E. Governments and Shared Parenting
II. Spousal Support – Compensating Loss or Gain?
It is no surprise that the question of indirect contribution to the acquisition of property was raised in the 1960s and 1970s. Before occupational work became a realistic alternative for many married women, gender or “the natural order of things” appeared to explain why the housewife could not invest directly in capital accumulation. The idea that a random or unjust benefit arises where the right of ownership is determined by who happens to go out to work and who happens to be at home, appears more likely when work outside the home is a viable alternative for women. The thinking is that the chosen division of labor shall not in itself entail that the homemaker acquires ownership of less than she would otherwise have had: where equal distribution of effort between the spouses both inside and outside the home would have given her a right of co-ownership, a skewed distribution should not lead to a different result. It is now more plausible to consider both the full-time and part-time homemaker as having made possible parts of the husband’s income, and thus contributed indirectly to his acquisitions.
But, when one window is opened, another is closed. The same realistic expectancy of paid employment for women may eliminate the possibility of long-term maintenance after divorce. In Europe, the frequency of granting maintenance varies considerably – from countries in Eastern Europe and Scandinavia where maintenance is the exception, to Germany, Austria, Switzerland, and others where it is quite common. The overall trend seems to be a decline in the granting of maintenance, and a shift from permanent to short- term awards.24 As fault-divorce is no longer the rule, maintenance as a sanction is less relevant; and as life-long marriage is declining, solidarity wanes as a justification.25Today, compensation for losses relating to marriage seems to be the most plausible justification both for long-term maintenance and for short-term maintenance.
The ALI proposal for compensatory spousal payments follows this development. The remedy it provides is re-characterized as compensation for loss rather than relief of need.
The drafters refer to the historical failure to provide any satisfactory explanation for placing the obligation to support a needy person on his or her former spouse, and claim that the law, as a result, is unable to provide any consistent principle for determining when and to
24See K.European Family Law in Action. Volume II: Maintenance between Former Spouses, EFL Series, No. 3, Intersentia, Antwerp (K. Boele-Woelki, B. Bratt, I. Summereds., 2003). Especially in Scandinavia, the self-sufficiency principle prevails, and both in Sweden and Norway it is normally required that the marriage as such has resulted in the need for maintenance. In Norway, as a general rule, the ability and opportunity of the spouse to ensure support must have been reducedas a result of caring for children of the marriage or of the distribution of joint tasksduring marriage (Norwegian Marriage Act § 79 second paragraph). In other cases maintenance may only be ordered if special reasons so indicate, for example, if the former spouse is sick or disabled. The amount of maintenance shall be assessed on the basis of the need for maintenance of the person entitled thereto, and the ability of the person liable to pay maintenance, cf. § 80. In practice, maintenance after divorce is granted in a limited number of cases.
25Dieter Martiny identifies four different justifications for spousal maintenance after divorce. In addition to support during the transitional period, he identifies sanction, solidarity, and compensation for losses suffered during marriage. D.Martiny, Divorce and Maintenance between Former Spouses – Initial Results of the Commission on European Family Law, in K.Boele-Woelki(ed.),Perspectives for the Unification and Harmonisation of Family Law in Europe, EFL Series, No. 4, Intersentia, Antwerp (2003) p. 545–46.
what extent a former spouse is in need.26For entitlements based on the parties’ disparate financial capacity, thePrinciplesrecognize two different kinds of compensable loss: loss of living standard27and loss of earning capacity.28
Whether spousal earning capacity should be regarded as property subject to division on divorce is controversial. Future earning capacity is not treated as property in the European jurisdictions – instead, spousal claims on future earnings are made under the rubric of maintenance, as is normally the case in the United States, as well.29The crux of the argu- ment for division seems to be that because both parents are not fully able to pursue a career out of consideration for the children, the choice of one of the spouses partly to give up a career should not be at the peril of that spouse alone. Future income is, however, regarded by many as too closely linked to individual autonomy and the personal characteristics of the earner, and therefore not suitable for division. Moreover, as the Principlespoint out, division of property is final and raises great valuation difficulties. Maintenance, on the other hand, is more flexible because of the possibility of termination of the award, but does not accord with the self-sufficiency principle.30In terms of future income, “property”
and “maintenance” are two different expressions of the same phenomenon: the spouses’
adjustment of work efforts to each other during marriage that have effects after marriage.
One can therefore imagine a new form of benefit on the dissolution of marriage under a new name, which cannot be characterized as either “property division” or “maintenance.”
Such a rehabilitative measure need not carry with it the traditional legal and political under- standing that lies embedded in these two concepts. This new benefit may be tailor-made to address the particular problems that arise when compensating future gain or loss. The proposed provisions in chapter5of thePrinciplesattempt to create such a new remedy.
26Principles §1, Topic 1, Overview of Chapter4, at 25;Principles§ 5.02 cmt. a, at 789.
27Principles§ 5.04.
28Principles§§ 5.05 and 5.11. The ALI also recognizes entitlementsnotbased on the parties’ disparate financial capacity, such as contributions to the other spouse’s education or training,Principles§ 5.12, as well as certain sacrifices during a short marriage,Principles§ 5.13. A few possible components of spousal support are dealt with elsewhere, e.g., the allocation of the costs of postdissolution childcare is provided as part of the child-support award in thePrinciples’ Chapter3. Vested pension rights earned during the marriage are subject to division upon divorce under Section 4.08. This is appropriate since such assets could be compared to other forms of savings, such as bank deposits. Generally, there seems to be an increasing tendency to split pensions in European countries. Today, pension rights are subject to division in several European countries, like Germany, Switzerland, and the Netherlands and to some extent in England. Pension splitting is a much-debated question in the Scandinavian countries. Pensions are not subject to division in Norway. In Sweden and Denmark, pensions are divided to a limited degree. See M. BRATTSTRỉM,Makars pensionsrăattigheter(Spouses’ Pension Rights), Iustus Forlag, Uppsala (2004) English Summary p. 317–330.
29Principles§ 4.07 cmt. a, at 694–95.
30A number of legal scholars have claimed that the principle of self-sufficiency does not take adequate account of the fact that the earning capacity of the majority of wives has been permanently reduced due to childcare and the work patterns during marriage. They have argued that society should rethink the “premature abandonment” of maintenance, and that maintenance should be granted as compensation for these losses. See, e.g., L. J.Weitzman, Alimony: Its Premature Demise and Recent Resurgence in the United States,inEconomic Consequences of Divorce (L. J. Weitzman & M. Maclen Clarendon Press Oxford (1992); M. A.Glendon, The Transformation of Family Law, 233–38 (The University of Chicago Press 1989). A similar debate took place in Norway relating to the duration of maintenance. According to The Marriage Act § 81, maintenance shall be ordered for a limited period not exceeding three years. If special reasons so indicate, maintenance may, however, be ordered for a longer period or without any time limit. These rules were criticized because they did not pay enough attention to wives who had been working at home for a long period and had little opportunity to support themselves. As a result, Section 81 was amended in 1998, and the section now explicitly states that maintenance, as a main rule, shall be ordered for a longer period of time or without any time limit if the marriage has lasted for a long time, (which, however, was the rule in practice even before 1998).
The term “compensatory payment” is used instead of “alimony” and “maintenance” which helps to avoid the historic association with relief of need.31Additionally, the conditions for the granting of an award are standardized, and the difference between the spouses’ post- divorce earnings is divided according to a durational factor.32In this respect, the benefit resembles an allocation of property upon divorce. In other respects, the benefit resembles maintenance, for example, the provisions regarding duration and automatic termination of the awards.33
The compensatory awards allocate certain financial losses equitably between the spouses, primarily the loss of marital living standard according to Section 5.04, and the loss of earning capacity by the primary caretaker, according to Section 5.05. Even though these two sections seek to compensate different losses, the basic measure employed by both sections is the same: the amount is calculated by applying a percentage (called durational factor or child care durational factor) to the difference between the incomes the spouses are expected to have at dissolution. The measure in Section 5.05 is an approximate proxy measure of the loss in earning capacity. In this way, the two sections “gradually merge the financial fates of the spouses as the marriage or child-care period lengthens through a durational factor that proportionately reduces any gap in their individual post-divorce earnings.”34
The rationales for the claims recognized by the two sections are not the same. The rationale for claims recognized by Section 5.05 is primarily linked to the loss of future earning capacity due to child care, but two other rationales are mentioned as well: loss of a supportive spouse and the caretaker’s contribution to the earning capacity of the other spouse. The latter rationale applies the same line of thought that lies behind the recognition of indirect contribution to the surplus acquired during marriage described above: “By fulfilling their joint responsibility for their children’s care, the claimant under this section has allowed the other parent to have a family while also developing his or her earning capacity.”35
In Section 5.04, the rationale is linked to “relationships as a source of obligation for the differential risk of marriage.”36This rationale is based neither on economic nor on contractual thinking, but on a moral obligation: the obligation “develop[s] over time as the parties’ lives become entwined.”37 The drafters point out that in “sharing a life together they mold one another.”38This seems like a sensible and intuitively correct way of describing a long-term marriage; the argument, however, conceals the economic nature of this molding. ThePrinciplesdo not link this entwining to the division of labor and the fact that the primary homemaker normally is freeing up time for the person working outside the home. Even though division of labor is not mentioned in Section 5.04, it is the long-term homemaker in particular who is covered by this section.39As thePrinciples point out, the long-term homemaker usually serves as the primary caretaker of the children of the marriage as well,40and the two awards are therefore coordinated. In practice, child care and household work are inseparably connected, and one could therefore ask why these two components of domestic work are not dealt with in the same award. The answer could be related to the fact the drafters are of the opinion that it is difficult to show that the
31Principles§ 5.02 cmt. a, at 790. 32Principles§§ 5.04(3), 5.05 (4).
33Principles§§ 5.06, 5.07. 34Principles§ 5.13 cmt. a, at 897.
35Principles§ 5.05 cmt. d, at 841. 36Principles§ 5.04 cmt. b, at 808.
37Principles§ 5.04 cmt. c, at 809. 38Principles§ 5.04 cmt. c, at 809.
39Principles§ 5.04 cmt. a, at 806. 40Principles§ 5.04 cmt. a, at 806.
homemaker covered in Section 5.04 has contributed to the other spouse’s earning capacity although this difficulty does “not cast doubt on the observation that, in assuming that role, the homemaker incurs a significant economic loss.”41The drafters state that because
“there are many cases in which the facts would not suggest that the claimant contributed to the potential obligor’s earning capacity,” the contribution rationale would leave many awards unexplained.42In this reasoning, the drafters posit a hypothetical situation where the husband is single: “Such cases do not usually suggest that the trial court examine each particular case to determine whether the obligor might avoid or reduce the award by showing that he would have done as well without his spouse.”43In my view, the question is not whether the husband would have done as well without his spouse, but whether he would have done as well if he had borne his share of homemaking in the family, as discussed earlier under the “contribution model.”
The next question asks which factors should be kept constant in this comparative situa- tion. If the spouses have agreed upon the division of labor – and a strong presumption that they have agreed should exist if they have practiced this division of labor for some years – their existing quality of life, in terms of spare time and standard of homemaking should be taken as a given when valuing the homemaker’s contribution to the other spouse’s earning capacity. In this way, the moral obligation to post-divorce support that arises in a long-term relationship, which serves as ALI’s rationale for Section 5.04,44is taken into account as a premise in the economic reasoning. By taking spare time and the standard of homemaking as givens in cases where the division of labor is agreed upon, the moral relationships and commitments of the spouses are taken seriously. Given these premises, a husband would have had to reduce his working hours if his wife had not performed some of
“his” share of the homemaking. From this point of view, she has contributed to his earning capacity. However, in those marriages where there are no children, the homemaking is less time-consuming, and the homemaker’s contribution as well as her loss is limited. In the great majority of long-term marriages, children are present, and the homemaker has contributed to the other spouse’s earning capacity in a substantial way.
ThePrinciplessubstitute “loss” for “need” as a rationale for compensatory payments after divorce, and argue that such payments should be viewed as an entitlement rather than a charitable transfer.45However, entitlements originate as much from the contribution side as from the loss side. According to the “contribution model” described above losses sustained and contributions made during marriage are two sides of the same coin. The wife’s child care and homemaking has enabled the husband to pursue his own career and consequently obtain higher future earning capacity outside the family. The “coin” is the child care and household work, which from one side constitutes an indirect contribution to the breadwinner’s acquisitions and future earning capacity and from the other side an obstacle for the homemaker to taking up paid work, which results in a loss of income and,
41Principles§ 5.04 cmt. b, at 808. With childcare, the contribution side is recognized. SeePrinciples§ Section 5.05, cmt. e, at 841.
42Principles§ 5.04 cmt. b, at 808.
43Principles§ 5.04 cmt. b, at 823 (“Such a contribution is, however, difficult to show. It is clear that married men earn more than single men. The problem for the researchers is to determine whether their earning advantage results from a) marriage itself [or other factors]”).
44Principles§ 5.04 at 808–12. See also Carl E. Schneider,Rethinking Alimony: Marital Decisions and Moral Discourse, 1991 BYU L.Rev. 197, 248–49, 257.
45Principles§ 5.02 cmt. b, at 790.
subsequently, of earning capacity. Gain and loss are two sides of the same coin, although one sometimes gets the impression that one has to choose between them. There is no reason to conceal one side at the expense of the other. Simultaneous gain and loss constitute a powerful justification for transfers between the spouses in modern marriages. Thus, it seems clear that indirect contribution to the other spouse’s earning capacity in the form of child care and household work is an important rationale for the granting of compensatory payments upon divorce. Another matter is whether this contribution could justify a division of future earning capacity after divorce. An important counterargument is the fact that future earning capacity is closely linked to individual autonomy and personal makeup of the higher-earning spouse, and therefore not so suitable for division. This discussion is not elaborated in this chapter.
Even though loss and gain are two sides of the same coin, they do not always go equally far.
There may be differences in the quantification, according to whether one sees things from the gain side or from the loss side: Should the spouses split the increase in earning capacity that is a result of the wife’s enabling him to devote himself more fully to his occupational work, or should the husband compensate the wife for her loss of earning capacity due to the fact that she has spent more time on child care and household chores? Apart from a small percentage of high-income families, however, these two methods of calculation lead to more or less the same result. In the hypothetical assessment, we must take it as established that she could have had a more lucrative career development if the roles were reversed from the beginning.46It is only in those cases in which the wife’s alternative future income, given these conditions, would have been markedly lower than the husband’s future income, that there is a difference of any significance. In those cases the husband can argue that his wife has not lost as much as he has gained, and her compensation should in any case be limited to her loss, or, put in other words, his future earning capacity is primarily related to his personal abilities, and not to his wife’s child care and the chosen division of labor.47On the other hand, it may be claimed that the homemaker has freed time for the person who goes out to work to earn high as well as low pay, and consequently any increment in earning capacity should be credited both spouses accordingly. There is no “correct” answer to this question of causation. In cases where the husband has a much higher income than his wife would have had, the spouses have chosen a more efficient division of labor during marriage. The question of who shall be ascribed this efficiency gain cannot be solved on the basis of simple causal considerations – it is a matter of legal-political choice. Small and moderate differences in income should in any case be left out of account, due to the multifaceted character of marital relationships. There may be good grounds to suggest an exception in cases in which one of the spouses has an extraordinarily high income, as it is most probable that a greater part of the higher-earning spouse’s future earning capacity is related to his or her personal abilities.