January 4, 2011
Starnes: "Victims, Breeders, Joy and Math: First Thoughts on Compensatory Spousal Payments Under the Principles"
Cynthia Starnes (Michigan State University College of Law) has posted "Victims, Breeders, Joy and Math: First Thoughts on Compensatory Spousal Payments Under the Principles" (8 Duke Journal of Gender Law & Policy 137) on SSRN. Here is the abstract:
Current divorce statutes typically authorize courts to divide marital property and award alimony under a broad discretionary standard that suggests relevant factors, but ultimately defers to an individual judge's sense of fair play. Not the least of the dangers inherent in such a system is the possibility that an egalitarian-minded, well-intentioned judge will unrealistically assume spouses are equally opportuned at divorce. Such a judge may equally divide minimal marital property, and award little or no alimony. Each spouse then, theoretically at least, will enjoy a clean break and a fresh start, though on a decidedly different economic footing. The shield that once protected the married homemaker from her market opportunity costs is thus abruptly removed, and she is left alone to bear those costs, even as her husband is left alone to enjoy any gains resulting from his fuller market participation. If the law incorrectly assumes such husbands and wives are equally positioned at divorce, it effectively penalizes the wife whose human capital has deteriorated during marriage and rewards the husband whose human capital has increased. Such a scenario goes far in explaining the persistently troubling statistics on the disparate financial impact of divorce on men and women, and its possibility haunts every homemaker who negotiates a divorce settlement.
The ALI's answer to this scenario is a detailed set of presumptive alimony rules designed to ensure a more equitable allocation of loss. Even as we applaud the Principles' frank realism and bold effort to restructure the law of alimony, however, we critics must begin the process of questioning them. Especially deserving of first blush scrutiny is the Principles' choice of a victimizatlon model rather than one based on equal partnership, its breeder/non-breeder dichotomy, its remarriage penalty, and its quantification methodology. Such scrutiny hopefully will guide reform rather than deter it, and so ultimately facilitate the Principles' laudable goal of a more equitable sharing of the economic
risks of marriage.
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