Page:Harvard Law Review Volume 4.djvu/41

DEFECTIVE ALIMONY DECREES. 25 DEFECTIVE ALIMONY DECREES IN MASSACHUSETTS. IT not infrequently happens that alimony is granted upon a petition for divorce and alimony, in which there are allega- tions of cause 'for divorce only. The pleader inadvertently sup- poses that a petition so drawn is sufficient, the loose expression, " alimony is an incident to divorce," being led to an illogical con- clusion. But certain cases have very recently come into being which, together, decide thus : — 1. A decree for alimony rendered at the termination of a suit for a divorce, in which there are allegations of cause for divorce, but no additional allegations of a cause for that ahmony, in which there is only a prayer for alimony without corresponding allega- tions of the facts which, if proved, entitle the woman to the specific decree for alimony rendered, is void. 2. Such a decree for alimony is void, because it deprives the defendant of his property without a statute, which is unconstitu- tional, as divesting him of his property without " due process of law." 3. In a suit to determine the status of two persons (divorce), a court has no jurisdiction to decree property from one individual to another (alimony), without some allegations bringing that property into litigation. A decree (for alimony), under such cir- cumstances, with such antecedents, is void, and may be impeached collaterally as having no legal foundations. I. Many an attorney in Massachusetts perhaps does not realize the collective result of the Massachusetts decisions on the subject of alimony and its proper allegations. If the Massachusetts statutes, when taken together, authorized alimony to be decreed as a mere incident to divorce, and if ali- mony was the result of nothing else than a cause for divorce, then indeed only some statutory cause for divorce need be pleaded, and alimony prayed for on that. But in Graves v. Graves,^ the court said : " In making any order i 108 Mass. 321.