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Why is "standard of living" a consideration in divorce asset division for adults at all, if children aren't involved?

In my layman's mind:

  1. Nobody is entitled to a "standard of living". Just because you lucked out to marry a high-net-worth or high-earning individual, it should not "entitle" you to live the good life in perpetuity after you stopped being married.

    This is separate from the idea that a spouse may have contributed to said high-earning status by supporting their career, which is a far valid - but a wholly separate - reason in divorce court. For example, I assume a judge can apply "standard of living" idea even if the wealthy spouse can show that the wealth/income didn't change upwardly during the marriage; and that the spouse didn't contribute economically at all, due to paying for hired help to do house chores, and no children resulting etc...

  2. It seems like a moral hazard, in that it encourages lower income earners to trick higher income earners into marrying them under false pretenses, just to divorce them after a couple of years for a big payout in raised standard of living, or to simply not be a good spouse since they won't suffer in the divorce.

Ideally, I'm looking for an authoritative answer to "why", for example a reason given by a judge establishing precedent, or a politician proposing the law that passed which establishes the idea). However, a solid legal analysis would also be good.

UPDATE: Just to clarify - the question isn't asking why there is spousal support/maintenance in general. It's asking very specifically, why "established standard of living" is the criterion used to decide the amount. In other words, if a spouse is used to a billionaire lifestyle, why is the support aimed at perpetuating that same expensive lifestyle, as opposed to being a modest livable amount (say, mode or median or average wage).

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  • This will be for the same reason that assets acquired during marriage (and, in some cases, all assets) are split 50/50 vs according to each spouse's actual effort in acquiring them.
    – Greendrake
    Dec 2, 2022 at 0:38
  • Your alternative system is (also) a moral hazard: it incentivizes rich people to compel lower classes to pursue them and sacrifice themselves for the rich person's benefit, while allowing the rich person to violate or otherwise end the marriage (to pick up a new sacrifice) at will with essentially no risk or loss. Flat penalties have the effect of punishing the poor and being ignored as a trifle by the rich. And the golden rule of morality is: everything's a moral hazard, because immoral people exist. Dec 2, 2022 at 11:26
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    @zibadawatimmy - "compel"? I wasn't aware a rich person has any ability whatsoever to "compel" anyone to pursue them. "Incentivize" - yes. "Compel" - no. What you seem to be lamenting is that in my system, a rich person won't be punished for divorcing. Which, to the best of my understanding, isn't the purpose of spousal maintenance. At all. I's not and isn't supposed to be a penalty. It's a reward for the other divorcee for what they contributed to the marriage. Getting a smaller reward is not as cool as big one, but it's not some evil act of oppression.
    – user17760
    Dec 2, 2022 at 15:49

2 Answers 2

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A brief explanation follows. The Code of Hammurabi articulates the first form of alimony:

  1. If a man wish to separate from a woman who has borne him children, or from his wife who has borne him children: then he shall give that wife her dowry, and a part of the usufruct of field, garden, and property, so that she can rear her children. When she has brought up her children, a portion of all that is given to the children, equal as that of one son, shall be given to her. She may then marry the man of her heart

In the Middle Ages, English ecclesiastical law mandated that a husband still has an obligation to support his wife even when they are separated (recall that divorce was not possible). This carried over to the US. As discussed in this article, there was a view (articulated in Bradwell v. Illinois by Justice Bradley that "Man is, or should be, woman's protector and defender .... The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator". The basic rationale at the time was that the wife had a right to support as a consequence of the marriage, and would continue to exercise that right were it not for the conduct of the husband (by law, someone was at fault, and if it was the husband, he would have to compensate his wife).

When no-fault divorce became a possibility in the late 60's, concepts of alimony were re-worked, so that alimony was no (usually) longer a permanent property right, and in its place there developed a desideratum of "maintenance" allowing the spouse with lesser economic power to maintain a diminishing property right. See this 1973 version of Washington's replacement-for-alimony law, which includes "The standard of living established during the marriage" as the law now does.

Because this is established by state law in the US, and state legislatures aren't infamous about keeping close track of legislative debates, I don't think there are any surviving records of the rationale of the author of these bills. In fact, this law was drafted a few years earlier by The Uniform Law Commission – there may be some record of their discussion. [This article][5], written after the law was passed, takes note of the history of contractual concepts being applied to marriage (e.g. the territorial legislature enacted a measure that "marriage is declared to be a civil contract"), from which perspective one expects there to be compensation for breach of contract.

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In Canada, this justification has been most developed in the context of spousal support rather than property division, but concerns about economic self-sufficiency, and compensatory motivations for spousal support can apply in the context of property division as well (Hathaway v. Hathaway, 2014 BCCA 310). However, needs-based, non-compensatory justifications have tended to be confined to spousal support rather than property division.

There are two contrasting views of marriage and break-up: a "mutual obligation theory" and an "independent, clean-break model" (Bracklow v. Bracklow, [1999] 1 SCR 420). Both of these models find simultaneous expression in federal and provincial statutes. I will focus on the "mutual obligation" theory and the bases for spousal support that flow from that model, since that is what explains the focus on standard of living that you ask about.

You are correct that "the presumption of mutual support that existed during the marriage no longer applies" when a marriage breaks down (Bracklow at para. 21).

Canada's Divorce Act legislates that spousal-support orders should (s. 15(6)):

(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

And in doing so, courts must consider the "means, needs, and other circumstances of each spouse" (s. 15.2(4)).

Parliament's choice to include a focus on needs, promotion of self-sufficiency, relief of economic hardship as a factor separate from the mere economic disadvantages of the marriage or its breakdown all led the Supreme Court to conclude that "spouses may have an obligation to meet or contribute to the needs of their former partners where they have the capacity to pay, even in the absence of a contractual or compensatory foundation for the obligation."

Standard of living can be a proxy for unequally shared economic disadvantage or even need (Moge v. Moge, [1992] 3 SCR 813):

Although the doctrine of spousal support which focuses on equitable sharing does not guarantee to either party the standard of living enjoyed during the marriage, this standard is far from irrelevant to support entitlement. Furthermore, great disparities in the standard of living that would be experienced by spouses in the absence of support are often a revealing indication of the economic disadvantages inherent in the role assumed by one party. As marriage should be regarded as a joint endeavour, the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution.

But that is just one factor, to be balanced among the other objectives. It is not "the criteria used to decide the amount." Spousal support is not "aimed at perpetuating" any particular lifestyle. The four legislated objectives of spousal support are listed above.

A good survey of how standard of living has been used and justified can be found in the Spousal Support Advisory Guidelines: The Revised User's Guide.

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