ALIMONY STATUTES ARE UNCONSTITUTIONAL

"At common law there was no right to alimony at all." Pacheco v. Pacheco, 246 So.2d 778, 780 (Fla. 1971) "We are not here confronted by a statutory deprivation of a common law right. The so-called 'right' to alimony does not exist as an incident to divorce a vinculo unless it is granted by statute." Pacheco v. Pacheco, 246 So.2d 778, 781 (Fla. 1971) As merely a statute alimony is subject to the restraints of state and federal constitutions.

Alimony statutes impermissibly infringe state and federal right to privacy provisions. (They also transgress the constitutional right of association and separation of powers...stories for another day.)

The legal thread goes like this...

Personal decisions relating to marriage, entering and exiting a marriage are afforded the protections of the fundamental constitutional right to privacy. A judicial review of a statute that infringes a fundamental constitutional right begins with the principle the statute is presumptively unconstitutional. The review then requires the strict scrutiny standard of review, i.e. the state must prove a compelling state interest minimally applied in order to rehabilitate the statute. There is no state interest, let alone a compelling state interest. Nor is any state interest proffered.

Right to privacy. Dissolution of marriage (right to be unmarried)has the protections of the fundamental constitutional right to privacy, just as the right to be married. Loving v. Virginia, 388 U.S. 1 (1967), Zablocki v. Redhail, 434 U.S. 374 (1978). They are both personal decisions relating to marriage.

"It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter. We have vindicated this principle before. Marriage is mentioned nowhere in the Bill of Rights, and interracial marriage was illegal in most States in the 19th century, but the Court was no doubt correct in finding it to be an aspect of liberty protected against state interference by the substantive component of the Due Process Clause in Loving v. Virginia, 388 U.S. 1, 12 (1967)" Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 847–848 (1992)

"This right of personal privacy includes 'the interest in independence in making certain kinds of important decisions.' Whalen v. Roe, 429 U.S. 589, 599-600 (1977). While the outer limits of this aspect of privacy have not been marked by the Court, it is clear that among the decisions that an individual may make without unjustified government interference are personal decisions relating to marriage, Loving v. Virginia, 388 U.S. 1, 12 (1967)" Carey v. Population Services International, 431 U.S. 678, 684–685 (1977)

"Given the 'associational interests that surround the establishment and dissolution of [the marital] relationship', such 'adjustments' as divorce and separation are naturally included within the umbrella of protection accorded to the right of privacy. See Zablocki,434 U.S. at 385, 98 S.Ct. at 680; U.S. v. Kras,409 U.S. 434, 444, 93 S.Ct. 631, 637, 34 L.Ed.2d 626 (1975). In Carey v. Population Services International,431 U.S. at 684-85, 97 S.Ct. at 2015-16, the Supreme Court clearly held that decisions regarding marital status are protected by the constitutional right to privacy:" Littlejohn v. Rose, 768 F.2d 765, 768 (6th Cir. 1985)

Dissolution of marriage statutes with their alimony provisions are written to regulate the termination of a marriage (as abortion is a termination of procreation). They impact a fundamental constitutional right and are presumptively unconstituional and require strict scrutiny analysis.

Presumptively unconstitutional.

"It is well settled that, quite apart from the guarantee of equal protection, if a law 'impinges upon a fundamental right explicitly or implicitly secured by the Constitution [it] is presumptively unconstitutional.' Mobile v. Bolden, 446 U.S. 55, 76 (plurality opinion). " Harris v. Mcrae, 448 U.S. 297, 312 (1980)

Strict Scrutiny. Statutes that are designed to impact a fundamental constitutional right are subject to strict scrutiny.

"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 of Southeastern Pa. v. Casey, 505 U.S. 833, 929 (1992)

Necessary/Compelling State interest.

This is an area of argument. That said, any argument put forth as a compelling state interest must show consistency and congruence otherwise the interest does not reach the threshold of compelling. Alimony statutes do not treat all divorcing parties the same. Many states judiciary cannot award alimony unless the dissolution is contested and a party has pled for alimony.

The oft recited rubric the state wants to keep divorcing parties off the public dole is burlesque. If that were the case all dissolutions must be examined for that risk. They are not. The parties most at risk of slipping into need for state support are the people who can least afford to. They cannot even afford legal counsel and thus never contest the dissolution.

Also if alimony is to provide for the necessaries of the marriage that logic is an anachronistic holdover from medieval time when women had no property rights. Those centuries are long gone. If alimony was/is to keep a divorcing party off the dole or provide for necessaries, why have state judiciaries socially engineered necessaries to mean the lifestyle of the marriage?

State Constitutions. The legal thread here is federal caselaw. In states with explicit constitutional privacy amendments (Alaska, Arizona, California, Hawaii, Illinois, Louisiana, Montana, South Carolina, Washington the legal arguments are even more powerful. One can use federal and/or state law and achieve the same logical and legal outcome.

In states without an explicit constitutional privacy amendment the legal thread here with federal or state caselaw would still prevail.

“It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.” O.W. Holmes. The Path of the Law. 10 Harvard Law Review 457 (1897)