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The Marriage Buyout

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

Cynthia Lee Starnes
Copyright Date: 2014
Published by: NYU Press
Pages: 240
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  • Book Info
    The Marriage Buyout
    Book Description:

    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 inThe 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.

    eISBN: 978-0-8147-0847-7
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
    (pp. ix-x)
  4. Introduction
    (pp. 1-6)

    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.

    “Did you eat Zach’s candy?” I asked.

    “No,” said Brad through chocolate lips.

    “Are you sure?” I asked.

    “Well, I ate some,” he said.

    “Promise me you won’t eat any more,” I said, stashing the plastic pumpkin head of sweets on a high closet shelf

    “I promise,” said Brad.

    Brad’s promise bought him a reprieve from a time-out. But he knew that if he broke his...


    • [PART I. Introduction]
      (pp. 7-8)

      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 to a daughter, and like many young couples, Tracy and Stacy assumed they would equally share their daughter’s care. This they did during the first summer of her life. But in the fall, when Stacy and Tracy returned to full-time teaching, life proved more complicated than they supposed it would be. Household tasks...

    • 1 Who Cares about Alimony?
      (pp. 9-31)

      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 feeding, the bathing, the managing of child care on sick days and snow days and regular school days that don’t match job hours, the homework supervising, the transporting to soccer and dance and medical appointments, the bedtime storytelling. Not all unpleasant tasks to be sure, but responsibilities that demand time and energy,...

    • 2 Alimony’s Heritage: The Helpless, the Blameless, and the Clean-Break Losers
      (pp. 32-51)

      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, and little hope of ever escaping the human capital costs of their family role; of feminists’ early insistence that gender equality leaves no place for alimony. But this is supposedly the penultimate story, the horror before family law’s enlightened appreciation of the value of family care and the economic vulnerability of divorcing caregivers. Maybe....

    • 3 Alimony and Mother Myths
      (pp. 52-64)

      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 by my childhood attitudes. I doubt however that they are unique and that is scary because if Durrenmatt is right, childhood thoughts about mothers are not easily shed; they are still with us and perhaps still capable of subtly shaping our views...


    • [PART II. Introduction]
      (pp. 65-66)

      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 her earning capacity. We have also seen that most divorcing couples have little property, which leaves alimony as the only judicial tool for addressing income disparities linked to marital roles. Early no-fault divorce laws gave courts broad discretion to award alimony, but no-fault’s clean-break philosophy simultaneously discouraged courts from doing...

    • 4 The Contemporary State of Alimony
      (pp. 67-91)

      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 income.² The rarity of alimony is partly a testament to the continuing dominance of no-fault’s clean-break, fresh-start philosophy; to alimony’s terrible reputation; to the broad judicial discretion over alimony decision making that invites judges to rely on personal codes of fairness driven by misconceptions about primary caregiving; and to a new movement to limit alimony that is curiously reminiscent of the...

    • 5 Alimony in Context: A Comparative Perspective
      (pp. 92-108)

      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 can broaden our perspectives of possibilities for alimony in the United States and enrich any discussion of alimony reform. With this thought, we take a brief look at the law of alimony in a few select countries and at thePrinciples of European Family Law regarding Divorce and Maintenance between Former Spouses. We...


    • [PART III: Introduction]
      (pp. 109-110)

      As we have seen, the absence of a contemporary rationale for alimony is more than an abstract concern. Without any answer to the question ofwhysomeone 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...

    • 6 Reasons Matter: Alimony, Intuition, and the Remarriage-Termination Rule
      (pp. 111-127)

      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...

    • 7 The Search for a Contemporary Rationale
      (pp. 128-146)

      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 income with a former spouse? If divorce severs the tie between spouses, if each spouse is entitled to a clean break and a fresh start as no-fault laws teach, what is the rationale for alimony? Contemporary commentators have long struggled to explain alimony in an age of easy divorce and equality rhetoric, but there is still no...


    • 8 A Marital Partnership Model: Alimony as Buyout
      (pp. 149-168)

      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 norm encourages commitments between spouses, promotes gender equality, and supports the privatized care of children and elderly dependents. Indeed, much of the contemporary writing on divorce reform espouses such an ideal relationship, even when the writer declines to endorse a partnership metaphor. The most powerful support for a partnership model thus lies in its egalitarian principles of mutual...

    • 9 Beyond Alimony: Lovers, Parents, and Partners
      (pp. 169-184)

      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 divorce.” Custody norms reinforce such parental assurances, increasingly reflecting the premise that shared custody is best for children and that divorce ordinarily should not end the spouses’ role as co-parents. This shared-parenting norm has its most recent incarnation in the ALI’s approximation model, which assigns custodial responsibility after divorce in...

  9. Conclusion
    (pp. 185-186)

    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 laws are to blame. Alimony is often the only available tool for ensuring that divorce does not impose all the long-term costs of marital roles on caregivers while freeing the other spouse to enjoy all the long-term benefits. Yet in its current incarnation, alimony is not up to the task before...

  10. NOTES
    (pp. 187-216)
  11. INDEX
    (pp. 217-224)
    (pp. 225-225)