The Public is in Need of a Standard Spousal Support Formula |
Posted: April 4, 2019 |
Before filing for a divorce, you would prefer an estimation of how a judge will examine you and your spouse’s assets. Further, I imagine you would like an idea of the future awards or obligations that will result from the divorce. However, in Nevada (and in other jurisdictions), such a reasonable request from a perspective client is very difficult to deliver. This discussion will explain why it would be helpful for states like Nevada to adopt a spousal support formula. Does Nevada have a Spousal Support Formula?It would be reasonable to think that for matters as significant as allocation of material property, the law would be robust with guidance. This is unfortunately incorrect. The relevant statute says the following: 1. In granting a divorce, the court: (a) May award such alimony to the wife or to the husband, in a specified principal sum or as specified periodic payments, as appears just and equitable. NRS 125.150 You can see in a hypothetical scenario the working spouse would have a much different idea of what a “just and equitable” allocation of his/her earnings relative to that of the homemaker spouse. And what’s to say that the judge shares a similar understanding of the material terms of NRS 125.150 with either spouse? In Gardner v. Gardner, 110 Nev. 1053 (Nev. 1994), the Nevada Supreme Court read “just and equitable” much differently than the lower court. The Nevada court increased the spousal support award from a lower court by $1,000/month because the lower court judge did not properly consider that “substantial additional alimony is necessary in order to be fair.” Gardner v. Gardner, 110 Nev. 1053, 1058 (Nev. 1994). Even two judges of the same state had a much different understanding of what “fair” means under law. Justice Shearing of the Nevada Supreme Court criticized this statutory framework for alimony four years later, specifically the lack of standardization. “Regarding the award of spousal support, the legislature has failed to set forth an objective standard for determining the appropriate amount. [Without] such a standard, there appears to be a disparity in the awards for spousal support on similar facts even greater than for child support.” Wright v. Osburn, 114 Nev. 1367, 1369 (Nev. 1998). What has the State Done to Improve Spousal Support Awards?The membership of the Family Law Section of the Nevada Bar convened in Tonopah, Nevada, in 1997 with the intention of providing a path forward for standardizing alimony awards. The Family Law Section combed over previous court decisions and proposed a repeatable formula for courts to apply—however, even the members in attendance could not come to an agreement regarding what should be included, and no formal recommendation was made to the legislature. It wasn’t until 2007 that the Nevada Legislature codified eleven “guidelines” of which a court must “consider” in awarding alimony. In actual fact, without stating how a court must weigh each factor, such an approach is as practicable as “just and equitable.” Judge David Hardy noted in 2009 how difficult Nevada’s alimony law is to parse for legal practitioners: Alimony is a particularly troubling feature of Nevada matrimonial law. Nevada attorneys and judges are ill-equipped to facilitate pretrial resolution when alimony is at issue. No objective measures are available for judging fairness or predicting results. The newly-enacted statutory guidelines, based upon Nevada decisional authority, provide no guidance as to their relative weight and little guidance regarding their purpose. “Nevada Alimony: An Important Policy in Need of a Coherent Policy Purpose,” 9 Nev. L.J. 325-326 (2009). Are alimony awards destined to always be complex and contentious? Only from a broader perspective do we see how wasteful the current alimony situation is. The Great Benefits of a Standard Spousal Support FormulaIt doesn’t need to stated that life would be simpler for divorce lawyers, (but more importantly clients), if Nevada applied a standardized spousal support formula to alimony arrangements. Any pending insecurities regarding individual outcomes has devastating effects on economic output. Contrariwise, one can reasonably argue that besides our collective spirit, it is our codification and legal support of property rights that has led to America’s vast growth. Such first principles should be recognized and applied in other parts of the law—spousal support being a prime example. Once divorce lawyers can predict with accuracy how a divorce court will assign spousal support, they will confidently predict to their clients how a court will allocate spousal support. Such accurate knowledge then will provide the means for potential settlements to be reached for more people, more quickly. Spousal support formulas make the divorce process more fair and just. Let us not allow needed perfection to stand in the way of an obvious improvement. Of course, the settled-upon formula will not be completely satisfactory in all cases (don’t forget that our laws may always be amended later), but the gains realized by all litigants in the divorce process will more than make up for the loss. Contract/property law are the foundations of the greatest economy the world has ever seen; divorcing spouses will clearly benefit from divorce law embracing these principles of standardization and predictability.
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