Should the Theory of Alimony Include Nonfinancial Losses and Motivations?

Brigham Young University Law Review, p. 259, 1991

Posted: 3 Sep 2009

See all articles by Ira Mark Ellman

Ira Mark Ellman

Center for the Study of Law and Society, Berkeley Law, University of California, Berkeley; Arizona State University College of Law; Arizona State University (ASU) - Department of Psychology

Date Written: 1991

Abstract

Professor Schneider's careful critique of the author’s work, The Theory of Alimony (The Theory), raises some important points, which allows the author both to refine and to clarify The Theory's arguments. This article summarizes both The Theory and Professor Schneider's critique. It discusses the role of incentives, highlights The Theory's core assumptions, and explains why much of Professor Schneider's critique follows from The Theory's exclusive focus on financial losses and motivations. While conceding that The Theory's exclusive focus on financial losses and motivations necessarily results in an occasional failure to provide adequate incentives for the behavior it intends to encourage, it also shows that The Theory avoids a more serious flaw that Professor Schneider's analysis suggests it may make: that of creating disincentives for that behavior. It also examines in detail both the rationale for, and the effect of, The Theory's exclusion of nonfinancial factors.

This article concludes that, while imperfect, The Theory's imperfections are ones of omission, rather than of commission. It therefore still offers an advance over a system without alimony, or over alimony without a system, which is how one might describe the current law. Additionally, it suggests that Professor Schneider’s concerns might more readily be redressed by tort law.

Keywords: The Theory of Alimony, No-fault Divorce, Family Law

Suggested Citation

Ellman, Ira Mark, Should the Theory of Alimony Include Nonfinancial Losses and Motivations? (1991). Brigham Young University Law Review, p. 259, 1991, Available at SSRN: https://ssrn.com/abstract=1466971

Ira Mark Ellman (Contact Author)

Center for the Study of Law and Society, Berkeley Law, University of California, Berkeley ( email )

Berkeley, CA 94720-2150
United States

HOME PAGE: http://csls.berkeley.edu/people/csls-affiliates

Arizona State University College of Law ( email )

Box 877906
Phoenix, AZ
United States

Arizona State University (ASU) - Department of Psychology ( email )

950 S. McAllister Ave
P. O. Box 871104
Tempe, AZ 85287-1104
United States

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