The Injustice of Alimony in America

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

Alimony is but one part of the problem that stems from the legal framework for marriage. Law supports certain notions of morality. The absence of adultery as a crime in common law refelcts this. Changes over time have revived the old, paternalistic notion of marriage as a “provide for life” system rather than a no-fault, contract system that it should be today.

The Legal Rationale

At default, states allow alimony based on the idea that marriage is a means to acrue property and that a spouse should provide for life rather than treat marriage as a simple contract. Marriage cannot succeed as a contract and a means to acrue property. A propertarian theory of marriage is at odds with a contractarian one. A propertarian theory of marriage should grant equitable relief; a contractarian theory should grant damages. Damages from a contract do not allow future claims on earning potential. In other areas of the law, it appears that property and contract rules are kept separate, I would assert that in marriage the same should hold. For example, for breach of a contract, it is rare to get specific performance. For breach of a property contract it is more common for the type of detrimental reliance that equates to the analogous alimony(bad faith or inferred fault) situation.

Marriage is a contract. The appropriate remedy is not punitive damages but settlement. Because judges are given discretion to prevent “unfair economic” imbalance, the same influences that affect punitive sentencing come into play. While deterrence may not be a stated purpose, alimony does deter. “Its cheaper to keep her” is ingrained in pop culture because of the deterrent effect of alimony. In addition, punitive damages consider the culpability of the defendant and I believe that discretion allows judges to look heavily at fault in a similar manner rather than solely redistribute income or enforce a contract. There is nothing to stop a judge from using alimony to deter.

Some may argue that even under contract theory, creditors are able to lay claims to collect on a debt. In family relationships, a creditor analogy is particularly unuseful. A parent that invests in an child’s education for 18-24 years, does not get to lay claim on future earnings of that child. Marriage is a contract unlike a child being born and tacitly consenting to his or her development[which may be the household’s most valuable asset], but the reason the law does not support parental creditorship applies to marriage. The risk in investing in your spouse equals that of your child, you may get a return for your sacrifice and you may not. Under a contract theory of marriage, this investment is a gift, not a debt. The same social injustice that is accepted in society as many adults go into old age alone applies to alimony. Marriage should not redistribute property because at the time of marriage, I don’t believe people are contracting for divorce as in the case of a contract creditor. The people who are most likely to contract for divorce as those who engage in the prenuptial agreement process and it shocks the conscience that alimony is meant to treat a spouse better than a contract creditor when a contract creditor explicitly contracts for defaults.

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. 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.

Some may argue that Child support constitutes an obligation that survives the marriage. Childrearing is not an obligation that survives marriage, but rather survives until the child is 18 – having children is not singular to marriage and some cite childlessness as a major reason for divorce (same cite as above). Granting money to the other spouse as child support (even if used as household income really is no different than treating a spouse as an caretaker). The money's purpose is for the child, rather than an obligation that survives the marriage.

Alimony does not take away from the opportunity lost through choosing marriage, it just imposes unequal performance on parties post bad decisions. In weighting the enforcement of contract provisions, alimony rises to the level of unconscionability because it is something that imposes unjust performance duties on the parties involved. Procedurally, alimony represents 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

Alimony is more than a way for judges to redistribute against bad outcomes, it fundamentally allows obligations survive dissolution. In the past, spouses couldn’t exit a marriage without consent of the other party. Alimony can also prevent a spouse from moving forward with their life because they are weighted down by their obligation to a previous spouse. No one should be forced to continue what was not working. If property favors alienability then alimony(which lacks the notice/intent requirements for servitudes) should offend those in favor of a propertarian approach to marriage. A settlement process is an more appropriate way to handle dissolution of marriage.

-- MichaelBrown - 05 Apr 2008