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.

The Legal Rationale

From a legal standpoint marriage is a contract. If dissolution of marriage is a breach of this contract, then the appropriate remedy is not punitive damages (which I consider alimony to be) but simple settlement. 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.

The Theoretical Review of Alimony

John Rawls’s theory of justice provides useful content to examine alimony from a theoretical perspective. Appropriating his original position concept, if we were to take parties prior to a marriage and put them under a veil of ignorance, it is debatable that alimony would be the result. Alimony keeps the relationship between the parties ongoing in a way that is inconsistent with divorce. In a veil of ignorance situation, the same principles that might have individuals choose a democratic form of government would lead to an settlement only approach to marriage. It recognizes the autonomy of persons and with equality of opportunity seeks a path to justice that is tenable. While initially it may seem that alimony serves to maximize the floor, alimony really doesn’t advance the position of the least in our society. The least off in our society aren’t really dealing with alimony as they lack the resources to even make alimony relevant at common law. If we change the issue to make it the least of the two members pursuing marriage – Alimony does not change the fact that in a capitalist ordered society such as ours, the spouse without earnings capacity does get earnings capacity from alimony. In deciding from the veil about the distribution of spouses, I believe that spouses would choose a settlement based system. This is solely because of all the disincentive there is to earning that might end in the floor being lower for the least off in an alimony system.

Economic Cost Benefit Approach

From an economic perspective, most have justified alimony as accounting for the lost opportunity of a spouse who chooses or accepts not to work in order to support the overall relationship. However, that choice is only mitigated if anything by alimony. The market overall loses if alimony serves as a disincentive for spouses to participate in it. In the decision not to work for future promise of alimony and the decision not to work for current ability to collect doesn’t meet an economic test of alimony. If the overall relationship truly is supporting the higher wage earner’s success, then post marriage the loss of this relationship should have an effect on that party’s future success that is not sufficiently calculated in alimony proceedings at present.

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