In Re the Marriage of Wendell

SACKETT, Judge

(specially concurring).

The majority’s struggle to determine whether and when cohabitation should terminate alimony2 or “how much sex is enough,”3 ending with a determination that its conclusion “strikes an appropriate balance between the interest of the parties ... consistent with our prevailing companion principles and the underlying policy of the law,” is outstanding rhetoric but does little to provide definite guidelines or address the current application of age-old principles stemming from a time when the husband was the wage earner, a woman’s worth was determined by home-type jobs, and when our supreme court said, “Alimony is an allowance for maintenance of the wife.” Russell' v. Russell, 4 Greene 26, 29 (Iowa 1853). In those times, a husband need only support his former wife, a being suited for domestic chores, until another man in the form of a husband, and sometimes a lover, came along.

While statutes providing alimony only to women have been found unconstitutional, Orr v. Orr, 440 U.S. 268, 278-79, 99 S.Ct. 1102, 1111, 59 L.Ed.2d 306, 318-19 (1979), the fact is alimony awards to men remain rare.4 Obviously, in some part, it is the result of *202continuing attitudes men should support their families, and it is justified by continuing wage differentials between men and women.

Aged principles, long out-dated by the entry of women in the work place, should be totally discarded in favor of principles gauged on fairness and not sexual or marital status or so-called balancing considerations that are driven by uncertainty and serve to advance additional litigation following a dissolution and threaten the financial stability of the divorced parties.

Society would be best served by resolving the economic issues in a dissolution by division of property and pension rights,5 giving finality to the parties and curtailing substantial future litigation. Alimony should be awarded primarily in those cases where the only source for equitable division is from the future income of the advantaged spouse. Modifications should be limited to situations where the disadvantaged spouse’s income substantially decreases through no fault of their own. In accordance with existing trends, alimony should be limited to situations where one spouse has sacrificed his or her own career opportunities by assuming responsibility for home and family, while recognizing a former marital partner should not, in most cases, be a life-long meal ticket.

If such is the case, what makes sacrifices made in a marriage less compensable because the disadvantaged spouse elects to marry or just have sex. I suggest nothing should. Our supreme court has recently recognized there are limited instances where alimony should not terminate on remarriage, establishing what is referred to as “reimbursement alimony.”6

Until we are ready to discard the trappings of traditional concepts of spousal support and assess it under the facts of current society, we can only continue to engage in confusing rhetoric and continue to leave divorced persons with substantial uncertainty as to their economic futures.

. Though as courts we continue to use the word "alimony,” that word disappeared from Iowa statutory law in 1980 and is now statutorily termed "spousal support.” Iowa Code § 598.21(3).

. This court, in In re Marriage of Orgren, 375 N.W.2d 710, 713 (Iowa App.1985), has already said, "We do not believe that cohabitation is a ground for. automatic denial or limitation of alimony payments.”

. See In re Marriage of Miller, 524 N.W.2d 442, 445 (Iowa App.1994); In re Marriage of Bethke, 484 N.W.2d 604, 608-09 (Iowa App.1992).

. The earlier inability of courts to divide pension rights have, in most cases, been erased. See In re Marriage of Benson, 545 N.W.2d 252, 255 (Iowa 1996); In re Marriage of Kurtt, 561 N.W.2d 385, 388-89 (Iowa App.1997); In re Marriage of Robison, 542 N.W.2d 4, 5 (Iowa App.1995).

. In re Marriage of Smith, 573 N.W.2d 924, 926-27 (Iowa 1998); In re Marriage of Francis; 442 N.W.2d 59, 63 (Iowa 1989).