"Breaking up is hard to do": proposing legislative action in order to address the problems surrounding alimony and related divorce matters in South Dakota.

• Author: Morris, Deborah J.

Since the late twentieth century, waves of family law reforms have pressed unabatedly on the legal system attempting to obviate the public perception of judicial inequity and unfairness over alimony and divorce related matters. Most state legislatures enacted legislation which tossed the courts a safety net of factors designed to assist trial judges in determining property division and alimony. Unfortunately, legislatures provided little, if any, guidance on interpretation and application of enumerated factors. With no clear guidance, state courts are left treading water, searching for a life preserver, but finding no reprieve from this sinking and unworkable framework. South Dakota is no exception to this unfortunate omission. The issue is further compounded as the legislature did not enumerate any of the numerous factors now utilized by the courts. Like other states, South Dakota's legislature should take steps to clarify relevant statutes as well as develop concise standards that will help ensure consistency and reinforce legislative confidence in the judicial system when dealing with divorce related matters in the state.

1. INTRODUCTION

   Domestic relations, and the subsequent litigation that ensues over issues such as divorce, alimony, and child support, continue to place a veil of skepticism and unfairness over the judicial system. (1) Consider the issue of alimony in the following scenario: a young couple gets married, the wife, a recent graduate from a prestigious law school, decides to forego her own legal career to begin a family and support her husband while he attends medical school. (2) After years of tests, clinicals, late night rotations, and residency, the husband is made partner in a thriving medical clinic. (3) During all this time the wife has managed the home, attended to the finances, and met the needs of the couple's children. (4) Shortly thereafter, the wife uncovers the husband's numerous affairs. (5) At the time of this discovery, the husband is earning nearly one million dollars annually. (6) With the prospect of divorce on the horizon--absent any court approved agreement by the parties--the court will determine: (1) the division of all property owned by the couple, which includes the noneconomic accumulation of wealth to the marriage by the caretaker spouse, (2) whether to award alimony, which requires imputed earnings to the stay-at- home spouse, and (3) the establishment of child support, which considers all earnings, including imputed earnings, and alimony. (7)

   States struggle with the economic issues surrounding property division, alimony, and child support. (8) Of these three issues, alimony has proven to be the most difficult concept for all parties involved. (9) Trial judges struggle with the application of the numerous factors considered in property division and alimony, none of which are dispositive. (10) Lawyers struggle with balancing the economic and emotional costs of a trial against inconsistent awards in alimony amounts and duration. (11) Emotionally fragile parties struggle with inadequate information resulting in the perception that alimony awards are arbitrary and inequitable. (12)

   South Dakota, along with many other states, grants discretionary authority to state trial judges to deal with the various issues pertaining to matters of divorce. (13) This discretionary flexibility over property division and alimony allows a trial judge to create solutions that fit any number of unique and varied circumstances surrounding divorce proceedings. (14) With continuing jurisdiction, trial judges can also address unforeseeable events that arise after divorce. (15) Thus, a trial judge who maintains a comprehensive record will be in the best position to craft an equitable result while maximizing judicial resources. (16)

   States that give trial judges broad discretion also require a multifactor analysis to determine property division and alimony. (17) Currently, forty-five states provide statutory laws that enumerate factors for the courts to consider in alimony determinations. (18) As many as sixty factors can be found in a trial judge's analysis, which may include: the duration of the marriage, earning capacity of each spouse, social standing, and fault. (19) South Dakota is one of five states devoid of enumerated statutory factors. (20) Rather, South Dakota requires trial judges to search case law in order to obtain the relevant factors to use in property division and alimony awards. (21)

   Other states have adopted statutory formulas in an attempt to ensure consistency and judicial fairness. (22) This numerical framework displaces judicial discretion in alimony determinations. (23) Proponents of statutorily defined calculations believe this framework achieves more consistent results, eliminates judicial unfairness, and provides equity to both parties. (24) Contrary to South Dakota laws, statutory formulas presume an automatic termination in alimony payments at some point in the future. (25) These laws also preclude indefinite alimony awards and continued jurisdiction which South Dakota grants to trial judges. (26)

   In order to reinforce South Dakota's commitment in broad judicial discretion over divorce related matters, the legislature should take steps to clarify relevant statutes and develop concise standards that will help ensure consistency and reinforce legislative confidence in the judicial system. (27) The codification of well-established factors and expressed principles of application will reduce issues over judicial inequity and unfairness. (28) With the encroachment of multiple methodologies over divorce matters by surrounding states, an urgency exists for the legislature to provide guidance and to reinforce public policy over divorce matters. (29)

   This article first discusses the background and relationships between property division, alimony, and child support. (30) The article next explains why South Dakota should structure its laws to provide for relevant factors that will assist the state's judiciary in handling various issues that arise in domestic disputes. (31) This article then analyzes the preference for judicial discretion, a multifactor approach to divorce matters, and adherence to public policies rooted in fault and no-fault concepts. (32) In conclusion, this article provides recommendations for legislative change. (33)

2. BACKGROUND

   1. Twentieth-Century Divorce Reforms

      Twentieth-century socio-economic changes altered the traditional marriage model. (34) With the advent of women's rights and equal opportunity, the marital unit shifted from the notion of the husband as breadwinner, to the contemporary view that each spouse has equal property rights and an equal ability to earn a living. (35) In 1970, as a result of the Uniform Marriage and Divorce Act ("UMDA"), divorce laws changed in two major ways: (l) the opportunity for equitable distribution in property, and (2) no-fault grounds for divorce. (36) Many states shifted to equitable distribution laws among spouses, providing an opportunity for women to obtain property ownership in the division of marital assets upon divorce. By giving the wife full title rights and ownership of assets in a divorce, courts advanced the UMDA proposition that such spouses would have no further "need" for financial support. (38) Thus, when such a presumption was met, no alimony would be awarded. (39)

      As states moved to no-fault divorces, a spouse's financial "needs" replaced "fault" as the threshold determination for spousal support. (40) Formerly, where the threshold test of fault was met, courts used the marital standard of living as the benchmark in alimony determination. (41) However, under the new test, after the division of marital property, the UMDA suggests that a dependent spouse's financial "needs" are met, or nearly met, with the "opportunity for employment" rather than analyzing the spouse's actual ability to maintain the former standard of living. (42)

      As independence for women gained momentum, alimony--redefined as "spousal maintenance"--shifted the new test from "reasonable needs" for maintaining the marital standard of living, to measuring the amount of time a dependent spouse would need to become self-sufficient through employment. (43) This new measurement lowered the post-divorce standard of living for dependent spouses. (44) The application of the UMDA test caused the dependent spouse, who usually earned at least twenty percent less than her spouse, to suffer financially, both at the end of the twentieth century and now. (45) The UMDA test also had the effect of penalizing mothers because they tended to take lower paying jobs to maintain flexible work schedules in order to care for the family's minor children. (46) Under these new laws, alimony was simply designed to fill the time gap while a spouse obtained skills or education to gain entry, or re- entry, into the workforce. (47)

   2. Property Division: Equitable is not Necessarily Equal

      Due to reforms in divorce laws, the system for dividing property and determining alimony awards are considered inadequate to support a spouse who remains absent from the workforce in order to raise the families children. (48) Dependent spouses feel an immediate post-divorce financial hit. (49) Legislative responses to this unanticipated consequence motivated courts to start considering various factors in property division and spousal support. (50)

      In South Dakota, trial judges divide marital property based upon the parties' circumstances in order to achieve equitable results. (51) In the resolution of divorce, the trial judges determine the rights and duties of the parties in this order: (1) custody, (2) property division, (3) alimony, and (4) child support. (52) If property division is adequate, alimony is not necessary. (53) On the other hand, if alimony is awarded, it becomes a component in calculating child support. (54)

      Unlike most states, (55) South Dakota's...