The Injustice of Alimony in America

Frederick Douglass said the definition of a “patriot is a lover of his country who rebukes and does not excuse its sins.” While alimony is not the biggest sin in this country or even one maybe Douglass might have contemplated, I find a high level of injustice in Alimony as a concept. I utilize this space to rebuke alimony and write a policy position paper that may serve the basis for future work in the realm of family law.

Alimony, maintenance or spousal support is an obligation established by law in many countries that is based on the premise that both spouses have an absolute obligation to support each other during the marriage and beyond. In America, the majority of states allow for spouses to gain alimony post dissolution of marriage. This tends to be a payment towards one spouse calculated on the basis of fault and disparity in wages among others things.

In recent years a number of states have started to reconsider alimony; imposing caps on the number of years a spouse can receive alimony, ensuring guidelines to curtail judicial discretion in awarding alimony, and preventing certain types of income from being used in alimony calculations. While these moves certainly acknowledge the problem, they do not go far enough. While one may enter into a prenuptial agreement to try and avoid the types of issues that alimony poses, fundamentally alimony as a concept is unjust.

The Crux

The reason why I find alimony unjust is fundamentally the lack of equity involved in the process. Utilizing a legal, theoretical, and economic framework, I contend that alimony should be abolished in America. My antagonism for alimony comes from the fact that marriage as a concept fails in my eyes. Divorce rates are higher than they have ever been. I see alimony as one part of the problem that stems from the legal framework for marriage. Without alimony people might consider more heavily the decision to get married in a different way, the same way a higher earning spouse considers the decision to divorce differently now because its cheaper to keep him(er) as they say. I believe the purpose of law is to support certain notions of morality. I cite the absence of adultery as a crime in common law as wholly about morality that the law underwrites. I have no crisis, my measures are not without criticism. I also fundamentally disagree with treating marriage as a means to acrue property and maybe that is the property. Without changes in the law I cannot test whether social benefit will come from. I might go so far as to say that marriage cannot succeed as a contract and a means to acrue property. A propertarian theory of marriage is at odds with a contractarian one. One grants equitable relief and one damages.

The Legal Rationale

From a legal standpoint marriage is a contract.

• Not only. It is also, for example, a context for parental rights and obligations and a community acquiring property.

If dissolution of marriage is a breach of this contract, then the appropriate remedy is not punitive damages (which I consider alimony to be)

• You can't just "consider," which in the context means "assert," this: you have to show it, which is difficult. The stated purpose of punitive damages is the punishment of wrongdoing: the stated purpose of alimony is the redistribution of property.

but simple settlement. My support for the propostion that alimony constitutes punitive damages comes from the counters to my position that most give or come up with. See Moglen 2. In this example, there is an normative element of wrongdoing here. I accept Moglen’s definition of marriage as a means to acruing property but I disagree with the idea that marriage should be about property. Call me an idealist but it would be nice if marriage were about the contract and staying together and love, etc. While the stated purpose of alimony may be the redistribution of property, if I’m allowed to use Moglen’s logic then money being fungible makes alimony equivalent to punitive damages, just a difference name. . To require one party to continue performance via financial support and not require the other to continue performance via whatever non-monetary means is askew. Alimony gathers support from a proposition that it is unjust to leave one spouse without means to support themselves. This is patronizing to say the least. Marriage as a contract means different things for those that enter, but the idea that a party contracts take care of the other spouse outside the terms of the contract is wrong. If one party does not work during the course of the marriage, there is a high degree of risk involved. However, there is a larger risk in choosing to contract to marriage at all. Alimony does not take away from the opportunity lost through choosing marriage, it just imposes unequal performance on parties post bad decisions. Alimony represents an unintended externality for most. In weighting the enforcement of contract provisions, alimony rises to the level of unconscionability in my eyes because it is something that imposes unjust performance duties on the parties involved. Procedurally, alimony definitively can represent unfair surprise when it is calculated by a judge who was not privy to the relationship. Substantively, alimony is overly harsh in that it maintains a relationship that legal proceedings expressly seek to end via ongoing payment.

Who Cares

The fundamental point is that alimony laws need to change in America. The fact that at present, one has to get a prenuptial agreement in order to forbear their right to collect alimony is outrageous. I call for an end to alimony. If judges still wish to consider fault and future issues for lost opportunity, at most change the settlement process. However, the continuation of alimony based on an antiquated, paternalistic concept bears no place in society today.

-- MichaelBrown - 05 Apr 2008

• Michael, you're not trying very hard here. You're making a speech, but you're not engaging any real arguments. Let's take two:
  1. Children are often found in families. What is the relevance of this "settlement only" incantation to child support? Are you actually arguing that when someone wants to get out of a marriage, he or she has no obligation to support children left behind? If there's a continuing claim on income to support children, your theoretical distinctions between "during the marriage" and "after the marriage" are nonsense. Moreover, money is fungible, so whether you call the redistribution of income "alimony" or "child support" is a distinction without a difference.
  2. In dissolution of childless marriages, the most common reason for redistribution of future income is that the marriage has invested heavily in the earning power of one partner. It occasionally happens, for example, that a wife puts a husband through law school, working to provide a household income and sometimes paying the husband's tuition. Suppose the husband then departs shortly after graduation. Do you claim that it is unfair for the wife to have a share of the future professional income to which her efforts also contributed within the context of the marriage? If the husband waits to depart until he has accumulated substantial property through the use of his education, she will be entitled to half. Surely by getting out earlier he is not entitled by his own conduct to extinguish all her claims on that property despite the fact that her investment is just as fully made? She cannot be more easily dischargeable as a wife than she would be as a creditor, can she? The difference between child support and alimony in my eyes is that child support can be avoided if the spouse who would pay alimony takes custody of their children. There is an out. At present, the out to alimony is a pre-nuptial agreement which I disagree with.

• As you note, moreover, this is a default rule, subject to complete defeasance with nothing more than a pair of signatures. Why should the law presume that parties have given away important legal rights with respect to their own property unless they have been shown to waive with knowledge, on adequate information and without compulsion? Even if the State were merely neutral with respect to marriage, rather than favoring it extensively as it does in so many ways, why should it permit automatic waiver of significant property rights by mere implication in the act of getting married?

• I don't understand the origin of your antagonism to the rule here: if you have evidence that some crisis of unjust redistribution is at hand, you should have adduced it. Your arguments from fundamental morality are unconvincing for the two reasons I have given above and several more you can adduce for yourself; improving the paper along those lines means meeting the objections. Another route to a better argument might be to show what the problem is in some realist sense, by presenting some information about the world that would justify an approach less general than the one you advance in this draft.