A Survey of Lawyers’ Observations
About the Principles Governing the
Award of Spousal Support throughout
the United States
J. THOMAS OLDHAM*
I. Introduction
In some aspects of U.S. divorce law, there appears to be a growing
consensus. If there are minor children, child support is determined based
on statewide child support guidelines, and deviation from those guidelines
seems to be relatively rare. In many states, divorce courts divide only
regarding the award of spousal support.
In some states, the ability of a court to award spousal support is limited
by statute. In most states, however, the divorce court is given the broad
discretion to decide both when spousal support should be awarded and the
amount and duration of any such award. I have long been curious about
award of spousal support.
lawyers around the country. These lawyers were randomly selected from
a mailing list of members of the Family Law Section of the American
Bar Association.1
1
* John Freeman Professor of Law, University of Houston Law School. The author would
connection with the preparation of this article. The author would also like to thank Professor
Rollie Thompson for his thoughtful comments to an earlier draft of this paper, as well as
1. AM. BAR ASS’N SECTION OF FAM. LAW (
2 Family Law Quarterly, Volume 51, Number 1, Spring 2017
at the time of divorce, and one partner had a much higher income. The
hypotheticals included relatively short marriages (with and without minor
children), medium-duration marriages (with and without children), and a
of divorce.2 I asked each lawyer to estimate what percentage of judges in
the jurisdiction where they practice would award spousal support in each
hypothetical scenario. In addition, I asked each lawyer to estimate, for those
judges who would award spousal support in their jurisdiction, the average
duration and amount of the award. I am aware that empirical studies show
that spousal support is not awarded in most divorces. However, all the
hypothetical divorcing couples in the survey I distributed had one high
earner, which I thought could make a spousal support award more likely.
and some couples raised children together, while others did not. Of those
who raised children together, the ages of the children varied from very
young to adult. Finally, the incomes of the payor and the recipient varied,
to which the spousal support award would be impacted by the different
variables.
There are obvious limitations to this survey. First, I received estimates from
lawyers, rather than the judges themselves. Of course, one might argue
that, because most divorces settle, the perceptions of lawyers are at least as
important as what the judges understand the law to be. Second, I provided
income was substantially higher
income was substantially higher
children
Marriage” scenario); #4, a ten-year marriage where the parties have minor children,
and the wife will be the primary caretaker of the children after
See generally Margaret Brinig, Marital Property, in INTERNATIONAL SURVEY OF FA MILY
LAW: THE 2016 EDITI ON 509, 516 (Bill Atkin, ed.); Marsha Garrison, Good Intentions Gone
Awry: The Impact of New York’s Equitable Distribution Law on Divorce Outcomes, 52 BROOK.
L. REV. 621, 629 n.27 (1991); J. McMullen & D. Oswald, Why Do We Need a Lawyer?: An
Empirical Study of Divorce Cases, 12 J.L. & FAM. STUD. 57, 75 (2010).
only obtained a total of 142 responses in return. Fourth, in the tables in
from lawyers in the state. I realize that practices in one area of a state may
differ from practices in another area of that same state. Still, I hope the
practices vary within each state and throughout the United States.
II. The Award of Spousal Support in the United States
A. State Statutes
generally discouraged. The Indiana statute generally authorizes only
4
for any longer-duration support, a claimant must establish that he or she
suffers from a physical or mental incapacity or is caring for a child who
suffers from a physical or mental incapacity.5
to in the state statute, generally is not permitted if the marriage duration
was less than ten years unless the claimant had been a victim of family
violence, suffers from a physical or mental disability, or is caring for a child
suffering from a physical or mental disability.6 If the marriage duration
was ten to twenty years, maintenance can be awarded if the claimant
cannot otherwise provide for his or her minimum reasonable needs.7 The
8
claimant is disabled or is caring for a disabled child.9
In a few states, a claimant cannot receive spousal support if found to
have been guilty of adultery or at fault in causing divorce.10 In many other
A Survey of Lawyers’ Observations
4. IND. CODE
5. Id.
6. TEX. FAM. CODE ANN.
7. Note that the customary standard in the United States is whether the claimant can
otherwise meet his or her “reasonable needs.”
8. TEX. FAM. CODE ANN. § 8.055.
9. Id.
married for less than twenty years.
10. GA. CODE ANN. § 19-16-1 (2010); LA. CIV. CODE ANN. art. 112 (2014); N.C. GEN. STAT.
VA. CODE ANN. § 20-107.1 (West 2016); see also
to the wife, based on her “egregious economic fault”). See,
e.g.,
