As small-town lawyer doing a variety of work, the laws that I deal with on a daily basis usually make sense. They reflect an attempt to make rules for conduct and relations between people that are as fair as possible. Sometimes I run across law that doesn´t make sense, at least in the particular case I am dealing with. I just had a divorce case like that. It involved issues of alimony and what´s called a “community property lien” on one spouse´s separate property.
Alimony is an idea that was developed when men generally worked and women stayed at home. If a couple got divorced, the man may have spent years developing his career and ability to earn money while the woman stayed home cooking, cleaning the home and taking care of the kids. Essentially, what she did for the family gave the man the freedom to get good at making money. If they divorced, the woman had little marketable skills. Alimony was awarded so the wife was supported, to whatever extent necessary or appropriate after a divorce.
In the last half a century or more women started having their own careers. Inevitably, there are now divorce cases where the man seeks alimony from the woman. I have had two such cases recently. In one, the wife had a career as a professional and the husband had stayed home, doing all the cooking and taking care of the kids for more than 20 years. He was also pushing 70. In that case alimony for him was appropriate.
But in another case, the wife already had a successful business and a beautiful home when she married a contractor. The contractor gave up his license and the house he was renting and moved in with her. He spoke of plans to add on to the house and do various improvements on the 20 acres or so, none of which he did. He did some small jobs for the business, but mostly did what he pleased. They had no kids and the wife still did the cooking while running her business. In addition, the husband had expensive medical problems, got addicted to painkillers, drank too much and was using meth. He intimidated some of the employees of the wife´s business. When she finally decided to end it, what did he do ? He sued to get as much alimony as he could and claim an interest in the business the wife had prior to meeting him and which had supported him in good style.
When I continually pointed out to the attorney on the other side what I saw as the unfairness of this husband taking more money from his wife than he already had, his comment was, “Well she married him.” The implication is that by marrying someone you take on a responsibility to them that continues even after you separate. In my book, what would have been fair is that, after the divorce, the husband paid back his wife for some of his medical expenses that her business´ income paid for. Or at the least, they simply walked away from each other.
However, generally speaking the law does not ascribe meaning to the fact that his guy was a “bad husband”, that he was a money drain on the marriage rather than a support or that he was a druggie and a heavy drinker. On the contrary, the law has largely discarded the concept of fault when it comes to marriage and divorce.
In the distant past, fault was an element in divorce cases. In many places you could not get divorced unless you could show cruelty or adultery or some such serious fault of the other spouse. You could not get a divorce if you simply didn´t get along with or did not love your spouse or wanted to do something else with your life. I had always looked at the doing away with the fault concept of divorce as a good thing. However, when this client was being threatened with having to pay a huge amount in alimony and possibly money for her husband´s “community interest” in a business she had created and made very successful, I had second thoughts.
Should the law give judges the ability to make moral judgments about conduct of people in marriages for purposes of deciding whether they should get post-divorce support or have a lien on the property of the other spouse ? After the case I just described I started to think so. But can you really trust one individual, a judge, to make moral judgments about other people ? Imagine in the McCarthy era in the 50s, a husband coming in to court saying his wife was a communist and went to party meetings instead of taking care of him and she shouldn´t get any alimony. Or during the same time period telling a judge in Mississippi your white wife had become friendly with a black man so she should get nothing. A “judgmental” judge could easily have penalized someone for conduct that was wrong only in the mind of the judge.
Actually, the law does give the judge a lot of discretion in setting the amount of alimony in divorce cases. It is possible that I could have convinced the judge that alimony was not appropriate in the case I have been discussing, or perhaps just for a few months until the husband found a job. However, because of the trend in the law is to not look at moral fault in the divorce context, it was a very iffy proposition. My client decided to settle out of court rather than take the risk of getting a worse result with the judge who rumor had it favored husbands.
The law´s attempt to make rules that can be applied to every situation is a double-edged sword. On the good side, it insures that judges can´t do whatever they want and it gives people guidance so they know what to expect. However, since every human relational situation has its own unique reality, a rule that would be right for one situation might not be right for another. This is a real balancing act judges and lawmakers have to perform - making the law definite but also flexible.