The Marriage Buyout
The Troubled Trajectory of U.S. Alimony Law
Publication Year: 2014
From divorce court to popular culture, alimony is a dirty word. Unpopular and rarely ordered, the awards are frequently inconsistent and unpredictable. The institution itself is often viewed as an historical relic that harkens back to a gendered past in which women lacked the economic independence to free themselves from economic support by their spouses. In short, critics of alimony claim it has no place in contemporary visions of marriage as a partnership of equals. But as Cynthia Lee Starnes argues in The Marriage Buyout, alimony is often the only practical tool for ensuring that divorce does not treat today’s primary caregivers as if they were suckers. Her solution is to radically reconceptualize alimony as a marriage buyout.
Starnes’s buyouts draw on a partnership model of marriage that reinforces communal norms of marriage, providing a gender-neutral alternative to alimony that assumes equality in spousal contribution, responsibility, and right. Her quantification formulae support new default rules that make buyouts more certain and predictable than their current alimony counterparts. Looking beyond alimony, Starnes outlines a new vision of marriages with children, describing a co-parenting partnership between committed couples, and the conceptual basis for income sharing between divorced parents of minor children. Ultimately, under a partnership model, the focus of alimony is on gain rather than loss and equality rather than power: a spouse with disparately low earnings isn’t a sucker or a victim dependent on a fixed alimony payment, but rather an equal stakeholder in marriage who is entitled at divorce to share any gains the marriage produced.
Published by: NYU Press
Title Page, Copyright Page
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Thanks to the many people who helped me through this project: To my late friend and colleague Craig Callen, who exemplified and inspired independent thought and precision. To my colleagues Kevin Saunders and David Thronson, whose comments on portions of earlier drafts...
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Promises that matter have consequences. Even children know this. Consider the case of little Brad, who hid behind his brother’s bedroom door after helping himself to an unauthorized share of his brother’s Halloween candy...
Part I. Alimony Reflections
Stacy and Tracy were lovers. They graduated from college, found full-time teaching jobs at a local high school, and in a small ceremony attended by happy friends and family, committed to each other as life partners. The world looked bright. A year passed, the couple gave birth...
1. Who Cares about Alimony?
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In most households, someone is cleaning the toilet. Hardly anyone likes this job. And then there is the vacuuming, the laundering, the grocery shopping, the cooking, the bill paying, the dusting, the bed making. If the family includes children, these tasks multiply and new ones are added: the...
2. Alimony’s Heritage: The Helpless, the Blameless, and the Clean-Break Losers
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The law’s treatment of divorcing caregivers is a disturbing tale of divorce serving as “a handy vehicle for the summary disposal of old and used wives”;1 of divorce judges vested with broad discretion setting long-term caregivers free to “enjoy” new lives with little income, little property...
3. Alimony and Mother Myths
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When I was a child I didn’t appreciate my mother. Actually, I don’t recall much noticing her or the many things she did for me—at least not until I became a big girl and wished she would let me take care of myself. Now that I am a mother myself, I regret and am a little embarrassed...
Part II. Alimony Mechanics
As we have seen, despite the rhetoric of gender equality, the reality in many U.S. homes is that one spouse, usually a mother, serves as a primary family caregiver. This role often leads caregivers to disinvest in market labor, a move that over time reduces a caregiver’s earnings and ultimately...
4. The Contemporary State of Alimony
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Alimony remains broken—without a rationale, unpredictable, uncertain, and uncommon. In 2006, the Census Bureau counted 9,261,000 divorced women aged eighteen or older.1 That same year, only 382,000 persons (male or female) aged fifteen or older were receiving alimony...
5. Alimony in Context: A Comparative Perspective
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Alimony law draws on the culture it serves. Its role in any particular place is thus part of a larger picture of cultural views of the meaning and duration of intimate commitment and of individual versus community responsibility for dependency. A glimpse of alimony in other countries...
Part III: Alimony Theory
As we have seen, the absence of a contemporary rationale for alimony is more than an abstract concern. Without any answer to the question of why someone should be compelled to support an ex-spouse, judges vested with broad discretion are given free rein to determine equity...
6. Reasons Matter: Alimony, Intuition, and the Remarriage- Termination Rule
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Marriage is a wildly popular institution—so popular that failure of a first marriage usually does not deter spouses from marrying again. Approximately 75 percent of divorcing women remarry within ten years, 54 percent within five years.1 These second marriages are at least...
7. The Search for a Contemporary Rationale
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Alimony is complex. Nowhere is this complexity more evident than in the search for a conceptual basis for alimony in contemporary marriage. Numerous commentators have proposed theories of alimony that aim to answer a simple question: Why should anyone be forced to share...
Part IV: Alimony Reform
If alimony is to serve as an exit price when a marriage ends, it must do so in a way that is consistent with no-fault principles. The challenge is to identify an exit price that does not depend on who files for divorce, or who commits adultery or some other act of traditional marital fault...
8. A Marital Partnership Model: Alimony as Buyout
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Partnership is an intuitive metaphor for marriage. The “ideal to which marriage aspires [is] that of equal partnerships between spouses who share resources, responsibilities, and risks,” and thus perhaps some limited duty to sacrifice individually for the good of the partnership.1 This...
9. Beyond Alimony: Lovers, Parents, and Partners
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Divorce is not a tool for spinning off children. While divorce may deeply affect children, divorce is not about them. Divorcing parents understand this point well enough; at least it’s what they tell their children: “We will still love you, still be there for you, still be your parents after...
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Many of the primary caregivers at work in today’s homes are going about their business unaware that if their marriages end they are likely to become the law’s suckers, set free to alone bear the long-term costs of the role they thought was part of marital teamwork. Archaic alimony...
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About the Author
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Page Count: 240
Publication Year: 2014