COMMITMENTS : Split Decision : A new generation of working men and women has the courts reeling when it comes to alimony. Just who should get it--and how much?

By ROXANNE ROBERTS

Sept. 4, 1995 12 AM PT

THE WASHINGTON POST

The marriage lasted less than three years. They had no children. But when their divorce settlement was finalized in April, after a year of messy negotiations, former Washington Redskins quarterback Joe Theismann was ordered to pay his second wife close to $1 million of marital property and $3,500 a month in alimony.

The Theismann ruling captured headlines, not only because of the famous name but for the amounts involved. Ex-wives cheered, ex-husbands groaned, domestic lawyers raised an eyebrow or two, and the never- or still-married wondered why Jeanne Caruso Theismann, a 35-year-old career woman, is getting a million bucks and alimony payments.

The short answer is because she’s entitled to it by law. The long answer is more complicated, and underscores how tricky the whole question of alimony has become and how the courts are struggling to adapt spousal support to a new generation of working men and women.

Jeanne Theismann doesn’t fit the alimony stereotype: the long-suffering, traditional wife married for decades, stuck at home with kids, and no history or prospect for a professional life. Before her marriage, she worked as a sports reporter for a Japanese newspaper, and plans to go back to work as soon as possible.

“I really don’t have a comment because there is an appeal pending, but the situation is as baffling to me as the award,” says Joe Theismann. “A 2 1/2-year marriage of which a woman has brought absolutely nothing to the table is given certain amounts of money. It’s hard to believe and more difficult to understand.”

Jeanne Theismann says she gave up her career and friends, and moved halfway around the world because of promises he made to her. “Joe makes $110,000 a month; the alimony is $3,500 a month,” she says. “Joe could go through a lot of ex-wives at that rate.”

As in any divorce, there are at least two sides to this story, both of which were argued with considerable fervor by the lawyers. Why a spouse pays or receives alimony--and how much--is a hot topic in legal circles.

“I believe someone should get alimony when they have made a reasonable commitment to a relationship, come to rely on a level of economic support, where through no fault of their own the marriage ends, and they are incapable of being self-supporting,” says Glenn C. Lewis, who represented the first Mrs. Theismann 10 years ago in her divorce (the terms of that settlement were sealed).

What’s reasonable? In the language of alimony, the same word can have two entirely different meanings.

“Oh, you can drive a truck through the definitions,” says Lewis with a laugh.

When two people get married, they promise to love, honor--and legally, to support each other for the rest of their lives. When two people get divorced, they no longer are compelled to love or honor, but most states have decided that they have a legal obligation to provide support--if needed--until the former spouse dies or remarries.

“In Virginia, alimony is lifelong, until the death of the wife, death of husband or the wife’s remarriage,” says Brian West, who represented Jeanne Theismann in her divorce. “I think the idea is that marriage is a particularly serious undertaking that carries heavy legal obligations. When you enter into this agreement, one of the effects of marrying one another is that you owe them the duty of lifelong support.”

This always comes as a shock to those who intended never to speak with, much less spend another penny on, their ex.

In California, a court may order either spouse to pay alimony to the other--in whatever amount and for whatever period the court sees fit--based on length of the marriage, ability to pay and the ability of the supported spouse to earn income without neglecting child care.

But laws in both Virginia and the District of Columbia favor lifelong support. This seemed sensible when women did not work outside the home and were economically dependent on their husbands. A man could not simply walk away after years of marriage without making financial provisions for his wife. Alimony was the safety net established to prevent women from becoming wards of the state.

The reality today is much more complicated. While husbands routinely earn more than their wives, more women enter marriage with professional skills and continue to earn income throughout the marriage. Many, however, interrupt or curtail their careers at the request of their husbands or to raise children. When a union falls apart, the courts now have to sort out how much each spouse earns, who contributed what, who needs what, who gets what, and who has to pay alimony for how long.

The high-profile divorces grab the headlines: multimillionaire Jack Kent Cooke, who paid $75,000 a year in alimony to ex-wife Suzanne for six years (she’s now back in court seeking to increase the separate $29,000 annual child support award). Or Larry King, who forked over $19,000 a month to Julie Alexander. Speaker of the House Newt Gingrich has complained to associates about his alimony payments, and Sen. Bob Packwood is under investigation for illegally seeking jobs for his ex-wife so he could reduce alimony payments to her.

With child support, there are statutory guidelines that say exactly what the support amount should be at various income levels. There are no such guidelines for spousal support.

When Joe Theismann married Jeanne Caruso in May, 1991, in the eyes of the law they entered into an economic partnership. “In Virginia, she couldn’t get a nickel for the relationship if she had not been married to him,” says Lewis, the lawyer of Shari Theismann, Joe’s first wife.

No “his money” or “her money.” Everything from that point on became “marital” money.

Then the marriage collapsed and he started seeing a Memphis sales clerk and the former quarterback, who has an estimated personal fortune of $5 million, was ordered to pay Jeanne $1 million as an equitable distribution of marital property acquired during the course of their marriage.

The court considers both the lifestyle the couple maintained during their marriage and any income, including interest income on the property settlement, in determining need. So the court ordered Joe Theismann, who owns several restaurants and works as a commentator on ESPN, to pay $3,500 a month--her approximate monthly earnings before the marriage--in alimony as well as more than $100,000 of her legal fees.

Judy Mueller, executive director of the Women’s Center, has heard plenty of alimony stories.

“People go in with great expectations of how the law is going to be utilized in the equitable dissolution of their marriage, and come away devastated,” she says. “Each set of circumstances is different. Each need is different. That’s why I say it’s the best alimony money can buy. You invest in an attorney because the attorney buys you support.”

Mueller says California psychologist Leonore Weitzman found a 73% drop in the standard of living for women with minor children in their custody within one year of divorce--while the men’s increased 42%.

Who deserves alimony? “Someone who’s been married a very long time and who has no professional history and no hope of having one,” says Mueller. “For whom the loss of spousal income would mean a huge plummet in the standard of living. That isn’t fair. On the other end of the continuum, a young mother who withdrew from the labor market to raise children.”

But most of the cases today are not as clear-cut as that.

“Since the ‘70s, the courts have been struggling with a whole variety of things that make up marriages,” says Marna Tucker, a divorce lawyer in the District of Columbia. “Overall, alimony awards have been very behind the needs of women. The law is sort of tailing along.”

Some women are rethinking the entire issue.

Take the 35-year-old free-lance writer who earns about $30,000 annually, about half of her husband’s income. They were married seven years, have no children and are now facing divorce.

“There’s the emotional disentangling, but then you realize that the financial disentangling is a very important component of dissolving the marriage.” She is hoping that an equitable distribution can be accomplished through the division of property and does not plan to seek alimony.

“It would be nice to have the additional income, but I don’t need it to survive,” she says. “Part of the reason I instigated the divorce was to regain my own identity, and a big part of that was my financial independence.”

Alimony, at least the bonbon-eating Hollywood divorcee version, is probably dead and gone.

“A spouse is expected to do all they reasonably can to reduce or eliminate the need for alimony,” says attorney Lewis. “In 1995, regardless of gender, both parties are expected to work if they can. There is no free ride like there used to be.”

If Jeanne Theismann has not found work in three years, Lewis predicts, her ex-husband could persuade the courts to reduce the alimony award. Most judges expect women, even those who stayed at home with children, to re-enter the work force. “They’ll give them money for day care,” he says. “But an able-bodied 35-year-old is going to be expected to get a job. Period.”

More and more couples are signing prenuptial agreements, which often waive alimony rights. “They’re becoming much more prevalent, especially in second marriages,” says Brian West. “There’s a learning curve here. They’re very effective at defining people’s rights.”

And Joe Theismann? The man who has never signed a prenuptial agreement in his life has come to this conclusion: “I think you have to separate romance and business.”