Division of Marital Property at Dissolution

• Pages: 115-143
• Author: Walter Wadlington,Raymond C. O'Brien,Robin Fretwell Wilson

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Chapter 6

DIVISION OF MARITAL PROPERTY

AT DISSOLUTION

I. Historical Perspective

Prior to the introduction of no-fault divorce, the focus of

matrimonial litigation was on establishing a valid fault groun d that

warranted divorce and the n conte nding with the common law

defenses to that ground. When no-fault divorce became available,

divorce litigation shifted to tandem issues such as the division of

marital property, what constitutes marital pr operty, and the

purposes and length of spousal support, if any, upon dissolution. Of

course, as we will discuss in later chapters, child custody and child

support remain litigious.

Economic support for children, which is discussed in Chapter 8,

differs significantly from the division of marital property and spousal

support. Child support begins with statutory guidelines established

by law, resulting in objective and uniform awards, while property

dissolution and alimony awards are generally resolved without the

assistance of a mathematical formula. Instead, courts in common law

states utilize a list of factors to achieve an equitable distribution, and

in a handful of community property states, the presumption is an

equal division of all property that can be classified as community

assets. As a result, the economic parts of the divorce process are rife

with litigation.

As discussed in previous chapters, American society has

changed. Certain developments have impacted the statutory and

common law approaches to dividing marital pro perty and

determining supp ort obligations. First, gender is no longer an

appropriate basis upon which to base any support obligation. Prior to

state and fede ral constitutional litigatio n promoting equal

protection, men were responsible for support both during marriage

and upon divorce. Only the marital fault of the female spouse could

dissipate or eradicate this support obligation. In prior times, in

almost every situation, the fe male spouse was entitled to support

after the marriage dissolved until she died or remarried. It did not

matter how long the marriage lasted; the husband was ob ligated to

provide support. The obligation of the husband could not be waived

through a valid premarital agreement, since such agreeme nts were

contrary to public policy, viewed as promoting divorce or as an abuse

of a confidential relationship. As society progressed, the law began to

follow suit.

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DIVISION OF MARITAL PROPERTY

AT DISSOLUTION

Ch. 6

In 1979, an Alabama statute requiring only men to pay marital

support was struck by the United States Supreme Court as a

violation of Equal Protection.

1

The Court reversed centuries of using

a “baggage of sexual stereotypes,” and admitted that “needy male s

could be helped along with needy females with little if any additional

burden on the State.”

2

With greater access to employment, spousal

support shifted from long-term to temporary spousal support for

education and job training for an unemployed ex-spouse.

3

Despite strides made by women in the workplace, women and

children are often poorer after a divorce, although not to the degree

once believed.

4

Furthermore, while no-fault divo rce made divorce a

unilateral option for spouses, economic disadvantages to female

spouses arose from changes in the law governing spousal support and

property division.

5

Women were now e xpected to be self-sufficient,

even though in many cases they remained mothers and homemakers.

Many argue that reimburseme nt and rehabilitation alimony do not

adequately address the economic cost of caring for and rai sing a

child, a cost that mothers disproportionately shoulder. Nonetheless,

the fact remains that modern law reflects the view that the marr ied

couple consists of two equal economic partners, creating economic

expectations and re sponsibilities fo r both. Where property division

and alimony are not responsive to the reality of greater burdens

borne by one spouse or another, the only remedy for inequity must

come from the contractual negotiations initiated by the married

couple but most often resolved in the equity factors listed in common

law statutes guiding property division and support.

6

A second development within modern law is serial marriage;

persons sometimes marry multiple times. A subsequent marriage

jeopardizes an obligor’s inclination and ability to meet the support

requirements of the prior family, by stretching resources over

additional children or e x-spouses. While marriage is not necessarily

a condition precedent for the birth of a later child, the intent to create

1

Orr v. Orr, 440 U.S. 268 (1979).

2

Id. at 281.

3

Deborah Dinner, The Divorce Bargain: The Fathers’ Rights Movement and

Family Inequalities, 102 VA. L. REV. 79, 111 (2016).

4

LENORE WEITZMAN, THE DIVORCE REVOLUTION: THE UNEXPECTED SOCIAL AND

ECONOMIC CONSEQUENCES FOR WOMEN AND CHILDREN IN AMERICA 339 (1985). See

also Lois J. Liberman, Post-Divorce: Wrapping Up and Moving On With Your Life, 42

FAM. ADVOCATE 32 (2019); Erez Aloni, The Marital Wealth Gap, 93 WASH. L. REV. 1

(2018).

5

MARSHA GARRISON, THE ECONOMIC OF DIVORCE: CHANGING RULES, CHANGING

RESULTS IN DIVORCE REFORM AT THE CROSSROADS 1 (S. Sugarman & H. Kay eds.,

1990).

6

See Allison Tait, Trusting Marriage, 10 U.C. IRVINE L. REV. 199, 209 (2019);

A.L.I., PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION: ANALYSIS AND

RECOMMENDATIONS § 4:09. REPORTER’S NOTES, Comment a (2000).