Tuesday, July 24, 2007

Real conversation!

I got a pretty interesting response from Andrea to my post about an Orange County man who has been ordered to continue paying alimony to his ex-wife, even though she's now in an officially-registered domestic partnership. In the interest of encouraging this sort of discourse, I thought I would repost her comment here, and then offer my response.

I think the problem here is assuming that the ex-wife DOES consider herself married, and then heaping all your scorn on her. I think she probably considers herself emotionally "married," as do most couples who have commitment ceremonies or whatever. But a DP or a civil union isn't a LEGAL marriage - that was the point in setting up these parallel institutions, right? The law doesn't consider her married, it considers her in a DP - and CA's law is very good, but it's not equivalent. I think it makes perfect sense for someone in her position to say, "Sure, I WOULD legally marry my partner...but I'm not allowed to. As soon as I can get an actual marriage, with all the symbolism and benefits of one, I will agree that I am legally married." I think this makes way more sense with this "core of who you are" think you're getting at - if she cares about the right to marry, it goes against her sense of fairness to say, "oh well, a DP's just as good anyway."

Plus, the legislature could have easily added this situation to the DP law and didn't - "married or in a DP" - one more demonstration of how these are not parallel institutions.

I think Andrea makes some good points here, but I'm not with her all the way. I think the notion that the ex-wife's exploitation of what is essentially a loophole in the alimony law is an intriguing one, but I frankly can't believe it's true. She isn't making a political statement, she's making a financial one. If she was actually trying to make a political statement, I have to think she'd be making it through her lawyer. She'd be pointing out the unequivalence of marriage vs. DP status and saying something about it, just like Andrea is, just like the lawyers writing the briefs in the California Supreme Court case are. But no, her lawyer's basically making an estoppel argument about the husband's right to challenge the alimony order.

I mean, Andrea's right about one thing: a domestic partnership is not truly equivalent to a marriage. So maybe the ex-wife is legally right. But my argument isn't a legal one, it's an ethical one. As I suggested in my initial post, I don't see how this is any different from a heterosexual ex-spouse intentionally staying out of a marriage with his or her new significant other, because that would cut off the flow of alimony payments. It's either greed, or just spite toward the ex-husband. Either way, I find it distasteful and exploitative. And even if DP and marriage status aren't truly the same, I think it's fair to say that the current state of affairs in this case is violative of the spirit of the alimony law, if not the letter.

As for the bit at the end about the legislature having been able to amend the alimony law but declining to do so, I don't think you can draw any conclusions from that. For all my California pride, the State Senate is a disaster. Thanks to the 2-term limit for State Senators (that's lifetime, not consecutive), there's no institutional memory, and the legislature is often too neutered by California's idiosyncratic preference for direct democracy-by-proposition to do much of anything. Except, perhaps, undoing things it's already done. It's quite impressive, really: an institution that is incapable of effectively looking forward or backward.

So even if the law were inherently homophobic, I don't think it's the legislature's intent to communicate its disdain for homosexual relationships at the cost of $1,250 per month to some random divorcee. I'm both naive enough to think the legislature isn't that petty, and jaded enough to think that the institution wouldn't have the foresight or intellectual capacity to make so subtle a statement even if it wanted to.

1 comment:

andrea said...

Fair enough :)

I'm tempted to bait you about what about child support you don't like, but it might end pretty ugly.