By Kenneth J. Bartschi
On Monday, June 15, 2015, I attended the CBA Family Law Section’s annual review of cases not only to see if the panel would discuss any of my cases (they did), but to hear from those in the know what the important cases were in the last year. At the seminar, I learned that the family bar is up in arms about Dan v. Dan, 315 Conn. 1 (2014), a decision issued late last year by the Connecticut Supreme Court.
In Dan, the trial court dissolved the parties’ 29 year marriage and incorporated their separation agreement, which provided that the husband would pay the wife alimony. Alimony would cease when the husband turned 65 or retired, whichever happened first. The wife moved to modify alimony in 2010, claiming that the husband’s income and her medical expenses had both significantly increased. The husband conceded that his income had increased (thus establishing a substantial change in circumstances warranting a new look at the alimony order), but the trial court concluded that the wife failed to prove her claim of increased medical expenses. Nevertheless, because the court concluded that the income was more than sufficient to cover both parties’ needs, it gave little weight to the parties’ actual needs and substantially increased the monthly alimony and eliminated the termination of alimony upon the husband turning 65. The Appellate Court affirmed, and the Supreme Court granted certification.
The sole issue in the Supreme Court was whether an increase in income by itself provided sufficient justification to modify alimony. The court concluded that it did not. The court noted that historically, alimony was based on the husband’s duty to support his wife, which duty continued after the divorce. Put another way, the wife should not have to give up her standard of living simply because the husband wanted out of the marriage. (After the overhaul of the divorce statutes in 1973, the obligation became gender neutral, so wives can be ordered to pay alimony.) That is why “station,” i.e., standard of living, is one of the criteria the court must consider in fashioning financial orders.
As society changed and opportunities for women in the workforce increased, courts have sought to encourage divorcing parties to be self-sufficient where possible. Thus, courts began issuing time-limited alimony to serve as support while the recipient (usually the ex-wife) retools for work or while the parties’ minor children need a full-time caregiver. Alimony also serves to keep recipients off of public assistance.
In Dan, the court focused on whether the existing alimony served its original intended purpose. Thus, if the purpose was to maintain the recipient’s standard of living, and the recipient had not suffered in her standard of living and had no unmet needs, there would be no reason to increase alimony just because the obligor had increased earnings. Indeed, an important factor in fashioning financial orders is the recognition that a non-employed spouse is making significant nonmonetary contributions to the parties’ standard of living by taking on the work of the home front and freeing the other spouse to earn income. Ordinarily once the parties divorce, the ex-spouse is no longer contributing to the earner’s income efforts. Thus, it would be unfair to require the earner to pay more alimony simply because he can in the absence of any other justification.
Dan is really nothing more than an application of the statutory criteria for the award of alimony, with regard to the purpose of alimony that the court has discussed in myriad cases. It is not the end of the world. First, where a recipient’s needs have increased, due to health or loss of a job, for example, the court would be justified in modifying alimony. Second, if the original alimony was insufficient to meet its purpose (say the earner had lost his job at the time of the dissolution), the court would be justified in increasing alimony once matters improved. Although the wife in Dan claimed increased needs, she failed to prove that. Had she proven her case, the result would likely have been different. In other words, if you want to increase alimony, prove your case.