Saturday, February 17, 2007

Alimony Statutes Are Unconstitutional

"I hold it, that a little rebellion, now and then, is a good thing, and as necessary in the political world as storms in the physical." –Thomas Jefferson

I'd like to challenge you to keep an open mind on the concept of alimony and follow this legal thread.

Alimony is merely a statute. There is no common law right to alimony. Alimony, as only a statue, is subject to constitutional restraints.

The 14th Amendment substantive due process clause Right of Privacy encompasses a Privacy Protected Zone of "personal decisions relating to marriage.

" Divorce (dissolution of marriage) is a "personal decision relating to marriage." Carey v. Population Serv. Int’l., 431 U.S. 678, 684-685 (1977) “it is clear that among the decisions that an individual may make without unjustified government interference are personal decisions relating to marriage…” Littlejohn v. Rose, 768 F. 2d 765, 768 (6th Cir. 1985)"such "adjustments” as divorce and separation are naturally included within the umbrella of protection accorded to the right of privacy."

Therefore the alimony statute is encompassed within the umbra of the 14th Amendment Right to Privacy

A statute infringing a fundamental right or liberty interest requires a standard of strict scrutiny analysis.

“The Court has held that limitations on the right of privacy are permissible only if they survive ‘strict’ constitutional scrutiny – that is, only if the governmental entity imposing the restriction can demonstrate that the limitation is both necessary and narrowly tailored to serve a compelling governmental interest. Griswold v. Connecticut, 381 U.S. 479, 485 (1965).” Planned Parenthood v. Casey 505 at 929.

The first step in strict scrutiny analysis is a presumption the statute is unconstitutional.

“It is well settled that . . . if a law ‘impinges upon a fundamental right explicitly or implicitly secured by the Constitution [it] is presumptively unconstitutional.’” Harris v. McRae, 448 U.S. 297, 312 (1980) (quoting City of Mobile v. Bolden, 466 U.S. 55, 76 (1980))

Next, the state must prove a compelling state interest minimally applied to rehabilitate the alimony statute.

“Requiring a State to demonstrate a compelling interest and show that it has adopted the least restrictive means of achieving that interest is the most demanding test known to constitutional law.” City of Boerne v. Flores 521 U.S. 507, 534 (1997)

In fact, there simply is no "compelling" state interest for the alimony statute. Any interest offered as "compelling" can readily be rebutted.


You must realize the test is "a compelling" state interest...not "rationally related to a state interest." See the huge difference?

1. If it were, try (no needy spouses on the public dole) as a "compelling state interest...then "every" divorce should be examined to see if that would happen...and they are not! 90%-95% of all divorces are uncontested. Even those contested unless the spouse pleads for alimony the court cannot give it...

2. If that were the reason, the state would equally be concerned that a party getting married does not turn into a "needy spouse." They should check the earning power of the many children are planned, is it a second marriage....are there kids. etc...when someone wants to "enter" marriage. Why simply check "some" citizens who are "exiting" marriage to see if a needy spouse will result. (And have you ever read a legal opinion that says the state's interest is to prevent needy way..

3. There are no statutes that say a wife must live at a certain lifestyle wile she is married. IF the husband wants to slow down and downsize the life style she cannot go to the court and say ....he can work harder and make more…..make him do it. There are more but you get the drift.....all divorces must be treated the same, entry and exit from marriage should be treated the same....and if the reason you offer right , it is a taking...taking private property (ex husband's money) for a public welfare and taxes for the public.

4. In FL, the "Dissolution of Marriage" statute has s purposes section. Crystal clear.---and no mention of any compelling state interest 61.01 I one reads the statutes!!!!!!!

In FL there is another good reason...consistency in the legislation of the interest....that does not exist in FL. They repealed the motorcycle helmet law...and made the simple requirement you can ride without a helmet if you have $10,000 in health insurance....surely if they were interested in the plight of needy spouses being in poverty they could have made the requirement if you are married you need $10,000 in life insurance...they could care less about a needy spouse as a result of a motorcycle accident.

The needy spouse on the public dole argument is a joke!...just that no one ever challenges it or thinks it through.

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