Friday, April 17, 2009

Family Law is Big Business

Dear Professor Cross:

I have been reading Barbara von Hauzen’s recent article in The Reformer concerning whether permanent alimony should be eliminated. As you know, she cites you as a major contributor to this work so, I felt it appropriate to write you with my thoughts on this subject.

The article is quite thorough in its examination of how the courts treat alimony awards but, in my opinion, it completely misses an important underlying defect in the basic premise of alimony law. That being the constitutionality of the law.

While reading this article I was struck by the way the legal community can scrutinize the minutiae of the law and its application but, completely miss the fact that the constitutional violations it perpetuates are broad and deep. In fact, it parallels the historical course that slavery took in this country.

When slavery was legal, there were volumes of law and case law surrounding the practice of slavery. Similarly, scrutinizing the minutiae. For example:

* What is a slave?
* Who can own a slave. Can a slave own a slave?
* Who can sell a slave? Can a slave be sold in another state?
* Can a slave be freed by its owner?
* Are children born to slaves automatically slaves?
* etc, etc, etc.

As you can see the differing arguments, litigated endlessly in the courts, missed the fundamental argument that slavery was unconstitutional. The uneducated slaves out in the fields had no problem knowing in their person, in their gut, that what was being done to them was wrong. Yet those whose job it was to write laws that comport with the constitution and those that litigate those laws in the courts were more than willing to turn a blind eye to the fundamental problem of the basic premise of slavery.

Why did they do this? One easy answer was that slavery was a business. People were getting rich from slavery. So it is with alimony laws and family law in general.

As Americans, we pride ourselves in the fact that we are free to choose our course in life and we boast of it to the rest of the world. We are free to associate with who we please, free to make endless choices in our pursuit of life, liberty, and happiness without governmental interference or intrusion. It is our private life and it has been reinforced over and over again by the USC. Whether it’s abortion, sodomy, conceptual rights, or the protection of personal information, the right to privacy i.e. liberty has been protected over and over again.

However, in family law, there is absolutely no protection from the state in regards to privacy or liberty. Why? Why can the state use a marriage license to create a position of entitlement based on a private relationship to strip an individual of their most fundamental rights and bind them financially, with threat of imprisonment, to another private citizen and the judiciary for the rest of their lives? The answer appears to be the same reason as the justification for slavery. It’s big business.

Married couples are free to conduct themselves and their finances as they see fit during the course of their marriage. We would be outraged if the state intruded in this private relationship by forcing the parties to provide for one another a certain way or to maintain a certain standard of living. In fact, in my home state of Florida, statute 708.8 guarantees that married women are financially independent from their husbands and the “doctrine of necessaries,” that makes husbands responsible for the welfare of their wives, was abolished.

But, let a married couple enter family court to dissolve their marital relationship and those laws are thrown out the window along with any other fundamental constitutional rights that they may have thought they had. In the end, they will lose a large portion of their assets to the legal process and one of them will be enslaved to the other for the rest of their lives. This will all be based on the choices they made while they thought they were having a private marital relationship.

Just like the legal battles over slavery, those who profit from family law fight fervently to ward off any change to the status quo. They keep their focus on the minutia of the law.

* How long should a marriage be for permanent alimony?
* What percentage of income should it be?
* What are the conditions needed to modify it?
* What kinds of alimony are appropriate?

All the while, the fundamental premise for alimony is flawed and unconstitutional because it violates fundamental constitutional rights to liberty and to conduct our private lives without state interference. No court that I am aware of has addressed the fundamental flaw. Because if they did. They would find that permanent alimony clearly falls within the definitions of peonage and involuntary servitude. Both civil rights violations.

A judicial ruling confirming this would collapse the multi-billion dollar industry called “family law” and the overabundance of law school graduates, family court judges, sociologists , and endless parade of others who profit from family law would have to find some other way to get easy access to Americans’ lifelong assets. It’s big business and it’s morally wrong.

True morality by government is whether those in government can keep their pledge to protect the citizenry from government. In regards to family law, they have failed miserably. The only “overarching” fact that seems to have escaped a proper discussion of alimony is the flaw in its basic premise that it has any constitutional foundation.


Robert Sell
The Alliance For Freedom From Alimony