Alimony & Spousal Support

Spousal support, or alimony, is based on an outdated social tradition that it is a man's responsibility to support women because they are weaker, incapable of being equal to men, and better equipped to raise children. However, this is not the case in today's society and our alimony laws need to be changed to reflect modern times.

Spousal support traces its roots back to a time when divorce was considered rare and indissoluble. As a result, a husband and wife remained married even after they had been physically separated. Since the marriage was permanently binding, a husband still maintained a financial obligation to his wife, even if they didn't live together. This is the reason why spousal support is almost always associated with a payment made from an ex-husband to his ex-wife, regardless of the living situation.

Many avenues were explored while looking for the best possible way to achieve social change. Since spousal support laws vary from state to state, my concentration became the State of California. I began by searching the Library of Congress Thomas database, looking for any legislation currently pending. Unfortunately, the few items I found had already died in various stages of development and no other legislation was in the pipeline. Next I attempted to contact United States Congressman John E. Sweeney of the 20th Congressional District. Congressman Sweeney is one of the only governmental actors to author spousal support legislation. After many messages, emails and voicemails without return, I decided to cease pursuing this path. Finally, I decided to contact as many non-governmental organizations as I could. However, only a handful of groups actually returned my phone calls and emails. Alliance for Freedom of Alimony served as my primary source for information because they provided the most detail on the topic.

Beginning by reviewing the class text, David Friedrichs and Gerald Rosenberg gave a jumping off point for my research. Both tackle social injustice and change in their textbooks, however each author has their own unique take on the issue. Friedrichs discusses in his book "Law In Our Lives", how social change must evolve with the times and remain flexible. Society is ever transforming and law must adapt to current circumstances. However Rosenberg makes a different argument. In his thesis statement, he begs the question, whether or not we should look to the courts for social change. Rosenberg addresses three case studies that explore various court rulings and the results each had on society.

Rosenberg's first case study addressed Brown v. Board of Education and its impact on civil rights. The second case study highlighted women's rights through Roe v. Wade and the last case study dealt with criminal law and the impact it has had on a variety of cases. The point Rosenberg was making in all of these case studies though, was that it wasn't the cases themselves that caused social change, but the many additional factors and influences society was responsible for. If anything, the cases got the population thinking in the direction of change, however, the courts merely played a supporting role.

Both authors make a case that can easily be applied to my injustice, which proved helpful while researching issues surrounding spousal support. Current alimony statues root themselves in an era that is quickly becoming obsolete. In fact contrary to the accusations made by the Alliance for Freedom of Alimony in my first paper, the courts have made the greatest advancements towards equalizing spousal support - possibly answering Rosenberg's question. This is due in part to the lack of legislation and the abundance of case law.

In the State of California spousal support is unique because of the high divorce rate the state endures. Approximately 44 percent of all marriages within the state end in dissolution. The State weighs Spousal support cases using 14 factors found in Family Law Code §4320(a)-(n). These factors span from the length of marriage to the future financial prospects of both parties. However, so long as the statutory factors are considered and weighed, the ultimate decision, such as amount, duration and whether to retain spousal support jurisdiction, rests within the court's broad discretion. This discretion is considered to be vast because the Legislature has not codified any particular part of the spousal support award process.

California Family Law Code §4320 is considered to be "gender-neutral" and it stipulates that alimony can be paid to either husband or wife and can either be permanent or short-term. The statue directs the courts to consider "all relevant economic factors ", including "the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment " as well as "any other factor necessary to do equity and justice between the parties. "

According to the United States Census Bureau, nearly 90 percent of alimony awards go to the ex-wife in a divorce case . This statistic suggests that California Family Law Code §4320 is far from gender-neutral and inflicts a disparate impact on men. Other constitutional violations discussed in greater detail later in the paper include: the equal protection clause of the Fourteenth Amendment, the Right to Privacy, and peonage or involuntary servitude.

Historically, the law was designed to provide women with compensation for skills and contributions made during a marriage that may or may not have a monetary value. Women who were destined to a life of housekeeping and childcare were unable to develop the skills and experience nor the time needed in order to retain a job that earned a sustainable income. However, with the advent of the women's rights movement as well as the current feminist era, women have gained greater independence and opportunities not available to previous generations. Ca Fam Code §4320 is fast becoming obsolete, and as a result, has become discriminatory towards men.

In the case of Orr v. Orr 440 U.S. 268 (1979), an Alabama man was ordered to pay alimony to his ex-wife pursuant to Alabama statues which stated that husbands, not wives, are required to pay alimony upon divorce. The man appealed to the Alabama Court of Appeals, insisting that his constitutional rights had been violated. The State of Alabama sustained the constitutionality of the statues and the man then decided to appeal to the United States Supreme Court, where the State's decision was then reversed and remanded. The man argued that the gender-based scheme for alimony violated the equal protection clause of the Fourteenth Amendment. The Court ruled on the basis that "the State's preference for wives having a dependent role to husbands in family responsibilities was not