Right to privacy.

Christopher Chopin (prenuptial agreements precluding alimony pending divorce decree should be valid, July/August) is right, but for the wrong reason! The right reason is Florida Constitution Art. I [section] 23, the Right to Privacy, which makes the dissolution of marriage statutes unconstitutional ... across the board!

When this fundamental right to privacy attaches to a statute, the statute is presumed unconstitutional until the state "proves" a compelling state interest applied in the least intrusive manner. North Florida Women's v. State of Florida, Case No: SC01-843 (July 10, 2003).

The dissolution of marriage statutes (Ch. 61) are unconstitutional because they invade a privacy protected area, namely "personal decisions related to marriage," Carey v. Population Serv. Intl., 431 U.S. 678, 684-85 (1977). Divorce is a personal decision related to marriage and thus protected.

The state has never proved a compelling state interest applied in the least intrusive manner to justify the statutes on alimony, stripping property rights (equitable distribution), child support (parent spending) based on income, and custody on anything other than harm to the child.

Mr. Chopin believes the New York statutes that permit temporary alimony to prevent a spouse from slipping into poverty is correct and should be incorporated into Florida's dissolution statutes. That is reasonable if you ignore the privacy amendment. If you craft dissolution statutes within the restraints of the constitution's privacy amendment, postdissolution possible poverty of a former spouse simply does not rise to a compelling state interest. If a Floridian slipping into poverty were a compelling state interest, all dissolutions would be examined for that factor, not just contested dissolutions that plead for alimony.

If avoidance of poverty were a compelling state interest, the standard for alimony would not be lifestyle of the marriage, would it? The poverty issue is bogus, a myth.

Another myth needs to be shattered, i.e., that alimony came down from the Mount etched in stone. "At common law there was no right to alimony at all.... The so-called 'right' to alimony does not exist as an incident to divorce A vinculo unless it is granted by statute." Pachedo v. Pachedo, 246 So. 2d 778, 780 (Fla. 1971).

Alimony is merely a statute which is unconstitutional as violative of the privacy amendment of the Florida Constitution.

STEPHEN MARTYAK

Jupiter