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No Right To Alimony

 

Alimony is merely a statute. There is no common law right to alimony. Alimony, as only a statue, is subject to constitutional restraints.

The 14th Amendment substantive due process clause Right of Privacy encompasses a Privacy Protected Zone of "personal decisions relating to marriage." Divorce (dissolution of marriage) is a "personal decision relating to marriage."

Carey v. Population Serv. Int'l., 431 U.S. 678, 684-685 (1977) "it is clear that among the decisions that an individual may make without unjustified government interference are personal decisions relating to marriage…"

Littlejohn v. Rose, 768 F. 2d 765, 768 (6th Cir. 1985)"such "adjustments" as divorce and separation are naturally included within the umbrella of protection accorded to the right of privacy."

Therefore the alimony statute is encompassed within the umbra of the 14th Amendment Right to Privacy.

A statute infringing a fundamental right or liberty interest requires a standard of strict scrutiny analysis.

"The Court has held that limitations on the right of privacy are permissible only if they survive 'strict' constitutional scrutiny - that is, only if the governmental entity imposing the restriction can
demonstrate that the limitation is both necessary and narrowly tailored to serve a compelling governmental interest. Griswold v. Connecticut, 381 U.S. 479, 485 (1965)." Planned Parenthood v. Casey 505 at 929.

The first step in strict scrutiny analysis is a presumption the statute is unconstitutional.

"It is well settled that . . . if a law 'impinges upon a fundamental right explicitly or implicitly secured by the Constitution [it] is presumptively unconstitutional.'" Harris v. McRae, 448 U.S. 297, 312 (1980) (quoting City of Mobile v. Bolden, 466 U.S. 55, 76 (1980))

Next, the state must prove a compelling state interest minimally applied to rehabilitate the alimony statute.

"Requiring a State to demonstrate a compelling interest and show that it has adopted the least restrictive means of achieving that interest is the most demanding test known to constitutional law." City of Boerne v. Flores 521 U.S. 507, 534 (1997)

In fact, there simply is no "compelling" state interest for the alimony statute. Any interest offered as "compelling" can readily be rebutted.

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