Who Should Pay Alimony? Divorce Lawyer Doris Sassower Offers a Surprising Answer

Currently, one out of three American marriages fails. When it happens, lawyers—at fees averaging $100 an hour—try to untangle the two knottiest and frequently bitterest problems divorce brings: child custody and alimony. In the case of alimony, both men and women charge that the present laws are economically and socially unjust, and many states have enacted or are pondering changes in legislation. According to New York attorney Doris Sassower, 44, even the best-meaning proposals are often based on myths and sometimes make the aftermath of a divorce worse—especially for women. Past president of the New York State Women’s Bar Association, Sassower has been a lobbyist for women’s rights legislation, but because in her legal practice she represents both sexes, she prefers to be called a “human rights attorney.” She is married to a lawyer and is the mother of three girls. In her Park Avenue office, Sassower discussed alimony with Sally Moore and Dick Friedman of PEOPLE.

What are the changes you see in alimony law?

Most states are catching up with the idea that divorce laws should be de-sexed—that sex should not be the criterion for an award of alimony, nor should the award be based on fault but on the economics of the situation.

How do new trends in alimony affect child custody?

More and more men are assuming the child-rearing roles and asking for exclusive or joint custody of children. In such cases, it is justifiable for a man to ask for alimony and child support.

Are women taking a greater initiative in seeking divorce?

Yes. An increasing number of women want a divorce, particularly in marriages of long standing, and their husbands not only don’t want divorce but fight desperately to prevent it. I have handled any number of cases where the men will not let go to the point where women are so wretched they are willing to forget what the law entitles them to.

Why are men resisting divorce?

It’s a blow to their male egos. It isn’t possible for them to think their wives no longer want to live with them. They rationalize by saying they can’t afford two households. That’s a valid argument, but often not the true issue.

Why have these changes been so long in coming?

Because there is a legal tradition of divorce being a battleground. For example, in New York State, until 1966 adultery was the only grounds for divorce. This set up the ugliest situations, all unnecessary because inevitably there were other reasons to dissolve the marriage.

How often is alimony awarded?

A recent national report concluded that alimony is awarded in only 14 percent of divorce cases. Moreover, the bulk of alimony awards are totally inadequate, and enforcement is a travesty. The same study concluded that only 46 percent of women awarded alimony collect it regularly. The process of collection is like rolling stones up a hill.

Why are women unjustly treated?

Quite simply, in many states the laws are an obscenity. In some states, there are no provisions for an equitable division of marital assets. They are distributed basically in accordance with whoever owns the title to the property—usually the husband. In New York still, if a husband can prove his wife guilty of one act of misconduct—regardless of his actions or what provoked her—she loses all chances of alimony. And if the case has to be litigated, a woman often can’t find a lawyer to represent her. She has no money, and all the marital assets are in the husband’s name. I have seen millionaires’ wives in that situation.

Don’t husbands have to pay their wives’ attorneys’ fees?

Counsel fees are awarded at the discretion of the court. That usually takes months, and often the amount is so small it deters a worthwhile attorney.

Has the women’s movement helped?

By and large, it has hurt women in the divorce court more than it has helped them.

Why?

Because there is still an ingrained male chauvinism in our court system resulting from judges who punish women for not conforming to their own standards of behavior—wives who have asserted themselves in order to have careers or more than one role. Women on the bench are often of the same generation and no different.

Aren’t things better for women in states with no-fault divorce laws?

One must differentiate between no-fault divorce, where fault is not a factor in a separation, and fault as a factor in the award of alimony. No-fault divorce, of which I am in favor, is a humane approach, but in some states it has been adopted without sufficient thought. The new laws simply permit husbands and wives to terminate a marriage unilaterally without providing for financial security or property rights for the wife.

What about the stereotype of the divorced man who complains about being “taken to the cleaners”?

That is a popular idea, but it’s a myth. It’s mostly the result of certain highly publicized alimony awards in extraordinary cases of great wealth. It is true that I have seen gross inequities in the courts applied to men. Men get screwed, just as women do, but not as much and not as often. Bitterness also commonly occurs when a man remarries. Both he and his new wife resent paying anything to the former wife even though the original award was considered fair.

What should be the goal of the non-working wife of twenty years who wants a divorce?

To achieve an equitable distribution of the marital assets and enough support for her and her children so they can maintain their preseparation standard of living.

Is that a fair expectation?

That is my point of view as an advocate for a client. What I’d really like to see is for women to become economically independent. But what does a woman do if she was a substitute teacher 19 years ago and full-time teachers are being fired now? Often women want to be independent, but there is an economic reality the courts are sadly oblivious to. They cite the advances women have made and deny her alimony. The problem is, who will hire her?

You represent both men and women in matrimonial cases. Why?

Because reforms are the issue, not whether they apply to husband or wife. For example, I have always urged that alimony not be stereotyped as a woman’s right, that alimony creates a dependency, and women have been programmed for dependency. They don’t have to be. A couple’s responsibilities must be shared or the rights will not be equal.

Give us a case where a man should be entitled to alimony.

Here’s one. A man is 60, a woman 47, married 27 years, three grown children. When they met he was chairman of the math department of a leading university. She was his student. She stayed home until the children grew. Then he helped her get employment in his field. In a few short years, her income grew dramatically and her career was on the rise. He, meanwhile, was approaching retirement. Last year she decided she wanted a divorce. They have a $100,000 home with the title in both their names, but bought with his money and savings. Nonetheless, she has an equal share in it, and also in securities he purchased. Under our current law, he is not entitled to alimony. A partition will be ordered, and he will get the shaft in his later years. Is that humane?

How would you rewrite the alimony statutes?

I’d settle for proposals now before the New York legislature—which, among other things, call for recognizing a wife’s role as homemaker when distributing marital assets upon divorce. And I would revise alimony to “maintenance” payable by either spouse on a need basis—but with one restriction: the marital assets would have to be divided equally, unless one party can prove that equal distribution is unjust.

What would such a law, combined with no-fault divorce, do to the divorce-lawyer business?

The divorce lawyer could become an endangered species. If there is no court trial for divorce, the only area of contest left is equitable property distribution and maintenance.

How can young women avoid the pitfalls you have just described?

By freeing themselves from the fairy tale that when they grow up there will be a man to provide for their needs.

What about pre-nuptial contracts?

I’m in favor of them. Why not? Many people are avoiding this entire problem by eliminating marriage. They will enjoy the benefits without the burdens until the alimony laws are changed.

If you were to divorce, would you ask for alimony?

For an independent woman earning a substantial income alimony is inappropriate and, given the changing times, unrealistic.