James W. Paulsen
What I am going to do is talk about the new Texas alimony statute.' To out-of-staters, it is kind of odd to think of alimony as being an emerging issue in family law. But, folks, this is Texas! It is the fiftieth state in the Union, a century and a half or so after most other states, to adopt alimony. For us, it is an emerging issue. It is new. What I am going to do, first of all, is explore why it took Texas so long to adopt the idea of permanent alimony. Basically, it is because alimony has been considered to be against public policy. I am going to dissect that for a few minutes and see exactly how that came about, and you are going to see that it is not history; it is folklore. Secondly, I am going to talk about the history of the legislative attempts to get alimony into existence. Third, I will discuss the finally successful legislative attempt. Fourth, I am going to explore a couple of constitutional issues that arise with the new legislation. Then, at the very end, I am going to suggest something completely different-an end run around the entire statute, whereby practitioners can try and get themselves into the law books.
It has been suggested that alimony is against public policy in Texas, and we really do not have to engage in much speculation as to why. The Texas Supreme Court has told us exactly why. Alimony has been against the public policy of Texas since 1841. The basic reason behind it is that alimony is incompatible with the community property system. Now, you do not have to be much of an historian to figure out that some of that does not sound very sensible. After all, there are a number of other community property jurisdictions in the country, and they all have alimony. We are the only state that has found alimony incompatible with the community property system. But 1841, which is the year picked by the Texas Supreme Court for saying when the prohibition started, does give a clue as to how the whole problem came about. In that year, the second divorce statute was passed in the state of Texas. What happened is this: The Texas legislature provided for permanent divorce and it provided for alimony pending divorce, but there was a blank spot in the statute. It did not say anything about alimony after divorce. Therefore, the reasoning of the courts has been that what is not expressed in the legislation is, by implication, prohibited.
In the process of preparing for this speech, I was up in Austin, and, actually by happenstance, I found the bill, the original December 1840 alimony bill, that became law in 1841. I also found the original draft of that law, and what it shows is something a whole lot different than what we have been assuming. What the original bill had was two kinds of divorce-what we would call today permanent separation or separation from bed and board, and permanent divorce. In the process of legislative redrafting, they decided to take out permanent separation, making it just a permanent divorce statute. The trick is this: Neither the provision for permanent separation in the original bill nor the provision for permanent divorce in the original bill said a word about alimony. It was a very liberal women's rights oriented bill, at least as women's rights liberalism was thought of at that time. We would consider it at the far right end today, but it was far left then. Neither of them provided for alimony. It would have been insane for the legislature to say that you can be separated for the rest of your life-legally married, still as husband and wife-but there is no continuing duty to support. Continuing support is what permanent separation is all about. It is the main distinction between permanent separation and divorce. The Texas legislature had to be assuming that courts, in cases of permanent separation, would read the legislation and realize that a provision for permanent separation carried with it a provision for permanent maintenance. Likewise, since alimony accompanying the grant of power for permanent divorce was well established in 1840, we should also be reading the provision for permanent divorce as having, by implication, carried with it the power to grant permanent alimony. …