Historical Background of Alimony


(1) The sustenance or support of the wife by her divorced husband which stems from the common law right of the wife to support by her husband.  (2) Allowances which the husband or wife, by court order, pays the other spouse for maintenance while they are separated or after they are divorced (permanent alimony), or temporarily, pending a suit for divorce (pendente lite).

Alimony is the legally imposed allowance paid to one spouse by the other spouse for maintenance and support.  Alimony arose in the English ecclesiastical courts at a time when divorce was not permitted and a married couple could obtain only a legal separation.  Although the parties may have been living apart, the husband still had a continuing legal duty to support his wife because they were still legally married. 

This original alimony concept of support carried over to modern American divorce laws. In fact, some jurisdictions have even codified this support requirement: “Subject to this division [Support], a person shall support the person's spouse.”  See Cal. Fam. Code § 4300 (2005) (emphasis added).  In addition to a means of support, alimony was further justified as a way to award damages to an injured party or monetarily penalize the person responsible for causing the emotional pain during the marriage.

Furthermore, divorce, as it was recognized by courts in this country, was initially wholly fault-based, and so a woman could collect alimony from her ex-husband only if he was found to be at fault for the divorce.  Additionally, in fault based jurisdictions, alimony decisions were awarded based on the degree of fault and maintenance of status. 

Alimony could also be temporary (awarded while divorce is pending—alimony pendent lite) or permanent (awarded at the conclusion of the litigation).  Both are discussed in more detail in the next subchapter.

Alimony for Wives

The preference for favoring the wife in awarding alimony was due to the fact that women had no property rights during the marriage.  Courts often used the value of this property as the basis for determining the amount of alimony to award.  In addition, women did not have access to outside employment, thereby offering further support for awarding alimony to the wife.  Yet, where the wife was at fault (for the marriage breakdown), she was not entitled to alimony. 

In the U.S. the concept of alimony has been expanded, and includes the wife who is separated from her husband as well as a spouse who is divorced. 

Example: George and Allison were married for 20 years before she filed for divorce.  During their marriage, George worked in a major corporation and rose to the rank of CEO during his tenure.  Allison gave up her aspiring career as an interior designer to stay home to raise their three children.  In addition, she served as a “corporate wife” by assisting George in his ascent in the corporation.  When the amount of alimony was determined, the judge took into account George’s obligation to support his wife in the manner she was accustomed to.  This consideration of Allison’s lifestyle is a reflection of the husband’s continuing duty to support his wife.  See, e.g., Radandt v. Radandt, 140 N.W.2d 293 (Wis. 1965).

Alimony for Husbands

As stated, traditionally alimony was reserved for wives, given the typical family structure that had women staying at home to take care of the kids while men went to work.  After 1970, most states no longer based an alimony award on the spouse’s gender.  See, e.g., Pfohl v. Pfohl, 345 So.2d 371 (Fla.App. 1977).

The basis for this change was the Equal Protection Clause of the Fourteenth Amendment.  Specifically, in Orr v. Orr, 440 U.S. 268 (1979), the U.S. Supreme Court struck down an Alabama statute that required only men to make alimony payments to women.  In deciding that this unequal treatment was unconstitutional, the Court had to balance the historical goal of rewarding women for discrimination during the marriage with whether the statute was substantially related to that objective.  Furthermore, such sex-based statutes were considered inherently discriminatory and did not provide for a means to make a case-by-case analysis of the facts and circumstances at hand.  Thus, the elimination of this sex specific requirement was one way to make alimony awards gender neutral, thereby eliminating longstanding stereotypes as to each party’s role in a marriage.

With the extension of support to husbands, additional labels have been created, such as spousal support or maintenance.

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