Mapping Alimony: From Status To Contract And Beyond

Authors

Gaytri Kachroo, Southern New England School of Law

Abstract

[Excerpt] “With the introduction of no-fault divorce, one spouse could unilaterally petition for divorce, in most states, by demonstrating a period of separation or the impossibility of reconciliation. The possibility that a marriage can be dissolved without a showing of fault has obliterated the need to seek consent from the other spouse contesting it. This can preclude the need for a mutually designed financial arrangement. Courts now play a greater role in such financial arrangements and are more likely to conform such financial arrangements to statutory standards. From state to state, despite the prevalence of such conforming by courts, resulting arrangements can still be greatly inconsistent and uncertain. “Even when the couple negotiated, they were often limited by courts to trading off more predictable property for less predictable spousal support within the overall range of outcomes expected under the law.”

Alimony is a corollary to the intimate relationship sanctioned by the state called marriage. Constructions of marriage and the meanings attributed to marital status are keys to helping scholars figure out whether and what duties of financial support do and should exist between spouses and others in intimate relationships.

This article classifies alimony scholarship along two major axes: status to contract; and property to personhood. […]In Parts I and II, this article begins by examining both theories and analyzing them along the matrix between status and contract. Then, the article develops the second property to personhood matrix and the analyses of Ellman and Maine, mapping current alimony scholarship along the intersection of these two axes: status to contract; and property to personhood.

Along the matrix from status to contract, there are arguments for and against alimony as a viable duty between ex-spouses in the future, either in support of the family generally, and in Part V in support of individual selfsufficiency, or women’s rehabilitation, or as compensation for loss incurred due to a contribution that is undervalued in the marketplace. This article’s outline of alimony scholarship includes an examination of Status Theorists, Communitarians, and Economists in Part IV; and Contract Theorists—who are labeled as Individualists and Contractarians—in Part VI. […]

Therefore, at Part VII, this article juxtaposes the scholarship on alimony with this other intersecting property to personhood perspective. […]

At Part VII.G, we see that significant in this overlap between status and property are the developments of no-fault divorce that highlight the possible oversight of abuse within marriage due to unequal power relationships between spouses. Also important is the attribution of marriage “status” through state-sanctioned union only to heterosexual couples. In this regard, the article reviews the judicial application of alimony type remedies in cohabitation, and in same-sex partnership.

Parts VII and VIII seek to demonstrate that the current conception of marital status continues to restrict women’s property interests. Courts exclude market analyses of marital exchanges in the context of remarriage, and in the domain of bankruptcy. From common property to individual property, the limitations on women’s full capacity6 to own property is patent in the archaic view that a spouse’s remarriage (usually the ex-wife) leads to loss of the spousal support she was entitled to from the first marriage. The wife loses spousal support because she is treated as the property of her ex-husband until her remarriage. When she has a new husband to provide for her, she no longer needs support from her ex-husband. Similarly in the context of bankruptcy, an ex-spouse’s right to support is subordinate to other creditors’ rights to the patrimony of the debtor spouse. This legal rule denies the personhood and separate individuality of the husband and wife. The article analyzes this reality in relation to various areas of the law.”

Repository Citation

Gaytri Kachroo, Mapping Alimony: From Status To Contract And Beyond, 5 Pierce L. Rev. 163 (2007), available at http://scholars.unh.edu/unh_lr/vol5/iss2/3