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The Way America Does Divorce Has to Change

We need to reconceptualize alimony law so both partners can enjoy the long-term benefits of family teamwork.
 
 
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The following is an excerpt from The Marriage Buyout: The Troubled Trajectory of U.S. Marriage Law by Cynthia Lee Starnes. Copyright © 2014.  Reprinted with permission of NYU Press.

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 promise, if he climbed on a chair, retrieved the pumpkin head, and helped himself to another serving of his brother’s candy, there would be a price to pay: the reprieve would be revoked and the dreaded time-out imposed. Brad’s promise mattered.

Promises come in many forms, and we all expect that the serious ones will have consequences if they are broken. I promise to sing in your opera, to paint your house, to repair your Cessna or your vacuum cleaner; I promise to sell you hamburger that isn’t spoiled or a bathtub that doesn’t leak—all these promises have consequences that make it safe for a promisee to rely on them.

So what of marriage promises? Do they matter? Family law’s answer to this question is surprising and troubling: marriage promises matter very much in judicial rhetoric, but otherwise hardly at all. Contemporary courts, especially those addressing same-sex marriage, may wax eloquent on the significance of the marriage commitment, but when marriage promises are broken, they are largely ignored, relegated to the status of a pitch by a used-car salesperson—assurances on which only the foolish rely.

For me, this is Casey’s story. Casey (not her real name) could have been male or female, black or white, gay or straight. As it happened, she was a petite, white, heterosexual woman, probably in her early fifties, with short brown hair and a quiet way about her. I met Casey at the small law firm where I worked as a paralegal many years ago. One day when I reported for work, Casey was there, sitting behind a tiny desk that had been squeezed into a hallway leading to the firm’s trio of offices. No one was aware of any plan to hire a receptionist. Looking back, I imagine one of the attorneys spontaneously created the position just for Casey.

As I later learned, Casey had been a full-time homemaker, married to a professor at a major university in a nearby state. The couple’s children were grown and gone when one day the professor came home with some startling news: he had fallen in love with another woman and wanted out of the marriage. The couple divorced and Casey ran away, ending up in our city, where she rented a room and took a minimum-wage job as our receptionist. Casey reported that she got next to nothing from the marriage—scant property, no alimony, and of course no child support.

One day Casey didn’t show up for work. We phoned her home but got no response and figured she had walked out on us. Who could blame her? Hers wasn’t much of a job—low wages, lots of tedium, little respect. As it was, Casey had made a darker choice: She had traveled back to her hometown, to her old house, to her old garage, where she sat in a car and took her life.

 
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