Alimony reform is all the rage today. The current theory justifying the existence of alimony in many states is to allow a dependent spouse to maintain the marital lifestyle. Reforms in some states would eliminate that justification and instead use formulaic guidelines dividing the differences in each spouse’s incomes. Groups in various states called Alimony Reformers argue vociferously that alimony is a fossil and a relic left over from olden times when marriages were dissolved only on grounds of wrongdoing. Some reformers go so far as to call alimony payments “involuntary servitude,” which more appropriately describes modern-day slavery. Those attacks on alimony are nothing new.
In 1989, Professor Ira Mark Ellman wrote an article in the California Law Review entitled “The Theory of Alimony.” In that article, Professor Ellman criticized the concept of alimony as a reward for marriage. But even his skepticism was many decades old.
In 1925, Judge Harry Lewis of the Cook County, Illinois, Superior Court was quoted as saying that the recipients of alimony possessed only a desire to keep a financial strangehold on the husbands, alimony has no justification other than that the woman was previously married to the man, and marriage was not a collections business. In the 1920s, a group was formed in New York called the “Alimony Payers’ Protective Association,” in part to protect people from lawyers seeking out fat divorce fees, to impose uniformity in the law so litigants could plan for the future and to eliminate unfair judicial decrees. Those arguments exist in one form or another today.
The Reformers argue alimony abuse is commonplace and widespread, so the system needs a complete overhaul. But, according to recent empirical studies, alimony has been awarded in a minority of cases with amounts and durations which have been considered to be modest. Famous researchers Judith Wallerstein and Joan Kelly noted in their work that the parent who initiated a divorce was more likely to ask for less if the wife was the initiator of divorce, and if the husband was the initiator, he was more likely to offer financial excess. That finding was striking because studies show that women initiate divorce at twice of the rate of men.
These Reformers argue that alimony actually dissuades the spouse receiving alimony (over 95% of whom are women, per the U.S. Census Bureau) from becoming self-sufficient. A 2012 Social Security Bulletin published by the Social Security Administration states “[h]istorically, divorced women have had the highest poverty rates among all aged women in the United States.” Per the U.S. Census Bureau, over 60% of divorced women work. According to the Bureau of Labor Statistics, Current Population Survey, husbands are the sole worker in fewer than one-quarter of families and over 70% of mothers of children of all ages work. Those are not numbers one would expect to see if divorced women receiving alimony were not working.
Instead of wholesale rewrites to alimony laws, the better course of action is to figure out as a society why alimony should be awarded. Is alimony fulfilling a promise of life-long support? Should alimony lead to self-sufficiency? Should it compensate for lost economic opportunities during the marriage? A theory for the existence of alimony must be settled upon before modifications of alimony laws take place because without settling on a theory, it’s like a traveler leaving without a map. You just don’t know where you’re headed on your journey.
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