AN ALIMONY GUIDELINE WOULD
ENSURE PREDICTABILITY, CONSISTENCY, AND SAVE FEES & COURT TIME

Alimony is one of the most difficult issues for family lawyers to predict for clients. Experienced attorneys generally agree that alimony is the largest single impediment to settling divorce cases as well as making their clients' costs increase. Because of the uncertainty and unpredictability of alimony awards, clients are left asking, "Will I even receive any alimony, and if so, how much and for how long?" Unfortunately, the answer is not always so simple.

An alimony request also presents a difficult question for a Judge. West Virginia currently has 45 family court judges, but there is no formula and no way for one Judge to know what is being awarded in other family courts in the state or even their own circuit.

The problem they face is that their primary measuring stick is generally WV Code 48-6-301 which allows a judge to consider certain factors to determine whether to even award support in the first place, and if so, what length of time and amount. However, the 20 factors are not weighted or prioritized and therefore provide little guidance.  Each judge may focus and emphasize whichever particular factor(s) that appeals to him or supports his decision.  Keith Hawkins, "On Legal Decision Making", 43 Wash & Lee L. Rev. 1161, 1186 (1986).

WHY DO WE NEED ALIMONY GUIDELINES?

Provide predictability for parties: Attorneys could advise their clients better. Each party could accurately predict whether he/she would receive alimony and the range of alimony he/she could receive.  Each party will know and understand the legitimate criteria and weight of each factor used to determine the outcome. With realistic alimony expectations, parties would be more apt to settle their cases. Parties could better predict whether they'll need an income producing asset after the divorce.

Reduce Inconsistency in Awards: Each Judge awards or denies alimony based on numerous subjective factors. An alimony formula would reduce grossly inconsistent alimony awards.  It would produce more uniform results and allow equal justice without regard to the parties' geographical location or draw of judge. For instance, one of the hardest question for any family law attorney to answer from a litigant after a final hearing  is when he/she says "but my neighbor who was married the same number of years with the same income had another judge and  received alimony 5 times mine."  With a formula, objective criteria would be used and the Court system would be perceived as treating all people fairly and equally.

Decrease cost of divorce: Attorneys would spend less time litigating and negotiating the alimony issues (which are some of the most highly contested issues faced at trial). Less time and costs would be spent when using experts and preparing alimony arguments (Vocational expert, financial expert, employment market expert, deposing fault and standard of living witnesses). Settlement negotiations and attorney time are consumed with "guessing" what the court will do with the alimony issue.  Each party would know what to expect during settlement negotiations which would result in a quicker resolution.  Appeals filed based on alimony would decrease, saving appellate costs to each party in preparing briefs, reviewing transcripts and arguing before the Circuit or Supreme Court. 

Promote judicial economy: Settlementbetween parties would more readily occur.  Alimony arguments before the court would be minimal and require less time to present evidence. Agreed Support Orders could be reached and presented, which would alleviate the need for a lengthy hearing.  This would allow time for other necessary emergent hearings to be scheduled.  In most cases, the alimony outcome could be worked out before a hearing is held, which would provide additional court time for other issues. The number of appeals filed based on alimony awards would decrease significantly.

WHAT DID THE JUDGES SAY IN 2001?

About 10 years ago, attorney Joe Zak and I were invited to speak to the family court judges at their annual meeting on the pros and cons of alimony guidelines.  Prior to that discussion they were given a very brief survey.  They were asked to list in order of importance 8 factors in determining appropriateness, amount and length of alimony. In those days it was a much smaller group and 16 judges responded. The results were as follows:

Factors in Order of Importance to Judges  

1.  Ability to Pay                                         

2.  Financial Need                                       3.  Length of Marriage                                

4.  Age of Claimant                                     

5.  Lack of work experience                      

6. Contribution to spouse's career            

7.  Prior standard of living                           

8.  Misconduct                                              

The judges also responded to other questions as follows:

Is inconsistency a problem? Yes 8, No 7, Don't know 1

Would alimony guidelines free up court time for other matters?  Yes 11, No 5

Helpful as a presumption for temp hearings? Yes 13, No 3

Save attorney fees and other costs?

Yes 9, No 6

Would you use an alimony guideline (but not be bound to it)? Yes 13, No 3

Do you have a rule of thumb to decide duration? The answers were:

- age + length of marriage

-1/2 length of marriage (several times)

- 0 to 3 yr. = no alimony; 3-10 yrs. = 20% to 25% of the length of the marriage; 10-22 yr. = 1/3 length of the marriage; 20+ = � or perm.

- fault makes it more

- no alimony less than 5 years (several times)

- under 10 years (1/2 of marriage)

JUDICIAL DISCRETION WOULD REMAIN

One criticism I frequently hear is that these guidelines would eliminate judicial discretion.  Nothing could be further from the truth.  The decision to award alimony would rest with the judge initially and then the Judge would decide based upon a range for amount and duration.  I know our judges want to be fair and consistent in their decisions, but it's impossible to do that without making the basis for the amount and duration of an award of alimony more quantifiable. 

I sincerely hope this article has made you stop and think about whether it is time for us to review the issue of alimony guidelines and see whether they would provide value to our court system.

IS IT TIME FOR THE COURTS TO DETERMINE WHETHER THERE IS A NEED FOR ALIMONY GUIDELINES IN THE STATE?

*Have an opinion, we want to hear from you! Email the editor with your opinion about whether West Virginia needs alimony guidelines.