§ 3.02 The Title System

• Jurisdiction: United States
• Publication year: 2021

§ 3.02 The Title System

[1]—In General

Pursuant to the twentieth century version of the title system, property rights were essentially unaffected by marriage. Each spouse accumulated his or her separate property during marriage, and such property was managed solely by the owning spouse. At divorce, each spouse retained his or her property.⁴ In other words, marriage did not significantly affect the parties' property rights; for purposes of property division at divorce, spouses were treated like unmarried cohabitants.

If the wife did not cause the divorce, she could obtain post-divorce "alimony" from the husband.⁵ Alimony was a support award for the wife to enable her to attempt to continue the lifestyle enjoyed during marriage. Support could be awarded in the form of periodic payments, or it could be given as one lump-sum payment, but most awards were in the form of periodic payments.⁶ Periodic alimony customarily continued until the death of either party or the remarriage of the recipient.⁷

The amount of the alimony award was not directly based upon the wealth of the husband, or the amount of property accumulated during the marriage.⁸ The award was determined based upon the support needed by the wife, and whether she "caused" the divorce.

[2]—Dissatisfaction with the Title System

[a]—Policy Consequences

The title system had disastrous social consequences for divorced women. Until quite recently, only the male worked outside the home; the wife generally worked in the home and raised children.⁹ All property generally was accumulated during marriage in the husband's name, since the wife rarely worked outside the home.¹⁰ At divorce, the wife frequently had no property, no earning capacity, and possibly the custody of minor children. Alimony and child support could be awarded, but collection was difficult, particularly if the husband left the state.¹¹ It became clear that the wife's situation would be much improved at divorce if she would receive a large lump-sum award instead of post-divorce periodic payments. Pursuant to such a lump-sum award, fewer ex-wives would be impoverished, suffer hardship, and become wards of the state. Collection difficulties would also be avoided. Thus, there were strong policy justifications for the adoption of a divorce procedure that would provide the wife with a lump-sum settlement at divorce.

[b]—Fairness Concerns

During the middle of the twentieth century, an increasing number of legislators and commentators concluded that the title system was unfair.¹² The family was increasingly viewed as a partnership; the husband worked outside the home to generate money for the family, and the wife was responsible for domestic matters.¹³ If this was true, why shouldn't the husband's accumulations be deemed accumulations by both the husband and the wife?

[c]—Dissatisfaction with Alimony

During the last few decades common law states have become increasingly disenchanted with...