Should Marital Property Rights Be Inalienable? Preserving the Marriage Ante

• Publication year: 2021

82 Nebraska L. Rev. 460. Should Marital Property Rights Be Inalienable? Preserving the Marriage Ante

460

Julia Halloran McLaughlin*

Should Marital Property Rights Be Inalienable? Preserving the Marriage Ante(fn1)

TABLE OF CONTENTS

I. Introduction ....................................................... 461
II. Marriage: An Endangered Status? ................................... 463
III. Marital Property: Legislative Recognition of the
Capital of Marriage .............................................. 469
IV. Marital Property: Prey to Private Right to Contract
Precepts .......................................................... 473
A. Although Historically Invalid, Premarital
Agreements Contemplating Divorce Are Now Valid ................. 475
B. The Majority of Jurisdictions Enforce Premarital
Agreements Contemplating Divorce as a Matter of
Freedom of Contract Without Regard to Property
Law and Society's Interests .................................... 479
C. The Trend to Enforce Premarital Agreements
Contemplating Divorce, as a Matter of
Freedom of Contract, Without Regard to Property Law and
Society's Interests, Creates Inequity .......................... 480

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V. Marital Property: The Argument for Inalienability .................. 486
A. Inalienability Promotes Economic Efficiency and
Achieves Distributive Justice Goals Because It
Reduces the Economic Burden of Divorce on the
Public and Advances the Interests of the
Economically Dependent Spouse ................................... 488
B. Inalienability Promotes Personal Integrity by
Fostering the Economic Autonomy of the
Economically Dependent Spouse ................................... 489
C. Inalienability Reflects Sound Moral Judgment
Because it Allows Life-Altering Decisions to be
Made Contemporaneously and Protects the
Financially Dependent Party from Coercion ....................... 491
D. Many Family Law Rights are Consistently Treated
as Inalienable .................................................. 491
VI. New Marital Property: In Defense of Inalienability ................ 494
VII. Conclusion ....................................................... 497
Appendix A ............................................................ 499

I. INTRODUCTION

The intersection of family law and property law raises intriguing questions related to identifying and protecting marital property rights. For example, what characterizes an inalienable(fn2) family law right? Many family law rights are deemed inalienable.(fn3) Despite the wide array of inalienable rights in the area of family law, the future right to a share of marital property(fn4) is generally alienable so long as

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procedural fairness requirements are satisfied.(fn5) If marital property rights were created by legislatures to achieve economic justice between divorcing parties, why is greater protection afforded to a tenant entering into a lease by the creation of an implied and inalienable warranty of habitability,(fn6) than is afforded to an economically dependant spouse entering into marriage? Given the policy goals of promoting individual economic autonomy and reducing the number of adults and children receiving public assistance, why is the economically dependent spouse free to irrevocably waive the right to share in marital property without regard to the economic or social consequences? Perhaps the answer to this family law question depends upon whether traditional precepts of contract law or property law control the analysis. Contract precepts are founded upon the principle of individual autonomy. In contrast, property law precepts are founded upon the competing and antithetical principle that no individual's property rights are absolute, but are subject to limitation according to the best interests of the larger community.(fn7)

Currently, premarital agreement property waivers are typically analyzed using a traditional contract analysis. If a property right(fn8) analysis is substituted for a contract right analysis, to decide the validity of premarital property right waivers, a radically different result is attained. In short, waivers that might otherwise be valid as a matter of traditional contract precepts, are invalid according to property law precepts. Therefore, a property right analysis enriches the debate surrounding the validity of premarital property right waivers.

This article proposes that parties(fn9) should be unable to waive or limit marital property rights(fn10) before or during marriage. Instead, as

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a matter of property law and theory, these inchoate(fn11) marital property rights should be treated as inalienable,(fn12) until they can be expressly identified, valued, and divided between the parties at the time of divorce.(fn13)

This article is divided into five sections. Because the viability of inalienable marital property depends upon the continuation of marriage as a status, Part I of this article questions the continuing viability of marriage as a means of financial, familial, and social order. Part II of this article tracks the evolution of marital property in the United States and proposes that an inalienability rule reinvests the relationship of marriage with the economic consequences originally intended by state legislatures. Part III of this article examines the metamorphosis of premarital agreements contemplating divorce from legally void to valid, negating the potential value of marital property. Part IV of the article proposes that marital property should be deemed inalienable until divorce at which time such property can be identified, valued and distributed based upon the circumstances existing at the time of divorce. In conclusion, Part V of the article anticipates and addresses potential arguments favoring the continued alienability of marital property rights.

II. MARRIAGE: AN ENDANGERED STATUS?

Marriage, as an institution promoting individual and state values, is under attack. The United States Congress recently passed legislation permitting states to define marriage narrowly.(fn14) In contrast, Vermont legislators recently passed a Civil Unions, Domestic Partnerships, and Reciprocal Beneficiaries Act,(fn15) expanding the class of individuals entitled to spouse-like benefits. Fewer Americans marry and

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those who do are postponing marriage.(fn16) Some same-sex couples desire the right to marry.(fn17) Divorce continues to stalk new marriages at the rate of approximately 43%.(fn18) Now, approximately 28% of children in America are growing up in single parent households.(fn19) The future for marriage is uncertain. Proponents of covenant marriage(fn20) argue that the no-fault, easy-out legislation enacted in the last half of the 20th century throughout the country "threatens marriage itself."(fn21)

Given public concern regarding the uncertain future of marriage in the United States, reform at the turn of the third millenium focuses on discouraging divorce and strengthening marriage.(fn22) Implicit in this goal is the assumption that marriage is a good and beneficial relation

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ship.(fn23) Although marriage is referred to as a contract, it is a contract sui generis.(fn24) It is of indefinite length. In every state, either party, under a no-fault scheme, may unilaterally terminate the marriage without incurring damages in the traditional sense of the word. Marriage is a contract that requires physical, psychological, and emotional performance on a constant basis until the parties separate as a result of death or divorce. It requires two individuals to remain in a relationship recognizing that the future is unpredictable and that circumstances are likely to change substantially throughout the entire contract.(fn25) Family law scholars stress the tension between viewing marriage as a contract and marriage as a status.(fn26) The contract approach emphasizes individual satisfaction, while the status approach accentuates the obligations that marriage creates to the other spouse, to children of the marriage, and to the community.(fn27)

Despite the tension and uncertainty described above, individuals continue to marry for a variety of different reasons. For example, many believe that marriage creates a stable family structure to raise children.(fn28) Moral and religious beliefs also inform the decision to marry.(fn29) For some, the emotional support and companionship offered by marriage may prompt union.(fn30) Thus, the institution of marriage

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survives as individuals marry, divorce, and remarry, pursuing what some sociologists characterize as serial monogamy.(fn31)

In addition to improving the quality of life for spouses and children, marriage also creates a financial relationship between the spouses. As an incidence of marriage, parties owe to one another a mutual duty of support throughout the marriage. The economic rights of spouses are protected in the event of death or divorce by statutory law designed to achieve economic justice.(fn32)

Finally, marriage promotes social order and other goals.(fn33) The state regulates marriage, records marriage, and conditions numerous benefits upon the status of marriage.(fn34) Thus, the state actively encourages parties to marry. Certainly the benefit of raising children in stable two-parent homes promises the state a better educated and perhaps more emotionally stable population in future generations.(fn35) Furthermore, to the extent that marriage allows two individuals to experience life as meaningful and marriage as a lasting emotional and economic commitment, society as a whole benefits.(fn36)

Statistics demonstrate that one consequence of serial monogamy is serial divorce. Divorce presents a host of problems to the individuals and to the state. Single parents struggle to raise children sepa-rately.(fn37) Legal scholars continue to advocate divorce reform. Proposals...