This essay is based on an article in the Los Angeles Times on Tuesday, August 7, 2001: Alimony Goes Both Ways by Sandy Banks. backup

This article addresses one of the dilemmas trying to legislate changing values. There is always a dilemma in the consideration of difference. If women acknowledge that they are different from men, as in the bearing of children, then maternity leave becomes family leave, and women are not granted special protections, like job security, while they are giving birth. On the other hand, if women acknowledge their difference, they may get special protection for giving birth, but find that serves as an unacknowledged basis for discrimination in other areas. Martha Minow gives an excellent discussion of this dilemma in Making All the Difference: Inclusion and Exclusion in American Law.

Women originally sought alimony as a means to get an even playing field after divorce. Sometimes it works; sometimes it doesn't. But, because it became law, it applies equally to all. Yet we are not all alike, and the result is not always equitable. Notes on the case of the young woman who lost her job while giving birth and caring for her infant in the first week after birth (Calif.), on the contract case of the sheep who drowned because they were washed over board not being covered because the stalls that were not in place were to prevent disease contagion, not being washed overboard. On the case of the Menendez brothers who used the "battered wife syndrome" as a defense for murdering their parents.

This brings us back to the issue of social justice, and can we legislate it? Am I responsible for a spouse who makes no effort, refuses to work, etc.? Under many a state's laws, yes. Even though the law may have been set up originally for the protection of the one who now pays. For the law may be unable to distinguish between the spouse who stays home to rear children and the one who who simply makes no effort. The interdependence of human relationships is complex and cannot be categorized in a way that takes the multiple structural contexts into account.

These issues have no easy answers. Like the tort law of contributive negligence, that apportions the blame to all the parties involved in the tort, it solves some problems and causes many others. Who can reasonably divide the negligence that led to an accident as 10% to Joe, 50% to Harry, and 40% to Marie? Here, once again, the legal system runs into the difficulties wrought by "knowingness." There are some things we just cannot "know."

More soon . . .

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