THE PRICE OF EXIT.

• Author: Brown, Eleanor

ABSTRACT

The price of exit influences the terms of intimate relationships--and constitutes an important factor in distinguishing committed from contingent relationships. With or without legal recognition of the relationship itself the dissolution of an intimate relationship requires disentangling any joint assets, determining who stays and who leaves a joint residence, and arranging the terms of continuing involvement with any children. Marriage establishes bright-line rules for these determinations and a formal legal process for administering them. Unmarried relationships involve different default terms and no automatic legal process for resolving the terms of exit. The terms of exit, however, may frame relationship choices.

This Article will argue that, inside or outside of marriage, the critical choice couples make is between committed relationships, with a high degree of financial and emotional interdependence, and contingent relationships, in which the parties keep their identifies, assets, and arrangements separate. Committed relationships inevitably entail high exit costs as the practicalities of splitting shared assets or determining the new terms for emotionally charged relationships such as childrearing can exact a high toll. Contingent relationships in contrast are easier to end precisely because of their contingent nature; couples often see each determination, whether about how to share rent or who picks the child up after school, as a separate transaction. Perceptions about the price of exit often shape the nature relationship choices and while today's relationships exist on a continuum between those which are so interdependent that the parties effectively function as one, and so independent that an intimate couple may have no greater entanglements than college roommates, the distinctions between committed and contingent relationships often fall on the fault lines of class, race, and gender.

The typical unmarried relationship in reported decisions is a committed one, in which the parties have substantial assets and a degree of interdependence that makes existing law appear inequitable. These relationships differ, however, from the more numerous but less visible contingent relationships in which the parties have relatively few assets and a less equal and less intertwined assumption of relationship responsibilities. This Article, prepared for a symposium on nonmarriage, explores the price of exit as an analytical factor. By examining how the cost of exit influences family decision-making, the Article remakes understandings about the law that governs nonmarriage. Expectations about exit profoundly influence decision-making concerning partnering, regardless of socioeconomic class, yet expectations often differ by socioeconomic class. The legal frameworks applicable to conventional married families presume interdependence and shared parenting, which reflect terms that the couples would presumably choose themselves. These terms, however, are ill-suited to many nonmarital families.

Accordingly, the Article concludes that conflicting norms, particularly in the communities in which cohabitation is most common, complicates the imposition of uniform rules that presume dependency--or the obligations associated with it.

TABLE OF CONTENTS I. THE POWER OF EXIT A. The Traditional Bargain B. Today's Relationship Bargains III. SOCIETAL INEQUALITY AND THE ECONOMICS OF COHABITATION A. The Economics of Committed Bargains 1. The Single Earner Committed Bargain 2. The Dual-Earner Committed Bargain B. The Economics of Contingent Bargains IV. MOV1NG FORWARD A. Ending the Relationship B. Property Division and Support C. Parenthood D. Child Custody and Support CONCLUSION "I don't believe in divorce--that's why none of the women in my family are married."

--Mother explaining why she didn't marry the father of her child. (1)

INTRODUCTION

Historically, a defining element of marriage was its permanence. Family law strictly limited the ability to exit marriage and accepted, as the price for those limits, the implicit restriction of women's voice within marriage. (2) With the slow rise of the family of the separate spheres in the mid-nineteenth century, women's role within marriage began to change, with women gaining greater status and authority--although they continued to have few options to leave the married home. By the middle of the twentieth century, however, the fight for no-fault divorce was cast in part in terms of women's quest for the right to self-definition--self-definition that did not need to include a man at all. (3)

Today, in the aftermath of liberalized divorce and greater ability to enter into intimate relationships of choice, the terms of exit from intimate relationships remain critical to values associated with autonomy and gender equality. (4) The legal cost of exit from an intimate relationship--the expense and inconvenience of the proceedings, the possibility of being subject to continuing financial obligations, and the risk of loss of control over children or assets--influences the way that differing communities approach family formation. (5) The classic work by Albert Hirschman, which focused on business enterprises, organizations, and states, treats the ability to exit as "the right to withdraw or refuse to engage, simply to 'leave.'" (6) In an era in which marriage has become optional and unmarried relationships range from the casual to the deeply committed, the consequences of exit from an intimate relationship affect the willingness to enter various types of relationships in the first place. (7)

The connections between entry and exit reinforce each other. Even without legal recognition of the underlying relationship, the dissolution of an intimate relationship requires disentangling any joint assets, determining who stays and who leaves a joint residence, and arranging the terms of continuing involvement with any children affected by the relationship's dissolution. Marriage establishes bright-line rules for these determinations and a formal legal process for administering them. Unmarried relationships involve different default terms and no automatic legal process for resolving the terms of exit. Inside or outside of marriage, however, the critical distinction is between committed relationships, with a high degree of interdependence, and contingent relationships, in which the parties keep their identities, assets, and arrangements separate. While today's relationships exist on a continuum between those which are so interdependent that the parties effectively function as one, and so independent that an intimate couple may have no greater entanglements than college roommates, the distinctions between committed and contingent relationships often fail on the fault lines of class, race, and gender.

The modal (that is, the most common) committed intimate bargain is one in which the parties intermingle their lives, based on principles of interdependence, reciprocity, and equal respect/ These committed relationships can take one of two forms. The first type pairs a higher earning (typically, but today not inevitably, a man) with a lower-earning spouse who assumes responsibility for the family's nonmarket activities. (8) The second involves two-earner households in which the parties trade off responsibilities for work and family as circumstances change. (9) At the core of these arrangements, whether inside or outside of marriage, is an implicit bargain that makes sense: the combination of the parties' joint efforts in both market and nonmarket investments that create interdependence and a payoff in terms of the accumulation of wealth and investment in the well-being of the next generation. A higher price of exit, whether in terms of shared ownership of family assets, barriers to divorce, or simply a higher implicit price in the form of shared custody rights, accordingly reflects not only the couple's commitment to each other, but the vulnerability that arises from interdependence.

The modal contingent relationship, in contrast, is one in which the parties cohabit, raise children together, or share an intimate relationship without either a long-term commitment to each other or economic interdependence. In many communities, couples organize their relationships to ensure subsistence; they may move in together to save on rent or to make it easier to care for a joint child. And in a world where employment has become less secure and income more volatile, the idea of a reliable single "breadwinner" has disappeared. Instead, many families depend on both parties' incomes, or one party may both earn the more reliable income and assume the primary responsibility for the family's care work, with the other playing a lesser role in each sphere. The implicit bargain reflecting these realities is contingent rather than committed, that is, the partners have not emotionally or practically made an unqualified commitment to each other to stay together. They are less likely to commingle their limited resources, assume equal childcare responsibility, or forego opportunities for individual advancement in reliance on the other partner's earnings. (10) In the context of these relationships, easier access to exit is critical for the party taking greater responsibility for dependents. Shared ownership and shared custody imposed from without not only increase the cost of exit; they remake the underlying bargain in ways that undercut support for caretaking.

While intimate relationships generally have become more varied, the distinctions between committed and contingent modal forms often reflect differences in class and race, particularly in a more unequal and insecure society. In the bottom 40% of couples, there is no reliable surplus. (11) Even among middle-income couples, income volatility destabilizes relationships (12) and shared ownership in couples with few assets really means sharing the limited resources of the...