Divorce Equality

• Publication year: 2021

DIVORCE EQUALITY

Allison Anna Tait(fn*)

Abstract: The battle for marriage equality has been spectacularly successful, producing great optimism about the transformation of marriage. The struggle to revolutionize the institution of marriage is, however, far from over. Next is the battle for divorce equality. With the initial wave of same-sex divorces starting to appear on court dockets, this Article addresses the distinctive property division problems that have begun to arise with same-sex divorce and that threaten, in the absence of rule reform, to both amplify and reinscribe problems with the conventional marital framework. Courts have failed to realize the cornerstone concept of equitable distribution-marriage as an economic partnership-in the context of different-sex marriage. Because same-sex divorce highlights this failing, this Article uses same-sex divorce as a lens through which to reexamine the untapped potential of equitable distribution statutes.

Two questions drive the analysis. One question is how to decide which assets count as marital property and how to value one spouse's contributions to the other spouse's career success. I propose that courts characterize enhanced earning capacity as marital property and count indirect spousal contributions toward the growth in value of business assets. Without these changes, courts fail to capture the nature of marital partnership and properly compensate contributions made by non-earning spouses. Another question, made salient by same-sex "hybrid" cases in which the spouses have been long-term cohabiting partners but short-term marital partners, is how to determine when an economic partnership begins. I propose that courts use the category of "pre-marital" property in order to count assets and income acquired outside of the marriage itself.

Addressing these questions is critical to the reformation of marriage because property rules impact how spouses bargain with one another, how diverse roles get valued in marital bargains, and how we assign and perform gender within marriage. Moreover, proper compensation for spousal contributions rewards individuals for making choices that benefit the couple rather than the individual, which is normatively positive behavior. These proposals for rule reform provide guidance for courts, both those encountering an increasing number of same-sex divorces as well those deliberating over how best to assess spousal contributions in different-sex marriages. Furthermore, the proposals in this Article provide a blueprint for advocates who seek to continue the work of marriage equality in the hopes of further unwinding the power of gender within marriage.

INTRODUCTION .............................................................................. 1246

I. UNDERSTANDING THE MARITAL BARGAIN .................... 1253

A. Establishing Economic Partnership .................................... 1254

1. Equitable Distribution and the Divorce Revolution . 1255

2. The Mixed Results of Equitable Distribution ........... 1260

B. Specialized Labor and Spousal Contributions .................... 1262

1. The Original Marital Bargain: Different-Sex

Couples ..................................................................... 1263

2. Updating the Marital Bargain: Same-Sex Couples... 1267

II. LEARNING TO DIVIDE THE DOMESTIC DOLLAR ............. 1272

A. Questioning the Career Asset Carve-Outs ......................... 1273

1. The Last Citadel: Professional Degrees and Family Businesses ................................................................ 1274

2. Distribution and Support as Compensatory Mechanisms .............................................................. 1281

B. Why and How to Reward Spousal Contributions .............. 1285

1. A Proposal to Value Enhanced Earnings .................. 1288

2. A Case Study: Home Management and Dragon Slaying ...................................................................... 1290

III. ENLARGING THE MARITAL GRID ........................................ 1293

A. Transforming Non-Marital into Pre-Marital Property ........ 1295

1. Recognizing Relationships on the Marital Fringe .... 1295

2. Equitable Distribution Instead of Equitable

Remedy ..................................................................... 1299

B. Measuring Duration and Modified Formalism ................... 1302

1. Timing Relationships Through Legal Markers ........ 1302

2. Enabling Judicial Efficiency and Personal Autonomy ................................................................. 1308

CONCLUSION .................................................................................. 1311

INTRODUCTION

First comes marriage; then comes divorce. Different-sex couples have experienced this truism for centuries. Now, following close on the successes of the marriage equality movement, the first wave of same-sex couples is seeking to get divorced.(fn1) The current revolutionary moment in the progress of marriage law promises to shift conventional gendered understandings of the institution. Yet, in order to make good on this promise, it is necessary to reexamine the rules governing marital property and equitable distribution. Much of the work that gender performs in a marriage is not revealed until the moment of divorce, when couples and courts are asked to value the contributions of individual spouses to the marriage.(fn2) If same-sex marriage is to transform the institution of marriage,(fn3) law must reflect equality not only at entry but also upon exit.

Over forty years ago, as part of another "divorce revolution," legislatures enacted equitable distribution statutes to make divorce less acrimonious and more gender equitable. Equitable distribution statutes modernized divorce law by removing fault as a dispositive factor and making economic partnership the cornerstone concept of property division. Lawmakers sought to compensate housewives and mothers, who were typically hurt financially by divorce, and to reflect the idea that both partners in a marriage-the wage earner and the homemaker- contributed to its economic success. Equitable distribution statutes gave courts a directive and the means to properly remunerate the unpaid contributions of one spouse to the other's career and to acknowledge that couples acted in partnership as they acquired assets, developed skills, and allocated marital roles. The promise of these statutes, however, was never fully realized for different-sex couples and, as an increasing number of same-sex divorces appear on matrimonial court dockets, courts will be forced to grapple with unanswered questions about how to make equitable distribution truly equitable.

Imagine this scenario: Two men living in New York have been in a marriage-like relationship for over fifteen years. One is a partner at a large law firm, and the other is a lawyer for a small non-profit organization making considerably less money. They live together in an apartment to which the law firm partner holds the title; he has furnished their apartment, bought significant artwork for them to enjoy, and has acquired several other types of collections, including a wine collection. The non-profit lawyer pays for the majority of their monthly living expenses as well as vacations. Moreover, the non-profit lawyer has made himself available to travel with his partner for work, and has passed up work opportunities in his own job to do so. When New York passed the law enabling same-sex marriage, the couple availed themselves of this legal right.(fn4) After being married for a year, however, the couple decided to divorce.(fn5)

With significant resources at stake at the dissolution of this long-term relationship, a judge will likely limit the marital property to assets acquired and earnings generated during the brief period of legal marriage, as prescribed by state divorce law. Despite the couple's legal inability to marry in the first fifteen years of the relationship, those years will not likely count for the purposes of the characterization and distribution of marital property. Titled property will go to the title-holder, and each party will have only the most limited rights to the other's non-liquid assets, like pensions or patents. Furthermore, in cases of income or earnings asymmetry, any likely award of maintenance or rehabilitative alimony will be decreased because of the artificially short length of the marital relationship. Finally, any career sacrifices that one partner made in order to benefit the other will be un- or undercompensated.

Same-sex divorce in cases such as this raises two major questions. One question-a question that has plagued different-sex divorce and will continue to produce inequality in same-sex divorce-is which assets count as marital property and how courts should handle unresolved questions about "career assets"-including enhanced earning capacity and indirect spousal contributions to business ventures. These career assets bring up the twin questions of individual accomplishment as well as individual contribution to the relationship. The manner in which courts have treated these particular career assets persistently belies the ideal of economic partnership, and reinforces the idea that "he who earns it, owns it."(fn6) Addressing career assets is critical. In high-wealth divorces, they are worth significant amounts of money; in lower-wealth...