The End Of Alimony

Correction Appended: May 16, 2013

Debbie Leff Israel has a math problem. Like so many math problems, it’s also a romantic problem. In 2009, Leff Israel, a divorced math professor, connected on Facebook with a friend from high school whom she hadn’t seen in 26 years. “We fell in love,” she says. John Kelapire, an amiable engineer for a cruise-ship company, proposed to her, she says, in 2010, after his divorce from his wife was final.

But there was a hitch. Kelapire pays about a third of his take-home pay to his ex-wife and will until one of them dies. Leff Israel’s afraid that if she marries her fiancé and he has a financial setback, the numbers won’t add up and she will have to make up the difference. She soon found out she wasn’t the only woman making those calculations.

So Leff Israel founded the Florida chapter of the Second Wives Club, the sole purpose of which is to abolish permanent alimony. In just two years, the Second Wives — allied with other reform groups — have come surprisingly close to their goal. In April a bill that would have ended permanent alimony cleared the Florida house by a healthy margin. It sailed through the legislature “more quickly and with more support than most other bills in memory,” says Florida-based family lawyer Scott Rubin. About four hours before it was to pass into law, at 8 p.m., Governor Rick Scott vetoed it, saying he was concerned that the law could be applied retroactively and unfairly hurt alimony recipients. But reformers, who are reorganizing and trying to respond to Scott’s concerns, say wholesale changes are inevitable. “Reform will have to happen,” says Alan Frisher, president of Florida Alimony Reform (FAR). “Too many citizens are affected.”

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It may be the biggest change to the way Americans divorce since the 1970s, when the rise of no-fault dissolutions made ending a marriage more like an unpleasant root canal than open-heart surgery. Alimony — the permanent kind, which gets paid until one spouse dies or the recipient remarries — is facing extinction, or at least a significant downsizing. Although Floridians entering splitsville will still — for now — face or be able to seek permanent alimony, a growing reform movement is making headway across the U.S. State by state, legislatures and courts are taking a long, hard look at the purpose of alimony and the way it’s awarded, replacing court-determined payments that can vary wildly with ones determined by a formula or scrapping them altogether. Massachusetts abolished lifetime alimony and set up a formula for future settlements in 2011, after a nine-year campaign by alimony payers. A bill was introduced in New Jersey’s legislature in March, and others are in the works in Connecticut and Colorado. Vermont and Maryland have newly minted reform groups. Virginia, South Carolina, Georgia, Arkansas and Tennessee all have small groups. “Alimony is the most unstable area of family law,” says Arizona State University law professor Ira Mark Ellman, who spent more than a decade studying family dissolution.

About 420,000 Americans receive alimony, by some estimates, but to reformers it is an obsolete yet ravenous dinosaur. The notion of permanence in marriage has taken a beating; arguably, anybody getting hitched these days shouldn’t ignore the possibility of a solo stint sometime down the road. At the same time, the potential cost of permanent alimony keeps going up. Between rising longevity and people willing to cohabit rather than marry again, payees can find themselves shelling out for decades longer than the marriage lasted — even after they’ve retired or fallen ill, even if their former spouse really doesn’t need it.

This transformation of marriage has proceeded in step with changing assumptions about a woman’s dependence on a man for money. To some people — especially those giving cash to an individual they despise — the idea that a woman cannot support herself financially is beyond quaint. Women are graduating from college in greater numbers than men, and while they typically don’t earn as much, they have more opportunity than ever. In 2011, according to the Bureau of Labor Statistics, almost 40% of working wives earned more than their husbands. Lawyers have noted, in fact, a rise in the number of women who are being ordered to pay their ex-husbands. “Women are not helpless housewives any more,” says Leff Israel.

Nor are they staying on the sidelines — and that’s the real game changer propelling reform. For decades the scenario went like this: Man gets court order. Woman gets alimony. Man gets bitter. It was ex-husbands vs. first wives. But women’s growing economic clout has given second wives considerable skin in the game, especially as the bumpy economy tended to punish the earning power of older men. When there isn’t enough money to go around, the new wife may have to pay some of her husband’s bills. It feels like her money is going to the first wife. Forever.

Donna Policastro has been married to an alimony payer for two years. He is obliged to pay his ex-wife of 20 years $650 a month, and he pays $105 a month for a life-insurance policy for which his ex-wife is the beneficiary. He gets $2,250 a month from his pension and Social Security. His other monthly expenses, she says, include $650 in outstanding bills from the marriage, $250 in health insurance and $100 toward his daughter’s college loan. When he applied to the court for a modification recently, the court declined to lower his payments, noting that his new wife has income. So now she’s helping him out with expenses. “Essentially I’m her alimony,” she says. “We could have just lived together. I was the idiot.”

But for his ex-wife, things are even worse. According to her lawyer, Policastro has not paid any alimony since July 2012. The first Mrs. Policastro says she relies on food stamps and loans from her retirement account to survive. She says she’s tried to get a job. Before she had a daughter, she worked in the music business. But at 54, having taken 15 years off from full-time employment to be a full-time parent, she finds employers aren’t interested. “I guess I’m not one of the desirables,” she says. She’s applying for disability, and the court has ordered that money be garnished from her ex-husband’s Social Security wages.

Rose Carbone, a mergers and acquisitions manager turned teacher, married for the first time four years ago, when she was 51. “He’s the love of my life. Unfortunately I didn’t realize how permanent alimony would affect all our lives,” she says. Her husband, an orthodontist, has been ordered to pay $5,200 a month in alimony to his ex-wife of 20 years. Orthodontists need good economies, and Florida hasn’t had one in a while. “He has no retirement savings. None. Permanent alimony is slavery,” she says. “It’s worse than slavery.”

These members of the Second Wives Club acknowledge that women who divorce breadwinners may need something to tide them over during a transition to independence. But they ardently believe that their spouses’ ex-wives should have been able to look after themselves after a decade or so of what’s known as rehabilitative alimony to rebuild their lives. It seems to them that with the kids gone, the first wives are just sitting around doing nothing.

But some family-law experts — including, yes, lawyers, who make their living when people fight in court — warn that attacking alimony is bad social policy. One concern is that eliminating alimony now will force divorced women to fall back on the state for support. Another objection is that alimony reform may alter the incentives for couples at the outset of a marriage, as forward-thinking spouses contemplate the difficulty of landing a job after years of not working. “You’re telling a couple that neither of them can stay at home and raise their child,” says Laura Morgan, a lawyer and the author, with Brett Turner, of the American Bar Association’s forthcoming alimony handbook. “Their economic circumstances, should the marriage fail, will be so dire.” Are stay-at-home moms making a huge mistake?

Issues like these get at some thorny philosophical questions about marriage and divorce. When people wed, they receive a host of benefits, from better tax treatment to the support of another human. But as the alimony-reform debate makes clear, some spouses are giving up something too. There is an opportunity cost to marriage and family care. Years spent tending the home or kids or buttressing a partnership are also years spent not building a résumé, not networking, not honing monetizable skills. When a union founders, alimony is a way of recouping that opportunity cost.

alimony — the word stems from the Latin for nourishment — has always been an awkward arrangement. Some form of monetary support for cast-off wives was mandated as early as the Babylonian era in the Hammurabi Code. In Western law, the practice was established in about the 12th century, when divorce was not recognized; if a couple separated, a husband still had to support his wife because they were legally still married. In the modern era, alimony has often been associated with blame; one spouse was being maltreated, cheated on, abandoned, and the other spouse should pay. Or as Peggy Hopkins Joyce, a much married actress of the ’20s, is reputed to have said, “Alimony’s a system by which, when two people make a mistake, one of them continues to pay for it.”

Then again, in Joyce’s day, everyone got married. Now the divorce landscape has radically changed. While conventional wisdom says half of all marriages end in divorce, the real number is very hard to pin down — some states don’t collect data on divorce, and people who marry and divorce a lot can skew the figures — but many experts say a better estimate is closer to 40%. In fact, says Ellman, the family scholar, among college-educated couples who married after age 26, the divorce rate has been dropping for the longest period in U.S. history. Among those with a high school education or less, however, divorce rates are still high.

Laws governing how people deconstruct their marriages differ from state to state, but typically, when one spouse wants to split — two-thirds of the time it’s the wife — there’s little the other spouse can do. (Same-sex couples are just beginning to face some of these issues now, a fact likely to generate additional legal wrinkles.) During the divorce, three major things have to be decided: how the children will be raised, how the property will be divided and, in cases of lopsided income, whether one spouse will be getting alimony. There are formulas for the first two, and agreements can often be hammered out by lawyers or mediators without getting the courts involved.

But the most vicious fights are over alimony. That’s often where family court has to step in, and a judge decrees the alimony amount. In most cases the court’s decisions are based on one spouse’s need for money and the other spouse’s ability to pay. Because each marriage is different and each judge is different, the amount and duration of alimony often varies wildly. The decisions can seem arbitrary and create an appetite for a formula, not just a judge’s say-so. The more those questions get raised, the shakier the underpinnings of the alimony system can seem.

When Steve Hitner, the President and co-founder of Massachusetts Alimony Reform (MAR), which was instrumental in the state’s 2011 move to eliminate permanent alimony and establish a formula for rehabilitative payments, first approached his local representative about his complaints in 2002, he was quickly rebuffed. “He said, ‘It’s a man-vs.-woman thing, and I’m not going to expose myself to that,’ ” recalls Hitner, who says he got involved in alimony reform after the costs of his divorce forced him to declare bankruptcy.

But Hitner noticed a lot of second wives contacting him through his blog. In Massachusetts, the only kind of alimony available was permanent. Some men had been married very briefly and were paying money to their ex-wives decades later, sometimes to the impoverishment of their current family. “We met with the legislator again, and this time I had the women speak,” says Hitner, “And wow, he listened.” MAR gathered together the first Second Wives Club, and Hitner, who’s now a divorce mediator, has advised every state’s alimony-reform group to build one. Leff Israel calls him her mentor.

She started the Florida Second Wives Club in December 2011 as an arm of the existing group Florida Alimony Reform, which was made up mostly of guys. Leff Israel’s financial situation is not bad. She’s a math professor at Broward Community College. Kelapire would be her second husband. She says she got limited alimony from her ex but receives more child support than the guidelines recommend so that she can keep up payments on her home and her son can continue at the local school. While it was her fiancé’s situation that sparked her interest in alimony reform, she says she was moved to action by hearing the stories of those who were much worse off.

This fight is not just about money, she says. “Alimony ties you to an unhealthy relationship. You need a clean break.” FAR hired a publicist and a lobbyist after a similar bill failed to make it to the floor of the Florida legislature last year, but president Alan Frisher notes, “The women have been crucial in this fight.”

Studies have consistently shown that women fare worse financially after divorce than men. Census figures from 2009 found that women who had divorced in the previous 12 months were twice as likely as recently divorced men to be in poverty (22% to 11%). Even in wealthier families, the disparity is stark. “In the vast majority of cases, especially when you’re talking about an older woman in her 50s, the chances of her getting a well-paid job with no work history are slim to none,” says Jeffrey Landers, a divorce financial analyst who specializes in advising women. And very few families are wealthy enough that women can live for long off the money they got when the assets were divided. “Men in their 50s will be able to replenish their assets and retirement account,” says Landers. “Women typically will have to deplete them for day-to-day expenses.”

Jan Killilea, 53, says she is one of these women. She and her husband of 25 years split soon after they moved from Connecticut to Florida for his work. At the time of her divorce, a vocational expert estimated that she could probably make $29,000 a year if she were working. After what she says was a wide job search, she now works as a nanny at, indeed, about that pay level. That job runs out in August, when her charge heads off to school. She got to keep the house in the divorce but says she owes more on it than it’s worth. “I couldn’t survive without alimony,” she says. Her ex-husband, who asked not to be named, disputes her characterization of her financial situation.

This being Florida, Killilea decided to start a First Wives First Club to combat the efforts of the Second Wives. When she went public with her story, outraged reform activists posted her address on the Internet, dug through her divorce filings, found pictures of her on a ski trip and commented ungenerously on her life choices. Leff Israel provided me with a notarized letter from one of Killilea’s now grown daughters basically calling her mother a gluttonous leech. On reading the letter, Killilea gets teary-eyed but recovers. “The divorce has been hard on the kids,” she says. “Two of them have sided with their dad.” A day later she forwards me an e-mail about infighting at FAR that makes Leff Israel look power-hungry.

The mean-girl antics hint at the bigger social forces at work. Alimony recipients are by and large stay-at-home moms; members of the Second Wives Club usually work outside the home. It’s generational: the second wives cannot understand how a few years of supplemental income is not enough to get an older woman with no work history back on her feet. The first wives haven’t grasped that the era of a woman having a right to be looked after is over. It’s also deeply personal. Alimony ties a man to his ex-spouse, and the connection irks the current spouse. To her, writing a check to an ex is like picking at a scab, hindering its ability to heal. “Even if you are only paying $50, you have this umbilical cord that connects you to this other person,” says Leff Israel.

In 2011, Ellman and fellow ASU professor Sanford Braver polled people about the scenarios for which they thought alimony should be awarded. “What we found is that when there is a longer relationship, people are indeed more inclined to think that alimony is appropriate,” Ellman says. People were especially apt to award alimony if the couple had children, even though the survey made clear that wives were already getting child support. Surprisingly, though, people had less sympathy for so-called displaced homemakers, women who had stayed home with their kids but whose kids had left — the exact same people who frustrate the Second Wives.

But displaced homemakers, argues law professor Judith McMullen of Marquette University in a 2011 study, are those most in need of the court’s protection. In her view, women are not getting enough alimony. They don’t ask for it because they feel guilty about the collapsed marriage and foolish for having stayed home rather than work. “Women’s tendency to assume emotional responsibility for the success of the marriage and parenting,” she writes, “makes it difficult for many women to successfully negotiate for alimony.”

McMullen argues that formula-based alimony, as opposed to a kind of couture decision from a judge each time, might actually be to an older woman’s advantage because of its predictability. The family-court section of the Florida Bar doesn’t agree. “The laws needed to be reformed,” says Rubin, “but with a scalpel, not a machete.” Many lawyers oppose formulas in favor of clearer guidelines that don’t tie judges’ hands. Rubin says that isn’t their business interests talking — any change to alimony laws is great for lawyers. “Everybody will be calling their clients to get a modification,” he says. Regardless, most lawyers will privately admit that the momentum is in favor of reform. Governor Scott has agreed to meet with Frisher, the FAR president, to discuss his reservations about the Florida legislation.

Back in Massachusetts, Steve Hitner is beginning to savor the fruits of his labor. And some of them taste a little bitter. He now mediates between alimony payers and former recipients, and he seems to have newfound sympathy for the other side. “People were told they’d never have to work. And now suddenly the money’s not coming in,” he says. “I try to get the parties to make a deal, to agree to cutting the money off after a number of months.” A 70-plus-year-old woman asked for his help recently because her ex-husband just unilaterally decided to stop paying after 32 years. “I’m not in favor of that. You have to give people a chance to get used to the idea,” he says. “That just makes us look bad.”

The original version of this article misspelled the surname of FAR president Alan Frisher.