Academic journal article American University Law Review

Adding Insult to Injury: The Unconscionability of Alimony Payments from Domestic Violence Survivors to Their Abusers

Academic journal article American University Law Review

Adding Insult to Injury: The Unconscionability of Alimony Payments from Domestic Violence Survivors to Their Abusers

Article excerpt


In October 2017, the #MeToo movement took over social media, spurring a cultural revolution.1 The movement centers on giving a voice to individuals, primarily women, who have been affected by gender-based violence.2 #MeToo empowers survivors from all walks of life to discuss how domestic violence, sexual harassment, and sexual assault have impacted their lives, forcing both lawmakers and the courts to take notice and reevaluate their prior practices.3 As the movement continues to grow, many areas of law that have not received #MeToo attention will be addressed in the courts as tolerance for these unconscionable acts continues to dissipate.

In particular, alimony is beginning to draw the attention of #MeToo advocates. In its series on #MeToo developments, Buzzfeed News reports that many states require domestic violence survivors to pay alimony to their convicted abusers as part of divorce settlements.4 A study done by the American Bar Association in 2013 corroborated this finding.5 This practice presents an issue of grave importance in family law courts across the country, as survivors challenge their duty to pay the individual who inflicted the severe mental, emotional, and/or physical trauma that caused the divorce.

several states have already begun the process of reevaluating their laws in this area. california is currently the only state that disqualifies perpetrators of all kinds of abuse from receiving alimony payments from their victims.6 Other states, like Virginia and New Jersey, have attempted to reform the system to prevent judges from even considering alimony payments if the recipient of the payments has a domestic violence conviction involving the payor, but those attempts have been unsuccessful.7 The majority of the states follow a permissive approach, which gives judges discretion to consider domestic violence convictions as a potentially relevant factor when ordering alimony payments, resulting in inconsistent application.8 In Nevada, domestic abuse is not considered a "compelling reason" for an unequal distribution of assets.9 Such a discretionary, unpredictable system is counterproductive to the goals of family law courts and troublesome for many survivors attempting to break free from their abusers. As state legislatures continuously fail to act, survivors must look to judges to deny and invalidate problematic alimony awards.

while challenging these alimony provisions through the political process has been largely futile,10 analyzing divorce settlements and associated alimony from a contract law perspective could prove to be an effective solution in the courts. Although only one court has tangentially considered the idea,11 the doctrine of unconscionability provides a strong legal basis for prohibiting alimony payments from survivors to abusers in divorce settlements. This Comment argues courts should mandate that abusers be automatically disqualified from receiving alimony payments in divorces where the spouse receiving alimony has a criminal conviction for domestic violence against the other spouse because the unequal bargaining power of the parties, absence of meaningful choice, and unreasonable benefit to one party make these payments unconscionable.

Part I introduces the principles underlying the formation and negotiation of contracts and discusses contract defenses as they were derived from the common law. Part I also examines the origins of divorce law and alimony practices and gives an overview of the psychological impact that trauma has on survivors. Part II analyzes how the doctrine of unconscionability can be applied to strike down divorce settlement provisions that require survivors to pay alimony to their abusers. Part II applies the elements of unconscionability derived from the common law to determine that the unequal bargaining power and unreasonable onesidedness of the alimony provision benefit the abuser to the detriment of the survivor. Part II finally analyzes the benefits and consequences of courts using the doctrine of unconscionability to void alimony payments. …

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