www.wsba.org/media/publications/barnews/july-fields.htm -
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Published on: 7/3/2006
Last Visited: 8/30/2006
An overdue look at Judge Winsor's 1982 marriage dissolutions article: Does it apply today?
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Retired King County Superior Court Judge Robert Winsor wrote an article on the subject in Bar News 24 years ago ("Guidelines for the Exercise of Judicial Discretion in Marriage Dissolutions," January 1982).Judge Winsor's article has been referenced in the dicta of case law on property division.Judge Winsor's suggestions appear to have become an unstated, and sometimes an inaccurately understood, unwritten litmus test impacting trial decisions and mediated settlements.
The article was written so long ago and references to it have been so common for so long, that, at least in my experience, it is often paraphrased for things it does not say.The article was written at a time when formal mediation was a glimmer on the horizon.Now, with formal mediation an integral part of the marital-dissolution process in several counties, the Winsor article often serves as a guide to mediators who cite it, sometimes even for principles it does not advocate, in an effort to break through negotiating impasses.This occurs because experienced family law practitioners and mediators alike retain impressions of an article they have not read in a long time.
With respect to what Judge Winsor has defined as mid-range marriages - those from seven to 25 years - his suggestions warrant more careful scrutiny in light of significant economic and sociological changes and trends that simply did not exist, except in rare instances, 24 years ago.
I hope that, in the context of those changes and developments, a reexamination of the conclusions of Winsor's article will aid both lawyers and judges in fashioning more creative and equitable decisions in the future as they pertain to spousal maintenance as well as property awards.Toward that end, I begin with a brief summary of the suggestions and premises of the article.
Premises of the Winsor Article
Judge Winsor suggested, on the exercise of judicial discretion as to the length of maintenance based on the duration of the marriage: "Presumably in a short marriage maintenance would not be paid, except in extraordinary circumstances or perhaps for a very brief adjustment where necessary, e.g., if one of the parties gave up a job to relocate or otherwise accommodate to the marriage, that would be an extraordinary reason to . . . allow brief maintenance during a relocation period."
He defined short marriages as marriages of seven years or less, and suggested the court should look "backward" to put the parties where they would have been had they not been married, since ". . . the marriage has in fact not been the significant event that normally is presumed.Particularly, there has not been a long reliance on the marital relationship."
After a discussion of long marriages, Judge Winsor defined mid-range marriages as between seven and 25 years.He suggested that the court should ". . . partake more or less of the long or short marriage considerations and goals as set forth above, depending primarily upon the length of the marriage and the necessities.Maintenance, where appropriate, is likely to be used only for fixed terms of months or years in these settlements.The term 'rehabilitative maintenance' applies most generally to mid-range cases."Notice, he does not suggest what the maximum duration, the "fixed term" should be.However, it is on this point that the thrust of the article has been largely misunderstood and misapplied.
As to long marriages, which Winsor defined as 25 years or longer, he observes: ". . . one of the spouses usually is stranded in a situation where she (sometimes he) is very much behind the other in earning capacity.The judge should redress the balance."He goes on to point out that maintenance in such cases may be permanent depending on the disparities, or not at all, depending on the size and nature of the property division.
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It is clear, however, that Judge Winsor never expected his article to be as dispositive or conclusive as it has come to be treated in practice.
Instead, his intent was to generate a discussion of the relationship between the length of a spousal maintenance award relative to the length of the marriage.Case law was virtually devoid of any informative guidelines to aid trial courts in the appropriate exercise of their discretion.Thus, Winsor concluded his article by emphasizing: ". . . I know of no comprehensive statement of the goals that are to be achieved.There will doubtless be considerable disagreement with the specific examples and perhaps the goal as I have stated them, but at least it may be a beginning that may be helpful in searching for a consensus (emphasis supplied)."
Unfortunately, over the course of the last 24 years, the article, far from launching the discussion, appears to have put an end to it.I take Judge Winsor up on his suggestion, by turning to an analysis of the case law that has evolved since his article was published.
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References to those terms, here, are merely as defined by Judge Winsor in his 1982 article.
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The Spreen case is the one and only reported decision that suggests the possibility of permanent maintenance in what Judge Winsor's article has described as a mid-range marriage, even though the duration of the marriage played no role.
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Given the lack of clarity as to what role the duration of the marriage plays, it is not surprising that the only attempt to draw some kind of rational linkage between the duration of the marriage and the duration of the maintenance award are the suggestions contained in Judge Winsor's 24-year-old article on the subject.How then to gain perspective on what the article suggests?
Judge Winsor's article does not advocate a formulaic approach to the duration of the maintenance award, such as one year of maintenance for every four years of marriage.
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However, it is far more common with, as Judge Winsor termed it, mid-range marriages that people are divorcing in their early- and mid-50s, sometimes even in their early-60s, with outdated career skills and no viable market for employment if they retrain, due to their age after retraining would be completed.
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These are not the kinds of hard choices that Judge Winsor and his colleagues often faced in the '60s and '70s, which provided the judicial experience that led him to write his article in Bar News.
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Since Judge Winsor intended his article to be the beginning of a discussion rather than the end of one, I suspect he would have expected no less.
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