Entitlement, Nature, and Duration of Alimony/Support
| Jurisdiction | Maryland |
III. ENTITLEMENT, NATURE, AND DURATION OF ALIMONY/SUPPORT
A. Entitlement to Alimony
The statutes conferring on the court jurisdiction to award alimony are as follows:
Family Law § 1-203(d) provides:
An equity court shall hear and determine a case of alimony in as full and ample a manner as a case for alimony could be heard and determined by the Ecclesiastical Courts of England.
Family Law § 1-201(b) provides:
An equity court has jurisdiction over:
. . .
(2) alimony . . .
Family Law § 11-101 provides:
(a) The court may award alimony:
(2) as a part of a decree that grants:
(ii) a limited divorce; or
(iii) an absolute divorce.
(b) The court may award alimony to either party.
(c) If a final disposition as to alimony has been made in an agreement between the parties, the court is bound by that agreement as the agreement relates to alimony.
The court may decree alimony in cases where a divorce is not granted if a spouse proves facts that would entitle that spouse to an absolute or limited divorce.27 By way of example, in a Complaint for Alimony, the court must still find that grounds for divorce exist even if a divorce is not pursued. For a detailed history of the court's power to award alimony, see Thomas v. Thomas.28 For a comprehensive statement of the development of Maryland alimony law taking into account the 1980 Alimony Act, see McAlear v. McAlear.29
Originally alimony was awarded only to a wife, but Fam. Law § 11-101(b) now provides, "The court may award alimony to either party." This change in language was in accordance with the Equal Rights Amendment,30 adopted in 1972. For a review of constitutional and statutory history, see Hofmann v. Hofmann.31 For an application of Article 46,32 see Quigley v. Quigley,33 in which the Court noted that the newly enacted alimony statute provided that alimony may be awarded to either party. In Bricker v. Bricker,34 the Court used the descriptive designations "economically dependent spouse" and "economically independent spouse" to identify the parties.
Until the advent of no-fault divorce, a divorce was only possible where one spouse was at fault or the parties voluntarily agreed to divorce. Alimony was solely granted to a wife, and then only if the wife was blameless. Once no-fault grounds for divorce became available, the requisite fault in the husband took on a different significance. Case law, however, established that a decree granted to a spouse on a nonculpable ground did not relieve that spouse from paying alimony.35 This remains the law under the 1980 Alimony Act.
Former Art. 16, § 1(a), now Fam. Law § 11-103, provides that, "[t]he existence of a ground for divorce against the party seeking alimony is not an automatic bar to the court awarding alimony to that party." This changed the earlier law. Prior to the Alimony Act of 1980, the "fault" of a spouse seeking alimony was treated as an offense which barred any award of alimony. Even when a spouse obtained an absolute divorce on nonculpable grounds (consensual and non-consensual separation divorce cases), the other spouse could be barred from alimony if she was guilty of an offense warranting an absolute divorce against him.36
Prior to 1980, the wife could get no alimony if she was at fault or if the husband was not at fault. Today, the trial judge may award alimony where a limited or absolute divorce is awarded or where a limited or absolute divorce is granted to a spouse for any reason, including voluntary separation for one year.37 An independent proceeding just for alimony may also be maintained.38 Moreover, under the 1980 Alimony Act, the court may, but need not, award alimony to an economically dependent spouse who is guilty of marital fault. For a review of the law in this area, see Wallace v. Wallace.39 In Quigley v. Quigley40 the Appellate Court of Maryland stated in dicta that the circumstances leading to the estrangement of the parties "has been removed as a requisite (or bar) to entitlement and relegated to one of a number of considerations." See also Fam. Law § 7-103(b) and (d), relative to recrimination and condonation. The issues of fault and the circumstances leading to the estrangement of the parties are discussed in more detail under Section III.C.2.b.(6). Sixth factor-the circumstances that contributed to the estrangement of the parties. It should be noted, however, that Fam. Law § 11-103 does not negate the requirement that the spouse requesting alimony prove facts that would entitle that spouse to an absolute or limited divorce.
A specific section of the Code, Fam. Law § 11-112, deals with alimony where a divorce or annulment is granted and one of the parties is permanently and incurably insane with no hope of recovery. See Section III.C.2.b.(12). Twelfth factor-institutionalized spouse.
B. The Nature of Alimony
1. Traditional alimony
One of the earliest reported cases in Maryland involving divorce and alimony, Wallingsford v. Wallingsford,41 was decided in 1825. In rendering its opinion, the Supreme Court of Maryland stated what was to become the hallmark of alimony law until the 1980s, and of Maryland property law even today:
Alimony is a maintenance afforded to the wife, where the husband refuses to give it, or where from his improper conduct compels her to separate from him. It is not a portion of his real estate, to be assigned to her in fee simple, subject to her control, or to be sold at her pleasure, but a provision for her support, to continue during their joint lives, or so long as they live separate. Upon the death of either, or upon their mutual consent to live together, it ceases. . . .42
Since, at that time, only a divorce a mensa et thoro was at stake or within the jurisdiction of the court to grant, remarriage was not a possibility ordinarily open to consideration for the cessation of alimony. The Wallingsford case both established the duration of alimony and injected the element of fault; namely, that fault on the part of the husband was essential for an award. It was also the first of a long line of cases holding that the chancellor could not transfer the property of the husband to the wife.43
In announcing this decision, which was to permeate all facets of Maryland domestic law, even to this day, the Supreme Court of Maryland acknowledged the jurisdiction of courts of equity in Maryland and referred to the powers "given to our Courts of Chancery, but . . . expressly delegated by the Act of 1777, ch. 12."44
Following these tentative beginnings, alimony law developed slowly at first, then with alarming speed in response to the growing divorce rate as it doubled and then quadrupled. By the late 1970s, while the statutory provisions had not advanced much beyond those of the jurisdictional Acts of 1777 and 1841, the case law had exploded.
The aim of an alimony award was to assure suitable maintenance for the applicant.45 The courts established certain factors to be considered in making awards. These included the financial condition and earning capacities of the wife and husband, their status in life, age, physical condition, ability to work, the length of time they had lived together, the circumstances leading up to the divorce, and their respective responsibilities for the care and support of the children.46
As the case law originally developed, alimony was only awarded if the husband was at fault and the wife was not.47 The concept of fault was purely a judicial creation, without statutory basis, but was consistent with the English morality transported to the colonies. This morality also provided one rationale for alimony. The adjunct concept of alimony as a means to continuation of the same standard of living was later expressed by the Appellate Court of Maryland.48
[A]lso to be taken into account, and considered . . . is the key element of the wife's need for support, a need to be measured in light of her own income and assets and the standard of living to which she had become accustomed. In Donigan v. Donigan, 208 Md. 511, 519, 119 A.2d 430, 433 [(1956)], it was noted in assessing the wife's need for support: "What is insufficient for A under one set of circumstances may be sufficient for B under another set of circumstances. What might be luxury for one woman could be poverty for another." We think the award of alimony should secure to the wife the same social standing, comforts, and luxuries of life as she would probably have enjoyed had it not been for the enforced separation.
Alimony as originally awarded by the court was specifically defined by Judge Powers in Simpson v. Simpson:49
Alimony is a money allowance payable under a judicial decree by a husband at stated intervals to his wife, or former wife, during their joint lives or until the remarriage of the wife, so long as they live separately, for her support and maintenance.
a. It must terminate on the remarriage of the wife.
b. It must terminate on the death of the wife.
c. It must terminate on the death of the husband. . . .
Payments which met this definition were designated as technical alimony and were subject to modification by the court. Only technical alimony is obtainable by decree of court. Since Fam. Law § 8-105(a)50 tacitly authorizes the incorporation into the divorce decree of a settlement agreement executed by the spouses, the Code effectively permits an agreed-upon alimony to become technical alimony. Even though the parties by their agreement may contemplate an award of technical alimony, however, it does not attain that legal status until the understanding receives judicial imprimatur through incorporation into the divorce decree.51 "[W]here the parties do not intend an award of technical (and thus modifiable) alimony, but rather provide for contractual spousal support in the separation compact, the fact that the agreement, or that provision of it, is incorporated into a decree does not operate to transform the...
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