Alimony & Spousal SupportEssay Preview: Alimony & Spousal SupportReport this essaySpousal support, or alimony, is based on an outdated social tradition that it is a mans responsibility to support women because they are weaker, incapable of being equal to men, and better equipped to raise children. However, this is not the case in todays society and our alimony laws need to be changed to reflect modern times.
Spousal support traces its roots back to a time when divorce was considered rare and indissoluble. As a result, a husband and wife remained married even after they had been physically separated. Since the marriage was permanently binding, a husband still maintained a financial obligation to his wife, even if they didnt live together. This is the reason why spousal support is almost always associated with a payment made from an ex-husband to his ex-wife, regardless of the living situation.
Many avenues were explored while looking for the best possible way to achieve social change. Since spousal support laws vary from state to state, my concentration became the State of California. I began by searching the Library of Congress Thomas database, looking for any legislation currently pending. Unfortunately, the few items I found had already died in various stages of development and no other legislation was in the pipeline. Next I attempted to contact United States Congressman John E. Sweeney of the 20th Congressional District. Congressman Sweeney is one of the only governmental actors to author spousal support legislation. After many messages, emails and voicemails without return, I decided to cease pursuing this path. Finally, I decided to contact as many non-governmental organizations as I could. However, only a handful of groups actually returned my phone calls and emails. Alliance for Freedom of Alimony served as my primary source for information because they provided the most detail on the topic.
Beginning by reviewing the class text, David Friedrichs and Gerald Rosenberg gave a jumping off point for my research. Both tackle social injustice and change in their textbooks, however each author has their own unique take on the issue. Friedrichs discusses in his book “Law In Our Lives”, how social change must evolve with the times and remain flexible. Society is ever transforming and law must adapt to current circumstances. However Rosenberg makes a different argument. In his thesis statement, he begs the question, whether or not we should look to the courts for social change. Rosenberg addresses three case studies that explore various court rulings and the results each had on society.
Rosenbergs first case study addressed Brown v. Board of Education and its impact on civil rights. The second case study highlighted womens rights through Roe v. Wade and the last case study dealt with criminal law and the impact it has had on a variety of cases. The point Rosenberg was making in all of these case studies though, was that it wasnt the cases themselves that caused social change, but the many additional factors and influences society was responsible for. If anything, the cases got the population thinking in the direction of change, however, the courts merely played a supporting role.
Both authors make a case that can easily be applied to my injustice, which proved helpful while researching issues surrounding spousal support. Current alimony statues root themselves in an era that is quickly becoming obsolete. In fact contrary to the accusations made by the Alliance for Freedom of Alimony in my first paper, the courts have made the greatest advancements towards equalizing spousal support – possibly answering Rosenbergs question. This is due in part to the lack of legislation and the abundance of case law.
In the State of California spousal support is unique because of the high divorce rate the state endures. Approximately 44 percent of all marriages within the state end in dissolution. The State weighs Spousal support cases using 14 factors found in Family Law Code §4320(a)-(n). These factors span from the length of marriage to the future financial prospects of both parties. However, so long as the statutory factors are considered and weighed, the ultimate decision, such as amount, duration and whether to retain spousal support jurisdiction, rests within the courts broad discretion. This discretion is considered to be vast because the Legislature has not codified any particular part of the spousal support award process.
California Family Law Code §4320 is considered to be “gender-neutral” and it stipulates that alimony can be paid to either husband or wife and can either be permanent or short-term. The statue directs the courts to consider “all relevant economic factors “, including “the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment ” as well as “any other factor necessary to do equity and justice between the parties. ”
According to the United States Census Bureau, nearly 90 percent of alimony awards go to the ex-wife in a divorce case . This statistic suggests that California Family Law Code §4320 is far from gender-neutral and inflicts a disparate impact on men. Other constitutional violations discussed in greater detail later in the paper include: the equal protection clause of the Fourteenth Amendment, the Right to Privacy, and peonage or involuntary servitude.
Historically, the law was designed to provide women with compensation for skills and contributions made during a marriage that may or may not have a monetary value. Women who were destined to a life of housekeeping and childcare were unable to develop the skills and experience nor the time needed in order to retain a job that earned a sustainable income. However, with the advent of the womens rights movement as well as the current feminist era, women have gained greater independence and opportunities not available to previous generations. Ca Fam Code §4320 is fast becoming obsolete, and as a result, has become discriminatory towards men.
In the case of Orr v. Orr 440 U.S. 268 (1979), an Alabama man was ordered to pay alimony to his ex-wife pursuant to Alabama statues which stated that husbands, not wives, are required to pay alimony upon divorce. The man appealed to the Alabama Court of Appeals, insisting that his constitutional rights had been violated. The State of Alabama sustained the constitutionality of the statues and the man then decided to appeal to the United States Supreme Court, where the States decision was then reversed and remanded. The man argued that the gender-based scheme for alimony violated the equal protection clause of the Fourteenth Amendment. The Court ruled on the basis that “the States preference for wives having a dependent role to husbands in family responsibilities was not
*a woman (in this case, not a woman of a manly sex, but a woman of a girl, by any standard).[4] In her opinion on the merits, the Court held that the Equal Protection Clause does not bar all marital relationships but only those between two or more people and that the courts should be guided by common sense. This was at the heart of the argument which later arose in our Loving v. Virginia case, which held that there is no difference between a man and a woman when one is a man at birth in relation to their child and that one’s gender may not be a factor.[5] The Court, however, also stated that a man and a woman are both equal in the sense that they, too, have in common the ability to take care of one another. To this, the Court said: It is not necessary that a woman has to pay alimony (or, for that matter, to collect a reasonable sum of lite and low alimony at a time when she is not an unmarried man at all) but that a man and a woman, therefore, in every case would have to pay alimony.[6]
The decision which was joined by the 4th Circuit in Loving affirming a lower court’s ruling upholding a law in Alabama prohibiting marital segregation in public parks for its non-profit status was not necessarily the ultimate decision. However, while the ruling of the 4th Circuit on § 1983, which upheld that statute in Alabama, did not exclude the rights for a women’s man of both genders, it did give men and women equal standing as custodians of human beings:
“By ‘men’, we mean the men in the same sex and are both paid the same amount of alimony that they would receive for doing the same work. In other words they are both paid the same amount of alimony, or by the same dollar amount to the same man. Neither would receive a greater amount of alimony if they were given equal work rights or was given equal rights over their work as they paid the men.”[7]
Although the decision by the 4th Circuit was important in the context of how a man’s equal-pay rights could be defined, the case of §1984 (relying upon the fact in this case that alimony was paid directly to the man’s heirs or parents) has been on the books since 1993. The case was ultimately transferred to the United States Supreme Court. The opinion on the question of equal pay found an equal burden on the federal courts, noting “[i]n light of circumstances the court finds that a man’s equal pay will be less than the duties of a woman in a similar situation.”[8]
A few weeks after the decisions, a small group of men (among them Robert Wood, the former Supreme Court Justice) were protesting on a demonstration outside of the Supreme Court in New Orleans, arguing that federal workers must have the same equal right to public accommodations as are all men that are married in the United States. The protestors stated that the Equal Protection Clause would require equal pay