The development of a theory of alimony is an issue that has received considerable attention from both family law and feminist scholars in the past several years.1 Scholars who address this issue are seeking to answer what has proven to be a most vexing question: What is the theoretical basis for imposing a legal duty on one person to support another to whom he or she is no longer married? Although the legal basis of alimony has always been somewhat murky,2 the move to articulate a theory of alimony has become more urgent in light of recent developments such as no-fault divorce, increased opportunities for women in the workplace, and decreased governmental involvement in family relationships.3 These developments have tended to undermine the traditional need and fault justifications for alimony.4 Scholars, in struggling with the problem of creating a new theory of alimony, have explored the problem from a number of perspectives, including those of contract law,5 partnership law,6 law and economics,7 human capital theory,8 and tort law.9

At the same time that family law scholars have struggled to develop a theory of alimony to protect women who care for their homes and families, there have been other developments in legal scholarship. One is a burgeoning literature in feminist legal theory.10 Another is the emergence of a racial critique of feminist theory. The major criticism lodged by the latter is that all too often, feminist analysis is based on the assumption that all women are white and middle or upper-middle class.11 As a result, it is argued, feminist theory is largely irrelevant to the lives of poor women and, in particular, poor women of color.

This article draws from the intersection of theories of alimony, feminist legal theory, and the racial critique of feminist legal theory. The goal of the article is to explore the implications of the search for a theory of alimony for those women who, as a practical matter, are least likely to benefit from this effort-women who are neither well-to-do nor white.

Statistics indicate that Black12 women are awarded alimony at a significantly lower rate than white women. In 1987, over eighteen percent of currently divorced or separated white women had been awarded alimony at the time of their divorces, while less than eight percent of Black women had received such an award.13 It also appears that women in higher income marriages are more likely to receive alimony than women in lower income marriages.14 In light of this data, it is important that we examine the implications of women scholars devoting substantial attention to an issue that is of practical importance to relatively few women, and especially so few women of color.15 What are the implications for women of color and other poor women of this search for a theory of alimony? Does it serve to reinforce the differences between women of different classes and races? Or are there ways in which a discourse that seems relevant only to privileged women can be helpful to the struggles of a wider range of women in whose lives gender, race, and class oppression are often experienced simultaneously? Can efforts aimed at developing a theory of alimony both enrich and draw upon other scholarly work directed toward improving the conditions of subordinated groups?

This article will begin by briefly describing the marriage paradigm that has, to a great extent, shaped the discourse on developing a theory of alimony. I will demonstrate that this paradigm has little relevance to the realities faced by most poor women of color and that, accordingly, most of the approaches to alimony based on it have little practical relevance to the lives of these women. I define the issue, however, as more than one of mere irrelevance or exclusion-I argue that the search to develop a theory of alimony may have serious negative implications for poor women of color, especially Black women. Specifically, the paradigmatic model of marriage and divorce has the potential to reinforce the subordination and marginalization of Black women in two ways: first, by reinforcing privilege or an image of privilege for middle and upper-middle class white women in both marriage and divorce, and second, by reinforcing a hierarchy among women in which their value is determined by the presence or absence of legal ties to men, particularly affluent men.16

This article will suggest the need to develop, not simply a theory of alimony, but a feminist approach to alimony that examines that institution in the context of broader issues affecting the lives of a diverse group of women. I will argue that a feminist theory of alimony must examine alimony, not as a single issue, but as part of a larger inquiry involving issues of work and family in women's lives. In so doing, it must address questions of patriarchy, dependency, and economic justice for women who care for the children and homes of other women while they work outside the home. Although I will not propose a specific theory that encompasses all of these concerns, I will suggest some of the questions we will need to ask in order to begin that undertaking.17

Many people probably form their impressions about divorce from the media. Time and time again we are regaled by the tales of the messy divorce of the Trumps,18 the palimony action against Lee Marvin,19 or the nasty custody dispute between Woody Allen and Mia Farrow.20 Divorce lawyers for the rich and famous are paid handsomely and sometimes command media attention as quasi-celebrities in their own right.21 Law professors tend to write about the divorces of the middle and upper class. Not surprisingly, the question of whether one spouse can receive a financial interest in the other spouse's professional degree has received substantial attention in the law reviews and always makes for interesting discussion in a law school classroom.22 As academics, we are informed by the divorces we hear about from our lawyer friends, the divorces of our middle and upper-middle class friends, or, potentially, our own upper-middle class divorces.

When the law becomes involved in the lives of poor families, the subject is seldom divorce. Instead, the matter is usually one of state intervention.23 Should the child in the case be declared neglected? Should the mother receiving public assistance be forced to participate in a mandatory work program? Should the pregnant, drug-addicted mother be prosecuted? The divorces of the poor do not receive much attention in legal scholarship, and this is not surprising. By definition, poor people have little tangible property to fight over, and the marginal incomes earned by many of the men make substantial alimony awards unlikely.

Thus, instead of engaging in disputes over antenuptial contracts or professional degrees, the low-income woman faced with a divorce may find herself struggling to avoid a slide from mere poverty into complete destitution. The question is often not one of alimony, but of child support-to help ensure that the children have a place to live and food to eat. For the poor, the dispute is not over whether there will be sole or joint custody, the question is whether they can prevent the children from eventually ending up in foster care.

All too often, it is the divorces of the privileged that occupy our thoughts.