What makes a law or policy “good” or “bad”?  Often, we measure how good or bad a law or policy is by how effective it is–how precisely it met its objective, with as little unintended consequences as possible.  For example, most people would say that the “seat-belt” law is a good law because it is a very cheap and easy solution to save a lot of lives, and by extension, makes society a better place.  Conversely, some people may argue that the ban on talking on a cell phone while driving is a bad law because it is tough to enforce and leads drivers to more dangerous methods of communication like texting or holding the phone below the window line and using speaker phone.  It’s tough to measure, really.  However, when unintended consequences manifest themselves, then we should be proactive about correcting the law or policy.

One law and policy that has me up in arms lately is California’s current system of awarding spousal support to divorcing spouses.  Spousal support is often commonly referred to as “alimony.”  The simple purpose of spousal support is to compensate a lower wage earning (or unemployed) spouse with assistance from the higher earning spouse in order to allow both spouses to maintain the “marital standard of living” during the divorce, and possibly for a period after the divorce.

What the hell does that mean in plain English?

Imagine a couple who was married for ten years.  Midway through the marriage, the wife became pregnant with the couple’s child.  The couple decide that one spouse (doesn’t matter which) should stay home and the higher-earning spouse should continue to work to support the family.  Five years pass, and for whatever reason the couple decide the marriage is so damaged that it is beyond repair.  The couple divorce.  The spouse who has not been working for the past five years is now finding trouble meeting his/her bills, and additionally having trouble finding work as a result of being out of the workforce for such an extended period of time.

What is the unemployed spouse to do?

Their marital arrangement (where one spouse stays home and one works) should not be subsidized by taxpayers, so government benefits seem inappropriate here.  The taxpayers didn’t decide that one spouse should stay home, so the taxpayers should not have to come to the rescue, either.  Fair enough.  That means, then, that it’s the other spouse’s responsibility to pick up the slack.  Right?  After all, the two spouses chose the arrangement, so they should have to bare the burden of figuring out how to make the bills and care for their child in the process.

We would be hard-pressed to find someone who would read the above situation and disagree with the outcome.  But, that’s the easy case.  One spouse is employed, one was caring for the child, and now it makes sense to help the non-working spouse back on her feet.  What if we add some complicating factors in?  What if the child was school-aged, thus not needing all-day child care, and the stay-home spouse worked seasonally?  What if the stay-home spouse worked part-time?  What if the stay-home spouse could have worked but instead chose to volunteer? What if the stay-home spouse went to school instead?  More commonly nowadays, what if the stay-home spouse did side-jobs (think carpentry, handyman, cleaning services, etc.) and did not declare his/her income?

It gets rather complicated, and issues of proof are abundant.  Very few couples have the foresight (nor should we require them to) to predict the precise time he/she will contemplate divorce.  Sometime it becomes difficult to prove what the stay-home spouse earned, or could earn if employed.

Let’s throw in another wrinkle: what if the stay-home spouse had a long-term motive to make as little as possible in order to necessitate the other spouse to pay him/her support?  We are not all naive enough to presume that divorcing spouses all have good intentions.

Let me give you a specific, real example of how this plays out.  Mother and Father are married for 14 years.  Mother earns a good six-digit income as a professional.  She has had this position for upward of 23 years.  Father held down a job as a delivery driver a few years back, but due to an injury and not being the most motivated individual, has not worked recently.  On the side, he designs and sells t-shirts at ballgames and sells them on consignment at some stores.  Mother and Father have two teenage children who are both attending a private high school.  Both children are excellent students, participate in extra curricular activities, and are the children anybody would be proud to have raised.  One giant elephant in the room: for the past 15 years, Father is highly physically and verbally abusive toward Mother.  There are well-documented events of domestic violence, one that even rose to the level of a 6-month restraining order.  For whatever reason, they stuck it out until now.  Mother pays all the bills, including the children’s very expensive school tuition.  Now that they are divorcing, custody, visitation, and support are all contested issues.  Father, immediately before the hearing on all the mentioned issues, was training to be a bus driver with a big city transit line.  He was a probationary employee.  After six weeks of training, the employer inexplicably terminated Father as a probationary employee.  (What likely happened was that Father’s attorney told Father to play up an injury thus disqualifying him from the job.)

Fast forward to the hearing on spousal support.  Mother makes a good income.  Father makes nothing.  Mother knows that Father loafs around and probably makes money on the side, but has no proof to his income.  Even though there is documented domestic violence, continuously for over a decade, California only pays attention to the preceding five years, and in that time there is nothing definitely demonstrating that Father was abusive toward Mother.  Furthermore, Father was awarded joint physical custody, having his time with children predominantly on weekends.  The children were interviewed by the custody mediator, but both children were too frightened by their Father to really throw him under the bus.  Since they are well-adjusted, academically flourishing children the mediator took them at their word and thought nothing of the past instances of domestic violence.

Outcome? Mother pays to Father both spousal and child support, and only gets to have one to two weekends per month with her children.  And ohyeahbytheway, Mother’s obligation to pay Father support will now make it extremely difficult to pay for the children’s tuition.  The children will likely have to be pulled out of private school to attend public school.  Public school is not per se inferior, but the children must leave their friends and comfortable surrounding to a new, unfamiliar environment.

Gender stereotypes aside, does this seem like a fair outcome?  Hardly.  As I stated above, the purpose of spousal support was to prevent the situation where the stay-home, child-rearing parent from becoming homeless at the sudden loss of family income.  This is far from that situation.  It is imperative that we, as a state and society, come up with a better way to prevent deadbeat spouses from parasitically sucking resources away from productive members of the family.  This is not a gender issue.  This is not a payback issue.  This is a children issue.  There are surely situations where spousal support is not only appropriate, but absolutely necessary.  However, blindly awarded spousal support creates a disincentive for non-working spouses to work.  Something must be done.  As a side note, reform of spousal support determinations and payments will also avoid unnecessary costs derived from support litigation.  If the pot at the end of the rainbow is reformed such that it isn’t a guarantee to those that don’t work, then parties will at least think twice about pursuing that avenue of litigation.