Before the reforms of 1857 in England, men who married undertook a lifetime obligation
to support their wives, and people could not divorce without a legal finding of fault.
Back then, spouses often resorted to colluding with one another to get out of their
marriages, fabricating grounds for divorce-a final bonding activity for two people
who were done with each other.
In
The Marriage Buyout, Cynthia Lee Starnes sets forth the history of fault-based divorce and its alternative,
no-fault divorce, which California enacted in 1969. Every U.S. state eventually followed
California's lead, allowing spouses to divorce without having to prove fault. With
statutory schemes that made light work of leaving a marriage (however arduous the
emotional process feels to the parties), states across the country introduced the
concept of a clean break for people who wanted to end their marriages. This resulted
in some unintended adverse consequences, in addition to the expressly designed ones.
The author, a Michigan State University law professor, explores the various ways no-fault
reforms have disproportionately harmed women-who are the primary caregivers in a staggering
number of marriages-when they divorce. For example, courts are increasingly directed
to presume that marital property should be equally divided, and many no-fault reformers
believed that such division obviates the need for alimony-or spousal support-as we
know it in California. But this viewpoint ignores the fact that, according to Starnes,
most divorcing couples have little or no property to divide.
Some feminists had dismissed spousal support as a tool that encourages women to make
"economically disabling" marital choices. But as this book explains, some percentage
of those feminists later regretted their views after discovering, whether statistically
or anecdotally, that divorces without spousal support have devastating financial effects
on a significant number of the women getting them.
In one shocking example cited in the book, a Minnesota court denied indefinite alimony
to a 60-year-old woman who had raised the parties' children full time, had stayed
out of the workforce during their 28-year marriage, and had only an eighth-grade education.
(See
Rohling v. Rohling, 379 N.W. 2d 519 (Minn. 1986).)
Starnes also educates the reader on some states' practice of setting durational caps
for permanent spousal support. She cites a number of studies and research findings
that seek to explain several theories underlying the awarding of alimony. For instance,
does alimony seek to reimburse claimants for their contributions to the other spouse?
Or is it an exit price for the privilege of leaving a marriage?
Emphasizing a spouse's monetary contribution may result in a smaller award for the
primary caregiver, while focusing on a party's need will support a larger award for
a primary caregiver who isn't as well financially positioned. As Starnes points out,
knowing the rationale for alimony in today's culture would help create consistency
in setting and applying alimony statutes.
The Marriage Buyout also tries to answer the question of how an alimony claimant's remarriage should
be treated -and if that condition terminates alimony payments (as is the law in California
and most U.S. states), the question becomes whether this suggests alimony is based
on contractual principles.
After all, when claimants remarry they theoretically regain the benefit of the bargain
they made with the first marriage. But general contract principles require that claimants
to contractual relief mitigate their damages, and before judgment such mitigation
is factored into the amount awarded. By definition, a spouse seeking to remarry-or,
viewed through the contractual lens, to mitigate alimony-cannot do so until she has
a ruling divorcing her from the alimony obligor.
In the early 1900s, 9.3 percent of U.S. divorces featured alimony. Seventy years later,
that number increased to 15 percent, and rose even further to 17 percent by 1989.
But through abundant case law, statutory schemes, and research examples, Starnes makes
clear that limiting alimony is now a nationwide trend.
For example, in 1968 under California's previous fault-based scheme, nearly 19 percent
of the state's divorces featured alimony. In 1972, three years after California enacted
its no-fault divorce law, the figure dropped to 12.9 percent.
This book is a sobering account of the current state of alimony law in our society,
and a useful resource for family lawyers, family law judges, legislators, and primary
caretakers. What is best for primary caretakers serves everyone: If a substantial
number of divorcing parties in the United States are self-supporting spouses, our
national economy will be stronger for it. Starnes thoughtfully presents that trend
and many other considerations in this important work.
Katie Burke practices family law at The Wald Law Group in San Francisco.
Donna Mallard
Daily Journal Staff Writer
