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

2. Alimony’s Heritage: The Helpless, the Blameless, and the Clean-Break Losers

32 > 33 laws would change, still worrying about young women who don’t prepare themselves for financial independence, and still wishing that the National Organization for Women “would put its considerable clout behind the issue.”2 A recitation of anecdotal inequities, however, will not tell the full story of divorcing caregivers. Their fate is part of a larger story of the history of alimony, a history that is inextricably linked with evolving views of the status of women, the meaning of marriage, the right to divorce, and the rationale for alimony. And so we take up the curious and at times disturbing tale of alimony’s heritage. A. Support for the Helpless and the Blameless: From Coverture to Fault Once upon a time, caregivers were protected “favorites” of family law—at least that was the storyline. Prior to the English reforms of 1857, a man who married undertook a lifetime obligation to support his wife. Although he could obtain a legal separation (divorce a mensa et thoro), rarely could he obtain an absolute divorce—that is, a full severance of marital ties (divorce a vinculo). Whether or not spouses lived together, the husband’s duty of support continued throughout the wife’s life. Alimony was the mechanism , designed by the English ecclesiastical courts, for enforcing the husband ’s lifetime obligation to sustain his wife. Indeed, the word “alimony” derives from the Latin alimonia, which means “sustenance.” Underpinning the husband’s support obligation was an assumption that married women should not and often could not support themselves . Employment opportunities for women were limited, and a married woman’s property was subject to her husband’s control. Indeed, according to the common-law concept of coverture, a married woman ’s identity merged into that of her husband, who bore a moral and legal obligation to provide for her. As Blackstone explained, “the very being or legal existence of the woman is suspended during the marriage , or at least is incorporated and consolidated into that of the husband , . . . under whose wing, protection, and cover, she performs every thing.”3 In Blackstone’s view, this was not a bad deal for women, since “even the disabilities, which the wife lies under, are for the most part intended for her protection and benefit. So great a favourite is the 34 > 35 law, this scheme did offer some protection to caregivers—at least to caregivers who had not committed marital fault and whose spouses were eager to escape the marriage. Such “innocent” caregivers could bargain for financial concessions, offering to collude in manufacturing grounds for divorce in return for a bigger share of marital property or generous alimony settlement. Of course, not every caregiver was innocent . Nor was every caregiver less eager to leave the marriage than her spouse or willing to lie to a court about the existence of grounds for divorce in order to improve her economic positioning. At most, faultbased divorce threw a few bargaining chips to some innocent caregivers. At least in theory, fault-based divorce regimes also protected some innocent caregivers by providing a rationale for alimony. In an analogy to contract, a spouse who engages in marital misconduct might be said to have breached the marriage contract and thus be liable for alimony as damages. Under this reasoning, a husband who committed adultery, for example, would be required to pay alimony to an injured caregiver. Of course, such a fault-based rationale for alimony would protect only caregivers who are innocent and whose mates are guilty; that is, no innocent spouse would ever pay alimony and no guilty spouse would ever receive alimony. North Carolina law comes close to this scheme, providing that courts shall order a “supporting spouse” guilty of “illicit sexual behavior” to pay alimony, and shall not order alimony on behalf of a “dependent spouse” guilty of such conduct.6 The statute further authorizes the court to deny alimony in its discretion when both spouses are guilty of “illicit sexual behavior.” But such a limitation has never fully described the law of alimony and thus offers only an imperfect rationale. Moreover, fault is a precarious friend of caregivers, who are presumably just as capable of committing marital offenses as their mates. Many states have at one time or another barred alimony awards to guilty claimants. South Carolina, for example, prohibits a court from awarding alimony to a spouse who commits adultery.7 In a worst...