What?s Fair in Divorce Property Distribution: Cross-national Perspectives from Survey Evidence

• Author: Marsha Garrison
• Position: Suzanne J. & Norman Miles Professor of Law, Brooklyn Law School
• Pages: 57-88

What’s Fair in Divorce Property Distribution: Cross-national

Perspectives from Survey Evidence

Marsha Garrison∗

[W]hen love has vanished, there’s only money left to divide . . . .1

Americans are more likely to experience divorce than any other

type of civil litigation.2 Nearly half of American marriages end in

divorce, with the result that more than a million divorces are

concluded in the United States each and every year.3

Since the advent of no-fault divorce in the 1960s and 1970s,

both divorce litigation and negotiation have focused predominantly

on the distribution of property and debt. Many divorcing couples

do not have minor children, and spousal support is today awarded

only rarely.4 But virtually all divorcing couples have debts, and

most have assets.5

Copyright 2011, by MARSHA GARRISON.

∗ Suzanne J. & Norman Miles Professor of Law, Brooklyn Law School.

Research for this article was supported by the Brooklyn Law School Faculty Fund.

1. MARCIA MILLM AN, WARM HEARTS AND COLD CASH : THE INTIMATE

DYNAMICS OF FAMILIES AND MONEY 11 (1991).

2. See Lee E. Teitelbaum & Laura DuPaix, Alternative Dispute Resolution

and Divorce: Natural Experimentation in Family Law, 40 RUTGERS L. REV.

1093, 1116 (1988) (“Divorce and its incidents are, for most disputants, the only

occasion on which they will come into contact with the law in a formal sense.”);

see also Marsha Garrison, Reforming Divorce: What’s Needed and What’s Not,

27 PACE L. REV. 921, 922 n.3 (2007) (reporting that 75% of N.Y. court filings

are divorce actions, a figure that does not include uncontested divorces).

3. See Births, Marriages, Divorces, and Deaths: Provisional Data for

2009, 58 NAT’L VITAL STAT. RPTS. 25, tbl. 2 (Aug. 27, 2010), available at

http://www.cdc.gov/nchs/data/nvsr/nvsr58/nvsr58_25.pdf.

4. Data on overall alimony rates are sparse. See Juliet Behrens & Bruce

Smyth, Spousal Support in Australia: A Study of Incidence and Attitudes 10

(Austl. Inst. Fam. Stud., Working Paper No. 16, 1999) (reporting that 7% of

Australian divorce sample had received or paid spousal support); Margaret F.

Brinig, Unhappy Contracts: The Case of Divorce Settlements, 1 REV. L. &

ECON. 241 (2005) (reporting 7–9% alimony rate in Iowa divorce sample and

finding that all alimony awards were short-term). In the U.K., one survey found

that only 31% of divorced women with children received any form of

maintenance––child support or alimony––from a former husband. See Stephen

P. Jenkins, Marital Splits and Income Changes Over the Longer Term 13, tbl. 3,

(Inst. of Soc. & Econ. Research, Univ. of Essex, Working paper No. 2008-07,

2008). At least in the United States, the low incidence of alimony awards has

been fairly constant over the long term. 15–17% of surveyed divorced women

reported to the U.S. Census Bureau that they had been awarded alimony from

the late 1970s through 1989, the last full year the Census Bureau collected

alimony data. GORDON H. LESTER, U.S. BUREAU OF THE CENSUS, CHILD

SUPPORT AND ALIMONY: 1989, Current Pop. Rpts., Series P–60, No. 173 at 12

58 LOUISIANA LAW REVIEW [Vol. 72

All divorce property-distribution systems aim to achieve a fair

division of spousal assets. However, no consensus has emerged as

to either the pool of assets available for division or the correct

divisional principle. Property distribution schemes are highly

divergent in the United States and abroad.

Because of variation in property-division schemes, the same

divorcing spouse might receive a dramatically different property

award depending on the jurisdiction in which the divorce takes

place. Suppose, for example, that Husband and Wife divorce in

California. Further assume that, after a 20-year marriage, Husband

and Wife have accumulated $200,000 in assets acquired during the

marriage from employment income and that Husband has inherited

assets worth $500,000. Under California’s property-division rules,

Husband would retain his $500,000 inheritance; both Husband and

Wife would receive half ($100,000) of the assets derived from

marital employment.6 But, should Husband and Wife divorce in

Vermont, Husband’s inheritance would be included within the pool

of distributable assets. Because each spouse’s property award is

discretionary, Wife might receive half of the total ($300,000); she

might receive less, or she might receive more.7

Which, if either, of these very different distributional schemes

best comports with spousal expectations and popular notions of

fairness? It seems unlikely that the expectations of married couples

vary dramatically from one state to the next. Nor is there any

reason to suppose that what is fair in California would dramatically

differ from what is fair in Vermont.

For the past 40 years, all commentators have agreed that the

basic goal of divorce property distribution is fairness. They have

also assumed that the ideal of marital partnership precludes

exclusive reliance on title as a basis for determining who gets

(1990). U.S. census data from the turn of the century indicate that 9.3% of

divorces included alimony awards. See PAUL H. JACOBSON, AMERICAN

MARRIAGE AND DIVORCE 127–28 (1959). The typical alimony recipient is long-

married and has a very low income in relation to that of her spouse. See Behrens

& Smyth, supra (all alimony recipients had been in relatively long marriages);

Marsha Garrison, How Do Judges Decide Divorce Cases? An Empirical

Analysis of Discretionary Decision Making, 74 N.C. L. REV. 401, 468–69, tbls.

14–16 (1996); Marsha Garrison, Good Intentions Gone Awry: The Impact of

New York’s Equitable Distribution Law on Divorce Outcomes, 57 BROOK. L.

REV. 621, 711, tbl. 48 (1991).

5. See Garrison, supra note 2, at nn. 5–12 (describing research on property

and debt holdings of divorcing couples).

6. See CAL. FAM. CODE § 2550 (West Supp. 2011).

7. See VT. STAT. ANN. tit. 15, § 751 (West, Westlaw through law No. 46 of

the 2011-2012 session of the Vermont General Assembly (2011)).

2011] FAIRNESS IN DIVORCE PROPERTY DISTRIBUTION 59

what. But, beyond these basics, commentators tend to offer

conclusions based on assertion instead of empirical or theoretical

evidence. The American Law Institute (ALI), for example, asserts:

After many years of marriage, spouses typically do not

think of their separate-property assets as separate, even if

they would be so classified under the technical property

rules. Both spouses are likely to believe, for example, that

such assets will be available to provide for their joint

retirement, for a medical crisis of either spouse, or for other

personal emergencies. The longer the marriage the more

likely it is that the spouses will have made decisions about

their employment or the use of their marital assets that are

premised in part on such expectations about the separate

property of both spouses. If the marriage ends with the

death of the wealthier spouse, the common law has

traditionally provided the remedy of a forced share for

survivors not otherwise provided for . . . . The [proposed]

rule . . . [requires] spouses who live together for many

years [to] commit at least some of their [separate-property]

resources to one another, in a proportion that increases with

the duration of their relationship, unless there is good

reason to think that they did not intend that result. This is

surely more reasonable than assuming that spouses who

live together for many years do not intend to commit any of

their resources to one another.8

In this explanation of its rule choice, the ALI makes factual

assumptions about spousal expectations and behavior. The ALI

also assumes that the justifications underlying rules applicable to

property distribution at death provide an appropriate model for

property distribution at divorce. But the ALI offers no empirical

evidence for its factual claims, nor does it offer any factual or

policy justifications to support its reliance on probate law. I do not

mean to single out the ALI; other analysts have also been long on

assertion and short on both empirical and theoretical evidence.9

This article presents cross-national survey evidence on

property distribution at divorce. Although the sample is not

representative of the population as a whole, it does shed light on

8. AMERICAN LAW INSTITUTE, PRINCIPLES OF THE LAW OF FAMILY

DISSOLUTION: ANALYSIS AND RECOMMENDATIONS, § 4.12 cmt. a (2002)

[hereinafter ALI PRINCIPLES].

9. See, e.g., Carolyn J. Frantz & Hanoch Dagan, Properties of Marriage,

104 COLUM. L. REV. 75 (2004); Shari Motro, Labor, Luck, and Love:

Reconsidering the Sanctity of Separate Property, 102 NW. U. L. REV. 1623 (2008).