One More Time: Alimony, Intuition, and the Remarriage-Termination Rule
30 Pages Posted: 25 Sep 2006
Marriage has a powerful attraction. Sooner or later, for the long or the short haul, the vast majority of Americans will marry. Unfortunately, these second marriages are at least as likely to fail as first ones. For some who marry a second time, marriage demands a hefty admission price not imposed on first-timers: any alimony claim against a former spouse will likely terminate, often automatically and without regard to financial impact. The intuition of most observers is that this is the right result: an ex-husband should not pay alimony to a former wife who has married someone else. Indeed, the vast majority of states, by case law or by statute, provide that a recipient's remarriage either automatically terminates alimony or creates a prima facie case for termination. Notwithstanding the near-universality of this remarriage-termination rule, and its recent endorsement by the American Law Institute (ALI), the rule has no conceptual basis in contemporary understandings of alimony. As the ALI acknowledges, the underlying rationale for the remarriage-termination rule is remarkably unclear.
Part I of this Article describes the remarriage-termination rule as it appears in statutory and case law. Part II searches for a rationale for the remarriage-termination rule in the underlying rationales for alimony - from historical notions of husbandly support obligations to feminist reform proposals; from no-fault's need-based models to the American Law Institute's loss-sharing model - and concludes that only historical rationales grounded in coverture explain the rule. Part III looks for a better explanation for the remarriage-termination rule from the courts that enforce it, but uncovers only a disappointing collage of conclusory rhetoric, circular reasoning, and troubling visions of husbands as necessary providers and wives as incapacitated dependents. The absence of any coherent rationale for the remarriage-termination rule consistent with contemporary understandings of alimony, together with the rule's harsh impact on the economically vulnerable, demonstrates an injustice that the law should not tolerate.
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