent county, what that means to be self-supporting.

  • 10:30:38

    SUNDTBut if the disparity in income between the recipient and the payor is what they call shocking, shocks the conscience -- and I've had cases like that. Somebody, at best, could earn 30,000, and the other spouse is earning over one million. That's going to be an indefinite alimony case.

  • 10:31:01

    REHMWhat do you think about that, Warren?

  • 10:31:05

    FARRELLI don't -- first of all, I really agree with a lot of what Judge Sundt is saying, and that is that you really -- that assets, for example, are a better way to go if you -- because many times second wives or second husbands, especially second wives, feel really -- they feel when a check is going -- being paid out to the ex, it seems to have an emotional impact that's very negative on the second wife.

  • 10:31:32

    FARRELLAnd so that's -- so if you can -- if there's enough assets to divide, that's probably a good way to go in terms of having the psychological damage or remnants of the first marriage a little bit more free for a parent. The -- I think that there is a value to having both the aspiration be limited and also the amount of time being limited under almost every circumstance.

  • 10:32:02

    FARRELLAnd the law can never be -- people are much more complex than a law is, and so I think the need for flexibility is really important. But I think that having -- but people -- if a person knows I'm going to earn -- I'm going to have $10,000 coming to me this year, $8,000 the next, $6,000 the next and so on, they can plan accordingly and adjust accordingly. I think...

  • 10:32:27

    REHMBut, on the other hand, what about concerns regarding, say, disabled or older wives or husbands, Cheryl?

  • 10:32:40

    HEPFERWell, that's a significant concern, and that's why having very significant rules that don't provide with the ability for the courts to consider those extraordinary circumstances is really inequitable and unfair.

  • 10:32:55

    REHMAnd you're listening to "The Diane Rehm Show." I want to read for you a portion of an email from Jay, who lives in Massachusetts. He says, "I was ordered by the court to pay my ex-spouse 180 percent of my unemployment benefits while I am unemployed. I'm at the end of my career, having a very difficult time finding a job after my position was eliminated.

  • 10:33:33

    REHM"My ex does not have to touch the 50 percent of assets received in the divorce settlement. It's just plain crazy that the amount of alimony paid is set when you are working at the peak of your career and you get no relief when you're having difficulty." And, Ann Sundt, I gather you would agree with that.

  • 10:34:06

    SUNDTWell, the one thing I certainly did learn sitting on the bench is that there are always two sides...

  • 10:34:12

    REHMOf course.

  • 10:34:13

    SUNDT...and this sounds just awful. It's one of the reasons why I always look for an alternative to alimony. I'm trying so hard to help these people say -- do what they say they want to do, which is to untie themselves. And I think alimony keeps them bound on a roller coaster. Whether it's good fortune or bad, usually somebody doesn't share in the good fortune of the payor, but they certainly do share in the misery. So the difficulty, of course, is if there are not other assets to be divided, then what?

  • 10:34:56

    REHMAll right. And joining us now by phone from Melbourne, Fla., is Alan Frisher. He's president of Florida Alimony Reform. Good morning to you, Alan. Thanks for joining us.

  • 10:35:13

    MR. ALAN FRISHERMy pleasure. Thank you for having me.

  • 10:35:15

    REHMDescribe the alimony reform that you pushed for.

  • 10:35:20

    FRISHERWell, what we try to do -- and because I'm basically down in the trenches. I was listening to what everybody was saying, and certainly academically and legally, there are words written on paper. But what is practically happening in the courts are a whole another thing entirely. The arbitrary and unbridled discretion of many judges in this case, ruling on these cases, give them the ability not to be consistent, not to have any predictability.

  • 10:35:49

    FRISHERAnd like the judge said, five different judges can have five different opinions. More importantly, the same judge can have different opinions when basically the same factual situation occurs in cases. So what we try to do with the reform movement in Florida is allow for certain guidelines to be put in place to allow for predictability and consistency throughout the state.

  • 10:36:12

    REHMBut I gather that your goal is to eliminate most alimony.

  • 10:36:20

    FRISHERNo. Well, that's not the case. We actually believe that a certain amount of rehabilitative alimony is quite necessary in most cases. What we've tried to do is eliminate the permanency of it. We don't believe anything should be permanent in the law. And while modifications can occur, we found practically that's very rare. Most judges do not allow for modifications when they do go before the judge to ask for them because there's no definition of what a significant change of circumstance would be.

  • 10:36:52

    REHMSo Gov. Scott did just veto that permanent alimony bill. I gather he had concerns about applying the law retroactively.

  • 10:37:08

    FRISHERYes, he did. I was recently at a dinner with Gov. Scott and had the opportunity to speak with him personally about this. And he said while he is for reform, he believes that the retroactive part of it would have been very challenging and very difficult. So he wants me to come back and present something different to him that may be able to allow for certain amount of retroactivity…

  • 10:37:31

    REHMAll right. Alan Frisher, president of Florida Alimony Reform. Thanks so much for joining us. And short break here. We'll be right back.

  • 10:40:04

    REHMAnd welcome back. Time to open the phones. Let's go first to Sherry in Ocala, Fla. Good morning to you.

  • 10:40:15

    SHERRYGood morning to you, and thank you for having me on your show.

  • 10:40:17

    REHMYou're most welcome.

  • 10:40:19

    SHERRYThank you to your guests. With -- I called the governor, and I followed the Florida Alimony Reform that was in place. I had asked the governor to veto it, and my son who is a disabled young adult also asked the governor to veto it. I don't -- right now, I've been in a long-term marriage, many children, over 20 years of marriage. I also have a disability. With my disability, there was a settlement, which those funds -- part of them are used toward promoting my husband further in his career.

  • 10:40:57

    SHERRYAnd, you know, with the alimony reform, the way it was written, I didn't feel that it gave equal protection under the law. Yes, I was a stay-at-home mom for many years. In fact, in the mediation for this settlement, when they calculated what I did within my household, I actually -- the value of service would double to what my husband earns at that time.

  • 10:41:22

    REHMYou know, someday, our work in the home is going to be calculated. Cheryl.

  • 10:41:32

    HEPFERWell, I often ask people whether or not their spouse works outside the home because certainly they do work inside the home, we all know.

  • 10:41:39

    REHMOf course.

  • 10:41:41

    HEPFERBut I agree with your statements very much, which is why I do believe having limitations on alimony is a significant concern to people. Those who make the choice -- normally it's a joint choice to have one parent stay home with children for a significant period of time -- don't realize at the time or do realize and are willing to accept the consequence of that, that the ability to further their career, even if they do become "rehabilitated," as Judge Sundt says, whatever that might mean, simply do not have the capability to earn the same type of income of those who continue on in their career through the young children stages of marriage, and it cannot be replicated.

  • 10:42:35

    HEPFERYou can't make it up. So unless and until there is some value placed on that by society or by maximizing earnings later and unless and until there is some way of dealing with people who, like you, have children who are special needs and as a result have limitations in their ability to work outside the home, having a consequence that is absolute, you know, 10 years or 15 years no matter what, I think, is arbitrary and capricious and will result in consequences that will be staggering for our society.

  • 10:43:15

    REHMAll right. Here's an email for Warren Farrell. "What are your thoughts on how long alimony should be if one of the individuals in the divorced relationship is permanently disabled and collects SSDI?"

  • 10:43:39

    FARRELLYou know, I think that in cases like that, there should be flexibility to, you know, permanence of alimony shouldn't be, like, knocked out of the law. But it should certainly be, you know, an aspiration for all of us to avoid whenever we can. You know, long-term dependency really does create a bad psychology. I think something that I would like to address here is, you know, what we all really want is to prevent the whole divorce from occurring to begin with.

  • 10:44:07

    FARRELLAnd then I think we also have an interest in -- and I think the way to deal with that is, in school we teach algebra, trigonometry, calculus, but we don't teach, you know, communication. And the part of the communication that we don't teach at all is how to handle personal criticism from a loved one without becoming defensive. And that's a skill set that almost -- the Achilles heel of human beings is our inability to handle personal criticism, particularly from loved ones. And we...

  • 10:44:37

    REHMAnd that, Warren, is...

  • 10:44:40

    FARRELLYes. Go ahead.

  • 10:44:41

    REHM...a whole program of its own, which, at some point, I do hope we can take up. Here's an email from Peter who says, "When military people get divorced, their spouses get ownership a part of the service member's retirement". This isn't alimony that can be said or adjusted by the court. It's permanent ownership as though it were a tangible piece of property. Is this changing?" Cheryl.

  • 10:45:23

    HEPFERWell I don't think it's going to change. Actually, the states determined early on that there should be some fair distribution of marital property, either community property division, which is almost always 50-50 or equitable distribution, which could be something other than 50-50.

  • 10:45:42

    HEPFERThis issue is actually addressed by the United States Supreme Court, and the court determined that military retirement is an asset to be divided upon divorce, just like any other retirement would be. And generally, it's divided on a formula of if, as and when for a portion of the military service during the marriage.

  • 10:46:04

    REHMI see. I see. A few emailers are asking Ann Sundt to explain the difference between alimony and child support. And what about prenuptial agreements?

  • 10:46:23

    SUNDTOh, my gosh. Where do I begin? I'm in favor of prenuptial agreements.

  • 10:46:27

    REHMYou are.

  • 10:46:28

    SUNDTI am. I, you know, even if the agreements are never upheld, even if they're ripped up, thrown away, it means at least that youngsters entering into this relationship have given it some thought. And I think that's a very wise thing to do, particularly with more and more households where there are both parents working.

  • 10:46:50

    REHMIndeed.

  • 10:46:51

    SUNDTBut child support is a whole different factor. I mean, alimony impacts child support, and that's another piece of this because we have child support guidelines. And into those guidelines go the incomes of both parties. And if one is paying the other one some alimony, that changes the whole child support scheme. The interesting parallel is one that I think you or Cheryl mentioned earlier. We have an automatic cut-off of child support. And all of us know either within our own household or we have friends whose adult children are not self-supporting.

  • 10:47:34

    REHMBeyond the age of 18.

  • 10:47:36

    SUNDTEighteen.

  • 10:47:37

    REHMReally.

  • 10:47:38

    SUNDTNineteen if they're in high school.

  • 10:47:38

    REHMYeah, absolutely.

  • 10:47:41

    SUNDTSo we don’t just throw them out on the street. We continue. But there's no legislative requirement that we do that. So -- go ahead.

  • 10:47:49

    REHMAll right. Let's go to Montgomery, N.J. Good morning, Stuart.

  • 10:47:57

    STUARTGood morning. Thank you so much for addressing this important issue on your show. My question would be for the past president of the AAML. My question to you is I'd like you to reconcile what you're saying here today with your 2000 -- the AAML 2007 report, which recommended durational guidelines for alimony because of the fact that there is no predictability with unlimited discretion with judges and no guidelines at all.

  • 10:48:31

    REHMCheryl.

  • 10:48:32

    HEPFERI'm glad you brought that up, Stuart, because it was on my checklist for me to be sure to mention here today. The American Academy of Matrimonial Lawyers years ago, as you say, in 2007, I believe, came up with guidelines, in great part, because we were concerned about the significant disparity in lifestyles that were afforded when women were not afforded a reasonable amount of support. Again, we, today, are not limiting this to women. I know that we started out with some statistics that indicated that there are few men who receive support alimony. It's mostly women who are receiving it.

  • 10:49:16

    HEPFERBut I assure you that 10 years from now, that statistic will be changed, especially as a result of same-sex marriages and the fact that same-sex couples are raising children together and one of them -- sometimes both -- will spend considerable time rearing their children. But when we came up with the guidelines, they were meant to be guidelines. They were not affected by any state that I'm aware of in the union adapting them. In fact, in Maryland, they are to be considered by the court as just one of many factors to give guidance.

  • 10:49:57

    HEPFERThat was the purpose of them. That's what they were meant to be. And because the guidelines, of course, were meant to be considered by all 50 states and because income can be significantly variable in some states vis-à-vis others, it's a lot more expensive to live, for example, in the Manhattan area than it might be, for example, in Arkansas. It was never intended that those guidelines were going to be just adopted.

  • 10:50:25

    REHMAll right. Here's an email from Bonnie, who says, "There is too much abuse in alimony, and modifications are too rare. And the addition of effectively forcing a new spouse to pay for someone's previous spouse is unconscionable as that person may still be reeling from a previous divorce themselves. Alimony is properly and too rarely used a lifeline to the future." Ann Sundt.

  • 10:51:10

    SUNDTI'm not sure which part of this I agree with, but a good deal of it because as -- I started out by saying I try very hard to look for some other alternative. I see alimony the same way I see the court. It's a last resort. Most people do resolve their differences, and they work it out. And then they take responsibility and ownership for their own contracts.

  • 10:51:33

    SUNDTThe people who come to court, for whatever reason, can't do that or won't do it, and so a third party does it for them. Alimony is a little bit like that. If there is some other way to untangle the relationship, to make sure that everybody is fairly treated, the parties will find that, given suggestions, opportunities. And it's only when they can't do that that a third party...

  • 10:52:01

    REHMThat they end up in court.

  • 10:52:03

    SUNDT...has to make a decision.

  • 10:52:04

    REHMAll right. Let's go to Barrington, R.I. Let's hear from David. Good morning to you.

  • 10:52:12

    DAVIDGood morning. And thank you for having me.

  • 10:52:14

    REHMSure.

  • 10:52:14

    DAVIDIt's a really complicated and complex topic. But one of your guests -- and she just mentioned that most seem to get settled before they get support. In my experience, based on all the friends that I know that have gone through this very difficult process, is that they usually do or end up in court. And you take something that is sort of an emotional contract and you kind of fit it into this legal -- legalistic contract, and it seems to perpetuate this adversarial process.

  • 10:52:50

    DAVIDAnd I'm just wondering how they see the -- maybe the courts kind of bringing a little more compassion or something into the system so that it seems to be a fair process even when they do get to court because my experience is that most end up in court. And I don't know where the guests recites the information or the data that shows that most settled before they get to court.

  • 10:53:11

    REHMDavid, may I ask you a question?

  • 10:53:15

    DAVIDSure.

  • 10:53:16

    REHMDid you turn to a mediator before you got to court?

  • 10:53:24

    DAVIDI personally -- we did try to do that, and we were moving along in that process. But I found that once we got into the -- once we get into some of the -- once we get into the legal system that, in some ways, the legal system almost perpetuated the animosity that kind of grew out of it. And I'm wondering if that's true, if you have children, if it becomes adverse because children add a whole another dynamic to it.

  • 10:53:48

    REHMIndeed.

  • 10:53:49

    FARRELLLet me add something here, if I may, Diane.

  • 10:53:50

    REHMAll right. Hold on one second just to remind listeners that you are listening to "The Diane Rehm Show." Warren, go right ahead.

  • 10:54:03

    FARRELLI deal with the courts a lot, and one of the things that I often think is that there needs to be a form of couple's communication or mediation that is not -- where that mediator or that couple's communicator person does not need to report what is being said in the sessions into court that precedes the one where something is reported to court.

  • 10:54:31

    FARRELLI think what I see with many couples is that they're afraid to say what they -- something that is constructive, that is loving, that is appreciative, that is acknowledging to the other person or to sort of bend a little bit for a fear that it'll be used against them in court. And I wanted to ask Judge Sundt if she agreed or saw the possibility for that being incorporated into the system.

  • 10:54:55

    SUNDTAbsolutely. And we don't ask mediators to report in the court. I think -- to respond both to you and the previous caller, most court systems now do try to build in mediation services. But, you know, somebody has to file in order to get a divorce, and that has a wicked effect because it starts a timeline running. And some courts are very efficient.

  • 10:55:23

    SUNDTIf you file then, by golly, you are going to get divorced within a year or nine months or whatever their timeline standard is. So I think more and more couples now are learning, and they're getting good coaching, counseling from their attorneys. Hold off on the filing, try the mediation process so that you don't find yourself in an adversarial position right from the get-go.

  • 10:55:45

    REHMSuch a good point. Such a good point.

  • 10:55:47

    FARRELLYes, yes.

  • 10:55:49

    REHMAnd finally, here's an email from Stephanie, who says she's thinking ahead as a stay-at-home mom. "What would you recommend I do to protect myself financially now in the event of a divorce later?" Cheryl.

  • 10:56:11

    HEPFERAnd I think that my mention previously about prenups and post-nups is a point well-taken. We are finding that more and more people are entering into prenups. It used to be then only the very wealthy did. We are seeing more and more post-nups as a result of situations that people just encounter in their lives. One spouse says to the other, I would like to take off three years and work on my master's degree or do a residency after law school that will require you to work harder and basically carry me so that we, together, will have a better life after I'm finished with my schooling.

  • 10:56:52

    REHMAnd how many people did we hear from, in my generation, who helped husbands go through medical schools and then their husbands left to marry someone else? So I think you're right on, Cheryl, with the idea of the post-nup as well as the prenup. And that's got to be, sadly, the last word. I hope Stephanie takes that into account. Warren Farrell, Ann Sundt, Cheryl Lynn Hepfer, thank you all so much.

  • 10:57:34

    FARRELLDiane, it's a pleasure being with you again.

  • 10:57:34

    HEPFERThank you. It was a pleasure.

  • 10:57:36

    SUNDTMy pleasure, Diane.

  • 10:57:36

    REHMThank you, Warren, and thanks to all of you for listening. I'm Diane Rehm.

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