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The Marriage Buyout

By Donna Mallard | May 2, 2015

Law Office Management

May 2, 2015

The Marriage Buyout

Michigan State University Law Professor Cynthia Lee Starnes explores the history of divorce.

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

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