Alimony: The Cold, Hard Truth

Last month, the Nebraska Supreme court ordered 95-year-old Glenn Binder to pay more than his monthly income in alimony to his ex-wife, 96-year-old Laura Binder.

Laura currently resides in a nursing home that costs $6,230 per month. She only receives $2,927 a month of income and has exhausted all of her assets. Her husband earns even less than her at $2,890 per month, but owns half a million dollars-worth of real estate, a pre-marital asset.

Nebraska family law attorney Jamie Kinkaid discusses the problems with the current alimony system in Nebraska in light of the case.

Ms. Kinkaid explains the court’s reasoning behind its decision and the controversy surrounding it:

The court ends up saying “Alright, we understand that you guys had premarital property and neither of you has much in the way of income, but based on that premarital property, we find that the husband can go ahead and afford to pay for the nursing home and therefore we’re going to go ahead and give her an alimony award.”  So that’s the issue, that you could order alimony to be higher than anybody’s income.

Unfortunately, the ruling leaves Mr. Binder with very few options:

It’s essentially either he’s going to have to sell [his real estate] or he’s going have to take a loan against it, I mean, which is essentially close to selling. That’s what he has to do in order to cover those costs — unless he plans on going out and getting a job at 95!

But, without the assistance of her ex-husband, the burden of paying for Laura’s care would fall on the state:

In the grand scheme, I think [the decision is] fair to the people who weren’t party to the divorce because otherwise we’d be paying for her nursing home care. It’s fair to me, but is it fair to him? Possibly not. I think that’s the part where a lot of people forget. He essentially was leaving her destitute.

Ms. Kinkaid argues that rarely can the family court achieve “fairness” for all parties involved — that’s just the nature of the beast:

I had a judge make a joke about it — that if you’re looking for ‘fairsies, ’ is what he calls it, this is the wrong court. And that a judge had only done their job if both parties left unhappy. So the idea there is that nothing is going to be fair, but the idea behind divorce is we’re not going to leave a spouse dependent upon the state or destitute after leaving the other spouse.

The current system leaves those going through divorce unsure of the outcome:

When a client comes in to talk to me at an initial interview and I say to them “Welcome to family law, here’s the biggest shade of gray you will ever meet.” And I can’t give you finite or definite answers; I can give you maybes.

It’s really very scary because I can say to them, “Well you might get custody, you might not. You might get alimony, you might not.” What does that do for a client? It essentially lets them walk in to this big shade of grey where they know all the (possible) outcomes but they don’t know their outcome. You know, we can do worst case scenario which can range all across the board or we can do best case and there really is no definite all the way across.

Though achieving total fairness is nearly impossible, Nebraska can improve its alimony system by standardizing payment calculations to help decrease the unpredictability of the process:

The other problem is that we don’t have a calculation for alimony, so your guess is as good as mine as to what a judge would actually order. So, what that essentially means is that the length, duration, the reason behind it and the amount could be anything — it could be $1, or it could be $10,000 a month.

[An alimony calculation] gives me at least a finite area to say to clients, “Hey it won’t be any worse than this,” or, “You won’t be awarded any more than this. And that’s all you’ll get.” If we had a calculation, it would be so much simpler and I think that would also put the kibosh on people trying to ask for essentially ridiculous amounts.

Ms. Kinkaid laments the complacence of the Nebraska legal system with respect to alimony:

The reality probably is that Nebraska doesn’t like to fix what they don’t believe is broken. … The people who make the law don’t practice the law, and therefore they probably don’t realize how broken that it is. And that’s essentially the problem. We keep fixing child support but we don’t do anything with the alimony part because this is one of the few times that it’s actually made the news. It’s obviously happened before, but why is it only now that we’re upset about it?

Recently, there have been efforts in many states to reform alimony laws to include a standard calculation. These reforms would be a small but significant step towards fixing a broken system — especially since the calculations would apply equally to both genders, decreasing judges’ opportunity to express a gender bias.