Should the Theory of Alimony Include Nonfinancial Losses and Motivations?
Ira Mark Ellman
Arizona State University College of Law; Arizona State University (ASU) - Department of Psychology; Center for the Study of Law and Society, Berkeley Law, University of California, Berkeley
Brigham Young University Law Review, p. 259, 1991
Professor Schneider's careful critique of the author’s work, The Theory of Alimony (The Theory), raises some important points, which allows the author both to refine and to clarify The Theory's arguments. This article summarizes both The Theory and Professor Schneider's critique. It discusses the role of incentives, highlights The Theory's core assumptions, and explains why much of Professor Schneider's critique follows from The Theory's exclusive focus on financial losses and motivations. While conceding that The Theory's exclusive focus on financial losses and motivations necessarily results in an occasional failure to provide adequate incentives for the behavior it intends to encourage, it also shows that The Theory avoids a more serious flaw that Professor Schneider's analysis suggests it may make: that of creating disincentives for that behavior. It also examines in detail both the rationale for, and the effect of, The Theory's exclusion of nonfinancial factors.
This article concludes that, while imperfect, The Theory's imperfections are ones of omission, rather than of commission. It therefore still offers an advance over a system without alimony, or over alimony without a system, which is how one might describe the current law. Additionally, it suggests that Professor Schneider’s concerns might more readily be redressed by tort law.
Keywords: The Theory of Alimony, No-fault Divorce, Family Law
Date posted: September 3, 2009
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