Preglimony

Shari Motro - University of Richmond School of Law

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We have alimony. We have palimony. Why don’t we have preglimony? Why don’t we recognize that when a woman gets pregnant with a man to whom she is not married, the pregnancy should be both parties’ responsibility?

I’m not talking about what happens if the pregnancy ultimately produces a child. I’m talking about the pregnancy itself. Under current law, if the woman terminates, the man owes her nothing. If she takes the pregnancy to term, then only after he’s deemed the father will the man be required to reimburse her for prenatal and birthing expenses—and then only because it is considered part of his child support obligations. He’ll have no responsibility to share in other costs of pregnancy deemed “personal” to the woman—things like maternity clothes, birthing classes, or lost wages. Some lovers do the right thing; others do not, and the law gives them a free pass. In short, until and unless paternity has been established, a pregnant woman and the man with whom she conceives are legal strangers.

Preglimony is my dream for a different world, a world that recognizes that unmarried lovers who conceive are not complete strangers. They’re not spouses either. They’re something in between. Ideally the law should recognize them as such by replacing the current lovers-as-strangers paradigm with a relational default. This new default would impose certain baseline responsibilities on unmarried lovers who conceive regardless of the outcome of the pregnancy, including “preglimony”—a legal framework defining a man’s duty to help support his pregnant lover.

Developing and implementing this new framework will take time and further study, but there is something simpler we can do more quickly. As a first step towards recognizing and integrating the relational paradigm we can reward and encourage preglimony through the tax code. Current law is silent on the proper tax treatment of pregnancy-related payments, but under prevailing principles they are likely to be treated as gifts and thus be neither deductible to the payor nor includible by the recipient. In other words, preglimony is a tax nothing. By contrast, alimony payments between former spouses are deductible to the payor and includible to the recipient. This means that former spouses whose incomes diverge can shift high-bracket income to a lower bracket, producing a tax benefit.

Preglimony is more like alimony than a transfer between strangers, and it should be treated accordingly. Not only does extending tax benefits to pregnancy-related transfers make sense under current principles, doing so will also reward and encourage men who are prepared to support their pregnant lovers. Preglimony is a new word; it is not a new practice. It’s time the law noticed.

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To visualize the proposal, consider a man whose taxable income is $100,000 and who transfers $20,000 to his pregnant lover, whose taxable income is $60,000. Assume also, for simplicity, a rate schedule with only two brackets. Taxable income that does not exceed $80,000 is taxed at a ten percent rate, while taxable income above $80,000 is taxed at a thirty-five percent rate.

In general, transfers can be treated in one of four ways. They might:

(a) be neither includible by the recipient nor deductible to the payor (as when an individual gives a gift to another individual);

(b) result in taxable income to the recipient and a deduction to the payor (as when an employer compensates an employee or when a former spouse pays alimony);

(c) result in taxable income to the recipient without a corresponding deduction allowance to the payor (as when an individual compensates a housekeeper, gardener, or other purveyor of personal services); or

(d) produce no taxable income to the recipient and be deductible to the payor (as when an individual makes a charitable contribution).

Currently, preglimony is likely to be nondeductible to the payor, and excludible to the recipient as in scenario (a). My proposal would bring the treatment of preglimony in line with the current treatment of alimony, producing an income-shifting benefit.

Acknowledgments:

Copyright © 2012 Stanford Law Review.

About the Author: Shari Motro is a Professor of Law at the University of Richmond.

Citation: Shari Motro, Preglimony, LEGAL WORKSHOP, Feb. 1, 2012, http://legalworkshop.org/2012/02/01/preglimony.

Based on: Shari Motro, Preglimony, 63 STAN. L. REV. 647 (2011).

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