Spousal Maintenance vs 13th Amendment

[squi29]

I live in Arizona.  My wife & I are divorcing.  Not my idea.  Married 20 years.  I have kids.  My lawyer says Court will likely award wife years of spousal maintenance.  She can work.  She has worked.  She's 40 years old.  She didn't help with my education.  Can I successfully challenge this with the 13th amendment?

[socrateaser]

You can certainly challenge it, but probably not successfully. The 13th Amendment prohibits involuntary servitude, which has been defined by the U.S. Supreme Court as, "Forcing a person to labor on behalf of another by threat of physical force or legal coercion." U.S. v. Kozminski.

It is difficult to argue that spousal maintenance, which is an order to pay support to a spouse, does not fall squarely within the confines of the quoted definition. A court order to pay support to another, for most people, means an order to labor to produce the income necessary to pay such support. Yet, courts throughout the U.S. have uniformly refused to rule spousal support unconstitutional, frequently citing another very old U.S. Supreme Court decision,  Wetmore v. Markoe, which in effect stated that spousal support is "punishment" for a breach of the marital duty of fidelity.

Modernly, of course, infidelity/adultery is no longer grounds for divorce, nor is it considered a crime, as it was at the time that the Wetmore decision was made, so the logic of the various court rulings that depend upon Wetmore are rather clearly irrational.

Nevertheless, courts refuse to touch this political hot potato, and I see no sign of this changing anytime soon.

Why, you may ask? The answer is simple -- because women represent one half of the electorate, they are the predominate benficiaries of spousal support, and invalidating this particular public policy would cause a very large number of judges and legislators to lose their jobs.

My advice to you, my friend, is to attempt to buy out your soon-to-be-ex. Try to get her to voluntarily waive her future right to support for a lump sum advance payment. It's worth it, for the peace of mind in knowing that your future will be yours alone, even if you will be practically starting over in trying to create it.

Unfair you say? I agree, in fact, my personal opinion of spousal support (aka alimony), is that it is a singularly evil legal anachronism that has no place in modern culture, and it should be burned on the ash heap of history. But, the cost of an appeal to the U.S. Supreme Court, and that is most certainly where you would need to go, would be far more spendy, and much more risky.

Hope I've helped. This is my "hot button" issue, in case you didn't know. Wish I had better advice, but I don't.

In the future, sign a premarital agreement eliminating spousal support, or don't get married. PERIOD!

[Kitty C.]

Ask for spousal support for yourself.  If her education and earning capabilities are close to equal to yours, why not?  Then maybe it could be a wash..............

[cparke]

Nevertheless, courts refuse to touch this political hot potato, and I see no sign of this changing anytime soon.

Why, you may ask? The answer is simple -- because women represent one half of the electorate, they are the predominate benficiaries of spousal support, and invalidating this particular public policy would cause a very large number of judges and legislators to lose their jobs.

Can't agree you with there.  Legislative action, absolutely, forget about it!  The Judiciary, however, is considered the least political branch of government.  Federal judges in particular hold lifetime tenure under the constitution to ensure they do not act politically.  Judicial decisions are expected to represent careful analysis of the law and facts, not popular opinion!

However, I feel any constitutional claim on alimony has to be more broad and attack the entire marital status scheme as analogous to slavery.  The 'ball-and-chain' has been a joke since the beginning of time!  Legal marriage today is something that the parties may freely and voluntarily enter into without even a contract, but they cannot terminate except upon court action after proving grounds (mostly obsolete at this point with no fault provisions, but still ...) and being ordered to distribute property and pay alimony.  Freedom and economic independence from another person is not something that someone should need to sue for or purchase, that became a constitutional guarantee with the 13th and 14th amendment.  The 13th amendment protection is often applied today to prohibiting sex trafficking, further evidence that the amendment is not limited to its original intent of freeing the black slaves from forced physical labor without compensation.

Why have the courts never addressed this interpretation before?  I don't think it is because the courts are avoiding it as a hot potato, but rather no one has brought a proper case with this pleading before, and been willing to appeal it all the way the U.S. Supreme Court.  That would cost more money than it's worth to the parties, in most cases!  Looking for a precedent, I don't think you'll find much of any, maybe it's the fact no lawyers wants to make a name for himself by taking on this topic as a hot potato?  For example, sex discrimination in alimony award statutes was struck down by the U.S. Supreme Court in Ore v. Ore (1979), but that's as far as the constitutional claims of the parties went in that case.  No fault divorce has actually come to be in every state by legislative action rather than by court action.  However, the issue of alimony as a form of compensation or loss/damages to the lower wage earner for terminating the marriage still needs to be addressed, and the legislatures are passing alimony guidelines that are in some cases not even consistent with judicial precedents, offering perhaps a new opportunity to take on this elephant still in the room ...