미국법상 이혼 후 부양에 관한 연구

Korean civil law does not provide for a post-divorce spousal support system. In judicial practice, the need for spousal support is considered only in connection with claims for division of property. However, since the primary function of property division is to liquidate the couple’s jointly acquired property, relying on it as a substitute for post-divorce support has inherent limitations. Where a spouse’s need for support after divorce must be addressed, it is more appropriate to introduce a distinct post-divorce support regime: one in which the division of property serves to settle joint marital assets, while post-divorce support ensures the livelihood of a spouse who, due to diminished earning capacity, cannot maintain economic independence. This paper draws on the long-standing and varied experience of the United States ―where post-divorce support (alimony) has been implemented with significant state-by-state variation― to explore whether Korea should adopt such a system. It is most reasonable to understand post-divorce spousal support as compensation for a spouse’s contributions during the marriage and for any reduction in earning capacity resulting from the marital relationship. During the marriage, spouses typically contribute to each other’s lives in various forms. Among these, direct contributions should be addressed through property division, while indirect contributions should be compensated through post-divorce support. Relevant factors in determining eligibility and amount of post-divorce support include: (1) the duration of the marriage; (2) the income and earning disparities between the parties at the time of divorce; (3) the existence of children; and (4) who retains custody of any minor children. As for the method of payment, while both periodic payments and lump-sum payments are possible, this paper argues that lump-sum payments should be the general rule for post-divorce support.