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

69 Am. U. L. Rev. 253 (2019).

* Senior Staff Member, American University Law Review, Volume 69; J.D. Candidate, May 2020, American University Washington College of Law; B.A., Communications, Legal Institutions, Economics, and Government, American University. I dedicate this Comment to survivors of domestic violence. To those survivors: you are strong, you are brave, and you are not alone. Your stories matter and your voices are heard. #MeToo.

In 2017, the #MeToo movement took social media by storm when individuals from all walks of life began openly sharing their experiences with sexual violence and gender-based harassment for the first time. Starting in the employment space and moving to other areas, the movement encouraged legal changes that improve gender equality. Alimony, which has received little scholarly attention in recent years, became of interest to #MeToo reformers who discovered current laws failed to adequately serve survivors’ interests by forcing them to pay spousal support to their abusive ex-spouse. Instead of a uniform system that removed the possibility of survivors being required to pay spousal support to their abusers, lawyers and clients face a patchwork of statutes that vary wildly from jurisdiction to jurisdiction. Some jurisdictions prohibit considering any evidence of marital misconduct, while others leave it solely to the court’s discretion. California is the only state that has affirmatively enacted legislation disqualifying alimony payments from survivors to abusers.

As state legislatures continually fail to implement proper laws, survivors’ only hope in having alimony provisions in divorce settlements invalidated lies in judges’ hands. Courts have used contract law for centuries to protect vulnerable people from being taken advantage of in their dealings with more powerful individuals. Particularly, the doctrine of unconscionability began as an equitable doctrine that courts invoked as a way to restrict enforcement of harsh, biting, and unreasonably one-sided agreements. Judges today can continue to use the doctrine of unconscionability as a way to deny enforcing divorce settlements that require survivors of domestic violence to pay spousal support to their convicted abusers because those payments represent a continuation of abuse and control. Survivors’ freedom from abuse should not be obtained at such an unreasonably steep price and judges have the power to end that once and for all. Allowing this practice to go on creates fresh wounds on top of barely healed flesh, adds insult to indescribable injury, and prevents survivors from ever truly being free. In the #MeToo era, that is not acceptable.

Introduction

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 one-sidedness 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. Part III provides several policy arguments as to why invalidating these contracts is beneficial to survivors. Finally, this Comment concludes that in light of society’s renewed commitment to protecting trauma survivors and their interests, judges should automatically disqualify abusers from receiving alimony payments from the individuals they harmed because allowing anything else is unconscionable.

I. Background

A. Forming and Negotiating Contracts

Contracts are one of the pillars of our society, providing the foundation for a multitude of commercial transactions, from contracts to build roads or schools to employment agreements to private dealings between private citizens. Contracts must be executed properly and contain all the necessary components to make them enforceable.¹² Accordingly, all enforceable contracts must have the same basic elements: agreement, bargain, which must be expressed by a valid offer and acceptance, and consideration.¹³ The Restatement (Second) of Contracts defines a promise as a manifestation of intent to act or refrain from acting between the promisor and promisee.¹⁴ An agreement is a “manifestation of mutual assent,”¹⁵ the existence of which can be observed through a party’s communications or overt acts.¹⁶

The second necessary element of a contract is the bargain. A bargain is defined as an “agreement to exchange”¹⁷ and is the product of “offer” and “acceptance.”¹⁸ An offer is when one party, the offeror, shows he is willing to enter into a bargain, leading a second party, the offeree, to understand he is invited to enter the bargain.¹⁹ An offer is valid based on an objective reasonableness test, meaning that it includes reasonably certain terms that would tell a reasonable person that an offer has been made.²⁰ An acceptance occurs when an offeree agrees to the terms of an offer and communicates that approval to the offeror in the manner required by the contract.²¹

The final element of a contract is consideration. The Restatement (Second) of Contracts explains that consideration is the product of a bargain between the parties.²² Valid consideration requires a sufficient exchange between the parties that balances both their interests.²³ Sufficiency is a largely fact-driven determination that involves looking at the promises made between the parties and requires more than a nominal exchange.²⁴

The enforceability of a contract relies on the presence of these three elements because they legally bind the parties to perform the obligations as bargained for.²⁵ If one party fails to perform, the other party can file suit for damages for breach of contract or attempt to compel performance.²⁶ Subsequently, the breaching party can respond to the suit by raising a number of contract defenses.

B. Contract Defenses and the Doctrine of Unconscionability

Breaching parties can challenge breach of contract claims by using defenses to justify the failure to perform.²⁷When evaluating contract defenses, the court must decide whether the breaching party’s unique circumstances excuse performance.²⁸ The elements of each defense vary among different states.²⁹ The defenses can be applied to the contract as a whole or to individual clauses.³⁰ If a defense is applied only to an individual clause, courts would use the practice of severance, meaning the rest of the contract would remain enforceable and only specified clauses would be unenforceable.³¹

Unconscionability is one of many contract defenses that breaching parties can raise. The doctrine of unconscionability began as a common-law defense in courts of equity.³² From its inception, the doctrine of unconscionability gave courts the power to invalidate harsh or oppressive bargains.³³ Equity courts saw this defense as a way to protect marginalized groups from agreements that took advantage of their weaknesses.³⁴ Courts of law were less likely to use the doctrine, oftentimes upholding oppressive deals as long as the necessary contract elements were present.³⁵ For this reason, early common-law cases provided little clarity on a specific definition or test to apply when analyzing potentially unconscionable contracts.³⁶ Common-law courts applied the subjective gap test for years before the Uniform Commercial Code (UCC) clarified and codified the doctrine.³⁷ Section 2-302 states as follows:

If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result.³⁸

However, the UCC fails to give a bright-line test for unconscionability and instead merely provides guidelines for remediating the “tainted” contract.³⁹ Furthermore, the UCC only applies to a narrow set of contracts for the sale of goods and thus does not cover the settlements discussed in this Comment. In lieu of statutory or UCC guidance, courts must rely upon the common law in defining unconscionability.

Courts find unconscionability when a contract or contract term is grossly one-sided, providing benefit to one party while unnecessarily impoverishing the other.⁴⁰ Courts can also find unconscionability when the parties have grossly unequal bargaining power.⁴¹ In these cases, one party typically takes advantage of the other’s relatively weakened position or mental state to procure a better deal.⁴² However, this factor is not entirely dispositive. If the parties have relatively equal bargaining power, a court could still find unconscionability.⁴³ Finally, courts can find unconscionability when one party lacks meaningful choice and cannot avoid the unconscionable obligation.⁴⁴ Unconscionability is often a difficult defense to prove; however, parties may be more likely to succeed on this defense if they can show two or more of the above elements are present.⁴⁵

The Third Circuit provided a strong foundation for understanding unconscionability in Campbell Soup Co. v. Wentz,⁴⁶ a seminal case in unconscionability doctrine. In Campbell Soup, Campbell sued the Wentzes for specific performance of a contract.⁴⁷ The contract required the Wentzes, owners of a small Pennsylvania farm, to sell Campbell, a New Jersey corporation, a specific quantity of carrots at a set price between twenty-three and thirty dollars per ton.⁴⁸ The Wentzes, upon learning the market value of the carrots was upwards of ninety dollars per ton, refused to perform their obligation to Campbell and sold to another buyer for a higher price.⁴⁹ Campbell filed to enjoin further sale by the Wentzes and compel performance of the contract.⁵⁰ While the Third Circuit found that specific performance was the correct remedy for a case of this nature, it affirmed the lower court’s ruling for the Wentzes under the theory that the contract was “too one-sided an agreement to entitle the plaintiff to relief in a court of conscience.”⁵¹ The Third Circuit relied on several one-sided provisions in the contract, including a provision for liquidated damages upon breach by the Wentzes and another allowing Campbell to refuse deliveries under certain circumstances.⁵² Specifically, the Third Circuit was troubled by provisions precluding the Wentzes from both holding the corporation liable for any carrots not accepted and from reselling the rejected carrots, effectively leaving the Wentzes with excess product and lost profit.⁵³ Under those facts, the court found Campbell had clearly drafted the contract with only its interest in mind at the expense of the Wentzes.⁵⁴

In Miller v. Coffeen,⁵⁵ a subsequent case with similar facts, Coffeen executed a contract to sell his home for $2400 to Miller, even though the property was valued at $12,000.⁵⁶ When Coffeen realized the deal was unfair, he attempted to back out of the sale, but Miller sued to compel specific performance of the contract.⁵⁷ The court held that even though courts generally support freedom of contract in particularly hard bargains, the facts in Miller coupled with the gross inadequacy of consideration made the deal inherently unfair.⁵⁸ Specifically, the court noted how Coffeen’s age and inexperience in being a property owner were relevant in determining the fairness of the deal.⁵⁹ Those characteristics, coupled with contract terms that disadvantaged Coffeen and bolstered Miller’s financial position,⁶⁰ created circumstances where enforcement would have gone against notions of justice and fairness.⁶¹

These prior cases focused primarily on unreasonable one-sided bargains but failed to delve into other unconscionability elements, such as difference in bargaining power and absence of meaningful choice. In later cases, courts began to address how the power differential between the parties and the practice of “take it or leave it” deals were critical in addressing unconscionability. In Henningsen v. Bloomfield Motors, Inc.,⁶² the Supreme Court of New Jersey invalidated a contract that limited the amount of damages a couple could recover under the contract’s warranty clause as unconscionable under the circumstances.⁶³ The purchase order signed by the Henningsens contained a clause that precluded any manufacturing or product defect claims that fell outside a ninety-day warranty period.⁶⁴ However, the clause was placed three-quarters of the way down on the back of the form in small font without any headings or margins indicating the presence of such an important provision.⁶⁵ Further, the signature line was on the front of the form along with two barely legible paragraphs telling the buyers that by signing, they fully agreed to all the terms laid out on both sides of the contract.⁶⁶ The drafters’ concerted efforts to de-emphasize these clauses troubled the court.⁶⁷ Upon review of other similar automobile purchase orders, the court found that this de-emphasis was common industry practice, thereby forcing consumers into agreeing to these terms without any choice.⁶⁸ As such, the crux of the court’s ruling in favor of the Henningsens focused on their lack of meaningful choice in entering into or negotiating the contract.⁶⁹

In a similar case, Carlson v. General Motors Corp.,⁷⁰ the Fourth Circuit affirmed the denial of GM’s motion to dismiss because there was a substantial showing that GM’s durational limitations on implied warranties for defective diesel engines were unconscionable.⁷¹ The Fourth Circuit found the plaintiffs had made a sufficient showing of the company’s superior bargaining power through its use of a highly sophisticated, skillfully crafted contract.⁷² Additionally, much like in Henningsen, the plaintiffs were able to show the durational limitations found in GM’s contracts were industry practice, offering them little choice but to sign and accept the unfair policy.⁷³ More importantly, Carlson helped further clarify what courts will look to when making decisions about meaningful choice by stating “courts typically look to the parties’ relative ‘bargaining power,’ ‘sophistication,’ ‘knowledge’ and ‘expertise’” as relevant.⁷⁴

In a watershed case on unconscionability, the D.C. Circuit followed an approach similar to the New Jersey Supreme Court in Henningsen. In Williams v. Walker-Thomas Furniture Co.,⁷⁵ the D.C. Circuit invalidated several unfair provisions of a furniture company’s sales contracts.⁷⁶ The provisions at issue put the purchaser in default if any balance remained from any previous purchase, even if one of the items had been fully paid, since the purchaser was billed pro-rata.⁷⁷ Even if the cost of an item had been completely paid for, if another item was purchased in the interim and the purchaser defaulted, the store would consider everything purchased on credit as defaulted.⁷⁸ The court noted the clause was contained in small font on the contract and that such a policy was so unusual that customers could not reasonably be expected to consent to it if they had diminished bargaining power.⁷⁹ In this particular case, Williams’ lack of formal education, role as a single mother to seven children, and reliance on public assistance put her in a weaker position to bargain, choose a different store, or consent to such an impracticable deal.⁸⁰

Accordingly, the D.C. Circuit held that unconscionability exists when an absence of meaningful choice on the part of one of the parties is coupled with contract terms that are unreasonably favorable to the other party.⁸¹ This was the first time a court clearly laid out a test for determining both meaningful choice and unreasonable contract terms.⁸² Furthermore, the court determined that a finding of unconscionability specifically required consideration of the fairness of the contract terms and the manner in which the contract was entered.⁸³ Regarding unreasonable contract terms, the court’s test relied on a finding that the terms were“so extreme as to appear unconscionable according to the mores and business practices of the time and place.”⁸⁴ The test for meaningful choice requires courts examine whether each party, given their specific characteristics, had a reasonable opportunity to understand the contract.⁸⁵ Instances of deceptive sales practices and terms hidden in small print were both recognized as important factors affecting one’s ability to fully understand the deal.⁸⁶ The court also pointed out that the meaningfulness of the choice is negated by a gross inequality of bargaining power in many instances.⁸⁷

Courts have also found contracts to be unconscionable in private agreements between ordinary citizens or in the context of employment. In Waters v. Min Ltd.,⁸⁸ Waters’ boyfriend convinced her to sell a $189,000 annuity (that would have totaled $694,000 over twenty-five years) for substantially less money to satisfy his own bank debt.⁸⁹ The plaintiff sold her annuity without consulting with her attorney and then later brought suit for rescission of the contract, arguing unconscionability.⁹⁰ The Supreme Court of Massachusetts found for Waters and stated that the contract would not be enforced because she was involved in an accident many years prior that reduced her cognitive abilities and made her susceptible to influence.⁹¹ Additionally, Waters had been abusing illicit substances for years with the help and encouragement of her boyfriend.⁹² The court held that Waters’ impaired mental state and susceptibility to her boyfriend’s influence led to an unequal bargaining power between the parties.⁹³

Similarly, in Wollums v. Horsley,⁹⁴ Wollums, a disabled, elderly man with little education or business knowledge, entered into a deal to allow Horsley, a savvy oil and minerals real estate tycoon, access to mine on Wollums’s farm for well below market value.⁹⁵ In holding that the contract was unenforceable, the court emphasized that Horsley took advantage of Wollums’s diminished capacity and lack of knowledge as to the value of his property to procure a more favorable bargain.⁹⁶ The court noted that courts of equity will only uphold deals when, in light of all the facts, the contract and the interactions between the parties appeared to be fair and just.⁹⁷ In this case, the bargain did not meet that standard and thus could not in good conscience be enforced.⁹⁸

Finally, in Odorizzi v. Bloomfield School District,⁹⁹ a schoolteacher agreed to resign from his job after school administrators took advantage of him and threatened him with reputational harm.¹⁰⁰ The situation arose when the police arrested Odorizzi and questioned him for hours regarding his sexual orientation.¹⁰¹ After his release, Odorizzi returned home where the school administrators accosted him and forced him to resign, threatening public disclosure of his sexual orientation and immediate termination from his job if he refused.¹⁰² Admitting that he had not been thinking rationally and was unable to think clearly, Odorizzi acquiesced to the pressure and formally resigned from his job.¹⁰³ Afterwards, Odorizzi sued to revoke his resignation and reinstate his employment contract because he had been cleared of the criminal charges and felt that school administrators had unfairly compelled him to quit his job.¹⁰⁴ The court held his resignation invalid and found the school had put undue influence on Odorizzi by taking advantage of his clearly deteriorating mental and emotional state.¹⁰⁵ Much like in Waters, the court found Odorizzi had not been in a position to make a meaningful choice or to understand the gravity of the situation and that he clearly was the weaker party.¹⁰⁶ In both cases, the courts looked to the parties’ mental state and susceptibility to influence as factors in establishing their ability to advocate for themselves, which are fundamental factors when analyzing a party’s bargaining power.

C. Divorce in the United States

Contract law is essential to divorce settlements given that parties negotiate, agree to, and enforce the settlements like any other contract.¹⁰⁷ While public law used to govern divorce, courts have recently begun to consider divorce using traditional private law contract doctrine.¹⁰⁸ Parties commonly negotiate divorces by settlements that require the parties to mediate and come to an agreement regarding child custody and division of assets and property.¹⁰⁹ Courts use extra care when determining if they should enforce divorce settlements by looking at several factors such as the settlement’s complexity, subject matter, and the special conditions under which the parties reach the settlement.¹¹⁰ When a court approves a settlement, it becomes a court order and binding contract.¹¹¹ If either party violates any of the terms or conditions of the settlement, the non-violating party can sue for breach or ask the court to hold the violating party in contempt of a court order.¹¹²

Despite the advent of no-fault divorce and mediation, divorce settlements are generally “unhappy contracts” as they involve the dissolution of marital property.¹¹³ This makes the outcomes unpredictable, especially when examining the specific circumstances of each couple.¹¹⁴ The bargaining skills of the parties, the quality and help of their attorneys, and the anticipated benefit of going to court if settlement tactics fail necessarily affect the results of the settlement.¹¹⁵ Other power dynamics, such as adultery, abuse, or substance use disorders, also affect the outcome of settlement negotiations.¹¹⁶ If parties fail to agree on a divorce settlement, they are subject to the will of the court, where the judge is the ultimate decision-maker.¹¹⁷ Going to court is equally as unpredictable as negotiating a settlement, especially depending on whether the state utilizes a fault or no-fault divorce system.

Divorce has changed dramatically in the United States since the mid-twentieth century, as changing societal views and norms made divorce more acceptable.¹¹⁸ Divorce is either “fault-based” or “no-fault” in the United States, with each state individually determining which system to adopt.¹¹⁹ Accordingly, some states have a mixed system in which they utilize both fault and no-fault divorces.¹²⁰ Prior to 1969, all states followed a fault-based divorce system, which allowed for the dissolution of marriage only under certain circumstances.¹²¹ That year, California became the first state to adopt an entirely no-fault system, which spawned a revolution across the country.¹²² Soon a divorce revolution began, and many states followed in California’s footsteps either by amending their divorce statutes or outright repealing and replacing them.¹²³

Legislatures justified implementing no-fault divorce laws for several reasons. Primarily, no-fault divorces do not require a determination of which party is innocent and which is guilty.¹²⁴ No-fault divorce relies on the incompatibility of the partners and their irreconcilable differences to sustain the dissolution of marriage.¹²⁵ This new focus makes divorces less restrictive, coercive, and acrimonious and allows judges to be neutral as they do not have to take a side or label one party as guilty.¹²⁶ The second purpose of the no-fault divorce system is to protect against collusion between divorcing parties and migratory divorce.¹²⁷ Commonly, a wife and husband would fabricate a story to satisfy the grounds for divorce in their state.¹²⁸ Alternatively, with migratory divorce, one spouse would move to another state with more favorable divorce laws and file there.¹²⁹ By removing these barriers, no-fault divorce allows couples to dissolve their marriage at will and arguably helps men and women in abusive relationships.¹³⁰

Despite these stated goals, no-fault divorce has been criticized and deemed a failure due to its unintended economic and psychological consequences, primarily on women and children.¹³¹ Critics argue that when judges consider abuse in the alimony award, the injured spouse benefits financially and in terms of safety.¹³² Accordingly, these critics advocate for allowing fault-based considerations in cases of egregious marital misconduct.¹³³ This dichotomous system of fault-based or no-fault divorce presents issues in other areas of judicial inquiry, namely alimony and dissolution of marital property where the acknowledgement of egregious marital misconduct is equally contentious.

D. Alimony in the United States

Alimony has been a part of the legal landscape for centuries, starting as a remedy in courts of equity.¹³⁴ The goal of alimony is to provide the parties with the opportunity for a fresh start, while also ensuring the lower-earning spouse has an equitable standard of living upon divorce.¹³⁵ Alimony requires looking at several factors, including, but not limited to, the spouses’ earning capacity, total spousal assets, and standard of living post-divorce.¹³⁶ Alimony used to be “permanent,” as it was awarded for life and paid in periodic payments of a specified sum.¹³⁷ Given the concerns raised by having to pay former spouses indefinitely and widespread calls to reform this practice, most jurisdictions do not permit permanent alimony without explicit statutory authorization.¹³⁸ Instead, many states have begun to use rehabilitative alimony, which looks to compensate lower-earning spouses only until they have, with reasonable effort, become self-supporting.¹³⁹ Thus, rehabilitative alimony is limited in scope and promotes self-sufficiency.

The purpose of alimony is to recognize a spouse’s interest and then compensate the spouse the proper amount of money for the time, labor, and assets invested into the marriage.¹⁴⁰ One theory of alimony is gain theory, which looks to compensate spouses for the amount of marital investment they put in to help raise future joint income.¹⁴¹ Another theory of alimony is loss theory, which posits that alimony should compensate spouses for relying on a failed marriage and thus losing earning capacity or the opportunity to marry someone else.¹⁴² These competing ideals about the purpose of alimony have manifested themselves differently, with loss theory being less common as it relies on fault determinations.¹⁴³

Much like a divorce, parties can negotiate alimony by discussing the amount owed and then coming to an agreement written into a settlement.¹⁴⁴ However, alimony is contentious and is often left for the judge to decide.¹⁴⁵ If alimony is agreed upon in the settlement, it can be enforced and litigated like any other provision in a contract.¹⁴⁶ If one party fails to pay, the other party can seek judicial intervention.¹⁴⁷ The more common way alimony comes to court is when one party challenges the validity of the agreement prior to payment but after signing the settlement.¹⁴⁸ Alimony is still awarded in divorces today, notwithstanding the advent of no-fault divorce.¹⁴⁹

The factors considered when determining alimony in no-fault divorces vary greatly from jurisdiction to jurisdiction, with some of them ignoring marital misconduct altogether.¹⁵⁰ Before 1968, with very few exceptions, courts considered marital misconduct when determining spousal support.¹⁵¹ After the advent of no-fault divorce, the National Conference of Commissioners on Uniform State Laws (NCCUSL) accepted the Uniform Marriage and Divorce Act (UMDA), which advocated for a complete no-fault system.¹⁵² Two sections of the UMDA stated that courts should determine spousal support “without regard to marital misconduct.”¹⁵³ Some courts have adopted the language of the UMDA, finding that even in cases of egregious marital misconduct, allowing fault considerations for spousal support undermines the purpose of a no-fault divorce because it forces judges to take sides and make determinations of guilt.¹⁵⁴ Other courts have taken the opposite approach and instead allow for egregious or serious marital misconduct to be taken into account when making property or spousal support determinations.¹⁵⁵ More generally, these states allow for fault considerations in both divorce and alimony decisions.¹⁵⁶ However, what constitutes “serious or egregious marital misconduct” is largely up to the court’s discretion, and there is no clear standard from jurisdiction to jurisdiction or even case to case.¹⁵⁷

E. Current Status of Alimony Laws

As previously discussed, alimony statutes vary widely from state to state and can generally be separated into four categories: (1) statutes that expressly preclude courts from considering fault;¹⁵⁸ (2) statutes that require courts to consider fault;¹⁵⁹ (3) statutes that permit, but do not require, courts to consider fault;¹⁶⁰ and (4) statutes that remain silent on considerations of fault, allowing courts to decide.¹⁶¹ While the alimony practices differ, the statutes themselves are surprisingly uniform in that most states include lists of factors that either can or must be used in making alimony decisions.¹⁶² Remarkably, despite the advent of no-fault divorce, most states recognize that fault still potentially plays a role in alimony decisions.¹⁶³

In examining the first category of alimony statutes, four states expressly note that no inquiry shall be made into, and no evidence shall be presented regarding, marital misconduct.¹⁶⁴ The second category, which is the second-largest, includes twelve states that permit, but that do not expressly require, the consideration of marital fault when determining alimony.¹⁶⁵ Most notably, Virginia originally planned to model its statute after the changes made by the California legislature but adopted this lower standard due to political pressure.¹⁶⁶ The largest category is the third, which contains thirty-three states where the statutes are silent on marital fault and instead allow judges to decide alimony using any other factors deemed relevant.¹⁶⁷ Since the statutes in a majority of these jurisdictions do not give any guidance as to whether domestic violence is a relevant factor, judges must rely on cases that fluctuate on the issue, which allows for almost unbridled judicial discretion.¹⁶⁸

California is the only state that falls into the final category, which requires marital misconduct, specifically domestic violence, to be a disqualifying factor for alimony determinations.¹⁶⁹ California passed section 4325 in 2002 after years of courts considering domestic violence to be largely irrelevant in no-fault divorce proceedings.¹⁷⁰ California legislators, upset by the common occurrence of domestic violence survivors being forced to pay alimony to their abusers, emphasized the unconscionability of the situation when passing the bill.¹⁷¹ In 2013, the California legislature made amendments to other sections of its alimony laws, including barring alimony payments from a victim to an abuser convicted of a violent sexual felony.¹⁷²

Section 4325 has received considerable attention from California courts.¹⁷³ Courts interpret section 4325 narrowly, invalidating payments only in cases where there was either a felony or misdemeanor conviction for domestic violence.¹⁷⁴ Furthermore, it seems no case exists where the abuser was able to overcome the presumption and be granted alimony.¹⁷⁵ As previously discussed, others have argued for similar legislation in their respective states, but these efforts have not yet been successful.¹⁷⁶

F. The Psychological Impact of Domestic Violence

Domestic violence creates power dynamics in a relationship that carry over to alimony negotiations. Understanding the trauma domestic violence victims experience explains their state of mind in these negotiations. Unsurprisingly, domestic violence has a lasting impact on survivors’ mental, emotional, and physical health.¹⁷⁷ Studies have found that women who have endured intimate partner violence are statistically more likely to develop illnesses such as post-traumatic stress disorder (PTSD) and depression in addition to a range of other chronic, life-threatening health conditions.¹⁷⁸ Naturally, psychiatric conditions such as PTSD change the way the brain and body react and process events or feelings.¹⁷⁹ Individuals diagnosed with PTSD can have a range of symptoms including “involuntary reexperiencing of the trauma (e.g., nightmares, intrusive thoughts), avoidance of reminders and numbing of responsivity (e.g., not being able to have loving feelings), and increased arousal (e.g., difficulty sleeping or concentrating, hypervigilance, exaggerated startle response).”¹⁸⁰

Typically, these PTSD symptoms are brought on by “triggers,” which can be sights, sounds, smells, people, or places that conjure up memories of past trauma.¹⁸¹ The part of the brain that regulates the human response to stimuli, the amygdala, remembers that the particular trigger was involved in a previous negative experience and tells the hypothalamus to react accordingly.¹⁸² This reaction is known as the Flight, Fight, Freeze (FFF) response.¹⁸³ Once the FFF response is activated in people with PTSD, they may panic and flee from the situation or they may dissociate and lose all ability to think, speak, or feel because the trigger has forced them to relive their prior traumatic experiences.¹⁸⁴

Reliving a traumatic event can take a toll on an individual’s brain and body. According to psychiatrists, reliving a traumatic event can be worse than the event itself.¹⁸⁵ The adversarial divorce process will trigger memories of physical or emotional abuse for a victim, forcing them to relive traumatic events. This cycle of emotional turmoil severely impairs an individual’s ability to advocate for themselves.

II. Divorce Settlements that Contain Alimony Payments from the Injured Spouse to the Abuser are Unconscionable Under the Circumstances

Family court judges should more frequently utilize the doctrine of unconscionability because it fairly and justly resolves disputes, goals that are shared with the family court system.¹⁸⁶ As discussed above, unconscionability began as an equitable doctrine as a way to protect “the widowed or weak-minded” and those who needed extrajudicial protection.¹⁸⁷ Unsurprisingly, both alimony and family law further similar objectives.¹⁸⁸ Given that family courts are equitable in nature, and courts consider alimony to be an equitable remedy upon divorce, applying the doctrine of unconscionability to alimony provisions in divorce settlements is not only appropriate but also fair.¹⁸⁹ Regardless of the type of divorce, courts should prohibit abusers from receiving alimony payments from their former partners when the former partner has a domestic violence conviction. These alimony provisions are unconscionable given the extraordinary imbalance in bargaining power; physical, mental, or emotional imbalance between the parties; absence of meaningful choice on the part of the victim; and presence of contract terms that are unreasonably favorable to the abuser.

A. Survivors Lack Meaningful Choice When Entering into Settlements that Require Them to Pay Alimony to Their Abusers

The first element of an unconscionability defense is lack of meaningful choice. The unconscionability defense frequently arises in cases where consumers have entered into adhesion contracts, or contracts that are uniform across an industry, leaving the consumers no option but to take the unfavorable terms.¹⁹⁰ Adhesion contracts are unfavorable because they give the drafting party unbridled power and prevent the signing party from modifying or negotiating the terms.¹⁹¹ In both Carlson and Henningsen, the courts looked at the standard practice of utilizing adhesion contracts across the car industry and found that this “take it or leave it” system greatly disadvantaged consumers.¹⁹² Allowing corporations to have a monopoly over the industry with little recourse for injured patrons troubled both courts for good reason. While these cases did not involve interpersonal relationships or divorce settlements, courts have identified problems with adhesion contracts in employment contracts, among other situations.¹⁹³

As discussed above, the court in Williams held aggrieved parties had a meaningful choice if, in light of all the circumstances, they had the opportunity to decide whether and how to enter into the contract.¹⁹⁴ The court stated that if the parties, given their obvious education or lack thereof, had a reasonable opportunity to understand the terms of the contract then, absent any presence of deceptive sales practices or hidden terms, the parties meaningfully chose to enter into the deal.¹⁹⁵

Applying this test to alimony provisions in divorce settlements, abused spouses clearly lack meaningful choice. Domestic violence has a significant impact on victims’ abilities to participate in settlement negotiations.¹⁹⁶ Abused spouses may feel as if they do not have the ability to advocate for their own self-interest or may not be comfortable expressing their needs.¹⁹⁷ If this is the case, abused spouses may be unable to decide whether and how they want to resolve the alimony dilemma. On top of that, continued exposure to the perpetrators coupled with frequent discussion of the trauma poses a mental and emotional safety threat to abused spouses, thereby further weakening their ability to participate fully in the process and comprehend the severity of what they agreed to.¹⁹⁸ In addition, a triggering event could further disadvantage abused spouses. Abused spouses may be triggered by something as innocuous as a ceiling fan, the clicking of a pen, or someone’s cologne. If during settlement discussions a trigger appears, their ability to negotiate, let alone be mentally present, vanishes.¹⁹⁹

The time after leaving an abusive situation is the most dangerous.²⁰⁰ Given what is known about the FFF response and a trauma survivor’s heightened sense of self-preservation,²⁰¹ abused spouses may be willing to agree to anything to escape their abusers and protect themselves as quickly as possible.²⁰² Victims do not fully understand or recognize the gravity of a situation when they may be looking for the quickest way out. The Williams court designed their test to prevent this exact situation.²⁰³

Furthermore, alimony is largely unpredictable, unreliable, and discretionary.²⁰⁴ Survivors have no choice but to acquiesce, as not paying would hold them in contempt of a court order, leading to future legal proceedings.²⁰⁵ This internal psychological battle is analogous to a consumer purchasing a car and adhering to unfavorable terms because the consumer lacks the ability to procure a better deal elsewhere. Much like in Carlson and Henningsen where the purchasers had to accept limitations on liability as that was standard industry practice, survivors have no other meaningful choice but to pay their abusers, especially in states that refuse to consider marital abuse in alimony determinations.²⁰⁶ More troubling is that in states where judges may consider any additional factors but decide that domestic abuse is not relevant, victims are again faced with the difficult situation of following a court order to their detriment.²⁰⁷ Even if victims move to set aside the settlement, courts may not reconsider, thus leaving the victims stuck with what they had signed.²⁰⁸ Consequently, in most jurisdictions, victims face an outcome where they must pay alimony to their abusers.²⁰⁹ This lack of ability to find a more favorable alternative was central to the court’s holding in Henningsen.²¹⁰ As such, this is a “take it or leave it” system because survivors are legally bound to cooperate, satisfying the first element of unconscionability.

However, courts are particularly wary of finding a lack of meaningful choice given their preference for freedom of contract.²¹¹ If judges determine abused spouses did meaningfully agree to the unfavorable settlement agreement, the abused spouses can still overcome the decision upon a showing of unequal bargaining power.²¹² The next section provides arguments proving unequal bargaining power is prevalent in alimony negotiations between abusers and victims.

B. Gross Inequity in Bargaining Power Between Survivor and Abuser Leaves the Survivor Unable to Properly Negotiate a Settlement

Typically, in cases involving unconscionability, the relationship is between either a corporation and an average citizen²¹³ or a corporation and a party with less resources or education.²¹⁴ However, courts have also recognized unequal bargaining power in interpersonal relationships.²¹⁵ In such cases, taking into account the parties’ education, relationship, and resources is relevant in an inquiry about the power dynamics. For example, in Wollums, the court paid special attention to the fact that the plaintiff who sold his house at an unfair price was elderly, disabled, uneducated, and relatively poor compared to the business-savvy, wealthy buyer.²¹⁶ The Williams and Waters courts focused on similar facts. In Williams, the plaintiff was an uneducated, single mother of seven children on public assistance.²¹⁷ In Waters, the plaintiff was mentally unwell and was suffering from a substance abuse disorder, which her boyfriend encouraged.²¹⁸ In each of these cases, the courts found that the disadvantaged parties did not stand a chance in advocating for themselves against their more powerful counterparts, whether it was a corporation,²¹⁹ a businessman,²²⁰ or a manipulative ex-boyfriend.²²¹

Some will argue the above alimony cases were not examples of unequal bargaining power because the victims were both the higher-earning spouse and were likely supported by counsel. While women are statistically more likely to be victims of abuse²²² and are also more likely to be awarded alimony than to pay it,²²³ the rise of female employment and educational attainment increases the likelihood that courts will order female victims of domestic abuse to pay alimony.²²⁴ Furthermore, as Wollums and Waters demonstrate, the victim is the one with an advantage given the victim’s financial stability. Of course, this poses the question: if all of these facts exist, can the higher-earning spouse with arguably more resources really be the party with less power? The answer to that question is yes, especially in cases of domestic violence.²²⁵

Domestic violence is analogous to the power imbalance in all of the unconscionability cases because the very nature of abusive relationships puts survivors on unequal footing.²²⁶ Abusive relationships are all about power and control; abusers exert control over victims through physical, sexual, or psychological abuse, commanding every facet of victims’ lives.²²⁷ Unsurprisingly, victims stay in abusive relationships because they fear leaving, have no access to their bank accounts, or lack support from friends or public resources.²²⁸ Domestic violence is characterized by a pattern of coercive behaviors utilized to isolate and dominate a victim.²²⁹ Abusers employ these isolation techniques as a means of annihilating a victim’s autonomy and self-worth.²³⁰ The result is a person who has lived for years in an alternate reality created and controlled by their perpetrator.²³¹

Clearly, people who have endured years of “or else” threats and coercive control will be conditioned to agree to their abusers’ demands because resistance or disagreement has never been a viable option. With such profound and lasting effects on self-esteem and agency present, the benefits of settling and negotiating alimony are virtually non-existent.²³² When individuals have lived through an abusive relationship that has eroded their ability to stand up for themselves, they are, by default, at a disadvantage from the moment they approach the bargaining table.²³³ Even if victims are supported by counsel, they are unlikely to be able to advocate for their own interests because of the toll the abuse has taken on their ability to make choices or communicate their needs.²³⁴

Financial abuse can further weaken a victim’s bargaining power. In cases where the battered spouse is the breadwinner, it is not necessarily true that she has an advantage over the abuser. More plausibly, the victim did not have access to her finances or have control over monetary decisions for the duration of the relationship.²³⁵ Financial control is a common form of psychological abuse and can have detrimental effects on the victim.²³⁶ Examples of financial control include “preventing the victim’s access to joint bank accounts; forcing the victim to deposit income into accounts controlled solely by the abuser; putting the victim on an allowance; and preventing the victim from accessing financial information—both about her household’s finances and about personal finances generally.”²³⁷ Victims may also be in extreme debt without knowing.²³⁸ If the abuser has used one or more of these tactics, the victim has been relying on him for money despite her higher income. If this is the victim’s reality, she may be unable to afford an attorney, and even if she can, she may run out of money if the abuser uses these tactics to unnecessarily exhaust any legal funds she has access to.²³⁹ Predictably, feelings of hopelessness and helplessness are quite common among victims given the diminished control they have over their lives.²⁴⁰ Earning more money is useless if victims are unable to access it and use it to their advantage. The situation is futile for victims, leaving them worse off in a fight against formidable opponents.

The Waters case most clearly demonstrates this point. In Waters, the plaintiff’s boyfriend used his control over the plaintiff to convince her to sell a large portion of her assets.²⁴¹ Despite the fact that the plaintiff was more financially stable than her boyfriend and could arguably afford a decent attorney, the court still found the deal unconscionable because of the boyfriend’s coercive tactics.²⁴² Furthermore, the court paid special attention to the plaintiff’s mental state, noting that her boyfriend had forced her to use drugs and financially abused her by maxing out her credit cards, putting her into debt.²⁴³ When she contracted to sell her assets, she was “represented” by her boyfriend, meaning he controlled the negotiations, and she had no choice but to agree to his terms.²⁴⁴ The parties clearly did not have equal bargaining power. Applying this case to alimony settlements demonstrates sufficient evidence supports a finding that victims approach settlement negotiations at an inherent disadvantage, satisfying the second element of unconscionability and disproving arguments to the contrary.

An abuser’s ability to manipulate a survivor’s weakened mental an emotional state to procure a better deal contributes to unequal bargaining power between the parties. Courts will usually find unconscionability when one party takes advantage of the other’s relatively weakened position or mental state to procure a better deal.²⁴⁵ In Odorizzi, the court rescinded the plaintiff’s resignation because the school administrators used the plaintiff’s diminished mental state, lack of sleep, and personal anxiety to force his resignation.²⁴⁶ The administrators preyed upon the fact that the plaintiff was unable to think clearly or make rational decisions to get the outcome most favorable for them.²⁴⁷ Similarly, in Waters, the plaintiff was highly susceptible to influence given her injuries from a car accident at a young age and her impaired judgment from persistent drug use that was encouraged by her boyfriend.²⁴⁸ Her boyfriend convinced her to sign onto an unfair deal knowing he could use her debilitated state to get his friends and himself a bargain.²⁴⁹

Abusive relationships are analogous to cases where one party is susceptible to undue influence, mostly because abusers will play on victims’ fear and shame to keep victims quiet or procure a more favorable deal.²⁵⁰ Much like substance use disorders or other mental illnesses, domestic violence and traumatic experiences bear significantly on victims’ mental and emotional state.²⁵¹ Because victims will likely be triggered by speaking to or about their abuser, they will likely dissociate or relive their trauma during alimony negotiations.²⁵² When in that state of mind, the rational part of the brain shuts down completely and the amygdala and hypothalamus, often referred to as the animal parts of the brain, take over.²⁵³ In such a situation, victims would be rendered unable to ask questions, think, or present facts without severe mental distress.²⁵⁴ Many abusers would likely take advantage of that reaction because it gives them continued power and control over the victim.²⁵⁵ Most jurisdictions bar couples with a history of domestic violence from participating in mediation or dispute resolution for these exact reasons.²⁵⁶ Because of the nature of trauma, survivors cannot possibly approach negotiations on a level playing field.

C. Divorce Settlements that Require Alimony Payments Are Unreasonably One-Sided

Courts determine the final element of an unconscionability defense, an unreasonably one-sided bargain, by looking at the totality of the circumstances, particularly in terms of the agreement itself. In both Campbell Soup Co. and Miller, the courts were concerned by clauses in the contract that had clearly been drawn by the more sophisticated party and were so unfair that no reasonable person would have agreed to such terms.²⁵⁷ Even in the other cases previously discussed, the courts seemed to focus on how the contracts were so lopsided in one party’s favor that the other party had not likely consented to or actually understood the severity of the deal.²⁵⁸ Particularly, Williams clearly defined a standard for unreasonably one-sided contracts, stating terms that are “so extreme as to appear unconscionable according to the mores and business practices of the time and place” are unenforceable.²⁵⁹ Contracts, as noted earlier, require a bargain.²⁶⁰ In these cases, a bargain is non-existent because one party has all the benefit while the other gets nearly nothing in return.

Applying the standard from Williams, requiring domestic violence survivors to pay alimony to their abusers goes against the mores and business practices of today’s society. Domestic violence has been an issue of grave concern in this country for decades.²⁶¹ The most notable legislation on the topic is the Violence Against Women Act (VAWA),²⁶² which was passed by Congress based on social science research and public outcry over the harmful effects of gender-based violence.²⁶³ Reform efforts geared toward helping victims of domestic violence also garnered support at the state and local level, in part because of increased attention to the prevalence of abuse and trauma.²⁶⁴ These reforms have continued well into the twenty-first century, most recently leading to the #MeToo movement, which has worked on changing the power dynamics in many industries and sparked reform in various areas of law.²⁶⁵ In particular, several different business sectors have taken reform initiatives towards reducing workplace sexual harassment and assault.²⁶⁶ Given this extensive outpouring of support for improved domestic violence and sexual harassment policies and the clear statement from businesses that gender-based violence and harassment will no longer be tolerated, judges could readily find that alimony payments from victims to abusers go against the standards of today’s society.

Additionally, much like the lopsided bargains in Campbell Soup Co. and Miller,²⁶⁷ alimony payments from abused spouses to abusers are unreasonably hard on victims. These agreements give a clear benefit to abusers, as they not only continue wielding power and control over the victims but also get to do so while getting paid.²⁶⁸ Victims do not see a single benefit from such an agreement. Victims will be forced to relive their experiences; they will be retraumatized by simply knowing that they are still beholden to the person they physically escaped from, and they will be faced with legal consequences if they do not perform accordingly. As above, a multitude of factors forced the victim into such a situation; however, there remains a general consensus that the reasonable person would never agree to such a provision.²⁶⁹ Enforcement of these payments, as the court found in Miller, goes against notions of justice and fairness, rendering them unconscionable and accordingly, unenforceable, satisfying the final element.²⁷⁰

D. Forcing Survivors to Pay Alimony to Their Abusers Contradicts Public Policy

States that adopt a system disqualifying alimony payments from survivors to abusers have several public policy incentives to do so. Adopting legislation like California’s sets a clear standard that the state has a zero-tolerance domestic violence policy and removes the unpredictability of judicial discretion while also providing clear guidelines for when alimony should be disqualified.²⁷¹ Allowing mere “consideration” of domestic violence as a factor does not guarantee survivors will be victorious and still presents issues of unconscionability and undue influence.²⁷²

However, given the conviction limitation, adopting a regime of this nature has some fundamental issues. Domestic violence is greatly underreported.²⁷³ Moreover, while some jurisdictions utilize mandatory prosecution practices, many do not.²⁷⁴ In the latter situation, cases set for trial are later often dropped because the victim refuses to approach the stand, likely for valid health and safety concerns.²⁷⁵ In those cases, evidence likely favors conviction, but prosecutors lose the opportunity to obtain one.²⁷⁶ Consequently, despite an overwhelming amount of evidence of abuse, victims would still have to pay alimony because their former spouses are never formally convicted.

This legislation may encourage reporting by victims, addressing some of those valid concerns. Under a prohibition on alimony payments, victims may be more likely to seek convictions as doing so will ensure they do not have to pay money to their abusers.²⁷⁷ Furthermore, this policy may encourage individuals who were afraid to divorce their abusers out of fear of overpaying alimony to finally leave an unhealthy environment.²⁷⁸ However, most importantly, a system that prohibits alimony payments from victims to abusers supports victims in their healing and removes systematic re-traumatization.²⁷⁹

Conclusion

When domestic violence occurs and victims are finally able to remove themselves from an abusive situation, the courts should offer a place of support and safety. By allowing otherwise, courts are adding insult to years of injury. After decades of legislative efforts to promote better treatment of domestic violence victims in other areas of the law, it is time for family law, specifically alimony, to catch up. Forty-nine states have alimony statutes that permit abusers to receive alimony payments from individuals they physically, mentally, emotionally, and financially abused. The only state that precludes this abhorrent policy is California. Since legislatures will not likely amend their laws,²⁸⁰ judges must wield their unbridled discretion and declare alimony payments from victims to abusers unconscionable.

As a defense arising from courts of equity, unconscionability provides a strong legal background for invalidating alimony payments that are negotiated into divorce settlements. In analyzing the alimony payments from abused to abuser, the practice evidently meets modern standards of unconscionability. Domestic violence, as discussed above, puts victims at a weaker mental state and lowers bargaining capacity, making it difficult for them to adequately agree and negotiate settlements. Additionally, forcing victims to advocate for their needs and discuss their trauma in the presence of their perpetrator is retraumatizing and may discourage them from disclosing relevant information.²⁸¹

In ordering survivors to pay alimony to the people they may have been trying to escape for years, the system forces renewed contact between victims and abusers while also putting survivors’ health and safety at risk. Survivors, willing to do anything to get away from their tormentors, possibly did not fully understand the above consequences when they signed the settlement agreement. Accordingly, holding the alimony payments in the settlement valid and enforceable would be unconscionable given the circumstances. As discussed above, courts do not necessarily need to hold the entire settlement unenforceable under the doctrine of severance.²⁸² The judge could simply strike the alimony provision from the contract and allow the divorce to proceed as normal. These alimony practices disproportionately harm domestic violence survivors, so whether judges hold the entire settlement invalid or just remove the offensive provision, the underlying conclusion is that as a matter of contract law, courts should not enforce the alimony agreements.

Survivors of domestic violence have endured enough at the hands of their abusers. Survivors have been repeatedly coerced, isolated, and traumatized, causing feelings of hopelessness and shame. Reaching out and asking for help continues that pattern. The price of freedom from abuse should not be the cost of an alimony award. Forbidding these payments sends a clear signal to legislatures that domestic violence will no longer be tolerated in the #MeToo era and prevents courts from rewarding abusers at the victims’ expense.

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

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