Marriage has been showing up in headlines across the country, from new stories trumpeting Obama’s statement of support for marriage equality to those debating the First Circuit’s judicial blow to DOMA. While shifts in access to legal marriage and the economic benefits that it brings are taking center stage, shifts in divorce law are quickly becoming a hot topic as well. Giving questions of divorce top billing – and, some might say, putting the cart before the horse – the highest state court in Maryland has granted same-sex couples divorce rights even though same-sex couples cannot marry in the state.

That changes to divorce come with changes to marriage should come as no surprise to anyone. Marriage and divorce are, after all, two sides of the same coin. But divorce law is going to have to move fast if it is going to keep up the pace with the changes that are transforming marriage.

A major topic in divorce law right now, and one that will continue to be highly relevant given a shaky economy and significant un- and underemployment, is alimony. Last year, when New York transitioned to no-fault divorce, the legislature adopted the use of formulas for temporary alimony, making New York on of the few states with such guidelines. Since then, other states — including Massachusetts and Florida— have been reforming their alimony laws by severely curtailing lifetime awards and capping payments.

While these reforms are important because they shake the dust from outdated alimony statutes, more is needed in terms alimony reform than the establishment of formulas or the termination of lifetime entitlements. What states need are truly gender neutral alimony awards, ones that push back against the historical gender bias inherent in alimony and bring alimony into the twenty-first century.

A first strike for alimony equality came in 1979 with the U.S. Supreme Court’s decision in Orr v. Orr. In Orr, the Court held that Alabama statutes requiring men and not women to pay alimony violated the Equal Protection Clause. The Court stated Alabama’s alimony statutes reflected the “old notion” that “it is the man’s primary responsibility to provide a home and its essentials.” In the wake of Orr, alimony laws across the states changed to reflect gender-neutral values.

Changes in women’s labor force participation and the significant increase in women’s earning power have also hastened the modernization of alimony. A recent survey conducted by the American Academy of Matrimonial Lawyers (AAML) confirmed that times have indeed changed. According to the survey, which looked at trends in the last three years, 56% of the nation’s top divorce attorneys report seeing an increase in the number of mothers paying child support and 47% also saw a rise in the number of women paying alimony.

Thirty years after Orr and in the face of sweeping social change, however, courts continue to make assumptions about the economic roles and capacities of both husbands and wives. One Connecticut lawyer has pointed to the problem, saying that while “Connecticut’s alimony laws are gender neutral as written, . . . in practice, despite women’s tremendous advancements and considerable economic power, alimony decisions are often lopsided.” The judicial practice of alimony awarding does not always match either law on the books or the realities of modern household economics.

Moving forward, making alimony awarding gender neutral in both theory and practice will be a necessity. Courts can no longer operate on the assumption that alimony is only for wives. Alimony is for husbands too, just ask lawyers in Connecticut. Or consult the U.S. Census Bureau report documenting a rise from 2.4% to 3.6% in the number of men receiving alimony. In addition, marriage equality may slowly but surely change the gender roles that have so long defined the dynamics of traditional marriage, bringing new challenges for courts looking to use gender as a proxy for entitlement. Thoroughly modern marriage — marriage free of traditional gender roles — calls for thoroughly modern divorce.

-Allison Tait

Allison Tait is a Gender Equity and Policy Postdoctoral Associate 2011-12, Yale Women Faculty Forum