The MacNeil/Lehrer Report; Wives Pay Alimony

ROBERT MacNEIL: Good evening. Two years ago an Alabama man, William Orr, fell behind in his alimony payments. His former wife took him to court, and he lost. He was ordered to pay $2,850 in arrears. But Mr. Orr appealed and took his case all the way to the Supreme Court, which heard the arguments today. The issue is whether only men should be ordered to pay alimony, or should divorced women also be liable? William Orr argues that the law in Alabama discriminates against men and violates the equal protection clause of the Constitution. But the case focuses attention on rapidly changing attitudes to divorce throughout the country. Tonight, should women pay alimony? Do women suffer from the new equality-in-divorce cases? Are sex- neutral divorce laws weakening the American family? Jim?

JIM LEHRER: Robin, alimony and who pays it, as well as everything else concerned with divorce, is strictly a state matter; there are no federal laws on the subject. As a consequence, laws vary from state to state But in general terms, the situation is this: two states, Texas and Pennsylvania, do not grant permanent alimony at all, except in extreme cases. Thirty- eight states have what are called sex-neutral laws, allowing a judge to order either the husband or the wife to pay alimony. The remaining ten, including Alabama, adhere to the husbands-only tradition, that it is the duty solely of the husband to support his wife after marriage as well as during it, never the other way around. Robin?

MacNEIL: One lawyer who supports the Alabama husband`s argument is Kathleen Willard Peratis. She`s an independent attorney who does volunteer work for the American Civil Liberties Union, which filed a friend of the court brief in this case, the Orr case. Ms. Peratis, why is the Alabama law unconstitutional, in your view?

KATHLEEN PERATIS: In our view the law is unconstitutional because it provides on the face of it a facial sex discrimination treating all women differently from all men. As Mr. Lehrer pointed out, Alabama is in the distinct minority in having a one-way alimony statute; it presumes that men are the independent breadwinners and that women are the dependent, stay-at- home partners of the marriage, and treats them according to a sexual stereotype that may or may not be true in a particular case.

MacNEIL: How is Mr. Orr specifically discriminated against?

PERATIS: Mr. Orr is discriminated against by having been ordered to pay under a statute that is a one-way statute. The proper course for the U.S. Supreme Court would be to find that the statute is unconstitutional and to leave to the Alabama Supreme Court whether the statute will be extended to cover men and women or whether it will be struck down entirely. Family law matters are state matters, and it`s for the state supreme court to provide the ultimate resolution of the issue.

MacNEIL: You believe that, that at the federal level they shouldn`t be into this at all.

PERATIS: No, at the federal level it should only be ensured that there is no unconstitutional discrimination under the Fourteenth Amendment, that men and women are treated the same according to functional classifications rather than sex classifications.Now, it`s up to Alabama to decide, as a matter of state law and policy, whether they want to extend the burdens of alimony to cover both sexes.

MacNEIL: And what is objectionable to you about the state having a say in what the role of men and the role of women are?

PERATIS: The state, I believe, should be neutral in allocating the rights and the responsibilities and the functional roles of partners during the marriage. By r.aving an alimony statute that decides who is going to be the breadwinner and who is going to stay at home and who is responsible for whom if the marriage breaks up, the state is unnecessarily intruding into a matter that`s private between a husband and a wife.

MacNEIL: And the kind of law you want to see is sex-neutral.How would the crucial part of it be worded?

PERATIS: Well, the point of alimony statutes, the point of having them at all, is principally to cushion the financial effects upon a party who is accustomed to being supported, when the marriage breaks up. A functional classification would provide, as most states now provide, that in general the party who needs to be supported will receive support from the party who can afford to pay.

MacNEIL: And what should the Supreme Court do, in your view?

PERATIS: The Supreme Court should decide that the Alabama statute is unconstitutional and remand the matter to the Alabama Supreme Court to decide what the remedy is.

MacNEIL: And in this particular case whether Mr. Orr can afford to pay or whether his wife needs the money or whether she could contribute to his support or anything, all those considerations are irrelevant, is that it?

PERATIS: Well, it`s not relevant before the United States Supreme Court. It`s probable that Mr. Orr will win the battle before the U.S. Supreme Court and lose the war before the Alabama Supreme Court. The

U.S. Supreme Court will probably find the law unconstitutional; the Alabama Supreme Court will then probably say that the statute should be sexneutral and that Mr. Orr is still required to pay.

MacNEIL: Thank you. Jim?

LEHRER: The basic argument on the other side, Mrs. Orr`s side, is that the Alabama law is constitutional, that it upholds the common law tradition of a husband supporting his wife, and that alimony is a legitimate payment for past discrimination against women. Among those supporting Mrs. Orr`s position, even though for somewhat different reasons, is Birmingham attorney Charlotte Railey, who has been active also in working against passage of the Equal Rights Amendment. Mrs. Railey, you believe your state`s alimony law is just fine the way it is, right?

CHARLOTTE BAILEY:I think the Alabama law is reasonable and defensible, and I think if there are any changes in it that it ought to be made by the Alabama legislature, which is the organ of our government which is to make our laws.

LEHRER: Do you feel that the law is constitutional?

BAILEY: Yes, I do.

LEHRER: You heard the argument that was just made, saying that it

is unconstitutional because it is discriminatory against men. You disagree?

BAILEY: Let me say this: after reading the briefs I felt that I was Alice in Wonderland, because reality is called unreality, and the unreal situations are masking around as reality. As has been stated, in Alabama we have a law which provides for alimony for men but not for women. That is a part of our system, which recognizes the primary obligation of support to be on the husband. This was the law in fifty states in 1971 and `2, when the United States Congress sent the ERA to the states. And it is this primary obligation to support the wife and the child that has been placed by the legislature of Alabama on the husband and then alimony is an outgrowth of this primary obligation to support. And also we have not only alimony but child support, which is both placed on the husband, the primary obligation of support is on the husband.

LEHRER: And in your opinion that`s where it should be and it should remain there.

BAILEY: Right. I think it is absurd to place on a woman the obligation to support her husband after a divorce, that she did not have during the marriage.

LEHRER: What about the ability to pay, the question that Robin just asked? Do you feel that`s an irrelevant question, for instance if the woman happens to have more money or a better income independently than the man -- is that an irrelevant issue, from your standpoint?

BAILEY: Well, I think that need is relevant and is considered by our courts. As I said, I believe that if we are going to change the law it ought to be the legislature.

LEHRER: In other words, you don`t think the Supreme Court of the United States should even be involved in this in any way, is that right?

BAILEY: Right now the ERA is in the hands of the states to decide whether our laws are to be sex-neutral, which is what Mr. Orr wants. Apparently, in 1972 our Congress and everyone else thought that we needed an amendment to the Constitution to make our laws sex-neutral, which is really what Mr. Orr seeks. While this is still in the hands of the state legislatures, I do not believe that the Supreme Court of the United States should come into this area and by this case actually say that all laws must treat men and women exactly the same.

LEHRER: All right. Well, let`s go back to Ms. Peratis on this. You heard Ms. Railey`s argument that, first of all, this is in a way accomplishing what ERA would accomplish but without passing ERA, if you get what you want, if your side should win in the Supreme Court. Do you agree with that, Ms. Peratis?

PERATIS: The ERA would certainly require that this law as well as other laws that draw lines on their face according to sex would have to be sexneutralized. But the Fourteenth Amendment of the Constitution, equal protection clause of the Fourteenth Amendment, requires right now that equal protection of the laws be extended to all people. This sex line is so clear, and so clearly discriminatory to both men and women, that it ought to be struck down under the Fourteenth Amendment.

LEHRER: Ms. Railey?

BAILEY: I disagree. In 1971 and `2, when the ERA was sent to the states by Congress.... I`m sorry, I lost my train of thought.

LEHRER: Well, her basic argument was that the Fourteenth Amendment as written, without ERA, would be grounds enough to strike down this particular law in Alabama.

BAILEY: Right. Well, at that time, and I still consider that under the equal protection law, if there is a reasonable reason to have a law the way it is, that the state legislatures have a right to pass laws which treat men and women differently. As long as they are reasonable; and I think this is absolutely reasonable. And therefore I don`t think that the Supreme Court should come into this area and really announce a rule which is that they must be sex-neutral.

PERATIS: Could I interrupt for a moment? This law discriminates not only against men but also against women, because it presumes that women will fulfill the customary role of women. Women may or may not seek to follow that function in life. To categorize women and men based upon old stereotypes is as much an invidious discrimination against women as it is against men; and also the point that was made that the alimony obligation flows from the common law right of men to support their wives, that`s true, and the common law view of women was not very complimentary. Under the common law women were civil non-entities. They didn`t have the right to enter into contracts, they didn`t have the right to appear in court, they didn`t even have the right to their own children. To the extent that this alimony law, this single-sex alimony law, is a continuing reflection of the common law view of women, it is very discriminatory against women, and no compliment and no favor.

LEHRER: Ms. Railey?

BAILEY: Well, the law of Alabama is not the common law. We have given women rights for over a hundred years, approximately, in Alabama to have her separate property. Mississippi was the first state in the Union to have a separate property law, and we followed, I think, one year later. The law that is being implemented in Alabama is not the common law that this lady refers to. It is the law which recognizes from our Judeo Christian tradition that the wife shall be the principal homemaker if she desires; and the husband shall be the provider. And it is in favor -- it is not a discrimination against but a discrimination in favor of women that they might stay home and take care of the children and that they might not have to be sent to day care centers.

PERATIS: And no woman who needs support would lose it if the law were made sex-neutral.

BAILEY: Well, that really doesn`t have anything to do with whether or not the Supreme Court of the United States should strike down a reasonable Alabama law.

LEHRER: What would be the harm of a sex-neutral law in Alabama? Do you feel that there would be harm if such a law were passed?

RAILEY: I think that alimony is a red herring. We`re really talking about the principal obligation of support, and I think that if Orr v. Orr was going up on the laws of Alabama, which recognize the principal obligation of support to be on the husband, which is the law in the great majority of our states, I do not think the Supreme Court would strike it down. I think they would think that was reasonable. And I think that we must see alimony in its proper perspective and realize that if this alimony law is struck down, the next step will be to strike down the principal obligation. And I think most people in the street would not want to see that happen.

LEHRER: All right; thank you. Robin?

MacNEIL: As Jim mentioned, thirty-eight states already have so-called sex- neutral laws regarding alimony, in which the judges can ask either husband or wife or neither to pay, depending on need. One of those states is Wisconsin, which recently passed a divorce reform bill. One of the proponents of that reform was State Representative Mary Lou Munts.Representative Munts, how does Wisconsin`s new law differ from the law we`ve been hearing about in Alabama?

MARY LOU MUNTS: I was rather astounded to hear that Alabama still hasn`t caught up with most states. In `72 we did what we`re talking about here, to make our law sex-neutral. It simply says that there may be a case -- there`s a case, for example, of a paraplegic man who was in an accident .and really was the homemaker -- there is a need for continuing support for a spouse-who is male in this situation. In `72 our legislature said let`s do it. But there are a lot of things that have happened in divorce law that caused us ...

MacNEIL: That wasn`t good enough, in other words.

MUNTS: Well, I think the whole move toward no-fault and toward changing the grounds and in some ways taking away some bargaining chips that sometimes the dependent spouse, usually a woman, may need led us to say if we`re going to do no-fault, let`s combine some real look at the economic needs of the dependent spouse, male or female...

MacNEIL: Just explain no-fault divorce quickly, would you?

MUNTS: No-fault is simply saying that there`s one grounds, we`ve said, for divorce, and that`s irretrievable breakdown.

MacNEIL: Nobody`s to blame.

MUNTS: Nobody`s to blame. In fact, really, I think, it`s both-fault divorce. Both parties usually are to blame. What we then did was to say let`s begin with a fifty-fifty property presumption. That`s very important. The old common law that we`re talking about wasn`t so good for women; it was a one third right for the woman. So we start out, finally, clearly in our statutes from a fifty-fifty presumption. We give value to the economic contribution of homemaking and child care. That`s clearly in our statutes, and it was not before. We look at the kinds of criteria the court should look at in awarding maintenance. We`ve changed the name. Alimony isn`t really that good a name, and we call it maintenance and child support. We permit them to be combined in family support, because there still is a family entity that needs support, and that is what we`re concerned about as a matter of public policy.

MacNEIL: Are you concerned that such a law, first of all your sexneutral law in `72 and the new reform, can weaken the family structure, which is a concern raised by various people?

MUNTS: Quite the opposite, because among other things we said let`s be tough on enforcement. It`s shocking, the lack of up-to-date payments, whether it`s for alimony or maintenance, or for child support. The figures are just -- you know, that`s why welfare rolls increase; and if we`re going to be conservative about it, what we need to do is to put some teeth in enforcement. We`ve put in a wage assignment that begins from the time of the divorce, we`ve put in better tools for getting arrearages; you don`t just put somebody in jail, which doesn`t get the money, you can put a lien on a house; we start out with full financial disclosure so that you know what`s there and if any assets have been wasted in the year prior to divorce. The court has control of those and can put them in really compensatory help for the other spouse when property is divided. The key thing is to look at the real needs, and that`s the whole point about what we`re talking about, is the real needs of each individual without regard to sex. There are going to more dependent wives who are going to get support, but if there`s a dependent husband, fair is fair.

MacNEIL: And women who have not been working but have been working in the household and contributing to the family and therefore to the husband`s career in that way, some equity in that work is recognized by this new law.

MUNTS: Indeed, and contribution toward helping the education of the other is there, and in return of course we say let`s recognize the need for education and training for the dependent spouse so that support can be assured at a level reasonably comparable to the standard of living that was enjoyed in the marriage. So that doesn`t mean that if you`re capable of a dime store job that`s it. I mean, we`re really saying let`s look at the need to put this person on their feet; we`re also saying permanent maintenance support may be necessary where you`re dealing with an older person who simply can`t enter the labor market. We are not saying that maintenance is a temporary thing, it can be for an indefinite period of time.

MacNEIL: Well, thank you. Jim?

LEHRER: Under Wisconsin law it`s up to the judge to decide what`s fair in each situation, judges like Leander Foley, a family court judge in Milwaukee. He`s been on the bench under the old sex-based law as well as the new sex-neutral one. He has also taught family law at Marquette University in Milwaukee and is now on the faculty of the National Judicial College, which was set up by the American Bar Association and other groups several years ago to assist judges. Judge, has the new law resulted in you and other judges awarding alimony to men?

Judge LEANDER FOLEY: Very occasionally. I tried to get a statistic for us here tonight, and I found that the best statistic I could find was that in fifty cases since 1972 there`s been an award. It may be more than that, but it`s less than a hundred.

LEHRER: Fifty out of roughly how many?

FOLEY: Well, in Milwaukee County we have filings of around 3,000 cases a year, so that only about seventeen percent of the state`s litigation is in Milwaukee County.

LEHRER: I see. So it hasn`t become a widespread practice, as such.

FOLEY: No. I think that there is a lot built into the thing that we ought to call our attention to. First of all, men don`t want alimony. It has a connotation of unmanliness, or something like that. So you have an avoidance of that kind of thing. Secondly, I think that we`re finding in the young marriages now that less -- or in young divorces, I should say -- most of the people are not asking for alimony at all.

LEHRER: Neither the man nor the woman.

FOLEY: Right. Then there is another kind of a divorce that`s still in the young divorce group in which there was a kind of a tantamount agreement on supporting one another for purposes, like education.... I`m thinking of a case that I had in which a man went to work as a bartender and a waiter and put his wife through the nursing school, on an agreement that when she was through then he would go into the education system and he was to get a degree in some kind of mechanical work. Now, that kind of a thing...

LEHRER: And you upheld this in a court order.

FOLEY: That we did on the basis of the statute that Representative Munts just talked about.

LEHRER: Is it possible to lay out guidelines, and how do you go about resolving questions -- you`re having a mike problem there, I think.

FOLEY: Are we having a mike problem?

LEHRER: I think you`re okay now, right. (Laughing.) The mystery man came out from underneath.

FOLEY: (Laughing.)

LEHRER: But anyway, is it possible to lay out guidelines in terms of how you decide alimony for the man, alimony for the woman, or is it really very much an individual case?

FOLEY: I think it`s an individual case. First of all, in the functioning of the court what we do is we find a set of facts from evidence; we look at these people and the evidence that they present to us. One of the faults in the Orr case is that there isn`t a good finding of fact; we don`t know exactly what those people`s relationships were to one another prior to the divorce and subsequent to the divorce. But we need a finding of fact, and then we place the law on it. Now, the law tells us in Wisconsin that we can give alimony to a party for a term or we can extend it to the lifetime of one of the parties if the need is there. And we consider a lot of things: the age of the parties, the health of the parties, the contribution each party made to the marriage, the estate of the persons. There are many considerations. And using all those considerations in making that finding of fact, we then determine whether the person is entitled to alimony or not. And many times, you`ve got to remember, ninety percent of these things are done by stipulation.

LEHRER: They just come in and agree, so you don`t have to make...

FOLEY: They agree ahead of time.

LEHRER: You mentioned a moment ago that many men are reluctant to ask for alimony. Are many judges who are also men reluctant to award alimony to men because of custom?

FOLEY: I think that particularly the judges who are in our modern society follow the law. And if there is a case in which, as Representative Munts pointed out, the case that she`s talking about, that risk of disputed fact situation presented to the court -- she is knowledgeable, both of us are knowledgeable, one of the first cases that judge, who in his own personal relationship with his own wife probably has a different attitude towards the woman and the man, he still followed the law in that kind of thing.

There`s another thing that we have to consider here, and that is that the federal tax law has a tremendous effect in alimony law, because there is a bargaining; and the payor gets relief, you see, and the payee pays income tax. So that there is some element of division of estate that does affect the amount of alimony that might be given, and in some of these cases we`re now seeing, the lawyers tell me, in the bartering that goes on in the lawyers` offices, that this element of male alimony does come into the bargaining.

LEHRER: All right. Thank you, Judge. Robin?

MacNEIL: Ms. Peratis, is the Wisconsin law the model you would like to see, for instance, the result of the Orr case in Alabama?

PERATIS: Well, the result of the Orr case will not be that kind of a model statute.

MacNEIL: I mean the eventual law.

PERATIS: Yes. I think that that statute is sensible and addresses modern realities. People perform different functions and different roles, and their sex doesn`t dictate those roles.

MacNEIL: Ms. Railey, as an Alabaman who supports the existing law, what do you feel about the Wisconsin law?

BAILEY: Well, I`d like to have Wisconsin have what they want, and in the same way I would like to have the Alabama people have the statute they want.

FOLEY: That`s a very good point that she makes. It`s very difficult for the United States Supreme Court to lay down rules in this area. First of all, many years ago we determined in Barber v. Barber the federal government has no role in domestic relations at all, hasn`t taken any, doesn`t want any. And shouldn`t have any. Now, the real question that we`re going to be involved in here is the implementation of any rule that comes out of the Orr case, and that`s for the trial judges of the states, and in the federal system there are very few men who`ve had a lot of experience in the state trial courts. And we`re going to have a great deal of difficulty implementing this in post-judgmental problems where the woman has bartered away a lot of her estate and given higher alimony because tax implications would give them a benefit.

MacNEIL: Judge, just let me ask Ms. Peratis, as a lawyer who`s with the American Civil Liberties Union and supporting the husband`s side in this particular Alabama case, do you think that each state should be allowed to have different laws? I mean, are the people in Wisconsin and Alabama so alike that they should have the same laws in family matters?

PERATIS: No, I think Alabama is certainly entitled to decide how it wants to arrange its own matrimonial laws, but not in the face of equal protection requirement to the contrary. If Alabama law provided that no black people can get alimony and only white people can get alimony, nobody would have the slightest hesitation in saying...

FOLEY: It`s a different issue entirely.

PERATIS: But nobody would have the slightest hesitation in saying that although Alabama has the right to its own alimony statutes, it cannot do it if it`s violating the equal protection clause of the Fourteenth Amendment. It`s the same point.

BAILEY: No, it isn`t. That would be unreasonable, and this is reasonable.

MacNEIL: Judge, do you think it`s reasonable? I didn`t hear you comment on the Alabama law.

FOLEY:I don`t really agree with the Alabama law, but I agree with what my compatriot here says, and that is that the people of Alabama should try to get their legislature to change that law, and we shouldn`t do it by constitutional mandate. We deal in the states` right to regulate on the one hand-and the citizen`s protection under the Constitution.

MacNEIL: Well, let`s give Ms. Railey the last word here, she`s in a slight minority.

(General laughter.)

MacNEIL: Ms. Railey? We just have a few seconds, do you want to make a final comment on that? Would you oppose any move in the state legislature to change the law in Alabama?

BAILEY: I would be glad for the Alabama legislature to consider this and for the various people to come before the committees and have testimony and to see what we want. It isn`t what I want or what any of us here want, but it`s what the majority of the people of Alabama want that I think Alabama should have.

MacNEIL: Okay. We have to leave it there. Thank you for joining us. Thank you, Judge. Good night, Jim.

LEHRER: Good night, Robin.

MacNEIL: And thank you both for joining us here. That`s all for tonight. We`ll be back tomorrow night. I`m Robert MacNeil. Good night.