Opinion: Alimony In Conn: Past, Present And Future
Still others, including this author, have suggested that determining a rationale for alimony is less important than is making it predictable and consistent. Alimony guidelines would assist in predictability and consistency. Guidelines can take three forms: Mandatory; presumptive; or suggested. Mandatory guidelines would dictate that the judge order whatever amount an alimony formula produced. Presumptive guidelines would direct the judge to employ the formula but the court, in its discretion, could order a different amount because of the alimony statute's criteria. Suggested guidelines would let the judge use the guidelines or not.
An often-voiced objection to guidelines is that they, in general, are "anti-woman." That guidelines, in and of themselves, are not necessarily anti-woman or anti-man, should be self- evident. If a particular suggested guideline is thought to be anti-woman or anti-man, why not simply increase or decrease the applicable percentage?
One can easily argue that the absence of guidelines may very well be anti-woman. In litigation, the party with more money typically has the advantage. Uncertainty, like that created by Connecticut's alimony statute, drives the cost of litigation higher, thereby placing the spouse with more money at a greater advantage. While Connecticut's trial courts have the power to award temporary counsel fees, that power is rarely used to level the playing field. Because more often than not men control the money, the lack of guidelines, which results in greater litigation expenses, can be seen as anti-woman.
Another objection to guidelines is that they would eliminate the discretion of the trial judge. While mandatory guidelines would do so, neither presumptive or suggested guidelines would adversely impact upon the court's discretion.
Another objection to guidelines that is never publicly stated is that they are anti-lawyer. Why? If alimony ceases to be arcane and if alimony parameters are easily ascertainable, some lawyers fear that their expertise will become less valuable. Moreover, eliminating an issue such as alimony, or narrowing the range of alimony disputes, means that the lawyer will be able to spend less time on the case. For most family lawyers, less time means lower fees. That alimony guidelines may reduce legal fees incident to divorce is an unintended benefit to the parties and should not be a reason to object.
Alimony reform is real. Knee-jerk reactions, e.g., "every matrimonial case is different;" "guidelines are anti-woman;" "judicial discretion is more important than predictability and consistency," will inhibit meaningful analysis of the shape of that reform.