The Marriage Buyout: The Troubled Trajectory of U.S. Alimony Law

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.