In 1990, a man retired and, two years later, his wife filed for divorce. They were married almost 40 years. In 1994, the trial court divided assets equally; imputed $40,000 income to the husband, awarded his wife medical insurance and $1,000 per month alimony.

The husband appealed, “did the trial court err in imputing income to a retired person, did the trial court err by ordering him to pay medical insurance and, did the trial court err in awarding alimony?”

In a 5-4 split, the Virginia Appellate Court upheld the trial court’s decision. The man’s attorney remarked “the impact of this court’s opinion, with the lack of standards set forth in its opinion creates a decision that is not good public policy and opens the potential of a floodgate involving spousal support issues for the senior citizens of this Commonwealth.”

Four dissenting Virginia Appellate Judges summarize, “It’s wrong that a trial Judge may require a spouse who is retired and later divorced to abandon his or her retirement and reenter the workforce. A payor spouse would be placed in the untenable position of being unable to retire at any age if courts did not consider the reduced income resulting from a reasonable voluntary retirement when deciding whether to modify alimony obligations.”

The wife hadn’t worked during the marriage. She married at 20 and took care of her family. They raised 3 children and, because of her husband’s career, they moved every few years. She found them homes and enrolled the kids in school. Her family was her career.

States that are reforming alimony laws are still awarding lifetime alimony to spouses who are too old to enter the job market, who are unable to support themselves, who are disabled or who care for a disabled child. They don’t force spouses who devote their life to family to go to work.

The reason states are reforming alimony law is that most spouses don’t need it. Sixty-seven percent of married women work whether they have children or not. They are receiving commensurate pay, medical insurance and retirement. They are earning 10 percent more college bachelor’s degrees than men, 38 percent are out earning their husbands and, they don’t want to pay alimony to a former husband.

Many states like Arizona, Kansas, Illinois and Missouri award limited term rehabilitative or transition alimony to working age spouses. They feel the goal of alimony is to provide support until the dependent spouse is self-sufficient. Transition alimony helps working spouses move on after divorce. Rehabilitation alimony helps non-working, dependent spouses to get training and education needed to be competitive in the work force.

Nebraska requires divorcing couples to mediate before they file for divorce. Mediation requires negotiation and encourages out of court settlements. Mediation allows spouses to decide alimony duration and amount, which normally falls under a court's discretion.

Virginia awards permanent alimony to young healthy college-educated working age spouses in established careers who were married for less than 10 years, whether they have children or not and, when the difference in income is less than $10,000. Virginia consider alimony to be property and Virginia Property Settlement Agreements are enforced by law. Those who can’t afford to pay, go to jail.

Massachusetts, New Jersey, South Carolina and Oregon legislators are re-writing family laws to terminate or allow a new hearing at retirement age. Elderly living on Social Security receive $27,432 in Social Security and, according to the IRS; average alimony during 2014 was $23,082. Without Social Security, they’ll live in poverty.

According to Susan L Brown of Bowling Green State University, since 2014, “nearly 1 in 4 divorces are to couples over 50 and, almost 1 in 10 is over 64. Long-term marriages are not immune to divorce as, more than 55 percent of gray divorces involved a split for couples who had been married more than 20 years and, alimony is almost always granted after long-term marriages”.

Married couples “roll the dice” when they divorce. State statutes and case law is so vague as to be largely useless in predicting or negotiating settlements. The Legislature has failed to set forth objective guidelines for determining appropriate settlements so Family Courts must rely on a Judge’s discretion and archaic laws.

State alimony reform groups are asking for predictability. Massachusetts recently adopted guidelines that provide attorneys with the tools needed to negotiate out of court settlements. Unfortunately, courts have been unwilling to follow guidelines.

Sam Brittingham, Virginia Beach, Virginia