A HISTORY, SOME DETOURS AND EXPLANATIONS
Ann Arbor, Michigan
[this is a shortened version of the original article]
In the late 1970s a group of lawyers in Washtenaw County [Michigan] met in an attempt to review/revise local child support guidelines. At that time the 22nd Circuit relied upon ABA support standards (30% of a payer's net income for one child, 35% for two children, or something like that) but application was random and haphazard. After a few months the committee created new child support guidelines, a theory based upon econometric work from Seattle (King County) and an idea (discount rate) that arose out of Muskegon County in Michigan.
I had assumed the primary authorship of these child support guidelines and, at the close of the work, an attorney asked whether I had "any ideas" about building a "guideline" for alimony. Being pretty new to the domestic relations system I did not, but in the following weeks I continued to think about the problem. In late 1979, in about an hour, I drafted a proposed guideline. Key elements of the theory were (a) the notion that cases could be/should be sorted on a continuum based upon the relative strength of the claim and (b) a "multiplier" or factoring system could be/should be created based upon the earning potentials (income differential) of the parties. The proposal spawned a new committee and (more or less) three years of political haggling. Eventually a consensus was reached, but it was a consensus without the inclusion of (b) (above) due to the fear (and partial reality) that the equations created were "too complicated".
It must be remembered this was a time prior to personal computers or, at least, a time when few practitioners had access to such machines. The project had to be pencil and hand calculator friendly, and this limited the scope of possibilities.
In 1983 the 22nd Circuit in Michigan adopted this alimony guideline as a "formal" document of Washtenaw County. It was published in the Family Law Journal and became the subject of discussion in (at least) two law review articles. And, in a complete surprise to me, I began to receive phone calls about it. From Michigan, but also jurisdictions as diverse as Kentucky and California. It was a rare week when I fielded less than 10 inquiries about the theory. I found the interest to be ironic since, by the time of the document's exaltation, I had abandoned it. My original ideas had major league holes (sort of Like Woody Held at shortstop, if that has any meaning) and the political process had ravaged much of the algorithm's initial integrity.
Moreover, as I matured in my role as referee, I became increasingly comfortable in making alimony recommendations (and teaching others at the FOC) without reference to any sort of a mechanical process. Because of this, my answers to questions about the document were strained and prefaced with (something like) "don't use it" or "it creates more heat than light". Despite the fact that I wrote the theory, I found myself at the other end of the rabbit hole. Callers tended to like the guideline (or the idea of a guideline) regardless of my protestations to use some other time-tested or holistic method -- serious sedation was a thought.
A few years after the formal adoption of the alimony guideline in Washtenaw County, I received a phone call from Scott Bassett, who is an attorney in Michigan. Scott is a persuasive attorney and one of the persons in the profession I most respect. Scott suggested the alimony guideline needed to be "indexed" due to cost of living changes arising since the time of implementation. I agreed, and he also asked whether there were other blatant problems with the alimony guideline and I mentioned, inter alia, that FICA/SE taxes were mishandled. Scott asked whether he would be allowed to make these changes and I, weary and embarrassed by the creation, consented. If this sounds a little bit like a rewrite of "The Cleveland Indians Trade Rocky Colavito for a Flea Circus (Harvey Kuenn)" --well -- that's what surfaced for me. In any event, Scott published his revisions in the FLJ. Within a week my phone calls doubled. And, I admit, I got tired of apologizing to people who (by and 18pt) were calling with encouragement or constructive criticism. This, and the fact that attorneys were now buying microcomputers, led me to rethink getting back into the project.
Arising out of Scott's revisions soon came full page ads in the FLJ about a personal computer program named the "Alimony Prognosticator". It turns out (a) the "Prognosticator" (the "indexed" version of the so-called Washtenaw County Alimony Guideline) was a private money making venture based upon a lift of my work and (b) no one ever asked me about rifling my desk drawers for their own profit. I appreciate the irony (or layered irony if you will) of whining about the conversion of something I had thrown in the trash but (a divorce lament) it was my trash. After all, I had carried the darkness of the beast for a decade and I had intended the work to be purely nonprofit -- at least pending my exile to Bora Bora or the third floor of some random parking structure.
So it was, in 1990, I got back in, by writing Alimony 1.00. The version was internal to the FOC and was rife with programming problems. The side of a hill did not exactly swing open. Or, if it did, it was the basement at Filene's. Seven versions later, in 1992, I published Alimony 1.07.
In a letter to the Family Law Journal of Michigan (FLJ), I attempted to notify practitioners that Washtenaw County had (de facto/de fiat) pitched the "Washtenaw Alimony Guideline" in deference to a (continually adjusting) revised theory (I called the "Alimony Series"). I figured a short notice was no problem in that (a) the Journal had printed my article "The Spam Quotient" (a scurrilous and tasteless piece) and (b) had printed my long, more ordinary article, "Degrees in Property Division" and (c) had printed an extraordinary amount of the certifiable ravings of others and (d) I was on a first name basis with Joe Cunningham, a legend, and one of my heroes and (e) I was the founder of the "I hate Harvey Kuenn" Club.
Naive me. Not only would the FLJ not print my letter, they would not answer inquiries as to why they would not print it. Meanwhile, (and I had a vague hunch that this was connected) ads for the "Prognosticator" continued to roll off the presses. From my point of view it would be like I was the guy who invented the Yard Weasel and the Wheel, but the corporate jumbos only wanted the former.
After about six months (plus) of futility in attempting to get a letter published, Kent Weichmann of the Washtenaw FOC convinced Scott Bassett to intervene. Scott was successful, and response from around Michigan was significant. In addition, Scott brought the matter of "competing" guidelines to the Family Law Council and, in 1996, the Council endorsed Alimony 2.021 (about the 15th version). The Alimony Series is now a routine part of domestic practice in Washtenaw County, and in some individual courts in Michigan and other jurisdictions.
The Washtenaw County Guideline and the Alimony Prognosticator were merely my fledgling attempts at the present theory. You can label them Alimony 0.01 and Alimony 0.02. Meanwhile, I am amused by the fact that (a) the FLJ continues to stump for Alimony 0.02 while (b) they have endorsed a version written 17 years later and (c) I view (even) the endorsed version to be a thing of the past. My advice to the FLJ, in the words of Bill James, is that a bearskin stuffed with hamburger is not a bear. My advice to myself, in the words of Scott Fitzgerald, is that we are all beating against the current, borne ceaselessly into the past.
The present incarnation of the guideline is provided, in Michigan, as Alimony 5.03 (published in January of 2001). This version contains (a) a more comprehensive child support program with a complete report, (b) a broader variety of reports (in general), (c) a rewrite of the unallocated algorithms, (d) some minor tinkering with the basic formulas re: alimony and (e) a different "feel".
[A current version of the alimony routines developed for Michigan are also now incorporated into computer programs that I have made available for use in Kentucky and Washington.]
2. The Utility of Formality.
Aside from the confusion caused by the side by side existence of the Washtenaw Guideline, the Prognosticator and the Alimony Series, the most common questions I am asked relate to the "formal adoption" of "some" (pick one) guideline. As I wrote in the introduction to the 1995 versions of the program (2.00 to 2.03) --
"People ask me (over and over) about the official status of the project. None at this point, but a lot of courts, FOCs and private attorneys use some variation on the theme. The advice I get is "Why don't you do something about it?" When I want advice like that I will call the nearest secret police office or evangelical crusade. Or Bob. As soon as anything is official it is probably not worth the electrons it is printed with. Revise that. Anything official is as dead as a trout in a tub of motor oil. Any doubt on the matter can be resolved by a review of the Michigan Child Support Guidelines. Junk. A complete hack job. Valvoline on the rainbow."
Despite the Family Council's endorsement of Alimony 2.021, I am sticking with my story. As the Michigan child support guidelines have proven, codification equals calcification. To the extent there is any need for an alimony guideline there is a need for it to be fluid, subject to periodic and continued "tinkering". It is true there is a diminishing return in the examination, that as time goes on and more cases are "run through" the program, less adjustment seems necessary. But this does not mean the process should stop. For any theory to be vital it must continue within an environment of self examination. And this argues against any sort of political process or formal endorsement --realities that move at glacial speed after achieving the lowest common denominator. Once any committee gets hold of it -- it is obsolete. My point of view has always been that the Alimony Series is an idea, a way to approach a problem. It is not the end of analysis. It is a place to start and a format to review the implication of any particular result.
Kent Weichmann of the FOC in Washtenaw County and the Judges in the Circuit were flexible enough to allow this kind of landscape -- one where standards would evolve on a catch as catch can sort of basis -- but it didn't matter -- because "we" (referees, judges, administrators) were all more concerned about the bottom line. And the bottom line was (and always should be) "Does this make sense. And why?". The move from the anarchistic (laissez faire) to the codified revises the question. It becomes, "Under the guideline is this a "59" case or a "63" case?" A question one step removed from the problem, one step removed from point A to point B. And into a place where someone is always throwing you a curve.
I do not suggest there is no place in the law for bright line tests. Human beings, lawyers included, prefer a certain degree of cast-in-concrete answers. Indeed, there is an argument that child support should be such a place. I would contend that alimony litigations are not such an arena, that a better systemic reality is (a) a set of general standards, (b) an "underground" guideline (or competing guidelines), (c) a healthy dose of judicial discretion in the trial court and (d) review of (c) only when the answer is well outside of some articulated boundary. Was the judge "off his rocker?" is suggested as a standard. I suspect that makes me a running dog apologist for the status quo and market systems.
3. Interesting Questions Re: Alimony Guidelines.
This section is labeled "interesting" only to distinguish it from a (non-published) paper I wrote for the Alimony Subcommittee of the Family Law Council -- a monograph I would call "Boring Questions About Alimony". The paper focused on the nuts and bolts of a guideline, the algorithms behind the face of the program. Jack Keiser (the Council's Alimony Subcommittee Chair) claims it to be the "most deadly document ever written," even "more pedantic than Chairperson Messages from Jon Ferrier" and "more obscure" than Ray Nitschke's "The Zeitgeistof the Odd Man Front". Despite a maze of questionable puns, pointless baseball references, second rate word play, scatological quotes from Juwan Howard and more than the usual amount of whining, Jack was able to bore through the document and seize the basic dullness of the topic and my presentation. So it goes. This said, anyone interested in the monograph should contact me.
The following questions have been asked more than once about the Alimony Guidelines in my "Alimony Series" of programs.
Q: Why do you use the word "alimony"? Isn't "spousal support" a more up to the century term?
Probably. But the word "alimony" is more elegant and inclusive. "Alimony" encompasses classical cases ("spousal support") as well as those cases where an award is necessary to help protect the interests of children. As an historical matter "alimony" contemplates the support of a spouse and other dependents.
Q: How come you don't consider fault?
I'd like to say there is no way to quantify "fault", and that would be true. The real answers are (a) my consciousness is that it is more useful to focus on economic conditions as opposed to less concrete considerations, (b) I have no clue as to how to build a guideline with fault and retain any usefulness in the product, and (c) I think the notion of "fault" is a rat hole. In the aforementioned "monograph" I wrote --
"Two basic reasons (for not considering fault). First, I don't know how to quantify it. I don't know how anybody does. I don't believe anybody can. Courts [are lame as moral arbiters] and so am I. (My dog likes apples and oranges too/That's how we're alike...R. McKuen. My fish likes fish food and I don't/That's how we're different...R. Ross). If fault was included in any theory there would be no value to any ordering of cases or, for that matter, any attempt at quantification. All cases, and the same case, would be a 0 or a 100 (pathetic or great) depending upon whether the evaluator was Plaintiff's or Defendant's counsel...Second,...the focus on fault is...a false issue that has little or nothing to do with alimony or any thing else that goes on in domestic relations cases. And this assumes fault is possible, a condition I deny."
"This is not to say that betrayals or misbehaviors do not occur. In my experience, however, these transgressions are not easy (or possible) to sort. or ascribe with any economic meaning. He had an affair. Yeah, but she wouldn't sleep with him. Yeah, but he smelled bad. Yeah, but he wouldn't smell so bad if she wasn't so cold and such a nag. Yeah, but she wouldn't have been such a nag if he didn't cruise with the Tooz at the Doo Dah Room. Yeah, but he wouldn't cruise if she would cook a decent meal for him. And on and on...I just do not believe that any court or person can discern [the bottom of this pit], can sort through these normal/lunatic pronouncements even if such behaviors have any legal or economic meaning."
"Most of the time the marriage just sucked or was a bad match of egos. And the other times no third person can tell and the litigants probably don't really know. Fault litigations are the lowest possible path, probably how...Hannibal Lecter would design a legal system, a way for lawyers to earn money under false pretenses. To that end, the concept is at fault for the battering the profession deserves. And don't tell me about the standard of practice. Stop me before I kill again and fault is for someone else's memoirs."
Q: What is the basic theory of the Alimony Series?
The theory is that, in the strongest case, the parties will share an equivalent standard of living. So --
(1) The program scores the case on a scale of 0-100. A part of this scoring considers the income differential of the parties.
(2) The program assigns the case a label based upon the score (e.g., alimony case/not an alimony case/a marginal alimony case).
(3) If the case reaches a minimum threshold, the program then eliminates FICA/SE tax from the parties' gross incomes.
(4) A percentage is defined (depending upon the existence/placement of children) that "labels" the parties at the same standard of living.
(5) The case score divided by 100 is multiplied times the FICA-less income difference, after adjusting for child support.
(6) This is divided by 2 and then "fitted to" the "standard of living" balance spot to yield an alimony amount, assuming the case (via (1)) has met the minimum criteria.
(7) The resulting answer in (6) may be adjusted in 18pt income differential cases, by a factor arising out of the "mailbox postulate".
(8) A duration is suggested based upon the strength of the case and adjusted by the length of the marriage. That's more or less it, with some minor deviations.
Q: What do you mean by "mailbox postulate"?
While I argue that the difference in incomes is relevant to the strength of a case, the argument does not extend (necessarily) to the entire level of the difference, at least in terms of calculating the amount of an award. This is because (a) there are costs to working versus not working (both opportunity cost and real cost), (b) there may be (are) costs to working a high profile/high pressure job that may not (do not) exist in positions of less responsibility, (c) the focus on the "need" for alimony tends to diminish as an award gets larger and (d) most all of us have some consciousness, even if it is a lesser consciousness, that it is a winner-take-more game. As a crass oversimplification, it is harder to dance the corporate shuffle than make it to the mailbox in the morning.
Q: Even discounting fault, are not the criteria in the "Alimony Series" programs under inclusive?
I have thought about this a lot. The case law talks about age, health of the parties, length of the marriage, "stations in life" (whatever that means), abilities of the parties to support himself/herself, criteria that seem to be covered by the factors in the Alimony Series. I have asked this one to many others, but no one, to this point, has made any colorable suggestion. I actually have one other idea, but I am not convinced and continue to play around with it. Note that the case law seems to be turning to the direction of the basic theory of the Alimony Series. At least two (relatively recent) appellate opinions have held that the "main objective" of alimony is to balance the income and needs of the parties. See Hanaway v. Hanaway, 208 Mich App 278, 295(1995); Magee v. Magee, 218 Mich App 158, 162-63 (1996).
Q: Where do the unallocated numbers come from?
The formulas are pretty crude. The program considers the balance points and then makes an adjustment based upon a trial and error multiplier. I intentionally left the unallocated number as "uninfected" by the strength of the case as a way of (independently) checking the rationality of the program (alimony) award. If there is a significant variance in (net) bottom lines, there is reason to sit down and really think about what one is attempting to accomplish. This said, the alimony/unallocated numbers often dovetail pretty nicely with the main program. I keep saying I will look at the unallocated loop, but every time I do I am struck by how useful the present formula is. So then I stop thinking. The answer is (a) "dumb luck", if you like the results or find them useful, or(b) "just dumb", if you don't. I hope that version 3.03 will be a step forward on this part of the program.
Q: Are the answers higher or lower in recent versions of the Alimony Series?
Neither. Some cases may be higher. Some are lower. I believe, in general, I have attempted to make the program more "inclusive" in the sense that "marginal" cases should be recognized as such, as opposed to being "objectively" excluded from consideration.
Q: Have you seen other guidelines, aside from those you have written?
No, but I have not surveyed the field for at least three/four years. No one has mentioned any other "theory" being "out there".
Q: Couldn't you redesign the existing program to make answers higher/lower?
The basic design of the Alimony Series could be used to accommodate answers different from those now suggested. For what it's worth, I tend to view the program as slightly to the conservative side, most of the time. On occasion, I have seen answers that looked "high", but my. consciousness usually arose out of sui generis aspects of a case, aspects that would be hard build into a guideline.
Q: Haven't you disavowed alimony guidelines?
People keep telling me this, even when I am in the same room. No. I have disavowed the Washtenaw Guideline and anything prior to version 2.021 as hopelessly out of date. At the very least the guidelines save me an incredible amount of time in analyzing a case. They also tend to focus my thought. I just don't think they should be used thoughtlessly, that is, without asking the question of whether the bottom lines make sense. But I would say the same thing about child support guidelines or anything else in the law or life (as long as we're at it).