Four plaintiffs have filed a complaint challenging the constitutionality of Connecticut’s alimony laws on the grounds that they affect a “fundamental liberty interest in ending a marriage and in remarrying.”
The plaintiffs, who filed their complaint anonymously and who were ordered to pay alimony as a result of their respective divorces in Middlesex, Hartford, Fairfield and Middletown counties, argue there are no standards to guide judges when granting alimony. The lawsuit claims alimony is an anachronism dating from when women’s legal identities merged into their husbands’ identities upon marriage.
Within that framework, no statue guides judges on the point of granting spousal support, according to the complaint. “In no other area of law is the judiciary cast adrift and empowered to force the transfer of a private citizen’s assets with no stated goal against which to measure the appropriateness of the award,” the plaintiffs’ papers said.
In contract cases, courts are only allowed to award enough money to return plaintiffs to the positions they would have been if their contracts had not been breached, the plaintiffs said. In personal injury cases, courts are only allowed to award plaintiffs enough to compensate them for their pain and suffering as well as their lost earning power, the plaintiffs also said.
The plaintiffs seek a declaratory judgment that Connecticut’s alimony laws violate the 14th Amendment of the U.S. Constitution as well as a permanent injunction enjoining the alimony laws.
This is not the first time a challenge to how alimony is awarded has been raised in the state, although it appears to be the first time a constitutional argument has been made.
Edward Nusbaum, a Westport divorce lawyer who opposes efforts to change the alimony laws to add income-based guidelines and thus remove judicial discretion, said the constitutional argument is new to him. “It’s not something I’ve seen in alimony reform,” he said.
A contested proposal to use income-based formulas when determining alimony was raised by lawmakers last year, but did not advance in the legislature. A task force was created by the Judiciary Committee to study such a guidelines approach, along with aspects of “fairness and adequacy of state statutes relating to the award of alimony.” The results of that study will be turned into the legislature in February.
Gov. Dannel Malloy was named as the sole defendant in the lawsuit filed Nov. 7.
Jaclyn Falkowski, a spokeswoman for the Office of the Attorney General, said in an email that the office will review the complaint and respond at the “appropriate time in court.”
Having plaintiffs from across Connecticut was intended to show the widespread impact of alimony awards in this test case, said the plaintiffs’ lawyer, Martin Karlinsky.
According to the plaintiffs, alimony is awarded in fewer than 20 percent of divorces in Connecticut and only “when the employment earnings of the husband are believed to materially exceed those of his wife.”
Not only are the plaintiffs seeking to change Connecticut family law, they also appear to be trying to break new constitutional ground by having the right to end a marriage recognized as a fundamental liberty interest. The right to marry has been recognized as a fundamental liberty interest in the past.
Just as same-sex marriage litigation around the country heats up, this case “is just another frontier in the battle for equal rights and fairness,” said Karlinsky, whose Manhattan-based Karlinsky LLC focuses on constitutional law and complex business, civil, commercial and personal litigation but not on family law.
The plaintiffs are seeking to challenge the Connecticut scheme for awarding alimony under a higher constitutional standard. They claim that “no state law may interfere with or burden these rights unless the law is necessary to promote a compelling state interest and is the most narrowly drawn means of achieving that interest.”
Connecticut’s “standardless” regime for alimony “seems to result in mistreatment and a lack of standards and lack of ability to predict what the law will require, no matter who applies it,” Karlinsky said.
There is no meaningful appellate review of alimony awards, the plaintiffs pointed out, because the standard of review on appeal is whether trial courts “could not reasonably conclude as it did, based on the facts presented.”
Trial courts are not required to explain what weight they assigned to any factor in awarding alimony, the plaintiffs also argued.
Alimony first started in England during an era in which ecclesiastical courts would only permit limited divorces where spouses could live apart but husbands remained legally responsible for supporting their wives, according to the plaintiffs’ papers. “The word ‘alimony’ derives from the Latin ‘alimonia,’ which means ‘sustenance,’” the complaint said.
The plaintiffs also are challenging awarding attorney fees in alimony cases because, they said, in no other type of civil case do litigants have to pay for the other side’s legal fees ahead of time.
“In practice, only wives are ever awarded attorneys’ fees,” according to the complaint. “They are awarded to wives even in pretrial proceedings before the court has heard evidence, and also awarded in post-judgment proceedings, when the spouses no longer have any legal or equitable interest in each other’s property.”
According to the Internal Revenue Service, former spouses pay approximately $9 billion in alimony each year, the plaintiffs’ papers said.
The plaintiffs will seek permission from the court to proceed anonymously, Karlinsky said.
– Managing Editor Jay Stapleton contributed to this report.