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>> 109 Part III Alimony Theory It would be so nice if something would make sense for a change. —Alice in Wonderland (Walt Disney Productions, 1951) 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 according to internal codes, influenced by the widespread disdain for alimony and by myths and misconceptions about the reality and costs of family labor. As a result, general alimony awards are unpredictable, uncertain, and rare. The absence of a contemporary rationale for alimony also confounds efforts to choose among the many guideline formulae that have been offered to quantify alimony, and leaves alimony vulnerable to hype—to impassioned cries for new limits on alimony enflamed by anecdotal, aberrational horror stories that characterize a new wave of anti-alimony reform efforts. The absence of a contemporary rationale for alimony imposes yet another cost, and it is a significant one. Because alimony cannot explain itself, it cannot provide a reasoned answer to the divorcing spouse who is hard-hit by an alimony decision—to the spouse who is ordered to pay alimony, or to the spouse who is denied alimony. This inability to offer 110 > 111 6 Reasons Matter Alimony, Intuition, and the Remarriage-Termination Rule Here we go again She’ll break my heart again I’ll play the part again One more time. —Ray Charles, “Here We Go Again,” in Modern Sounds in Country and Western Music (Rhino Records, 1988) 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 as likely to fail as first-time marriages.2 For some who marry a second time, marriage demands a hefty admission price not imposed on first-timers: any alimony claim against a former spouse will likely terminate. The intuition of most observers is that this is the right result—an ex-husband should not pay alimony to a former wife who is married to someone else.3 Indeed, the vast majority of states, either through case or statutory law, provide that a recipient’s remarriage automatically terminates alimony, or at least creates a prima facie case for termination. Notwithstanding the near-universality of the remarriage-termination rule, and its recent endorsement by the American Law Institute (ALI), the rule has no conceptual basis in contemporary Much of this chapter was previously published as “One More Time: Alimony, Intuition, and the Remarriage-Termination Rule,” Indiana Law Journal 81 (Summer 2006): 971. 112 > 113 a house, a Mercedes, or a yacht more deserving of protection than her right to compensation for her lost career opportunities or to a buyout of her interest in the marital partnership? Helen deserves an answer. A. The Remarriage-Termination Rule The remarriage-termination rule begins with the general principle that an alimony award, unlike a division of property, is modifiable. Often, judicial authority to modify alimony is specifically granted by statute. The Uniform Marriage and Divorce Act (UMDA), for example, allows modification “only upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable.”6 Ordinarily , the changed circumstances that trigger modification involve economics—a reduction in the payor’s resources, for example, or an improvement in the recipient’s financial status—that warrant a decrease in alimony. When an alimony recipient remarries, however, a different rule applies: alimony is not merely modified, but terminated, usually with no possibility of revival, and without regard to the financial impact of the recipient’s new marriage. Remarriage alone is thus the termination trigger, typically without regard to any other factors usually relevant to modification. Whether it appears in statutory or case law, this notion that alimony should terminate upon a recipient’s remarriage is a baseline of contemporary American law. 1. Statutory Termination Rules The majority of states provide by statute that alimony terminates automatically upon a recipient’s remarriage. One court’s survey classified automatic termination statutes into three rough categories: (1) immediate termination on remarriage;7 (2) termination upon petition and proof of remarriage;8 and (3) termination unless an agreement or decree provide otherwise.9 A typical statute in the last category, which is the...

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