Husbands, Wives, and Human Capital: Why the Shoe Won't Fit

Family Law Quarterly

Volumn 31, Issue 1, 1997, Pages 119-131

  Singer, Jana B ^a  

^a UNIVERSITY OF MARYLAND SCHOOL OF LAW   (United States)

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EID: 0031487305     PISSN: 0014729X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (77)

1. Lenore J. Weitzman, Legal Regulation of Marriage: Tradition and Change, 62 CAL. L. REV. 1169 (1974). See LENORE J. WEITZMAN, THE DIVORCE REVOLUTION: THE UNEXPECTED SOCIAL AND ECONOMIC CONSEQUENCES FOR WOMEN AND CHILDREN IN AMERICA 110-11, 113-21 (1985) (originally included pensions and other forms of deferred compensation in her definition of career assets). Recent discussions regarding the problem of career assets have focused on career enhancements that have not yet been concretized. See Margaret F. Brinig, Property Distribution Physics: The Tailsman of Time and Middle Class, 31 FAM. L.Q. 93 (1997). Throughout this article, the term "career assets" will be used in this narrower sense.
2. Lenore J. Weitzman, Legal Regulation of Marriage: Tradition and Change, 62 CAL. L. REV. 1169 (1974). See LENORE J. WEITZMAN, THE DIVORCE REVOLUTION: THE UNEXPECTED SOCIAL AND ECONOMIC CONSEQUENCES FOR WOMEN AND CHILDREN IN AMERICA 110-11, 113-21 (1985) (originally included pensions and other forms of deferred compensation in her definition of career assets). Recent discussions regarding the problem of career assets have focused on career enhancements that have not yet been concretized. See Margaret F. Brinig, Property Distribution Physics: The Tailsman of Time and Middle Class, 31 FAM. L.Q. 93 (1997). Throughout this article, the term "career assets" will be used in this narrower sense.
3. Lenore J. Weitzman, Legal Regulation of Marriage: Tradition and Change, 62 CAL. L. REV. 1169 (1974). See LENORE J. WEITZMAN, THE DIVORCE REVOLUTION: THE UNEXPECTED SOCIAL AND ECONOMIC CONSEQUENCES FOR WOMEN AND CHILDREN IN AMERICA 110-11, 113-21 (1985) (originally included pensions and other forms of deferred compensation in her definition of career assets). Recent discussions regarding the problem of career assets have focused on career enhancements that have not yet been concretized. See Margaret F. Brinig, Property Distribution Physics: The Tailsman of Time and Middle Class, 31 FAM. L.Q. 93 (1997). Throughout this article, the term "career assets" will be used in this narrower sense.
4. Brinig, supra note 1, at 93.
5. See generally Lynn D. Wardle, No-Fault Divorce and the Divorce Connundrum, 1991 BYU L. REV. 79 (reviewing arguments made in favor of adoption of no-fault divorce); Walter Wadlington, Divorce Without Fault Without Perjury, 52 VA. L. REV. 32 (1966) (criticizing fault-based divorce requirements).
6. See generally Lynn D. Wardle, No-Fault Divorce and the Divorce Connundrum, 1991 BYU L. REV. 79 (reviewing arguments made in favor of adoption of no-fault divorce); Walter Wadlington, Divorce Without Fault Without Perjury, 52 VA. L. REV. 32 (1966) (criticizing fault-based divorce requirements).
7. June R. Carbone, A Feminist Perspective on Divorce, THE FUTURE OF CHILDREN 183, 187 (Spring 1994).
8. See generally Milton C. Regan, Jr., Spouses and Strangers: Divorce Obligations and Property Rhetoric, 82 GEO. L.J. 2303 (1994); June R. Carbone, Income Sharing: Redefining the Family in Terms of Community, 31 HOUS. L. REV. 359, 368 (1994).
9. See generally Milton C. Regan, Jr., Spouses and Strangers: Divorce Obligations and Property Rhetoric, 82 GEO. L.J. 2303 (1994); June R. Carbone, Income Sharing: Redefining the Family in Terms of Community, 31 HOUS. L. REV. 359, 368 (1994).
10. See Suzanne Reynolds, The Relationship of Property Division and Alimony: The Division of Property to Address Need, 56 FORDHAM L. REV. 827, 834 (1988).
11. See, e.g., Henry H. Foster, Jr. & Doris Jonas Freed, Spousal Rights in Retirement and Pension Benefits, 16 J. FAM. L. 187, 191 (1977-78) (discussing, with the advent of no-fault divorce, alimony "[h]as come to be regarded as an interim stipend which is available for a relatively short time while a former spouse in need prepares for the labor market"); Ann Laquer Estin, Maintenance, Alimony, and the Rehabilitation of Family Care, 71 N.C. L. REV. 721, 725 (1993) (stating alimony reforms direct those who are not currently self-supporting "[t]o 'rehabilitate' themselves quickly and move into the world of full-time paid employment").
12. See, e.g., Henry H. Foster, Jr. & Doris Jonas Freed, Spousal Rights in Retirement and Pension Benefits, 16 J. FAM. L. 187, 191 (1977-78) (discussing, with the advent of no-fault divorce, alimony "[h]as come to be regarded as an interim stipend which is available for a relatively short time while a former spouse in need prepares for the labor market"); Ann Laquer Estin, Maintenance, Alimony, and the Rehabilitation of Family Care, 71 N.C. L. REV. 721, 725 (1993) (stating alimony reforms direct those who are not currently self-supporting "[t]o 'rehabilitate' themselves quickly and move into the world of full-time paid employment").
13. Herma Hill Kay, An Appraisal of California's No-Fault Divorce Law, 75 CAL. L. REV. 291, 299 (1987). See Robert J. Levy, An Introduction to Divorce-Property Issues, 23 FAM. L.Q. 147, 159 (1989) ("Most lawyers would agree that, at a minimum, the divorce revolution sought to achieve no-fault administration as well as recognition of the marriage as a financial partnership."). The reformers have not been completely successful on this score. See Ira Mark Ellman, The Place of Fault in a Modem Divorce Law, 28 ARIZ. ST. L.J. 773 (1996).
14. Herma Hill Kay, An Appraisal of California's No-Fault Divorce Law, 75 CAL. L. REV. 291, 299 (1987). See Robert J. Levy, An Introduction to Divorce-Property Issues, 23 FAM. L.Q. 147, 159 (1989) ("Most lawyers would agree that, at a minimum, the divorce revolution sought to achieve no-fault administration as well as recognition of the marriage as a financial partnership."). The reformers have not been completely successful on this score. See Ira Mark Ellman, The Place of Fault in a Modem Divorce Law, 28 ARIZ. ST. L.J. 773 (1996).
15. Herma Hill Kay, An Appraisal of California's No-Fault Divorce Law, 75 CAL. L. REV. 291, 299 (1987). See Robert J. Levy, An Introduction to Divorce-Property Issues, 23 FAM. L.Q. 147, 159 (1989) ("Most lawyers would agree that, at a minimum, the divorce revolution sought to achieve no-fault administration as well as recognition of the marriage as a financial partnership."). The reformers have not been completely successful on this score. See Ira Mark Ellman, The Place of Fault in a Modem Divorce Law, 28 ARIZ. ST. L.J. 773 (1996).
16. Herma Hill Kay, Equality and Difference: A Perspective on No-Fault Divorce and Its Aftermath, 56 U. CIN. L. REV. 1, 14 (1987).
17. UNIF. MARRIAGE AND DIVORCE ACT, Preface, 9A U.L.A. 147, 148 (1987).
18. Id. at §§ 307-09. The Act's child custody provisions similarly admonished that "[t]he court shall not consider conduct of a proposed custodial parent that does not affect his relationship to the child." Id. at § 402.
19. Carbone, supra note 4, at 187.
20. See Jana Singer, Alimony and Efficiency: The Gendered Costs and Benefits of the Economic Justification for Alimony, 82 GEO. L.J. 2423, 2424-25 (1994).
21. For a recent elaboration of this argument, see Joan Williams, Is Coverture Dead? Beyond a New Theory of Alimony, 82 GEO. L.J. 2227, 2236-55 (1994).
22. Carbone, supra note 4, at 192.
23. See Singer, supra note 13, at 2436.
24. The scholarly writing on alimony is voluminous. For an extensive listing of articles, see Williams, supra note 14, at 2228.
25. See, e.g., Carl E. Schneider, Rethinking Alimony: Marital Decisions and Moral Discourse, 1991 BYU L. REV. 197 (1991); Barbara Bennett Woodhouse, Sex, Lies, and Dissipation: The Discourse of Fault in a No-Fault Era, 82 GEO. L.J. 2525 (1994).
26. See, e.g., Carl E. Schneider, Rethinking Alimony: Marital Decisions and Moral Discourse, 1991 BYU L. REV. 197 (1991); Barbara Bennett Woodhouse, Sex, Lies, and Dissipation: The Discourse of Fault in a No-Fault Era, 82 GEO. L.J. 2525 (1994).
27. Brinig, supra note 1, at 108.
28. Id. at 95.
29. See Joan M. Krauskopf, Recompense for Financing Spouse's Education: Legal Protection for the Marital Investor in Human Capital, 28 U. KAN. L. REV. 379 (1980).
30. For a recent expression of this view, see SHIRLEY P. BURGGRAF, THE FEMININE ECONOMY AND ECONOMIC MAN 125-31 (1996).
31. The lone exception is New York. See O'Brien v O'Brien, 489 N.E.2d 712 (1985).
32. Brinig, supra note 1, at 97-98.
33. Id. at 106.
34. Id. at 107.
35. Id. at 100.
36. Brinig does not consider the possibility that allowing recovery for enhancements in earning capacity might reinforce traditional gender roles, a concern that others have raised. See Kay, supra note 8, at 80.
37. Brinig, supra note 1, at 107.
38. As Brinig acknowledges, other scholars have offered similar critiques. See, e.g., Williams, supra note 14, at 2282-84; Milton C. Regan, Jr., Spouses and Strangers: Divorce Obligations and Property Rhetoric, 82 GEO. L.J. 2303 (1994); June Carbone, Income Sharing: Redefining the Family in Terms of Community, 31 HOUS. L. REV. 359 (1994).
39. As Brinig acknowledges, other scholars have offered similar critiques. See, e.g., Williams, supra note 14, at 2282-84; Milton C. Regan, Jr., Spouses and Strangers: Divorce Obligations and Property Rhetoric, 82 GEO. L.J. 2303 (1994); June Carbone, Income Sharing: Redefining the Family in Terms of Community, 31 HOUS. L. REV. 359 (1994).
40. As Brinig acknowledges, other scholars have offered similar critiques. See, e.g., Williams, supra note 14, at 2282-84; Milton C. Regan, Jr., Spouses and Strangers: Divorce Obligations and Property Rhetoric, 82 GEO. L.J. 2303 (1994); June Carbone, Income Sharing: Redefining the Family in Terms of Community, 31 HOUS. L. REV. 359 (1994).
41. Williams, supra note 14, at 2227, 2267.
42. See Kay, supra note 8, at 312-13.
43. But cf. Williams, supra note 14, at 2267-79 (arguing that these objections rest on an outdated understanding of property and are more properly directed at human capital theory than at modern property concepts).
44. See generally Margaret Jane Radin, Market-Inalienability, 100 HARV. L. REV. 1849 (1987).
45. ALLEN M. PARKMAN, NO-FAULT DIVORCE: WHAT WENT WRONG? 40-42 (1992). See Allen M. Parkman, The Recognition of Human Capital as Property in Divorce Settlements, 40 ARK. L. REV. 439, 449-50 (1987).
46. ALLEN M. PARKMAN, NO-FAULT DIVORCE: WHAT WENT WRONG? 40-42 (1992). See Allen M. Parkman, The Recognition of Human Capital as Property in Divorce Settlements, 40 ARK. L. REV. 439, 449-50 (1987).
47. Brinig supra note 1, at 96.
48. Ironically, this argument tends to undermine one of Brinig's other points -that if we are willing to recognize a supporting spouse's investment in her partner's professional education, we should be equally willing to recognize investment interests in other career enhancements.
49. Brinig, supra note 1, at 96.
50. The only students who do not share this perception are married students with children. This reinforces the argument, developed below, that it is marriage plus parenthood, that provides the most persuasive grounding for a joint ownership claim.
51. Brinig, supra note 1, at 97.
52. Joan M. Krauskopf, Theories of Property Division/Spousal Support: Searching for Solutions to the Mystery, 23 FAM. L.Q. 253, 257-58 (1989) (discussing fundamental legal distinction between assets that can be separated from individuals and personal gains and losses).
53. See Singer, supra note 13, at 2445-46; Williams, supra note 14, at 2255-56 ("A wife who shoulders childrearing and other domestic responsibilities allows her husband both to perform as an ideal worker and to have his children raised according to norms of parental care . . .").
54. Singer, supra note 13, at 2445-46.
55. The American Law Institute's most recent draft of the Principles of the Law of Family Dissolution recognizes this justification for claims by a primary caretaker spouse on her partner's post-marital earnings. See American Law Institute, Principles of the Law of Family Dissolution, § 5.06, Comment e (Proposed Final Draft, February 14, 1997) [hereinafter Proposed ALI Principles]. By fulfilling their joint responsibility for their children's care, the claimant under this section has allowed the other parent to have a family while also developing his or her earning capacity. At dissolution, the primary wage earner retains both his earning capacity and his status as a parent, while in the absence of any remedy the primary caretaker loses her claim upon her spouse's earnings. . . . The compensable loss recognized by this section can thus also be explained as providing a more balanced allocation at dissolution of the benefits created by both spouses' contributions to the marriage.
56. Brinig, supra note 1, at 108.
57. Williams, supra note 14, at 2236-37.
58. Singer, supra note 13, at 2446.
59. I am by no means the first person to make this suggestion. See ,e.g., Williams, supra note 14, at 2257-66 (proposing income equalization rule for post-divorce households with children); Carbone, supra note 30; Mary Ann Glendon, Family Law Reform in the 1980's, 44 LA. L. REV. 1553, 1557-65 (1984) (suggesting that courts apply a "children first" principle in distributing property at divorce).
60. I am by no means the first person to make this suggestion. See ,e.g., Williams, supra note 14, at 2257-66 (proposing income equalization rule for post-divorce households with children); Carbone, supra note 30; Mary Ann Glendon, Family Law Reform in the 1980's, 44 LA. L. REV. 1553, 1557-65 (1984) (suggesting that courts apply a "children first" principle in distributing property at divorce).
61. Williams, supra note 14, at 2235-36.
62. Id. at 2237 (discussing employment statistics). For an extended discussion of this pattern and its consequences for intra-family bargaining, see RHONA MAHONY, KIDDING OURSELVES: BREADWINNING, BABIES, AND BARGAINING POWER (1995).
63. Id. at 2237 (discussing employment statistics). For an extended discussion of this pattern and its consequences for intra-family bargaining, see RHONA MAHONY, KIDDING OURSELVES: BREADWINNING, BABIES, AND BARGAINING POWER (1995).
64. Considerable debate exists over whether specialization within marriage serves women's long term interests. Compare Estin, supra note 7 (advocating enhanced financial protection for spouses who have specialized in family care) with Kay, supra note 9, at 80 (cautioning against divorce regimes that "encourage future couples entering marriage to make choices that will be economically disabling for women, thereby perpetuating their traditional financial dependence upon women and contributing to their inequality with men at divorce.").
65. See Proposed ALI Principles, supra note 44, at §§ 5.14-5.16 (recognizing entitlements to compensation for economic losses incurred by supporting spouses during short-term childless marriages). The ALI Principles also recognize that supporting spouses who divorce after long-term traditional marriages are entitled to share in their partner's post-divorce earnings, without regard to the presence of children. Id. at § 5.05 (Compensation for Loss of Marital Living Standard).
66. In other writings, Professor Brinig has explored the hypothesis that the elimination of fault as a factor in divorce proceedings may increase both the divorce rate and the incidence of abusive behavior during marriage. See Margaret F. Brinig & Steven M. Crafton, Marriage and Opportunism, 23 J. LEGAL STUD. 869 (1994); Margaret F. Brinig & F.H. Buckley, No-Fault Laws-At Fault People (Working Paper, George Mason University Law School 1995).
67. In other writings, Professor Brinig has explored the hypothesis that the elimination of fault as a factor in divorce proceedings may increase both the divorce rate and the incidence of abusive behavior during marriage. See Margaret F. Brinig & Steven M. Crafton, Marriage and Opportunism, 23 J. LEGAL STUD. 869 (1994); Margaret F. Brinig & F.H. Buckley, No-Fault Laws-At Fault People (Working Paper, George Mason University Law School 1995).
68. Brinig, supra note 1, at 115.
69. Ellman, supra note 8 at 778-80 (1996). See Woodhouse, supra note 18, at 2538 (assenting that "[i]n spite of the no-fault revolution, approximately half the states assign a significant role to both economic dissipation and general marital fault in awarding alimony.").
70. Brinig, supra note 1, at 112-13.
71. This term is derived from Woodhouse, supra note 18, at 2532-33.
72. In a sense, this scenario is the converse of the one commonly used by critics of unilateral, no-fault divorce - the irresponsible and/or guilty husband who dumps his innocent homemaker wife. I want to emphasize that I am not suggesting that spouses should have to give reasons in order to obtain a divorce. Nor am I arguing that a supporting spouse who obtains a unilateral, no-fault divorce be precluded from traditional property division or support remedies. All I am questioning is whether such a spouse should also be entitled to a division of career assets.
73. See generally Arthur B. Cornell, Jr., When Two Become One, and Then Come Undone: An Organizational Approach to Marriage and Its Implications for Divorce Law, 26 FAM. L.Q. 103, 112-20 (1992) (spouses who invest disproportionately in marriage have less incentive to engage in marriage-destroying behavior). MAHONY, supra note 50 (discussing effect of traditional gender roles on bargaining power within marriage).
74. See generally Arthur B. Cornell, Jr., When Two Become One, and Then Come Undone: An Organizational Approach to Marriage and Its Implications for Divorce Law, 26 FAM. L.Q. 103, 112-20 (1992) (spouses who invest disproportionately in marriage have less incentive to engage in marriage-destroying behavior). MAHONY, supra note 50 (discussing effect of traditional gender roles on bargaining power within marriage).
75. See generally DEMIE KURZ, FOR RICHER, FOR POORER: MOTHERS CONFRONT DIVORCE 47 (1995) (in-depth study of 129 divorced women showed that most had sought divorce because of physical and/or emotional abuse); Woodhouse, supra note 18, at 2550 ("In the terminology of fault and no-fault, the typical woman in Kurz's study stated a prima facie case for a fault-based divorce.").
76. See Ellman, supra note 8, at 786-92.
77. Brinig, supra note 1, at 93.