by Cynthia Lee Starnes. New York: New York University Press, 2014. 235pp. Cloth $45.00 ISBN: ISBN: 9780814708248
Reviewed by Natalie Johnson, Department of Political Science and Geography, Francis Marion University. Njohnson [at] fmarion.edu
Cynthia Lee Starnes presents a fascinating account of the development of alimony law in the United States in THE MARRIAGE BUYOUT: THE TROUBLED TRAJECTORY OF U.S. ALIMONY LAW. While Starnes does not specifically set out to answer a core set of analytical questions her account of the complex and perhaps contingent development of alimony law offers significant contributions to the field of political science.
Starnes rightly comments: “alimony is complex” (p.128). Indeed, she provides over 180 pages of explanation and analysis of the differing rationales, purposes, pitfalls and promises of alimony. The complexity of alimony perhaps arises from the fact each state has its own alimony rules and regulations resulting in different state practices for the distribution of alimony. Given the inherent complexity of alimony and the rationales of equality in marriage one could ask: does alimony make sense in the twenty first century when marriage is based on a model of equality between spouses? As Starnes notes: “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?” (p.128). Starnes does not necessarily believe alimony is pointless, but what she clearly believes, and argues for, is that alimony has to be dramatically reconfigured in order for it to be successful.
In presenting her account of alimony law Starnes provides her readers with an entertaining yet thought provoking narrative that is both witty and sarcastic at times. This is one of the charms of the book. The organization and language makes it an extremely readable and enjoyable book even for those who are not familiar with complex legal language, a trait that not all scholarly books share. The overall narrative of the book is peppered with real life examples to bring together the complexity of court cases and the effect these judicial decisions have on the everyday lives of individuals. These examples illustrate some of the misunderstandings of the current state of alimony in the United States and give the abstract legal principles a tangible significance for readers. In re-telling the story of alimony’s development from a gendered provision for women to prevent them from being thrust into poverty after a divorce to a right of both spouses in a marriage, Starnes illustrates how alimony has significantly changed throughout history and argues for a radical reconceptualization of it.
The book is separated into four distinct parts. Part 1 focuses on the history and purposes of alimony. In the opening few pages Starnes asks the question whether [*425] “marriage promises” matter (p. 2). She argues on page three that promises generally do matter but that “family law’s answer to this questions is surprising and troubling: marriage promises matter very much in judicial rhetoric, but otherwise hardly at all” (p.2). What this ultimately means is that individuals who break their marriage promise (by divorcing) are not held accountable by the courts and the way law on the books operates is starkly different from the practical effect on individuals. So, whiles some courts proclaim the sanctity of marriage and prevent same-sex couples from entering into state sanctioned marriages, Starnes argues judges are not holding those individuals already in marriages to the same kind of standard in cases of divorce.
Part 2 focuses on the mechanisms of alimony and how alimony has worked specifically after the legalization of no-fault divorce in the late 1960s. Changes in alimony accompanying no-fault divorce were particularly hard on the primary caregiver, who relinquished their career (either by choice or out of necessity) to care for the home and family. This person, typically the wife, is usually awarded alimony and a share of the marital wealth. However, as Starnes points out, this is problematic in most marriages in the United States as divorcing parties often have very little to split. Thus, the caregiver is left with diminished employment opportunities due to her time out of the paid labor force and only a small divorce settlement. This part also offers a glimpse into alimony from “Ireland to Samoa” (p.92). Looking at alimony across the world indicates stark differences between the United States and other systems. In Ireland, for example, until 1995 the Irish Constitution prohibited divorce and courts can take into account “conduct” i.e. marital fault of the parties to a divorce in determining alimony. Contrast this to Canada where the courts have attempted to make the system of granting alimony more “predictable, more certain, and more equitable” (p.107). This, according to Starnes, is distinctly lacking in the United States system.
Part 3 examines how alimony is distributed to individuals along with the reasons alimony is terminated. There are few guidelines, resulting in judges having a great deal of discretion in determining the division of assets and alimony awards in divorce cases. As a result, “general alimony awards are “unpredictable, uncertain and rare” (p. 109). While alimony awards are unpredictable, the way alimony is terminated it not. The remarriage termination rule is a near-universal rule across the 50 states holding that alimony is terminated upon a woman’s remarriage. Coupled with this near-universal rule across the 50 states it is quite difficult to overcome the presumption that alimony should be terminated. To most this makes sense: an ex-husband should not be required to pay alimony for a woman who is married to someone else. Not true, says Starnes. This sees alimony as a privilege, one that a woman gives up when she remarries. Starnes asserts a person should not have to choose BETWEEN remarriage and alimony but instead she should be able to choose remarriage AND alimony.
The final part, part 4, presents a theory to reform alimony, looking at alimony as a buyout, as well as alternative [*426] configurations for couples after a divorce. The argument forwarded by Starnes presents marriage as a fixed term (life term) contract. Starnes underscores that individuals should have the freedom to terminate any contract, including a marriage, but this termination should not be without consequences: if you wish to end the marriage through divorce you must “buy out” the other partner. In the case of most contracts, which she argues should be the same for marriage, the consequences are financial. Under this model, the remarriage of a divorced woman would have no effect on the alimony she was granted from her first husband. It is a clear alternative to the remarriage termination rule that generally operates in alimony law in the United States. Importantly, divorce and alimony must be construed in such a way to not punish the spouse who files for divorce, or who commits adultery, or for some other reason wishes to end the marital relationship. A reconfigured alimony must work within the no-fault principles that are now prevalent in divorce. The discussion of a marriage buyout really places marriage as no different from any other contract between two people.
A significant contribution of Starnes’ work in this book on alimony is that she intertwines historical, legal and political analysis to demonstrate how alimony can be reworked to provide a gender-neutral vision that emphasizes the co-equal status of partners in a marriage in the twenty-first century. By shifting the narrative of alimony and marriage towards a contract, Starnes provides a nuanced contribution to the purpose and use of alimony today. As such, a caregiver should be rewarded for their contributions to the success, or lack thereof, of the marital relationship in the same way the primary economic contributor is. This vision of marriage and divorce presents both parties as equal stakeholders in the marriage, each getting a share of profits the marriage produced. Importantly, marriage has never been viewed as an at-will institution: the commitment is always presumed to be for life. This is even in an era when divorces are increasingly easy to obtain. As Starnes comments, it is a “commitment [that] has many layers” (p.135). These commitments should not easily be dispensed with in the case of a divorce. For Starnes, the commitments should mean that one spouse simply cannot walk away without consequences.
Overall this work is exceptionally researched and well written. It is clear Starnes has a passion for the subject and has written extensively on alimony law. This is another excellent piece of work that should be widely appreciated by a diffuse range of scholars. The book should be welcomed by scholars of law and courts as informative for four sets of scholars. First socio-legal scholars will find this book useful as an examination of the intersections of law and society. Second, policy makers are provided here with a clear blue print for how to implement policy reform. Third, political scientists more broadly should welcome this type of work into a graduate or undergraduate class on marriage and family, women and politics or the courts more broadly. Finally, this book could fit in very well with a law school class on family law, and then for lawyers beyond the classroom dealing with the same issues.
Copyright 2014 by the Author, Natalie Johnson.