FAMILY LAW ARTICLES
by Mary Anne Decaria

The topic of alimony has always been controversial. In the old days women cried “need” and men shrieked “greed.” Not much has changed in the 21st century. Alimony is still the most problematic issue in many divorces. Recently, articles were published in the Nevada Lawyer and the Nevada Family Law Report propounding the efficacy of alimony formulas. Many lawyers do not like placing discretion in the hands of judges and in return, judges prefer to dodge the difficulty and controversy surrounding an alimony award (“Don’t get mad at me. I’m just doing what the legislature told me to do.”).

In Shydler v. Shydler, 114 Nev. 192, 954 P.2d 37 (1998), the Nevada Supreme Court recognized that alimony is an equitable precept which protects the rights and needs of the less economically capable spouse.

Alimony is an equitable award serving to meet the post-divorce needs and rights of the former spouse. Cf. Gardner v. Gardner, 110 Nev. 1053, 1057, 881 P.2d 645, 647 (1994); NRS 125.150. It follows from our decisions in this area that two of the primary purposes of alimony, at least in marriages of significant length, are to narrow any large gaps between the post-divorce earning capacities of the parties, see Gardner, 110 Nev. at 1056-58, 881 P.2d at 647-48; Rutar, 108 Nev. at 206-08, 827 P.2d at 831-33, and to allow the recipient spouse to live "as nearly as fairly possible to the station in life [] enjoyed before the divorce." Sprenger, 110 Nev. at 860, 878 P.2d at 287-88 (quoting Heim v. Heim, 104 Nev. 605, 612-13, 763 P.2d 678, 683 (1988)). The individual circumstances of each case will determine the appropriate amount and length of any alimony award. See Gardner, 110 Nev. at 1056-58, 881 P.2d at 647-48; Rutar, 108 Nev. at 206-08, 827 P.2d at 831-33. Shydler at 198.

In Rodriguez v. Rodriguez, 116 Nev. Adv. Op.107, 13 P.3d 415 (2000), our Supreme Court approved and reiterated the alimony guidelines enunciated nearly 30 years ago in Buchanan v. Buchanan, 90 Nev. 209, 523 P.2d 1 (1974).

Nevada has well settled case law that provides guidelines for the trial court to consider when making a just and equitable alimony award. Commonly referred to as the "Buchanan factors," these guidelines were enunciated over twenty-five years ago in Buchanan v. Buchanan, 90 Nev. 209, 523 P.2d 1 (1974). They include: the financial condition of the parties; the nature and value of [the parties'] respective property; the contribution of each to any property held by them as tenants by the entirety; the duration of the marriage; the husband's income, his earning capacity, his age, health and ability to labor; and the wife's age, health, station and ability to earn a living. Id. at 215, 523 P.2d at 5. While we acknowledge the archaic tenor of the language, as well as the unnecessary variation between the considerations articulated for the husband and the wife, we also note with approval the commonsense approach that permeates these points. And the durability of the factors over time is a testament to their viability. Rodriguez at p.12.

The Nevada Supreme Court recognizes what many lawyers and judges do not. No two marriages are alike. A judge must use his/her intelligence, common sense, knowledge and experience and employ the Buchanan factors as tools to decide each case individually. Only through the thoughtful and sensible exercise of discretion may a judge make the right alimony decision for each couple in each case. If a judge is incapable of doing that, we need to change the judge, not the law.

The simple fact is that when we litigate we deliver control over our lives to a complete stranger, a judge, who learns only a snippet about us and then determines our fate. That is the nature of the beast and the hallmark of our system of justice. People who choose to litigate rather than resolve controversies take a risk, educated or otherwise, and cannot bank on the result they want nor expect the same outcome achieved by their best friend or neighbor. A formula will not take away the risk nor eliminate the humanness of the judge. Assembly line justice does not necessarily equate with fairness. While all Model T’s may be manufactured uniformly, the post-divorce well-being of husbands and wives may not. Put another way by Leo Tolstoy in Anna Karenina, “Happy families are all alike; every unhappy family is unhappy in its own way.”