July 2006
Divorce Settlements: Shedding New Light on Old Assumptions
An overdue look at Judge Winsor's 1982 marriage dissolutions article: Does it apply today?
by Hank Fields
RCW 26.09.090 requires trial courts to consider a number of factors in determining the amount and duration, if any, of spousal maintenance, including ". . . the duration of the marriage" (see RCW 26.09.090 (1) (d)). However, the extent to which consideration of the length of marriage would constitute an abuse of judicial discretion in fixing the duration of spousal maintenance is unclear.
There is not a single published appellate decision that discusses the relationship between the length of a marriage and the length of a spousal maintenance award. Retired King County Superior Court Judge Robert Winsor wrote an article on the subject in Bar News 24 years ago ("Guidelines for the Exercise of Judicial Discretion in Marriage Dissolutions," January 1982). Judge Winsor's article has been referenced in the dicta of case law on property division. Judge Winsor's suggestions appear to have become an unstated, and sometimes an inaccurately understood, unwritten litmus test impacting trial decisions and mediated settlements.
The article was written so long ago and references to it have been so common for so long, that, at least in my experience, it is often paraphrased for things it does not say. The article was written at a time when formal mediation was a glimmer on the horizon. Now, with formal mediation an integral part of the marital-dissolution process in several counties, the Winsor article often serves as a guide to mediators who cite it, sometimes even for principles it does not advocate, in an effort to break through negotiating impasses. This occurs because experienced family law practitioners and mediators alike retain impressions of an article they have not read in a long time.
With respect to what Judge Winsor has defined as mid-range marriages — those from seven to 25 years — his suggestions warrant more careful scrutiny in light of significant economic and sociological changes and trends that simply did not exist, except in rare instances, 24 years ago.
I hope that, in the context of those changes and developments, a reexamination of the conclusions of Winsor's article will aid both lawyers and judges in fashioning more creative and equitable decisions in the future as they pertain to spousal maintenance as well as property awards. Toward that end, I begin with a brief summary of the suggestions and premises of the article.
Premises of the Winsor Article
Judge Winsor suggested, on the exercise of judicial discretion as to the length of maintenance based on the duration of the marriage: "Presumably in a short marriage maintenance would not be paid, except in extraordinary circumstances or perhaps for a very brief adjustment where necessary, e.g., if one of the parties gave up a job to relocate or otherwise accommodate to the marriage, that would be an extraordinary reason to . . . allow brief maintenance during a relocation period."
He defined short marriages as marriages of seven years or less, and suggested the court should look "backward" to put the parties where they would have been had they not been married, since ". . . the marriage has in fact not been the significant event that normally is presumed. Particularly, there has not been a long reliance on the marital relationship."
After a discussion of long marriages, Judge Winsor defined mid-range marriages as between seven and 25 years. He suggested that the court should ". . . partake more or less of the long or short marriage considerations and goals as set forth above, depending primarily upon the length of the marriage and the necessities. Maintenance, where appropriate, is likely to be used only for fixed terms of months or years in these settlements. The term 'rehabilitative maintenance' applies most generally to mid-range cases." Notice, he does not suggest what the maximum duration, the "fixed term" should be. However, it is on this point that the thrust of the article has been largely misunderstood and misapplied.
As to long marriages, which Winsor defined as 25 years or longer, he observes: ". . . one of the spouses usually is stranded in a situation where she (sometimes he) is very much behind the other in earning capacity. The judge should redress the balance." He goes on to point out that maintenance in such cases may be permanent depending on the disparities, or not at all, depending on the size and nature of the property division.
The article suggests that rehabilitative maintenance would not be appropriate in a short marriage, except in exceptional circumstances. Would a situation in which a spouse who gives up a career to be a stay-at-home parent for five or six years and whose employment skills may be outdated be considered an exceptional circumstance?
The article also suggests that the economic disparities that may well exist in a mid-range marriage of 20 years, more or less, would not warrant the same duration of maintenance as in a long marriage of 25 years. Would this be true even if the economic disabilities and the prospects of the future earnings prospects may otherwise be exactly the same? The answers are not clear. It is clear, however, that Judge Winsor never expected his article to be as dispositive or conclusive as it has come to be treated in practice.
Instead, his intent was to generate a discussion of the relationship between the length of a spousal maintenance award relative to the length of the marriage. Case law was virtually devoid of any informative guidelines to aid trial courts in the appropriate exercise of their discretion. Thus, Winsor concluded his article by emphasizing: ". . . I know of no comprehensive statement of the goals that are to be achieved. There will doubtless be considerable disagreement with the specific examples and perhaps the goal as I have stated them, but at least it may be a beginning that may be helpful in searching for a consensus (emphasis supplied)."
Unfortunately, over the course of the last 24 years, the article, far from launching the discussion, appears to have put an end to it. I take Judge Winsor up on his suggestion, by turning to an analysis of the case law that has evolved since his article was published.
The State of the Law and the Duration of Spousal Maintenance
Spousal maintenance is a creation of common law. The principles that governed the division of property, with its focus on the economic disparities of the parties as they face the future being the paramount consideration, is the common link that guided the exercise of judicial discretion, both with respect to property divisions and as to the amount and duration of spousal maintenance (see § 5723 Bal. Code, In re Cave, 26 Wash. 213 at 217 (1901)).
Washington's most notable case on duration has nothing to do with the length of the marriage. After a 25-year marriage, a 49-year-old wife who had limited potential for any kind of career development was awarded spousal maintenance for 10 years. Pointing to the trial court's observation that "her age, lack of training and qualifications will tend to confine her employment of low income and uncertain tenure," as well as the burdens of child care of their last remaining child at home, a 10-year-old, the award of maintenance for 10 years was deemed an appropriate exercise of the trial court's discretion. See In re the Marriage of Nicholson, 17 Wn. App 110, 561 P.2d 116 (1977).
The court also noted that the duration was particularly reasonable given the fact that maintenance, under certain circumstances, is subject to modification under RCW 26.09.170: ". . . and that is a factor which we have considered in reviewing the discretion which the trial court exercised in fixing the term of the maintenance award."
There is still no published case law that discusses the relationship between the duration of the marriage and the duration of spousal maintenance. Nor does case law define short, mid-range or long marriages. References to those terms, here, are merely as defined by Judge Winsor in his 1982 article.
The first case to deal with the duration issue created the concept of compensatory maintenance where one spouse works while the other attends professional school, and upon separation there is little property and significant debt. The working spouse may even be self-supporting. In speaking to the propriety of maintenance in that context, the Washington State Supreme Court made it clear that the determination of the amount and duration of spousal maintenance is not a simple matter of need versus ability to pay, nor of some knee-jerk formula rendering the duration of the maintenance as some fraction of the duration of the marriage: ". . . [U]nder the extremely flexible provisions of RCW 26.09.090 . . . maintenance is not just a means of providing bare necessities, but rather a flexible tool by which the parties' standard of living may be equalized for an appropriate period of time (emphasis supplied). RCW 26.09.090 (1) (c), RCW 26.09.090 (1) (d). Moreover, the factors listed in the statue are not exclusive." In re the Marriage of Washburn, 101 Wash. 2d 168 at 178-179, 677 P.2d 152 (1984). Here the length of the marriage had no bearing on the duration issue.
Lifetime maintenance is appropriate ". . . when it is clear the parties seeking maintenance will not be able to contribute significantly to his or her own livelihood." In re the Marriage of Sheffer, 60 Wn. App. 51 at 56-58, 802 P.2d 817 (1990). In re the Marriage of Bulicek, 59 Wn. App. 630, 633-34, 800 P.2d 394 (1990). Each of these cases involved long-term marriages. However, in neither case did the duration of the maintenance turn on the duration of the marriage.
"Although it is generally not the policy of the state to place permanent responsibility for spousal maintenance upon a former spouse (citation omitted) there are circumstances which require a continuing obligation." In re the Marriage of Coyle, 61 Wn. App. 653 at 657, 811 P.2d 244 (1991). This was noted in a post-decree modification case.
In reliance on the principles announced in Sheffer and Bulicek, a permanent award of maintenance was reversed. The case involved a 25-year marriage, but the length of the marriage had nothing to do with the duration of the maintenance. The reversal occurred because the trial court did not find that the health problems of the wife "prevented her from working." See In re the Marriage of Mathew, 70 Wn. App. 116 at 124, 853 P.2d 462 (1993).
A 1995 case out of Division III is the only case that contributes some guidance. The parties had a mid-range marriage of 24 years, in which they lived together as husband and wife only during the first three years. Since they lived in separate bedrooms in the same house for the next 21 years, the trial court treated it as a short marriage and awarded the wife one year of maintenance. The case was reversed and remanded with specific directions: ". . . [W]e direct the trial court to treat this marriage as long-term . . . . Maintenance may be utilized to more nearly equalize the post dissolution economic conditions of the parties, especially considering Robert's superior earning capacity." See In re the Marriage of Terry, 79 Wn. App. 866 at 870-71, 905 P.2d 935 (1995).
More recently, in In re the Marriage Spreen, 107 Wn. App. 341, 28 P.3d 769 (2001), the parties had been involved in a mid-range marriage of 17½ years. The wife was originally awarded four years of maintenance. She later petitioned to modify, claiming that her mental-health problems had worsened since the divorce. The trial court, during the modification proceeding, limited an extension of her maintenance to one additional year. That decision was reversed. The Court of Appeals, in coming to that determination, noted that both amount and duration are driven by all relevant factors under RCW 26.09.0901 and emphasized that the duration ". . . be just . . ." with primary consideration being ". . . the parties' economic position following the dissolution." More particularly, as to the duration, it noted: "What is a reasonable length of time for a divorced spouse to become employable and provide for his or her own support, so that maintenance can be terminated, depends on the particular facts and circumstances of each case. (Citation omitted.) In some cases a lifetime award of maintenance may even be just." See In re the Marriage of Spreen, at 348 (2001).
The Spreen case is the one and only reported decision that suggests the possibility of permanent maintenance in what Judge Winsor's article has described as a mid-range marriage, even though the duration of the marriage played no role.
These are the only reported decisions since the writing of the Winsor article that remotely deal with the question of the duration of maintenance. None of them provide any guide as to the appropriate weight that the duration of the marriage should play as it may impact the duration of the spousal maintenance award.
There is one unpublished decision coming out of Division I involving a short-term, six-year marriage in which the wife had HIV. In that case she was awarded "possible lifetime maintenance." After citing Bulicek, Spreen, and Terry, the court, in its dicta, merely resorted to an observation of practice that maintenance is not generally awarded in short marriages, citing Kenneth W. Weber, Washington Practice: Family and Community Property Law, Section 34.7 at 358 (1997).
The court appropriately came to the conclusion that lifetime maintenance is proper when it is clear that the party seeking maintenance will not be able to contribute significantly to his or her own livelihood, citing In re the Marriage of Mathew, but held that the record before the trial court did not support such a conclusion because the wife had a continuing ability to work. As it bears on the issue of the relationship between the duration of marriage and the duration of maintenance, even if the case had been published, it would be of little precedential value, since it largely turned on the facts and not the length of the marriage (see DKRVVVRR, unpublished Number 50183-6-I, March 31, 2003).
Application or Misapplication of Winsor's Premises
Given the lack of clarity as to what role the duration of the marriage plays, it is not surprising that the only attempt to draw some kind of rational linkage between the duration of the marriage and the duration of the maintenance award are the suggestions contained in Judge Winsor's 24-year-old article on the subject. How then to gain perspective on what the article suggests?
Judge Winsor's article does not advocate a formulaic approach to the duration of the maintenance award, such as one year of maintenance for every four years of marriage. In the experience of this author, I have actually heard the article cited for that proposition by implication. Not only does the article not suggest such an approach, but, if in the interest of predictability and uniformity of decisions such an approach were to be used by a trial judge open enough to express conclusion, the decision might well be reversed on appeal, because it would fail to take into consideration all of the other factors that the statute requires, including the age and financial sources of the party seeking maintenance. See RCW 26.09.090 (1) (b).
The article's suggestion that maintenance should be viewed as strictly rehabilitative in mid-range marriages, and how the article defines mid-range marriages, ignores significant sociological and economic changes, some of which have already been addressed above. These developments require a harder look at the issue. The data summarized by Rhea and Miller in their article in this issue of Bar News reveal a number of challenges that policy makers within the legislative and judicial branches have not historically had to face.
One is that solutions not yet found to correct an increasingly bankrupt Social Security system in the face of a baby-boomer generation that drains the system in higher numbers and for a longer period of time than the system was designed to accommodate.
A second is that the number of single parents not trained to realize their full economic potential also placed a greater challenge to a welfare system already scaled back. There is no safety net at the bottom under current law, and there is no opportunity to climb up and out. That was not the case when the Winsor article was written. It has been historically a policy underpinning the awards of spousal maintenance that the purpose of such an award is to make sure that society at large does not become responsible for supporting an adult divorced spouse. In fact, just as the Legislature was changing our law of marital dissolution from a fault to a no-fault system, in 1973 the Washington State Supreme Court observed: "'Alimony' is required by a public policy which has in mind not only the needs and equitable rights of the formal marriage partner, but also the concern that the burden of supporting that person should not fall upon the public (emphasis supplied)." See Thompson v. Thompson, 82 Wash. 2d 352 at 357, (1973). We now have a healthcare system in economic crisis, which creates potential challenges for spouses whose COBRA coverage runs out after 36 months.
Finally, another major sociological change, which is not the rule, but certainly is not the exception that it was 24 years ago, is that people more commonly marry and have children later in life than they did then. That means that after 15 or 20 years of marriage, the spouse who has played the role of homemaker and divorces with the primary responsibility of teenage children may have to face the prospect of retraining at an advanced age. When the Winsor article was written, it was more common for people to be between the ages of 35 and 45 when they would divorce after 15 or 20 years of marriage. However, it is far more common with, as Judge Winsor termed it, mid-range marriages that people are divorcing in their early- and mid-50s, sometimes even in their early-60s, with outdated career skills and no viable market for employment if they retrain, due to their age after retraining would be completed.
These economic and social challenges did not exist 24 years ago. They now require that courts take a more serious look at the principles that have already been established by existing case law rather than some hidden formulaic approach — so many years of marriage, therefore, only so many years of maintenance.
Since the economic considerations that drive maintenance awards are similar to the economic considerations that drive property awards, though they are separate issues governed by separate statutes, they ought not be looked at out of context from one another. That leaves room for the possibility of more creative, balanced resolutions in some cases in which the amount and duration of maintenance is not looked at out of context with the overall property division. There is even established precedent to do so, as articulated by the Washington State Supreme Court in the case of Mayo v. Mayo, 75 Wash. 2d 36, 448 P.2d 926 (1968).
Conclusion
These, and many circumstances like them, present creative challenges to what weight should be given to the duration of the marriage as it relates to the duration of spousal maintenance awards. These are not the kinds of hard choices that Judge Winsor and his colleagues often faced in the '60s and '70s, which provided the judicial experience that led him to write his article in Bar News. They are the kinds of choices that are now common, and will become increasingly more common in the foreseeable future, for mediators, attorneys, and judges involved in these decisions. To end the duration of maintenance inquiry by focusing on the duration of the marriage, and arriving at simple, formulaic, cookie-cutter decisions so we can all get on with the next case results in failure to achieve the equitable results that the statutes and case law expect us to strive to achieve. The answers are not easy.
Above all, I have written this article hoping that, whatever role we may play in resolving what, for many, may be decisions of survival, we think about what we are doing. Further, that we not allow the duration of the marriage to serve as an excuse to find quick and easy answers to resolve issues that, in reality, require creative problem solving which will likely include re-thinking property divisions as well. Since Judge Winsor intended his article to be the beginning of a discussion rather than the end of one, I suspect he would have expected no less.
Hank Fields graduated from the University of Oregon School of Law in 1973 and has practiced family law exclusively for over 30 years in King and Snohomish counties. He is the author and lecturer at numerous continuing legal education seminars in Washington and will be a co-author of a judge's deskbook for King County. He has co-authored a book for the layman, Divorce in Washington, generally detailing the law on various subjects including property division, custody, child support, and maintenance. Mr. Fields is vice president of the Washington chapter of the American Academy of Matrimonial Lawyers.
NOTES
1. In a modification proceeding, the petitioning party must prove a substantial un-contemplated change of circumstances since the order fixing the maintenance. See RCW 26.09.170. If that burden is met, the court is then to apply the factors set forth in RCW 26.09.090 to determine further amount and duration.
