The riddle of alimony is why one former spouse should have to support the other when no-fault divorce seems to establish the principle that marriage need not be for life and when governmental regulation of intimate relationships is conventionally condemned. Perhaps the most intelligent and probing recent attempt to solve that riddle is Ira Ellman's The Theory of Alimony. In this article, I have two purposes. The first is to ask some questions about Professor Ellman's admirable inquiry into this intricate and intractable problem. These questions are not intended to disprove "the theory." Professor Ellman has, at the least, identified a number of ideas which should influence our thinking about alimony, and he has shown why a number of others probably should not. As he notes, in trying to solve the alimony riddle he has taken on a large project, a project which The Theory of Alimony only begins. I would like to contribute to that project by showing where the theory's rationale for alimony falters and by proposing profitable directions for the inquiry Professor Ellman has so incisively begun. More generally, I hope my investigation will identify some of the core difficulties any theory of alimony must confront. My second purpose in writing this article arises from the fact that perhaps solipsistically, I interpret Professor Ellman's project in light of an observation of my own. A few years ago, I argued that American family law has experienced "a diminution of the law's discourse in moral terms about the relations between family members, and the transfer of many moral decisions from the law to the people the law once regulated." Professor Ellman's enterprise speaks to this hypothesis in two ways. First, it centrally considers how far courts must undertake moral discourse in order to apply the currently popular approaches to alimony. Second, it attempts to develop a theory of alimony which is justifiable in other than moral terms and which tries to relieve courts of the burden of moral discourse in deciding whether to award alimony. In my earlier article, I reached no conclusion about the ultimate practicality, much less the ultimate desirability, of the trend away from moral discourse. While I cannot fully answer those two questions here, Professor Ellman's inquiry is an intriguing test case. The second half of this article thus explores in some detail the role of moral thinking in the law of alimony. During that exploration, I will express doubts about the success of any attempt to base a theory of alimony on morally "neutral" terms and of any attempt to bar courts from considering the moral relations of the parties in awarding alimony.
Schneider, Carl E. "Rethinking Alimony: Marital Decisions and Moral Discourse." B. Y. U. L. Rev. 1, no. 1 (1991): 197-257.