The Futility of Coherence: The Ali's Principles of the Law of Family Dissolution, Compensatory Spousal Payments
Posted: 5 Jun 2001
In this paper, I explore the tradeoffs that underlie the ALI's proposed system of compensatory spousal payments in light of the tortured history of alimony. I maintain, first, that the ALI is certainly correct that the existing law, with its emphasis on need, is incoherent at best, and insulting or archaic at its worst. Second, I agree that the idea of compensation provides the alternative to need that has the best hope of bringing a measure of coherence to the existing cases. Third, however, I show that at the core of the provision for compensatory payments lies a fundamental dilemma: the refusal to recognize fault necessarily limits the provisions for compensation, not just with respect to the non-financial losses the ALI principles acknowledge, but with respect to some of the financial concerns at the heart of the proposals. I nonetheless conclude that bringing fault back into the system is too costly to contemplate for all kinds of reasons, but that the failure to acknowledge it directly will fuel - and should fuel - resistance to some of the ALI principles.
The result of this analysis is be an ironic one. I maintain that for a project that seeks to articulate "principles" and "emerging legal concepts," seamless consistency is not an appropriate objective. Instead, the question we should ask is whether the ALI has done justice to the interests at stake in modern divorce, and whether its principles provide an appropriate basis for compromise among irreconcilable positions. In this process, the internal inconsistencies of the principles may become virtues, and the quest for coherence an obstacle to success.
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