Property Distribution Physics: The Talisman of Time and Middle Class Law

Family Law Quarterly

Volumn 31, Issue 1, 1997, Pages 93-118

  Brinig, Margaret F ^a  

^a GEORGE MASON UNIVERSITY   (United States)

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EID: 0031525285     PISSN: 0014729X     EISSN: None     Source Type: Journal    
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References (226)

1. Mahoney v. Mahoney, 453 A.2d 527 (N.J. 1982). Mahoney is a principal case in standard family law casebooks. See, e.g., CARL E. SCHNEIDER & MARGARET F. BRINIG, AN INVITATION TO FAMILY LAW (1996); WALTER WADLINGTON, DOMESTIC RELATIONS (2d ed. 1990).
2. Mahoney v. Mahoney, 453 A.2d 527 (N.J. 1982). Mahoney is a principal case in standard family law casebooks. See, e.g., CARL E. SCHNEIDER & MARGARET F. BRINIG, AN INVITATION TO FAMILY LAW (1996); WALTER WADLINGTON, DOMESTIC RELATIONS (2d ed. 1990).
3. Mahoney v. Mahoney, 453 A.2d 527 (N.J. 1982). Mahoney is a principal case in standard family law casebooks. See, e.g., CARL E. SCHNEIDER & MARGARET F. BRINIG, AN INVITATION TO FAMILY LAW (1996); WALTER WADLINGTON, DOMESTIC RELATIONS (2d ed. 1990).
4. The literature on professional degrees is quite voluminous. For articles written before 1983, see sources cited in Haugan v. Haugan, 343 N.W.2d 796, 800 & n.3 (Wis. 1984).
5. See, e.g., Piscopo v. Piscopo, 557 A.2d 1040 (N.J. Super. Ct. App. Div. 1989); Golub v. Golub, 527 N.Y.S.2d 946 (N.Y. App. Div. 1988); Elkus v. Elkus, 572 N.Y.S.2d 901 (N.Y. App. Div. 1991). These cases all involve career enhancement, but not professional degrees.
6. Aufmuth v. Aufmuth, 152 Cal. Rptr. (Cal. Ct. App. 1979). For an extended discussion of this principle, see Jana B. Singer, Divorce Reform and Gender Justice, 67 N.C. L. REV. 1103 (1985). See also Jane Rutherford, Duty in Divorce: Shared Income as a Path to Equality, 58 FORDHAM L. REV. 539 (1990).
7. Aufmuth v. Aufmuth, 152 Cal. Rptr. (Cal. Ct. App. 1979). For an extended discussion of this principle, see Jana B. Singer, Divorce Reform and Gender Justice, 67 N.C. L. REV. 1103 (1985). See also Jane Rutherford, Duty in Divorce: Shared Income as a Path to Equality, 58 FORDHAM L. REV. 539 (1990).
8. Aufmuth v. Aufmuth, 152 Cal. Rptr. (Cal. Ct. App. 1979). For an extended discussion of this principle, see Jana B. Singer, Divorce Reform and Gender Justice, 67 N.C. L. REV. 1103 (1985). See also Jane Rutherford, Duty in Divorce: Shared Income as a Path to Equality, 58 FORDHAM L. REV. 539 (1990).
9. AMERICAN LAW INSTITUTE, PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION (Tentative Draft May 1996) [hereinafter ALI Tentative Draft]. Section 4.07 provides: (1) "Spousal earning capacity, spousal skills, and post-dissolution spousal labor are not property divisible on divorce." Consistent with this interpretation, section 2 provides that occupational licenses and educational degrees are not property divisible on divorce. "The principle underlying this difference [between alimony and property] is that marriage creates property entitlements to certain things acquired during it, but does not create property entitlements against the person of the other spouse." Id. at 173, cmt. a.
10. Bussewitz v. Bussewitz, 248 N.W.2d 417, 420 (Wis. 1977) (marital estate consists of the "assets of the parties as they exist at the time of the divorce"). An exception is for goodwill. See ALI Tentative Draft, supra note 5, § 4.07(3)(b); Dugan v. Dugan, 457 A.2d 1, 9 (N.J. 1983). See generally Grace Blumberg, Marital Property Treatment of Pensions, Disability Pay, Workmen's Comp, and Other Wage Substitutes: An Insurance, or Replacement, Analysis, 33 UCLA L. REV. 1250, 1260-64 (1986); THOMAS OLDHAM, DIVORCE, SEPARATION AND THE DISTRIBUTION OF PROPERTY 7-69 (1991). Another exception is for pensions. See ALI Tentative Draft, § 4.08(1); Moore v. Moore, 553 A.2d 20 (N.J. 1989).
11. Bussewitz v. Bussewitz, 248 N.W.2d 417, 420 (Wis. 1977) (marital estate consists of the "assets of the parties as they exist at the time of the divorce"). An exception is for goodwill. See ALI Tentative Draft, supra note 5, § 4.07(3)(b); Dugan v. Dugan, 457 A.2d 1, 9 (N.J. 1983). See generally Grace Blumberg, Marital Property Treatment of Pensions, Disability Pay, Workmen's Comp, and Other Wage Substitutes: An Insurance, or Replacement, Analysis, 33 UCLA L. REV. 1250, 1260-64 (1986); THOMAS OLDHAM, DIVORCE, SEPARATION AND THE DISTRIBUTION OF PROPERTY 7-69 (1991). Another exception is for pensions. See ALI Tentative Draft, § 4.08(1); Moore v. Moore, 553 A.2d 20 (N.J. 1989).
12. Bussewitz v. Bussewitz, 248 N.W.2d 417, 420 (Wis. 1977) (marital estate consists of the "assets of the parties as they exist at the time of the divorce"). An exception is for goodwill. See ALI Tentative Draft, supra note 5, § 4.07(3)(b); Dugan v. Dugan, 457 A.2d 1, 9 (N.J. 1983). See generally Grace Blumberg, Marital Property Treatment of Pensions, Disability Pay, Workmen's Comp, and Other Wage Substitutes: An Insurance, or Replacement, Analysis, 33 UCLA L. REV. 1250, 1260-64 (1986); THOMAS OLDHAM, DIVORCE, SEPARATION AND THE DISTRIBUTION OF PROPERTY 7-69 (1991). Another exception is for pensions. See ALI Tentative Draft, § 4.08(1); Moore v. Moore, 553 A.2d 20 (N.J. 1989).
13. Bussewitz v. Bussewitz, 248 N.W.2d 417, 420 (Wis. 1977) (marital estate consists of the "assets of the parties as they exist at the time of the divorce"). An exception is for goodwill. See ALI Tentative Draft, supra note 5, § 4.07(3)(b); Dugan v. Dugan, 457 A.2d 1, 9 (N.J. 1983). See generally Grace Blumberg, Marital Property Treatment of Pensions, Disability Pay, Workmen's Comp, and Other Wage Substitutes: An Insurance, or Replacement, Analysis, 33 UCLA L. REV. 1250, 1260-64 (1986); THOMAS OLDHAM, DIVORCE, SEPARATION AND THE DISTRIBUTION OF PROPERTY 7-69 (1991). Another exception is for pensions. See ALI Tentative Draft, § 4.08(1); Moore v. Moore, 553 A.2d 20 (N.J. 1989).
14. Section 71 of the IRC makes alimony deductible by the payor and taxable to the payee. I.R.C. § 71 (1995). Property distribution caused a capital gain to accrue to the spouse who originally owned it, while the recipient received the property at its new basis, U.S. v. Davis, 370 U.S. 65 (1962), until the Domestic Relations Tax Reform Act of 1984 provided that it should be treated for income tax purposes as a gift (not a taxable event; recipient retains old basis). I.R.C. § 1041 (1995).
15. See ALI Tentative Draft, supra note 5, § 4.07: "Earning capacity" has no meaning or existence independent of the method used to measure it. It is generally measured by finding a present value for all or some part of the individual's future earnings, and is thus no more than a shorthand term for that present value. A rule characterizing earning capacity as marital property is a rule treating future earnings as marital property, which in operation requires that those earnings be estimated at divorce so that their present value can then be fixed and allocated between the spouses.
16. Modification is discussed in ALI Tentative Draft, supra note 5, § 5.09, at cmt. a ("Alimony awards, unlike the allocations at divorce of marital property, are traditionally modifiable to reflect changes in the parties' circumstances that arise after the initial decree is rendered."). For the difference in courts' enforcement powers, see Picker v. Vollenhover, 290 P.2d 789 (Or. 1955).
17. Joan M. Krauskopf, Recompense for Financing Spouse's Education: Legal Protection for the Marital Investor in Human Capital, 28 KAN. L. REV. 379 (1980). One persistent advocate of many of the themes I explore here, though holding some different conclusions, is Allen Parkman. See, e.g., ALLEN M. PARKMAN, No FAULT DIVORCE: WHAT WENT WRONG? (1992); Allen M. Parkman, Human Capital as Property in Celebrity Divorces, 29 FAM. L.Q. 141 (1995). Gary Becker did the pioneering work on human capital. GARY S. BECKER, HUMAN CAPITAL (3d ed. 1993). See also Singer, supra note 4, at 1115 (another view of how sharing of the marital assets might be made more equal).
18. Joan M. Krauskopf, Recompense for Financing Spouse's Education: Legal Protection for the Marital Investor in Human Capital, 28 KAN. L. REV. 379 (1980). One persistent advocate of many of the themes I explore here, though holding some different conclusions, is Allen Parkman. See, e.g., ALLEN M. PARKMAN, No FAULT DIVORCE: WHAT WENT WRONG? (1992); Allen M. Parkman, Human Capital as Property in Celebrity Divorces, 29 FAM. L.Q. 141 (1995). Gary Becker did the pioneering work on human capital. GARY S. BECKER, HUMAN CAPITAL (3d ed. 1993). See also Singer, supra note 4, at 1115 (another view of how sharing of the marital assets might be made more equal).
19. Joan M. Krauskopf, Recompense for Financing Spouse's Education: Legal Protection for the Marital Investor in Human Capital, 28 KAN. L. REV. 379 (1980). One persistent advocate of many of the themes I explore here, though holding some different conclusions, is Allen Parkman. See, e.g., ALLEN M. PARKMAN, No FAULT DIVORCE: WHAT WENT WRONG? (1992); Allen M. Parkman, Human Capital as Property in Celebrity Divorces, 29 FAM. L.Q. 141 (1995). Gary Becker did the pioneering work on human capital. GARY S. BECKER, HUMAN CAPITAL (3d ed. 1993). See also Singer, supra note 4, at 1115 (another view of how sharing of the marital assets might be made more equal).
20. Joan M. Krauskopf, Recompense for Financing Spouse's Education: Legal Protection for the Marital Investor in Human Capital, 28 KAN. L. REV. 379 (1980). One persistent advocate of many of the themes I explore here, though holding some different conclusions, is Allen Parkman. See, e.g., ALLEN M. PARKMAN, No FAULT DIVORCE: WHAT WENT WRONG? (1992); Allen M. Parkman, Human Capital as Property in Celebrity Divorces, 29 FAM. L.Q. 141 (1995). Gary Becker did the pioneering work on human capital. GARY S. BECKER, HUMAN CAPITAL (3d ed. 1993). See also Singer, supra note 4, at 1115 (another view of how sharing of the marital assets might be made more equal).
21. Joan M. Krauskopf, Recompense for Financing Spouse's Education: Legal Protection for the Marital Investor in Human Capital, 28 KAN. L. REV. 379 (1980). One persistent advocate of many of the themes I explore here, though holding some different conclusions, is Allen Parkman. See, e.g., ALLEN M. PARKMAN, No FAULT DIVORCE: WHAT WENT WRONG? (1992); Allen M. Parkman, Human Capital as Property in Celebrity Divorces, 29 FAM. L.Q. 141 (1995). Gary Becker did the pioneering work on human capital. GARY S. BECKER, HUMAN CAPITAL (3d ed. 1993). See also Singer, supra note 4, at 1115 (another view of how sharing of the marital assets might be made more equal).
22. ROBERT C. POZEN, FINANCIAL INSTITUTIONS: CASES, MATERIALS AND PROBLEMS IN INVESTMENT MANAGEMENT (1986); Frank H. Easterbrook, Two Agency-Cost Explanations of Dividends, 74 AMER. ECON. REV. 650 (1984). See also Parkman, supra note 10, at 146. The corporation might also be financed through debt (bonds), with the stream of income interest as opposed to dividends. RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 371 (3d ed. 1988); Alan Schwartz, The Continuing Puzzle of Secured Debt, 37 VAND. L. REV. 1051 (1984). See generally Michael C. Jensen & William H. Meckling, Theory of the Firm: Managerial Behavior, Agency Costs and Ownership Structure, 3 J. FINAN. ECON. 305 (1976).
23. ROBERT C. POZEN, FINANCIAL INSTITUTIONS: CASES, MATERIALS AND PROBLEMS IN INVESTMENT MANAGEMENT (1986); Frank H. Easterbrook, Two Agency-Cost Explanations of Dividends, 74 AMER. ECON. REV. 650 (1984). See also Parkman, supra note 10, at 146. The corporation might also be financed through debt (bonds), with the stream of income interest as opposed to dividends. RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 371 (3d ed. 1988); Alan Schwartz, The Continuing Puzzle of Secured Debt, 37 VAND. L. REV. 1051 (1984). See generally Michael C. Jensen & William H. Meckling, Theory of the Firm: Managerial Behavior, Agency Costs and Ownership Structure, 3 J. FINAN. ECON. 305 (1976).
24. ROBERT C. POZEN, FINANCIAL INSTITUTIONS: CASES, MATERIALS AND PROBLEMS IN INVESTMENT MANAGEMENT (1986); Frank H. Easterbrook, Two Agency-Cost Explanations of Dividends, 74 AMER. ECON. REV. 650 (1984). See also Parkman, supra note 10, at 146. The corporation might also be financed through debt (bonds), with the stream of income interest as opposed to dividends. RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 371 (3d ed. 1988); Alan Schwartz, The Continuing Puzzle of Secured Debt, 37 VAND. L. REV. 1051 (1984). See generally Michael C. Jensen & William H. Meckling, Theory of the Firm: Managerial Behavior, Agency Costs and Ownership Structure, 3 J. FINAN. ECON. 305 (1976).
25. ROBERT C. POZEN, FINANCIAL INSTITUTIONS: CASES, MATERIALS AND PROBLEMS IN INVESTMENT MANAGEMENT (1986); Frank H. Easterbrook, Two Agency-Cost Explanations of Dividends, 74 AMER. ECON. REV. 650 (1984). See also Parkman, supra note 10, at 146. The corporation might also be financed through debt (bonds), with the stream of income interest as opposed to dividends. RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 371 (3d ed. 1988); Alan Schwartz, The Continuing Puzzle of Secured Debt, 37 VAND. L. REV. 1051 (1984). See generally Michael C. Jensen & William H. Meckling, Theory of the Firm: Managerial Behavior, Agency Costs and Ownership Structure, 3 J. FINAN. ECON. 305 (1976).
26. ROBERT C. POZEN, FINANCIAL INSTITUTIONS: CASES, MATERIALS AND PROBLEMS IN INVESTMENT MANAGEMENT (1986); Frank H. Easterbrook, Two Agency-Cost Explanations of Dividends, 74 AMER. ECON. REV. 650 (1984). See also Parkman, supra note 10, at 146. The corporation might also be financed through debt (bonds), with the stream of income interest as opposed to dividends. RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 371 (3d ed. 1988); Alan Schwartz, The Continuing Puzzle of Secured Debt, 37 VAND. L. REV. 1051 (1984). See generally Michael C. Jensen & William H. Meckling, Theory of the Firm: Managerial Behavior, Agency Costs and Ownership Structure, 3 J. FINAN. ECON. 305 (1976).
27. ROBERT C. POZEN, FINANCIAL INSTITUTIONS: CASES, MATERIALS AND PROBLEMS IN INVESTMENT MANAGEMENT (1986); Frank H. Easterbrook, Two Agency-Cost Explanations of Dividends, 74 AMER. ECON. REV. 650 (1984). See also Parkman, supra note 10, at 146. The corporation might also be financed through debt (bonds), with the stream of income interest as opposed to dividends. RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 371 (3d ed. 1988); Alan Schwartz, The Continuing Puzzle of Secured Debt, 37 VAND. L. REV. 1051 (1984). See generally Michael C. Jensen & William H. Meckling, Theory of the Firm: Managerial Behavior, Agency Costs and Ownership Structure, 3 J. FINAN. ECON. 305 (1976).
28. In contrast, the classic case of Graham v. Graham, 574 P.2d 75, 77 (Colo. 1978), noted that: An educational degree, such as an M.B.A. is simply not encompassed even by the broad views of the concept of "property." It does not have an exchange value or any objective transferable value on an open market. . . . In our view, it has none of the attributes of property in the usual sense of that term. However, a professional license was recognized to be property in one state. O'Brien v. O'Brien, 489 N.E.2d 712 (N.Y. 1985). See also Ciobanu v. Ciobanu, 409 S.E.2d 749, 751 (N.C. Ct. App. 1991) (spouse's contribution recognized as a contribution to separate property).
29. Thus, Lenore Weitzman calls future earnings the "diamonds" of marital property. LENORE WEITZMAN, THE DIVORCE REVOLUTION 109 (1985). They are "often the most valuable assets a couple owns." Id. at 141.
30. See generally supra note 10.
31. See also Parkman, supra note 10, at 147.
32. In addition to Mahoney, see Lehmicke v. Lehmicke, 489 A.2d 782 (Pa. Super. Ct. 1985) (compensation for financial support).
33. See id. (Weiland, J., concurring and dissenting) ("In a sense, the spouse who contributes to the other's obtaining of a degree has made a marital investment.").
34. I acknowledge my intellectual debt to Alan Koczela, who argued this point with me.
35. He might have made this decision because a mixture of debt and equity enables the corporation to provide different risk-return packages to meet the varying preferences of investors (lenders and stockholders). The expected return of bonds is less than that of both unsecured creditors and stockholders. See POSNER, supra note 11, § 14.4 & n.1.
36. There was a young lawyer, Daniel Huston, who was murdered outside a Washington-area nightclub recently. Arlo Wagner, Carjacking Death Stuns Victim's Friends and Family, WASH. TIMES, Sept. 11, 1994, at 10. His alleged assailants were sentenced in November of 1995. Brian Mooar, Two Men Sentenced to Life in Killing Outside Club, WASH. POST, Nov. 29, 1995, at D1. Problems for degree division like those posed by premature death are discussed in Haugan v. Haugan, 343 N.W.2d 796 (Wis. 1984).
37. There was a young lawyer, Daniel Huston, who was murdered outside a Washington-area nightclub recently. Arlo Wagner, Carjacking Death Stuns Victim's Friends and Family, WASH. TIMES, Sept. 11, 1994, at 10. His alleged assailants were sentenced in November of 1995. Brian Mooar, Two Men Sentenced to Life in Killing Outside Club, WASH. POST, Nov. 29, 1995, at D1. Problems for degree division like those posed by premature death are discussed in Haugan v. Haugan, 343 N.W.2d 796 (Wis. 1984).
38. There was a young lawyer, Daniel Huston, who was murdered outside a Washington-area nightclub recently. Arlo Wagner, Carjacking Death Stuns Victim's Friends and Family, WASH. TIMES, Sept. 11, 1994, at 10. His alleged assailants were sentenced in November of 1995. Brian Mooar, Two Men Sentenced to Life in Killing Outside Club, WASH. POST, Nov. 29, 1995, at D1. Problems for degree division like those posed by premature death are discussed in Haugan v. Haugan, 343 N.W.2d 796 (Wis. 1984).
39. The expected value of an (good) asset of P currently worth $100 is calculated as follows: Say we want to know its expected value in a year. There is an 80% probability that it will have a normal rate of return, and be worth $110. There is a 10% probability that it will do exceptionally well, and be worth $120, and a 10% probability that it will do badly, and be worth only $105. EV(P) = (.8 × $110) + (.1 × $120) + (.1 × $105) = $88 + $12 + $10.50 = $110.50. See JOHN VON NEUMANN & OSKAR MORGENSTERN, THEORY OF GAMES AND ECONOMIC BEHAVIOR (1964).
40. In class, I have long used the example of sports personality Joe Theisman, who was a college quarterback at the time of his first marriage.
41. The lawyer arguing for a share of enhanced earnings could obtain statistics on the percentage of people certified for a particular career that lose their certification or otherwise cease to use the enhancement prior to normal retirement age.
42. Recent data from Connecticut indicate that the average education of divorcing wives from 1993-95 was 13.218 years and for their husbands was 13.076 years. CONN. DEP'T OF PUBLIC HEALTH, OFF. OF POLICY, PLANNING AND EVALUATION (1993-95) (electronic data available from author; maximum years recorded was 17 for all post-college work).
43. Cases I use in class include Piscopo v. Piscopo, 557 A.2d 1040 (N.J. Super. Ct. 1989) (comedian); Golub v. Golub, 527 N.Y.S.2d 946 (N.Y. App. Div. 1988) (actress and model). A businessman's wife's sacrifices for her husband's career were recognized in Meinholz v. Meinholz, 678 S.W.2d 348 (Ark. 1984).
44. McSparron v. McSparron, 662 N.E.2d 745 (N. Y. 1995). The lawyer husband argued unsuccessfully that his degree had merged with his practice, since the Juris Doctor was obtained in the early days of the marriage. The court rejected this view, noting that his future earnings, unlike the doctor wife's, could be calculated based upon actual past earnings.
45. See, e.g., Editorial, A Prize Ex-Husband; Divorce Doesn't Doom a Wife's Stake in a Nobel, PITTSBURGH POST-GAZETTE, Oct. 30, 1995, at A14.
46. At a minimum, a spousal investment avoids the transaction costs associated with commercial loans. Such a family source of funding may be the only one available to some poor but promising spouses.
47. The investment in the unit, as opposed to the self, is part of what strengthens marriages in the first place. Compare Marjorie M. Shultz, Contractual Ordering of Marriage: New Directions for State Policy, 70 CALIF. L. REV. 204, 264 (1982), with Margaret F. Brinig & Steven Crafton, Marriage and Opportunism, 23 J. LEGAL STUD. 869, 883 (1991).
48. The investment in the unit, as opposed to the self, is part of what strengthens marriages in the first place. Compare Marjorie M. Shultz, Contractual Ordering of Marriage: New Directions for State Policy, 70 CALIF. L. REV. 204, 264 (1982), with Margaret F. Brinig & Steven Crafton, Marriage and Opportunism, 23 J. LEGAL STUD. 869, 883 (1991).
49. June Carbone, Economics, Feminism, and the Reinvention of Alimony: A Reply to Ira Ellman, 43 VAND. L. REV. 1463 (1991) (commenting on Ira M. Ellman, The Theory of Alimony, 77 CALIF. L. REV. 1 (1989) which has a strong incentive rationale). Another critical comment on Ellman is Carl E. Schneider, Rethinking Alimony: Marital Decisions and Moral Discourse, 1991 BYU L. REV. (1991).
50. June Carbone, Economics, Feminism, and the Reinvention of Alimony: A Reply to Ira Ellman, 43 VAND. L. REV. 1463 (1991) (commenting on Ira M. Ellman, The Theory of Alimony, 77 CALIF. L. REV. 1 (1989) which has a strong incentive rationale). Another critical comment on Ellman is Carl E. Schneider, Rethinking Alimony: Marital Decisions and Moral Discourse, 1991 BYU L. REV. (1991).
51. June Carbone, Economics, Feminism, and the Reinvention of Alimony: A Reply to Ira Ellman, 43 VAND. L. REV. 1463 (1991) (commenting on Ira M. Ellman, The Theory of Alimony, 77 CALIF. L. REV. 1 (1989) which has a strong incentive rationale). Another critical comment on Ellman is Carl E. Schneider, Rethinking Alimony: Marital Decisions and Moral Discourse, 1991 BYU L. REV. (1991).
52. See Golub v. Golub, 527 N.Y.S.2d 946 (N.Y. App. Div. 1988) ("[A]ll sorts of enhanced earning capacity cases are indistinguishable. . . . There seems to be no rational basis upon which to distinguish between a degree, a license, or any other special skill that generates substantial income.").
53. My research assistant, Joel Traylor, suggested this problem.
54. For a recent case in which a sociologist testified about this fact, see Baehr v. Miike, 1996 WL 694235 (Haw. Cir. Ct. 1996). See also Brinig & Crafton, supra note 29, at 334 (the authors use multivariate time series regression analysis to focus on the effect of no-fault divorce). See also H. Elizabeth Peters, Marriage and Divorce: Informational Constraints and Private Ordering, 76 AM. ECON. REV. 437, 443-44 (1986); Lloyd Cohen, Marriage, Divorce and Quasi-Rents, Or, "I Gave Him the Best Years of My Life," 16 J. LEGAL. STUD. 267, 296 (1987).
55. For a recent case in which a sociologist testified about this fact, see Baehr v. Miike, 1996 WL 694235 (Haw. Cir. Ct. 1996). See also Brinig & Crafton, supra note 29, at 334 (the authors use multivariate time series regression analysis to focus on the effect of no-fault divorce). See also H. Elizabeth Peters, Marriage and Divorce: Informational Constraints and Private Ordering, 76 AM. ECON. REV. 437, 443-44 (1986); Lloyd Cohen, Marriage, Divorce and Quasi-Rents, Or, "I Gave Him the Best Years of My Life," 16 J. LEGAL. STUD. 267, 296 (1987).
56. For a recent case in which a sociologist testified about this fact, see Baehr v. Miike, 1996 WL 694235 (Haw. Cir. Ct. 1996). See also Brinig & Crafton, supra note 29, at 334 (the authors use multivariate time series regression analysis to focus on the effect of no-fault divorce). See also H. Elizabeth Peters, Marriage and Divorce: Informational Constraints and Private Ordering, 76 AM. ECON. REV. 437, 443-44 (1986); Lloyd Cohen, Marriage, Divorce and Quasi-Rents, Or, "I Gave Him the Best Years of My Life," 16 J. LEGAL. STUD. 267, 296 (1987).
57. VICTOR FUCHS, WOMEN'S QUEST FOR ECONOMIC EQUALITY (1988).
58. See, e.g., Lois Verbrugge & Jennifer Madans, Women's Roles and Health, AM. DEMOGRAPHICS 35 (Mar. 1985). See also Parkman, supra note 10, at 99-101. Parkman argues in a recent paper that women are working "double duty to protect against no-fault." ALLEN PARKMAN, WHY ARE MARRIED WOMEN WORKING So HARD? (Working Paper, Dep't of Management, Sch. of Bus. and Management, U.N.M., 1996).
59. See, e.g., Lois Verbrugge & Jennifer Madans, Women's Roles and Health, AM. DEMOGRAPHICS 35 (Mar. 1985). See also Parkman, supra note 10, at 99-101. Parkman argues in a recent paper that women are working "double duty to protect against no-fault." ALLEN PARKMAN, WHY ARE MARRIED WOMEN WORKING So HARD? (Working Paper, Dep't of Management, Sch. of Bus. and Management, U.N.M., 1996).
60. See, e.g., Lois Verbrugge & Jennifer Madans, Women's Roles and Health, AM. DEMOGRAPHICS 35 (Mar. 1985). See also Parkman, supra note 10, at 99-101. Parkman argues in a recent paper that women are working "double duty to protect against no-fault." ALLEN PARKMAN, WHY ARE MARRIED WOMEN WORKING So HARD? (Working Paper, Dep't of Management, Sch. of Bus. and Management, U.N.M., 1996).
61. Lynn A. Baker & Robert E. Emery, When Every Relationship is Above Average, 17 L. & HUM. BEHAV. 439 (1993).
62. See Margaret F. Brinig, Rings and Promises, 6 J.L. ECON. & ORGAN. 203 (1990) (discusses the decline of the breach of promise action). For a good argument for abolition of the related tort of seduction, see Walter Wadlington, Shotgun Marriage by Operation of Law, 1 GA. L. REV. 183 (1967).
63. See Margaret F. Brinig, Rings and Promises, 6 J.L. ECON. & ORGAN. 203 (1990) (discusses the decline of the breach of promise action). For a good argument for abolition of the related tort of seduction, see Walter Wadlington, Shotgun Marriage by Operation of Law, 1 GA. L. REV. 183 (1967).
64. See Elizabeth S. Scott, Rational Decisionmaking About Marriage and Divorce, 76 VA. L. REV. 9 (1990); Brinig & Crafton, supra note 29; Cohen, supra note 33.
65. See Elizabeth S. Scott, Rational Decisionmaking About Marriage and Divorce, 76 VA. L. REV. 9 (1990); Brinig & Crafton, supra note 29; Cohen, supra note 33.
66. Douglas W. Allen, "What Does She See in Him?" The Effect of Sharing on the Choice of Spouse, 30 ECON. INQUIRY 57 (1992).
67. A recent best-selling discussion of one such change is THOMAS W. CAHILL, HOW THE IRISH SAVED CIVILIZATION (1995).
68. For a business school source, see ALFRED CHANDLER, SCALE AND SCOPE: THE DYNAMICS OF INDUSTRIAL CAPITALISM (1990).
69. Though this proposition seems obvious, a citation is Kujawinski v. Kujawinski, 376 N.E.2d 1382 (Ill. 1978). See also SCHNEIDER & BRINIG, supra note 1, at 971.
70. "Expected return" means the average of all possible returns, each discounted for its probability. See WILLIAM A. KLEIN, BUSINESS ORGANIZATION AND FINANCE: LEGAL AND ECONOMIC PRINCIPLES 145-46 (1980); POSNER, supra note 11, at § 15.1 &n.1.
71. "Expected return" means the average of all possible returns, each discounted for its probability. See WILLIAM A. KLEIN, BUSINESS ORGANIZATION AND FINANCE: LEGAL AND ECONOMIC PRINCIPLES 145-46 (1980); POSNER, supra note 11, at § 15.1 &n.1.
72. See RICHARD BREALEY & STEWART C. MYERS, PRINCIPLES OF CORPORATE FINANCE 137-40 (1981) (describing the Capital Asset Pricing Model, a formula using expected return, defined as anticipated dividends and appreciation produced by the corporation, and "beta," defined as market or nondiversifiable risk); Jeff N. Gordon & Lewis A. Kornhauser, Efficient Markets, Costly Information, and Securities Research, 60 N.Y.U. L. REV. 761, 825-27 (1985); Parkman, supra note 10, at 146; POSNER, supra note 11, at 407-08.
73. See RICHARD BREALEY & STEWART C. MYERS, PRINCIPLES OF CORPORATE FINANCE 137-40 (1981) (describing the Capital Asset Pricing Model, a formula using expected return, defined as anticipated dividends and appreciation produced by the corporation, and "beta," defined as market or nondiversifiable risk); Jeff N. Gordon & Lewis A. Kornhauser, Efficient Markets, Costly Information, and Securities Research, 60 N.Y.U. L. REV. 761, 825-27 (1985); Parkman, supra note 10, at 146; POSNER, supra note 11, at 407-08.
74. See RICHARD BREALEY & STEWART C. MYERS, PRINCIPLES OF CORPORATE FINANCE 137-40 (1981) (describing the Capital Asset Pricing Model, a formula using expected return, defined as anticipated dividends and appreciation produced by the corporation, and "beta," defined as market or nondiversifiable risk); Jeff N. Gordon & Lewis A. Kornhauser, Efficient Markets, Costly Information, and Securities Research, 60 N.Y.U. L. REV. 761, 825-27 (1985); Parkman, supra note 10, at 146; POSNER, supra note 11, at 407-08.
75. Assets with the same risk should have the same return. In other words, prices of assets traded in capital markets should be adjusted by profit seeking activity, called arbitrage, until assets of equivalent systematic risk have the same expected return. POSNER, supra note 11, at 405. Obviously, "trading" cannot occur directly in the marital situation - though that is perhaps how degrees are "valued" by the couple before the education begins, or at the time of divorce. The couple contemplating graduate school for one spouse thus makes what I now refer to as a "side deal." Margaret F. Brinig & June Carbone, The Reliance Interest in Marriage and Divorce, 62 TULANE L. REV. 855, 877-82 (1988). As Mahoney put it, "Only monetary contributions made with the mutual and shared expectation that both parties to the marriage will derive increased income and material benefits should be a basis for such an award." 453 A.2d at 535. The Reliance article, but not my shorthand for the concept, refers to the difference between the lost opportunity to marry another and the lost career opportunities. Trading - of a less valuable one for one with greater value - allegedly occurs in some Hollywood marriages. For example, see Cohen, supra note 33.
76. Gary S. Becker, On the Allocation of Time, 75 ECON. J. 492, 512 (1991); GARY S. BECKER, A TREATISE ON THE FAMILY 1145-46 (2d ed. 1991) [hereinafter BECKER, TREATISE]. See also Margaret F. Brinig, A Comment on Jana Singer's Alimony and Efficiency, 82 GEO. L.J. 2461 (1994).
77. Gary S. Becker, On the Allocation of Time, 75 ECON. J. 492, 512 (1991); GARY S. BECKER, A TREATISE ON THE FAMILY 1145-46 (2d ed. 1991) [hereinafter BECKER, TREATISE]. See also Margaret F. Brinig, A Comment on Jana Singer's Alimony and Efficiency, 82 GEO. L.J. 2461 (1994).
78. Gary S. Becker, On the Allocation of Time, 75 ECON. J. 492, 512 (1991); GARY S. BECKER, A TREATISE ON THE FAMILY 1145-46 (2d ed. 1991) [hereinafter BECKER, TREATISE]. See also Margaret F. Brinig, A Comment on Jana Singer's Alimony and Efficiency, 82 GEO. L.J. 2461 (1994).
79. Carol Bruch, Property Rights of De Facto Spouses Including Thoughts on the Value of Homemaker's Services, 10 FAM. L.Q. 101 (1976). It has been estimated that, on average, the value of the wife's household production is equal to more than 70% of the household's money (or market) income after taxes, implying that even if she remains out of the paid labor force, she generates 40% of the household's full income. Reuben Gronau, Home Production - A Forgotten Industry, 62 REV. ECON. & STAT. 408 (1980).
80. Carol Bruch, Property Rights of De Facto Spouses Including Thoughts on the Value of Homemaker's Services, 10 FAM. L.Q. 101 (1976). It has been estimated that, on average, the value of the wife's household production is equal to more than 70% of the household's money (or market) income after taxes, implying that even if she remains out of the paid labor force, she generates 40% of the household's full income. Reuben Gronau, Home Production - A Forgotten Industry, 62 REV. ECON. & STAT. 408 (1980).
81. MILTON C. REGAN, FAMILY LAW AND THE PURSUIT OF INTIMACY (1993); Margaret F. Brinig, Status, Contract and Covenant, 79 CORNELL L. REV. 1573 (1994).
82. MILTON C. REGAN, FAMILY LAW AND THE PURSUIT OF INTIMACY (1993); Margaret F. Brinig, Status, Contract and Covenant, 79 CORNELL L. REV. 1573 (1994).
83. PAULA ENGLAND & GEORGE FARKAS, HOUSEHOLDS, EMPLOYMENT AND GENDER 31-42 (1987) (suggest in their chapter on courtship that one assesses a "D" desirability level and then gets engaged (stops looking) when the best offer seems to outweigh the probability of getting someone better).
84. This idea is related to that of Dean Professor Scott, who suggested in conversation that alimony is a kind of insurance against the marriage not working out. Telephone conversation of August 15, 1996. Marriage in itself furnishes insurance against some of the other catastrophes possible in life. Gary S. Becker, The Economic Way of Looking at Behavior (Nobel Address), 101 J. POL. ECON. 385 (1993).
85. BECKER, supra note 46, at 30.
86. Cohen, supra note 33.
87. Cynthia Starnes, Divorce and the Displaced Homemaker: A Discourse on Playing with Dolls, Partnership Buyouts and Dissociation Under No-Fault, 60 U. CHI. L. REV. 67 (1993).
88. William Bishop, Is He Married? Marriage as Information, 34 U. TORONTO L. REV. 245 (1984). See also Yoram Ben-Porath, The F-Connection: Families, Firms, Friends and the Organization of Exchange, 3 POP. DEV. REV. 1, 6 (1985).
89. William Bishop, Is He Married? Marriage as Information, 34 U. TORONTO L. REV. 245 (1984). See also Yoram Ben-Porath, The F-Connection: Families, Firms, Friends and the Organization of Exchange, 3 POP. DEV. REV. 1, 6 (1985).
90. See, e.g., Jean Utz Griffin, Marriage, Health, Still a Two-Some, CHI. TRIB., Nov. 16, 1988, at C8; William R. Mattox, Jr., Even a Nagging Wife is Better than None, CHI. SUN-TIMES, Aug. 5, 1996, at 16.
91. See, e.g., Jean Utz Griffin, Marriage, Health, Still a Two-Some, CHI. TRIB., Nov. 16, 1988, at C8; William R. Mattox, Jr., Even a Nagging Wife is Better than None, CHI. SUN-TIMES, Aug. 5, 1996, at 16.
92. They also earn more than their single contemporaries. See infra note 83.
93. Bea Smith, The Partnership Theory of Marriage: A Borrowed Solution Fails, 68 TEX. L. REV. 689 (1990). See also Rothman v. Rothman, 320 A.2d 496 (N.J. 1974); Sally B. Sharp, Equitable Distribution of Property in North Carolina: A Preliminary Analysis, 61 N.C. L. REV. 247 (1983); Singer, supra note 4, at 1117-18; Starnes, supra note 53.
94. Bea Smith, The Partnership Theory of Marriage: A Borrowed Solution Fails, 68 TEX. L. REV. 689 (1990). See also Rothman v. Rothman, 320 A.2d 496 (N.J. 1974); Sally B. Sharp, Equitable Distribution of Property in North Carolina: A Preliminary Analysis, 61 N.C. L. REV. 247 (1983); Singer, supra note 4, at 1117-18; Starnes, supra note 53.
95. Bea Smith, The Partnership Theory of Marriage: A Borrowed Solution Fails, 68 TEX. L. REV. 689 (1990). See also Rothman v. Rothman, 320 A.2d 496 (N.J. 1974); Sally B. Sharp, Equitable Distribution of Property in North Carolina: A Preliminary Analysis, 61 N.C. L. REV. 247 (1983); Singer, supra note 4, at 1117-18; Starnes, supra note 53.
96. Bea Smith, The Partnership Theory of Marriage: A Borrowed Solution Fails, 68 TEX. L. REV. 689 (1990). See also Rothman v. Rothman, 320 A.2d 496 (N.J. 1974); Sally B. Sharp, Equitable Distribution of Property in North Carolina: A Preliminary Analysis, 61 N.C. L. REV. 247 (1983); Singer, supra note 4, at 1117-18; Starnes, supra note 53.
97. The ALI solution, regarding both alimony and property division as facets of the same problem, of course, resembles the analysis here. The difference is the Tentative Draft's emphasis on the career opportunity loss side of the equation, rather than the gain from such an investment. ALI Tentative Draft, supra note 5. In fact, the problem is similar to the one June Carbone and I analyzed. June Carbone & Margaret Brinig, Rethinking Marriage: Feminist Ideology, Economic Change, and Divorce Reform, 65 TUL. L. REV. 953, 957-61 (1991) (discussing forms of civil compensation). I would award not only for career losses, but also interest on those investments made. In other words, I would allow the investing spouse to realize some return on whatever has been contributed to advance the other's career.
98. Ronald W. Coase, The Nature of the Firm, ECONOMICA 396 (Nov. 1937). Steven N.S. Cheung, The Contractual Nature of the Firm, 26 J. L. & ECON. 1 (1983).
99. Ronald W. Coase, The Nature of the Firm, ECONOMICA 396 (Nov. 1937). Steven N.S. Cheung, The Contractual Nature of the Firm, 26 J. L. & ECON. 1 (1983).
100. Custody awards sometimes seem that kind of "payment." But since children are best off when not viewed as prizes, and themselves are actors needing contact with both parents in most cases, rewards of this kind aren't practical either. This ignores the fact that custody of children brings with it responsibility for their care, including financial responsibility, that may be difficult to fulfill by one single parent.
101. This may be what strikes the reader as wrong in the "Rice Husband." See AMY TAN, THE JOY LUCK CLUB (1989). Such an arrangement also comes perilously close to concubinage. On the other hand, is tailoring alimony specifically to the share of income for the number of years married (or half of them), a more palatable refinement of the same idea? See Singer, supra note 4.
102. This may be what strikes the reader as wrong in the "Rice Husband." See AMY TAN, THE JOY LUCK CLUB (1989). Such an arrangement also comes perilously close to concubinage. On the other hand, is tailoring alimony specifically to the share of income for the number of years married (or half of them), a more palatable refinement of the same idea? See Singer, supra note 4.
103. See FRANK KNIGHT, RISK, UNCERTAINTY AND PROFIT (1921).
104. Armen Alchian & William R. Allen, EXCHANGE AND PRODUCTION; COMPETITION, COORDINATION AND CONTROL (2d ed. 1977).
105. See Starnes, supra note 53, Nancy C. Staudt, Taxing Housework, 84 GEO. L.J. 1571 (1996).
106. See ALI Tentative Draft, supra note 5.
107. W. VA. CODE § 48-1-12b (1966).
108. Margaret F. Brinig & Michael V. Alexeev, Fraud in Courtship: Annulment and Divorce, 2 EUR. J. L. & ECON. 45 (1994).
109. Allen, supra note 39.
110. PARKMAN, supra note 35.
111. The "payment" may take one of two forms. The first occurs when the spouse who marries the MBA selects him rather than some other spouse. Presumably she has some selection of roughly equally talented young men to choose from. To be in this fortunate position, she must herself be a highly desirable mate. Her opportunity cost (what she gives up) is therefore higher than the comparable cost of the typical bride of a gas station employee. Secondly, being married to a highly successful person carries with it elements of stress, as well as reward, that are part of the price the spouse pays.
112. Compare ALI Tentative Draft, supra note 5, at 10-11: The approach of the Principles is to refocus the alimony inquiry from need to loss. . . . The fundamental problem for both alimony and property is determining when a claim arises - when, in the language of Chapter 5, the potential obligee has incurred a compensable loss. The choice of remedy - alimony or property allocation - is essentially a question of implementation and convenience, rather than a basic principle.
113. See, e.g., DeWitt v. DeWitt, 296 N.W.2d 761, 768 (Wis. Ct. App. 1980): Whether a professional education is and will be of future value to its recipient is a matter resting on factors which are at best difficult to anticipate or measure. A person qualified by education for a certain profession may choose not to practice it, may fail at it or may practice in a speciality, location or matter which generates less than the average income enjoyed by fellow professionals.
114. See, e.g., VA. CODE ANN. § 20-107.3 (Michie 1994).
115. See, e.g., Owen v. Owen, 419 S.E.2d 267 (Va. Ct. App. 1992).
116. See, e.g., In re Hobbs, 442 N.E.2d 629 (Ill. App. Ct. 1982); Mitchell v. Mitchell, 355 S.E.2d 18 (Va. Ct. App. 1987); VA. CODE ANN. § 20-107.3 (Michie 1994). See also the Employee Retirement Income Security Program (ERISA), 29 U.S.C. § 1056(d)(3) (1997) (allowing a deferred award of a federal pension). Present value is discussed infra, note 139.
117. See, e.g., Moore v. Moore, 553 A.2d 20 (N.J. 1989); DeWan v. DeWan, 506 N.E.2d 879 (Mass. 1987); Koelsch v. Koelsch, 713 P.2d 1234 (Ariz. 1986). See generally REGAN, supra note 48, at 143. The "clean break" concept was suggested in Herma Hill Kay, An Appraisal of California's No-Fault Divorce Law, 75 CALIF. L. REV. 291, 313 (1987). See also Ellman, supra note 30.
118. See, e.g., Moore v. Moore, 553 A.2d 20 (N.J. 1989); DeWan v. DeWan, 506 N.E.2d 879 (Mass. 1987); Koelsch v. Koelsch, 713 P.2d 1234 (Ariz. 1986). See generally REGAN, supra note 48, at 143. The "clean break" concept was suggested in Herma Hill Kay, An Appraisal of California's No-Fault Divorce Law, 75 CALIF. L. REV. 291, 313 (1987). See also Ellman, supra note 30.
119. See, e.g., Moore v. Moore, 553 A.2d 20 (N.J. 1989); DeWan v. DeWan, 506 N.E.2d 879 (Mass. 1987); Koelsch v. Koelsch, 713 P.2d 1234 (Ariz. 1986). See generally REGAN, supra note 48, at 143. The "clean break" concept was suggested in Herma Hill Kay, An Appraisal of California's No-Fault Divorce Law, 75 CALIF. L. REV. 291, 313 (1987). See also Ellman, supra note 30.
120. To make up for uncertainty, the stock price will be lower if the risk of no return is higher. See BREALEY & MYERS, supra note 44.
121. See, e.g., Kay, supra note 76, at 313; Ellman, supra note 30. For a British example, see Pamela Symes, Indissolubility and the Clean Break, 48 MOD. L. REV. 44 (1984). For criticism of the clean break concept, see MARSHA FINEMAN, THE ILLUSION OF EQUALITY (1991); June Carbone, Income Sharing: Redefining the Family in Terms of Community, 31 HOUSTON L. REV. 359 (1994).
122. See, e.g., Kay, supra note 76, at 313; Ellman, supra note 30. For a British example, see Pamela Symes, Indissolubility and the Clean Break, 48 MOD. L. REV. 44 (1984). For criticism of the clean break concept, see MARSHA FINEMAN, THE ILLUSION OF EQUALITY (1991); June Carbone, Income Sharing: Redefining the Family in Terms of Community, 31 HOUSTON L. REV. 359 (1994).
123. See, e.g., Kay, supra note 76, at 313; Ellman, supra note 30. For a British example, see Pamela Symes, Indissolubility and the Clean Break, 48 MOD. L. REV. 44 (1984). For criticism of the clean break concept, see MARSHA FINEMAN, THE ILLUSION OF EQUALITY (1991); June Carbone, Income Sharing: Redefining the Family in Terms of Community, 31 HOUSTON L. REV. 359 (1994).
124. See, e.g., Kay, supra note 76, at 313; Ellman, supra note 30. For a British example, see Pamela Symes, Indissolubility and the Clean Break, 48 MOD. L. REV. 44 (1984). For criticism of the clean break concept, see MARSHA FINEMAN, THE ILLUSION OF EQUALITY (1991); June Carbone, Income Sharing: Redefining the Family in Terms of Community, 31 HOUSTON L. REV. 359 (1994).
125. See, e.g., ENGLAND & FARKAS, supra note 49, at 67-68.
126. Eslami v. Eslami, 591 A.2d 411 (Conn. 1991) (objecting to an award of goodwill).
127. Definitions of externality include Richard Epstein, Why Restrain Alienation, 85 COLUM. L. REV. 970, 970 (1985). POSNER, supra note 11, at § 8.1; SCHNEIDER & BRINIG, supra note 1, at 387. Externalities are applied to surrogacy in Margaret Friedlander Brinig, A Maternalistic Approach to Surrogacy, 81 VA. L. REV. 2377 (1995); June R. Carbone, The Role of Contract Principles in Determining the Validity of Surrogacy Agreements, 28 SANTA CLARA L. REV. 581, 590-97 (1988). MAXWELL STEARNS, PUBLIC CHOICE AND PUBLIC LAW; READINGS AND COMMENTARY 356 & n.6 (1996), uses the concept of externality to apply to legislator's behavior.
128. Definitions of externality include Richard Epstein, Why Restrain Alienation, 85 COLUM. L. REV. 970, 970 (1985). POSNER, supra note 11, at § 8.1; SCHNEIDER & BRINIG, supra note 1, at 387. Externalities are applied to surrogacy in Margaret Friedlander Brinig, A Maternalistic Approach to Surrogacy, 81 VA. L. REV. 2377 (1995); June R. Carbone, The Role of Contract Principles in Determining the Validity of Surrogacy Agreements, 28 SANTA CLARA L. REV. 581, 590-97 (1988). MAXWELL STEARNS, PUBLIC CHOICE AND PUBLIC LAW; READINGS AND COMMENTARY 356 & n.6 (1996), uses the concept of externality to apply to legislator's behavior.
129. Definitions of externality include Richard Epstein, Why Restrain Alienation, 85 COLUM. L. REV. 970, 970 (1985). POSNER, supra note 11, at § 8.1; SCHNEIDER & BRINIG, supra note 1, at 387. Externalities are applied to surrogacy in Margaret Friedlander Brinig, A Maternalistic Approach to Surrogacy, 81 VA. L. REV. 2377 (1995); June R. Carbone, The Role of Contract Principles in Determining the Validity of Surrogacy Agreements, 28 SANTA CLARA L. REV. 581, 590-97 (1988). MAXWELL STEARNS, PUBLIC CHOICE AND PUBLIC LAW; READINGS AND COMMENTARY 356 & n.6 (1996), uses the concept of externality to apply to legislator's behavior.
130. Definitions of externality include Richard Epstein, Why Restrain Alienation, 85 COLUM. L. REV. 970, 970 (1985). POSNER, supra note 11, at § 8.1; SCHNEIDER & BRINIG, supra note 1, at 387. Externalities are applied to surrogacy in Margaret Friedlander Brinig, A Maternalistic Approach to Surrogacy, 81 VA. L. REV. 2377 (1995); June R. Carbone, The Role of Contract Principles in Determining the Validity of Surrogacy Agreements, 28 SANTA CLARA L. REV. 581, 590-97 (1988). MAXWELL STEARNS, PUBLIC CHOICE AND PUBLIC LAW; READINGS AND COMMENTARY 356 & n.6 (1996), uses the concept of externality to apply to legislator's behavior.
131. Definitions of externality include Richard Epstein, Why Restrain Alienation, 85 COLUM. L. REV. 970, 970 (1985). POSNER, supra note 11, at § 8.1; SCHNEIDER & BRINIG, supra note 1, at 387. Externalities are applied to surrogacy in Margaret Friedlander Brinig, A Maternalistic Approach to Surrogacy, 81 VA. L. REV. 2377 (1995); June R. Carbone, The Role of Contract Principles in Determining the Validity of Surrogacy Agreements, 28 SANTA CLARA L. REV. 581, 590-97 (1988). MAXWELL STEARNS, PUBLIC CHOICE AND PUBLIC LAW; READINGS AND COMMENTARY 356 & n.6 (1996), uses the concept of externality to apply to legislator's behavior.
132. Maynard v. Hill, 125 U.S. 190, 205 (1888); REGAN, supra note 48.
133. Both insurers and employers prefer married over single men. See, e.g., Why Do Married Men Earn More than Unmarried Men?, 20 Soc. Sci. RES. 29 (1991); FUCHS, supra note 34, at 88.
134. Both insurers and employers prefer married over single men. See, e.g., Why Do Married Men Earn More than Unmarried Men?, 20 Soc. Sci. RES. 29 (1991); FUCHS, supra note 34, at 88.
135. This is apparently around 60%. U.S. DEP'T OF COMMERCE, BUREAU OF THE CENSUS, Child Custody and Child Support, CURRENT POPULATION REPORTS, Special Series 8 (Series P-23, No. 84, 1979).
136. This may be akin to the structural unemployment when sectors of the market close down or retool. See, e.g., Jeffrey Parker, Structural Unemployment in the United States: The Effects of Interindustry and Interregional Dispersion, 30 ECON. INQ. 101 (1992).
137. See, e.g., Barbara Defoe Whitehead, Dan Quayle Was Right: Harmful Effects of Divorce on Children, 271 THE ATLANTIC 47 (1993). For more scholarly accounts, see, e. g., Mavis Hetherington, Martha Cox & Roger Cox, Effects of Divorce on Parents and Children, in NONTRADITIONAL FAMILIES: PARENTING AND CHILD DEVELOPMENT 233 (M.E. Lamb ed., 1982); Mavis Hetherington, Martha Cox & Roger Cox, Long-Term Effects of Divorce and Remarriage on the Adjustment of Children, 24 J. AMER. ACAD. CHILD PSYCHIATRY 24:518 (1985); JUDITH S. WALLERSTEIN & SANDRA BLAKESLEE, SECOND CHANCES: MEN, WOMEN AND CHILDREN A DECADE AFTER DIVORCE (1989); JUDITH S. WALLERSTEIN & JOAN B. KELLEY, SURVIVING THE BREAKUP: HOW CHILDREN AND PARENTS COPE WITH DIVORCE (1980); Judith S. Wallerstein, The Long-Term Effects of Divorce on Children: A Review, 30 J. AMER. ACAD. CHILD & ADOLESCENT PSYCHIATRY 349 (1991).
138. See, e.g., Barbara Defoe Whitehead, Dan Quayle Was Right: Harmful Effects of Divorce on Children, 271 THE ATLANTIC 47 (1993). For more scholarly accounts, see, e. g., Mavis Hetherington, Martha Cox & Roger Cox, Effects of Divorce on Parents and Children, in NONTRADITIONAL FAMILIES: PARENTING AND CHILD DEVELOPMENT 233 (M.E. Lamb ed., 1982); Mavis Hetherington, Martha Cox & Roger Cox, Long-Term Effects of Divorce and Remarriage on the Adjustment of Children, 24 J. AMER. ACAD. CHILD PSYCHIATRY 24:518 (1985); JUDITH S. WALLERSTEIN & SANDRA BLAKESLEE, SECOND CHANCES: MEN, WOMEN AND CHILDREN A DECADE AFTER DIVORCE (1989); JUDITH S. WALLERSTEIN & JOAN B. KELLEY, SURVIVING THE BREAKUP: HOW CHILDREN AND PARENTS COPE WITH DIVORCE (1980); Judith S. Wallerstein, The Long-Term Effects of Divorce on Children: A Review, 30 J. AMER. ACAD. CHILD & ADOLESCENT PSYCHIATRY 349 (1991).
139. See, e.g., Barbara Defoe Whitehead, Dan Quayle Was Right: Harmful Effects of Divorce on Children, 271 THE ATLANTIC 47 (1993). For more scholarly accounts, see, e. g., Mavis Hetherington, Martha Cox & Roger Cox, Effects of Divorce on Parents and Children, in NONTRADITIONAL FAMILIES: PARENTING AND CHILD DEVELOPMENT 233 (M.E. Lamb ed., 1982); Mavis Hetherington, Martha Cox & Roger Cox, Long-Term Effects of Divorce and Remarriage on the Adjustment of Children, 24 J. AMER. ACAD. CHILD PSYCHIATRY 24:518 (1985); JUDITH S. WALLERSTEIN & SANDRA BLAKESLEE, SECOND CHANCES: MEN, WOMEN AND CHILDREN A DECADE AFTER DIVORCE (1989); JUDITH S. WALLERSTEIN & JOAN B. KELLEY, SURVIVING THE BREAKUP: HOW CHILDREN AND PARENTS COPE WITH DIVORCE (1980); Judith S. Wallerstein, The Long-Term Effects of Divorce on Children: A Review, 30 J. AMER. ACAD. CHILD & ADOLESCENT PSYCHIATRY 349 (1991).
140. See, e.g., Barbara Defoe Whitehead, Dan Quayle Was Right: Harmful Effects of Divorce on Children, 271 THE ATLANTIC 47 (1993). For more scholarly accounts, see, e. g., Mavis Hetherington, Martha Cox & Roger Cox, Effects of Divorce on Parents and Children, in NONTRADITIONAL FAMILIES: PARENTING AND CHILD DEVELOPMENT 233 (M.E. Lamb ed., 1982); Mavis Hetherington, Martha Cox & Roger Cox, Long-Term Effects of Divorce and Remarriage on the Adjustment of Children, 24 J. AMER. ACAD. CHILD PSYCHIATRY 24:518 (1985); JUDITH S. WALLERSTEIN & SANDRA BLAKESLEE, SECOND CHANCES: MEN, WOMEN AND CHILDREN A DECADE AFTER DIVORCE (1989); JUDITH S. WALLERSTEIN & JOAN B. KELLEY, SURVIVING THE BREAKUP: HOW CHILDREN AND PARENTS COPE WITH DIVORCE (1980); Judith S. Wallerstein, The Long-Term Effects of Divorce on Children: A Review, 30 J. AMER. ACAD. CHILD & ADOLESCENT PSYCHIATRY 349 (1991).
141. See, e.g., Barbara Defoe Whitehead, Dan Quayle Was Right: Harmful Effects of Divorce on Children, 271 THE ATLANTIC 47 (1993). For more scholarly accounts, see, e. g., Mavis Hetherington, Martha Cox & Roger Cox, Effects of Divorce on Parents and Children, in NONTRADITIONAL FAMILIES: PARENTING AND CHILD DEVELOPMENT 233 (M.E. Lamb ed., 1982); Mavis Hetherington, Martha Cox & Roger Cox, Long-Term Effects of Divorce and Remarriage on the Adjustment of Children, 24 J. AMER. ACAD. CHILD PSYCHIATRY 24:518 (1985); JUDITH S. WALLERSTEIN & SANDRA BLAKESLEE, SECOND CHANCES: MEN, WOMEN AND CHILDREN A DECADE AFTER DIVORCE (1989); JUDITH S. WALLERSTEIN & JOAN B. KELLEY, SURVIVING THE BREAKUP: HOW CHILDREN AND PARENTS COPE WITH DIVORCE (1980); Judith S. Wallerstein, The Long-Term Effects of Divorce on Children: A Review, 30 J. AMER. ACAD. CHILD & ADOLESCENT PSYCHIATRY 349 (1991).
142. See, e.g., Barbara Defoe Whitehead, Dan Quayle Was Right: Harmful Effects of Divorce on Children, 271 THE ATLANTIC 47 (1993). For more scholarly accounts, see, e. g., Mavis Hetherington, Martha Cox & Roger Cox, Effects of Divorce on Parents and Children, in NONTRADITIONAL FAMILIES: PARENTING AND CHILD DEVELOPMENT 233 (M.E. Lamb ed., 1982); Mavis Hetherington, Martha Cox & Roger Cox, Long-Term Effects of Divorce and Remarriage on the Adjustment of Children, 24 J. AMER. ACAD. CHILD PSYCHIATRY 24:518 (1985); JUDITH S. WALLERSTEIN & SANDRA BLAKESLEE, SECOND CHANCES: MEN, WOMEN AND CHILDREN A DECADE AFTER DIVORCE (1989); JUDITH S. WALLERSTEIN & JOAN B. KELLEY, SURVIVING THE BREAKUP: HOW CHILDREN AND PARENTS COPE WITH DIVORCE (1980); Judith S. Wallerstein, The Long-Term Effects of Divorce on Children: A Review, 30 J. AMER. ACAD. CHILD & ADOLESCENT PSYCHIATRY 349 (1991).
143. To this extent I completely agree with Martha Fineman. Martha Fineman, Masking Dependency: The Political Role of Family Rhetoric, 81 VA. L. REV. 2181 (1995). See also GARY BECKER, TREATISE, supra note 46, at 43: Specialization of tasks, such as the division of labor between men and women, implies a dependence on others for certain risks. Women have traditionally relied on men for provision of food, shelter and protection, and men have traditionally relied on women for the bearing or raising of children and the maintenance of the home.
144. To this extent I completely agree with Martha Fineman. Martha Fineman, Masking Dependency: The Political Role of Family Rhetoric, 81 VA. L. REV. 2181 (1995). See also GARY BECKER, TREATISE, supra note 46, at 43: Specialization of tasks, such as the division of labor between men and women, implies a dependence on others for certain risks. Women have traditionally relied on men for provision of food, shelter and protection, and men have traditionally relied on women for the bearing or raising of children and the maintenance of the home.
145. Saul D. Hoffman, Divorce and Economic Well-Being: The Effects on Men, Women and Children, DEL. LAW. (Spring 1987) (suggests that 40% of the wage gap between men and women may be due to such reductions). See also Donald Cox, Panel Estimations of the Effects of Career Interruptions on the Earnings of Women, 22 ECON. INQUIRY 386 (1984); Thomas D. Oldham, Putting Asunder in the 1990s, 80 CALIF. L. REV. 1091, 1108 & n.82 (1992).
146. Saul D. Hoffman, Divorce and Economic Well-Being: The Effects on Men, Women and Children, DEL. LAW. (Spring 1987) (suggests that 40% of the wage gap between men and women may be due to such reductions). See also Donald Cox, Panel Estimations of the Effects of Career Interruptions on the Earnings of Women, 22 ECON. INQUIRY 386 (1984); Thomas D. Oldham, Putting Asunder in the 1990s, 80 CALIF. L. REV. 1091, 1108 & n.82 (1992).
147. Saul D. Hoffman, Divorce and Economic Well-Being: The Effects on Men, Women and Children, DEL. LAW. (Spring 1987) (suggests that 40% of the wage gap between men and women may be due to such reductions). See also Donald Cox, Panel Estimations of the Effects of Career Interruptions on the Earnings of Women, 22 ECON. INQUIRY 386 (1984); Thomas D. Oldham, Putting Asunder in the 1990s, 80 CALIF. L. REV. 1091, 1108 & n.82 (1992).
148. Thus, I disagree with the ALI Tentative Draft, supra note 5, which counts only sacrifices made during the marriage itself.
149. See, e.g., Aaby v. Strange, 924 S.W.2d 623 (Tenn. 1996). See generally Karen Czipanskiy, Child Support and Visitation: Rethinking the Connections, 20 RUTG. L. J. 619 (1989).
150. See, e.g., Aaby v. Strange, 924 S.W.2d 623 (Tenn. 1996). See generally Karen Czipanskiy, Child Support and Visitation: Rethinking the Connections, 20 RUTG. L. J. 619 (1989).
151. Ira Lupu, Mediating Institutions: Beyond the Public/Private Distinction: The Separation of Powers and the Protection of Children, 61 U. CHI. L. REV. 1317 (1994); Yoram Weiss & Robert Willis, Children as Collective Goods in Divorce Settlements, 1 J. LAB. ECONS. 15 (1985); MARGARET F. BRINIG & F.H. BUCKLEY, JOINT CUSTODY AND SOCIETY (Working Paper, George Mason Univ. Sch. of Law 1996). On the positive aspects of consensual solutions to dissolution problems, see Robert H. Mnookin & Lewis Kernhauser, Bargaining in the Shadow of the Law: The Case of Divorce, 88 YALE L.J. 950, 956-57 (1979); Marjorie Schultz, Contractual Ordering of Marriage; A New Model for State Policy, 70 CALIF. L. REV. 204, 264 (1982).
152. Ira Lupu, Mediating Institutions: Beyond the Public/Private Distinction: The Separation of Powers and the Protection of Children, 61 U. CHI. L. REV. 1317 (1994); Yoram Weiss & Robert Willis, Children as Collective Goods in Divorce Settlements, 1 J. LAB. ECONS. 15 (1985); MARGARET F. BRINIG & F.H. BUCKLEY, JOINT CUSTODY AND SOCIETY (Working Paper, George Mason Univ. Sch. of Law 1996). On the positive aspects of consensual solutions to dissolution problems, see Robert H. Mnookin & Lewis Kernhauser, Bargaining in the Shadow of the Law: The Case of Divorce, 88 YALE L.J. 950, 956-57 (1979); Marjorie Schultz, Contractual Ordering of Marriage; A New Model for State Policy, 70 CALIF. L. REV. 204, 264 (1982).
153. Ira Lupu, Mediating Institutions: Beyond the Public/Private Distinction: The Separation of Powers and the Protection of Children, 61 U. CHI. L. REV. 1317 (1994); Yoram Weiss & Robert Willis, Children as Collective Goods in Divorce Settlements, 1 J. LAB. ECONS. 15 (1985); MARGARET F. BRINIG & F.H. BUCKLEY, JOINT CUSTODY AND SOCIETY (Working Paper, George Mason Univ. Sch. of Law 1996). On the positive aspects of consensual solutions to dissolution problems, see Robert H. Mnookin & Lewis Kernhauser, Bargaining in the Shadow of the Law: The Case of Divorce, 88 YALE L.J. 950, 956-57 (1979); Marjorie Schultz, Contractual Ordering of Marriage; A New Model for State Policy, 70 CALIF. L. REV. 204, 264 (1982).
154. Ira Lupu, Mediating Institutions: Beyond the Public/Private Distinction: The Separation of Powers and the Protection of Children, 61 U. CHI. L. REV. 1317 (1994); Yoram Weiss & Robert Willis, Children as Collective Goods in Divorce Settlements, 1 J. LAB. ECONS. 15 (1985); MARGARET F. BRINIG & F.H. BUCKLEY, JOINT CUSTODY AND SOCIETY (Working Paper, George Mason Univ. Sch. of Law 1996). On the positive aspects of consensual solutions to dissolution problems, see Robert H. Mnookin & Lewis Kernhauser, Bargaining in the Shadow of the Law: The Case of Divorce, 88 YALE L.J. 950, 956-57 (1979); Marjorie Schultz, Contractual Ordering of Marriage; A New Model for State Policy, 70 CALIF. L. REV. 204, 264 (1982).
155. Ira Lupu, Mediating Institutions: Beyond the Public/Private Distinction: The Separation of Powers and the Protection of Children, 61 U. CHI. L. REV. 1317 (1994); Yoram Weiss & Robert Willis, Children as Collective Goods in Divorce Settlements, 1 J. LAB. ECONS. 15 (1985); MARGARET F. BRINIG & F.H. BUCKLEY, JOINT CUSTODY AND SOCIETY (Working Paper, George Mason Univ. Sch. of Law 1996). On the positive aspects of consensual solutions to dissolution problems, see Robert H. Mnookin & Lewis Kernhauser, Bargaining in the Shadow of the Law: The Case of Divorce, 88 YALE L.J. 950, 956-57 (1979); Marjorie Schultz, Contractual Ordering of Marriage; A New Model for State Policy, 70 CALIF. L. REV. 204, 264 (1982).
156. Lupu, supra note 91.
157. MARGARET F. BRINIG, THE LAW AND ECONOMICS OF THE FAMILY ch. 4 (forthcoming 1997).
158. Complementary goods are those that are both necessary for some productive activity. Another example is tennis balls and tennis racquets, both needed to play the game. HAL VARIAN, INTERMEDIATE MICROECONOMICS 103 (1987). When the price of one good declines, there will therefore be more consumption of both. Think, for example, of what happens to sugar consumption when coffee prices decrease.
159. It should come as no surprise that the Catholic marriage service includes children as an important factor, and canon law as an important ingredient in a sacramental marriage. See, e. g., William Morrisey, Proposed Changes in Canonical Matrimonial Legislation, 20 CATH. LAW. 30 (1974).
160. Carol Bruch, supra note 47; Frances Olsen, The Family and the Market: A Study of Ideology and Legal Reform, 96 HARV. L. REV. 1497 (1983).
161. Carol Bruch, supra note 47; Frances Olsen, The Family and the Market: A Study of Ideology and Legal Reform, 96 HARV. L. REV. 1497 (1983).
162. PARKMAN, supra note 35; W. Keith Bryant, The Family and Technology, 20 HUM. ECOLOGY FORUM 11 (1992); Cathleen D. Zick, & Jennifer Geurer, Family Compensation and Investment in Household Capital: Contrasts in the Behavior of Husband-Wife and Female-Headed Households, 21 J. CONS. AFFAIRS 21 (1987); Cathleen D. Zick, & Jennifer Geurer, Trends in Married Couples' Time Use: Evidence from 1977-78 and 1987-88, 24 SEX ROLES 459 (1991). Carol Rose suggests that the greater altruism of women in families justifies some sort of "leveling" reimbursement on divorce. Carol Rose, Women and Property: Gaining and Losing Ground, 78 VA. L. REV. 421 (1992).
163. PARKMAN, supra note 35; W. Keith Bryant, The Family and Technology, 20 HUM. ECOLOGY FORUM 11 (1992); Cathleen D. Zick, & Jennifer Geurer, Family Compensation and Investment in Household Capital: Contrasts in the Behavior of Husband-Wife and Female-Headed Households, 21 J. CONS. AFFAIRS 21 (1987); Cathleen D. Zick, & Jennifer Geurer, Trends in Married Couples' Time Use: Evidence from 1977-78 and 1987-88, 24 SEX ROLES 459 (1991). Carol Rose suggests that the greater altruism of women in families justifies some sort of "leveling" reimbursement on divorce. Carol Rose, Women and Property: Gaining and Losing Ground, 78 VA. L. REV. 421 (1992).
164. PARKMAN, supra note 35; W. Keith Bryant, The Family and Technology, 20 HUM. ECOLOGY FORUM 11 (1992); Cathleen D. Zick, & Jennifer Geurer, Family Compensation and Investment in Household Capital: Contrasts in the Behavior of Husband-Wife and Female-Headed Households, 21 J. CONS. AFFAIRS 21 (1987); Cathleen D. Zick, & Jennifer Geurer, Trends in Married Couples' Time Use: Evidence from 1977-78 and 1987-88, 24 SEX ROLES 459 (1991). Carol Rose suggests that the greater altruism of women in families justifies some sort of "leveling" reimbursement on divorce. Carol Rose, Women and Property: Gaining and Losing Ground, 78 VA. L. REV. 421 (1992).
165. PARKMAN, supra note 35; W. Keith Bryant, The Family and Technology, 20 HUM. ECOLOGY FORUM 11 (1992); Cathleen D. Zick, & Jennifer Geurer, Family Compensation and Investment in Household Capital: Contrasts in the Behavior of Husband-Wife and Female-Headed Households, 21 J. CONS. AFFAIRS 21 (1987); Cathleen D. Zick, & Jennifer Geurer, Trends in Married Couples' Time Use: Evidence from 1977-78 and 1987-88, 24 SEX ROLES 459 (1991). Carol Rose suggests that the greater altruism of women in families justifies some sort of "leveling" reimbursement on divorce. Carol Rose, Women and Property: Gaining and Losing Ground, 78 VA. L. REV. 421 (1992).
166. PARKMAN, supra note 35; W. Keith Bryant, The Family and Technology, 20 HUM. ECOLOGY FORUM 11 (1992); Cathleen D. Zick, & Jennifer Geurer, Family Compensation and Investment in Household Capital: Contrasts in the Behavior of Husband-Wife and Female-Headed Households, 21 J. CONS. AFFAIRS 21 (1987); Cathleen D. Zick, & Jennifer Geurer, Trends in Married Couples' Time Use: Evidence from 1977-78 and 1987-88, 24 SEX ROLES 459 (1991). Carol Rose suggests that the greater altruism of women in families justifies some sort of "leveling" reimbursement on divorce. Carol Rose, Women and Property: Gaining and Losing Ground, 78 VA. L. REV. 421 (1992).
167. Gillian Hadfield, Households at Work: Beyond Labor Market Policies to Remedy the Gender Gap, 82 GEO. L.J. 89 (1994); Mary O'Connell, On the Fringe: Rethinking the Link Between Wages and Benefits, 67 TULANE L. REV. 1421 (1993).
168. Gillian Hadfield, Households at Work: Beyond Labor Market Policies to Remedy the Gender Gap, 82 GEO. L.J. 89 (1994); Mary O'Connell, On the Fringe: Rethinking the Link Between Wages and Benefits, 67 TULANE L. REV. 1421 (1993).
169. Bruch, supra note 47; Starnes, supra note 53.
170. Staudt, supra note 64.
171. As we have noted, some economists see the investment as quite a small one, but I would argue that it is far larger. See, e.g., PARKMAN, supra note 10, at 147.
172. See, e.g., ENGLAND & FARKAS, supra note 49.
173. See, e.g., ANDREW WEISS, EFFICIENCY WAGE MODELS: UNEMPLOYMENT, LAYOFFS, AND WAGE DISPERSION (1990). Efficiency wages are the amounts paid by employers to keep valued workers performing well on the job. They must be higher than what the workers would receive either through unemployment compensation or through the job they would likely obtain if fired.
174. The marginal product of labor is the amount added to total output resulting from the employment of an additional unit of labor.
175. FUCHS, supra note 34.
176. See, e.g., Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523 (1983). See also American Bank & Trust Co. v. Community Hospital, 683 P.2d 670 (Cal. 1984) (upholding California's medical malpractice act).
177. See, e.g., Delta Airlines, Inc. v. Ageloff, 552 So. 2d 1089 (Fla. 1989); STUART M. SPEISER, RECOVERY FOR WRONGFUL DEATH 2d (Lawyers Co-op 1975). For a present value table as it appears, see id. § 8.4. See generally Michael T. Brody, Inflation, Productivity, and the Total Offset Method of Calculating Damages for Lost Future Earnings, 49 U. CHI. L. REV. 1003 (1982).
178. See, e.g., Delta Airlines, Inc. v. Ageloff, 552 So. 2d 1089 (Fla. 1989); STUART M. SPEISER, RECOVERY FOR WRONGFUL DEATH 2d (Lawyers Co-op 1975). For a present value table as it appears, see id. § 8.4. See generally Michael T. Brody, Inflation, Productivity, and the Total Offset Method of Calculating Damages for Lost Future Earnings, 49 U. CHI. L. REV. 1003 (1982).
179. See, e.g., Delta Airlines, Inc. v. Ageloff, 552 So. 2d 1089 (Fla. 1989); STUART M. SPEISER, RECOVERY FOR WRONGFUL DEATH 2d (Lawyers Co-op 1975). For a present value table as it appears, see id. § 8.4. See generally Michael T. Brody, Inflation, Productivity, and the Total Offset Method of Calculating Damages for Lost Future Earnings, 49 U. CHI. L. REV. 1003 (1982).
180. PARKMAN, supra note 10, at 147.
181. States requiring equal division include: California, CAL. FAM. CODE § 2550 (West 1994); Louisiana, LA. REV. STAT. ANN. § 9:2801(4)(b) (West 1983); New Mexico, Michelson v. Michelson, 520 P.2d 263, 266 (N.M. 1974). Wisconsin, among other states, presumes it. See also ALI Tentative Draft, supra note 5, § 4.15; Herma Hill Kay, Beyond No-Fault: New Directions in Divorce Reform, in DIVORCE REFORM AT THE CROSSROADS 6, 13 (Steven Sugarman & Herma Hill Kay, eds. 1990). But some states reject even the presumption. See, e.g., Rothman v. Rothman, 320 A.2d 496 (N.J. 1974).
182. States requiring equal division include: California, CAL. FAM. CODE § 2550 (West 1994); Louisiana, LA. REV. STAT. ANN. § 9:2801(4)(b) (West 1983); New Mexico, Michelson v. Michelson, 520 P.2d 263, 266 (N.M. 1974). Wisconsin, among other states, presumes it. See also ALI Tentative Draft, supra note 5, § 4.15; Herma Hill Kay, Beyond No-Fault: New Directions in Divorce Reform, in DIVORCE REFORM AT THE CROSSROADS 6, 13 (Steven Sugarman & Herma Hill Kay, eds. 1990). But some states reject even the presumption. See, e.g., Rothman v. Rothman, 320 A.2d 496 (N.J. 1974).
183. States requiring equal division include: California, CAL. FAM. CODE § 2550 (West 1994); Louisiana, LA. REV. STAT. ANN. § 9:2801(4)(b) (West 1983); New Mexico, Michelson v. Michelson, 520 P.2d 263, 266 (N.M. 1974). Wisconsin, among other states, presumes it. See also ALI Tentative Draft, supra note 5, § 4.15; Herma Hill Kay, Beyond No-Fault: New Directions in Divorce Reform, in DIVORCE REFORM AT THE CROSSROADS 6, 13 (Steven Sugarman & Herma Hill Kay, eds. 1990). But some states reject even the presumption. See, e.g., Rothman v. Rothman, 320 A.2d 496 (N.J. 1974).
184. See, e.g., Mullen v. Mullen, 49 S.E.2d 349 (Va. 1948). The husband, a self-proclaimed genius at chemistry, worked seven days a week, ten hours a day during World War II and afterwards, leaving the wife and their daughter at his parent's spacious Richmond home.
185. Graham v. Graham, 574 P.2d 75, 77 (Colo. 1978). Weitzman, supra note 13 (finding that in most modern marriages there were few other assets).
186. Risk-adjustment at the outset, while in some ways more certain, fixes the earning spouse in a way that many think undesirable. Advocates of the mechanism are Daniel D. Polsby & Martin Zelder, Risk-Adjusted Valuation of Professional Degrees in Divorce, 23 J. LEGAL STUD. 273 (1994). The fact that property awards cannot be modified is noted in DeWitt v. DeWitt, 296 N.W.2d 761, 768 (Wis. 1980) ("Unlike an award of alimony, which can be adjusted after divorce to reflect unanticipated changes in the parties' circumstances, a property division may not.") (citing old WIS. STAT. § 767.32 (1977)).
187. Risk-adjustment at the outset, while in some ways more certain, fixes the earning spouse in a way that many think undesirable. Advocates of the mechanism are Daniel D. Polsby & Martin Zelder, Risk-Adjusted Valuation of Professional Degrees in Divorce, 23 J. LEGAL STUD. 273 (1994). The fact that property awards cannot be modified is noted in DeWitt v. DeWitt, 296 N.W.2d 761, 768 (Wis. 1980) ("Unlike an award of alimony, which can be adjusted after divorce to reflect unanticipated changes in the parties' circumstances, a property division may not.") (citing old WIS. STAT. § 767.32 (1977)).
188. Separating the two made complete sense historically: Alimony has never been defined here by statute; but, from the beginning, it has never been considered, as in some States, as a division of property. It "is a maintenance afforded to the wife, where the husband refuses to give it, or where from his improper conduct compels her to separate from him. It is not a portion of his real estate, to be assigned to her in fee simple . . . but a provision for her support, to continue during their joint lives, or so long as they live separate." Wallingsford v. Wallingsford, 6 H. & J. 485, 488 (Md. 1823).
189. The ALI Principles' Reporter's Notes lists 30 states where fault plays at least a minor role in the granting of alimony. ALI Tentaive Draft, supra note 5, at 61.
190. For further discussion, see, e.g., Courson v. Courson, 129 A.2d 917 (Md. 1957). For a list of cases, see 34 A.L.R. 313, 321 (1954).
191. See, e.g., HOMER CLARK, THE LAW OF DOMESTIC RELATIONS IN THE UNITED STATES, § 16.1, at 621 (2d ed. 1988) ("Alimony continues the support which the wife was entitled to receive while the marriage existed."). Clark cites Dayton v. Dayton, 161 S.W.2d 618 (Ky. 1942); Wolfe v. Wolfe, 124 N.E.2d 485 (Ohio Com. Pl. 1954); Bray v. Landergren, 172 S.E. 252 (Va. 1934).
192. If decisions today are made in terms of opportunity cost, that is, to commit resources to one activity as opposed to another, cost is the value of "the road not taken." Decisions by economic actors rely upon predictions about the future, not upon past events. Past outlays (unless they affect prospective costs) are not costs because they exert no influence on current decisions. Thus, when the tenured professor gives up his secure job in order to follow his wife to another part of the country as she pursues a more attractive job opportunity, his opportunity costs (his tenured salary) are "sunk." If, some years later, when he has only been able to secure employment without tenure, he commits marital fault, the opportunity costs of the original decision remain the same. He still has lost the expected value of the tenured salary. The question is whether the new decision (whether or not to desert or commit adultery, say) also should take into account the consequences of the original one.
193. ALI Tentative Draft, supra note 5, at 61.
194. CLARK, supra note 116, § 16.1, at 619 (citing Cooke v. Cooke, 2 Phill. Ecc. 40, 161 Eng. Rep. 1072 (1812); Otway v. Otway, 2 Phill. Ecc. 109, 161 Eng. Rpt. 1092 (1813)). For a more modern case where the husband squirreled away the money he earned while his wife's was used to support the family, see Feidler v. Feidler, 55 D.L.P. 397 (Alberta App. 1978) (but the wife committed a marital offense).
195. WEITZMAN, supra note 13, at 109 (sagely pointing out that human capital (enhanced earning capacity) is the "diamond" among the other marital jewels).
196. Fault thus served to identify those cases in which one party had so flouted his or her marital duties that the other deserved to be released from the duties of a relationship that had effectively ceased to exist. J. BISHOP, NEW COMMENTARIES ON MARRIAGE, DIVORCE AND SEPARATION § 1452 (1891). See also Franklyn C. Setaro, A History of English Ecclesiastical Law, 18 B.U. L. REV. 1021, 1021-23 (1938); MAX RHEINSTEIN, MARRIAGE STABILITY, DIVORCE AND THE LAW (1972).
197. Fault thus served to identify those cases in which one party had so flouted his or her marital duties that the other deserved to be released from the duties of a relationship that had effectively ceased to exist. J. BISHOP, NEW COMMENTARIES ON MARRIAGE, DIVORCE AND SEPARATION § 1452 (1891). See also Franklyn C. Setaro, A History of English Ecclesiastical Law, 18 B.U. L. REV. 1021, 1021-23 (1938); MAX RHEINSTEIN, MARRIAGE STABILITY, DIVORCE AND THE LAW (1972).
198. Fault thus served to identify those cases in which one party had so flouted his or her marital duties that the other deserved to be released from the duties of a relationship that had effectively ceased to exist. J. BISHOP, NEW COMMENTARIES ON MARRIAGE, DIVORCE AND SEPARATION § 1452 (1891). See also Franklyn C. Setaro, A History of English Ecclesiastical Law, 18 B.U. L. REV. 1021, 1021-23 (1938); MAX RHEINSTEIN, MARRIAGE STABILITY, DIVORCE AND THE LAW (1972).
199. Robert Reich, The New Property, 73 YALE L.J. 733 (1964).
200. Thus the wife in the motion picture The Bridges of Madison County had already earned her share in her husband's farm when she was involved for four days with the photographer. She resumed faithful performance of the marital duties immediately afterwards and continued her performance for the rest of her life.
201. For a similar example, see Mullen v. Mullen, 49 S.E.2d 349 (Va. 1948) (wife ultimately deserted the husband).
202. See, e.g., O'Loughlin v. O'Loughlin, 458 S.E.2d 323 (Va. Ct. App. 1995) (husband's infidelity had a negative impact on the well-being of the family); Crump v. Crump, 1993 WL 445358 (Va. Ct. App. Sept 7, 1993)
203. See, e.g., Srinivasan v. Srinivasan, 396 S.E.2d 675 (Va. Ct. App. 1990) (husband made enormous sacrifices for wife that diminished his own career opportunities).
204. See, e.g., Stallings v. Stallings, 393 N.E.2d 1065 (Ill. App. Ct. 1979) (wife brought most of the money into the marriage, supported the family, and took care of husband's six children from a prior marriage, while the husband dissipated much of her estate through a series of "business misadventures"); Smith v. Smith, 331 S.E.2d 682, 687 (N.C. 1985) (wife used alcohol to excess and deserted husband and children. Husband, a retired military officer, helped wife obtain her Master of Library Science degree, and at the time of divorce earned $9,800 compared to her $11,000 per year). See also Carbone & Brinig, supra note 58, at 1004 & n.214, case 1.
205. See, e.g., Westbrook v. Westbrook, 364 S.E.2d 523 (Va. Ct. App. 1988).
206. See, e.g., CAL. FAM. CODE § 2602 (West 1996); Burtscher v. Burtscher, 563 S.W.2d 526 (Mo. App. 1978) (husband committed adultery at the time of separation; wife played bingo over her husband's objection four nights a week during the marriage); Chalmers v. Chalmers, 320 A.2d 478, 483 (N.J. 1974); Blickstein v. Blickstein, 472 N.Y.S.2d 110 (N.Y. App. Div. 1984); Peirson v. Calhoun, 417 S.E.2d 604, 606 (S.C. Ct. App. 1992); Aster v. Gross, 371 S.E.2d 833 (Va. Ct. App. 1988).
207. Alimony and child support are typically exempt; property division is not. See, e.g. In re Calhoun, 715 F.2d 1103 (6th Cir. 1983); 11 U.S.C. § 522(d)(10)(D) (1996); CAL. FAM. CODE § 3592 (West 1996). See generally Sheryl Scheible, Defining "Support" Under the Bankruptcy Law: Revitalisation of the "Necessaries" Doctrine, 41 VAND. L. REV. 1 (1988).
208. Alimony and child support are typically exempt; property division is not. See, e.g. In re Calhoun, 715 F.2d 1103 (6th Cir. 1983); 11 U.S.C. § 522(d)(10)(D) (1996); CAL. FAM. CODE § 3592 (West 1996). See generally Sheryl Scheible, Defining "Support" Under the Bankruptcy Law: Revitalisation of the "Necessaries" Doctrine, 41 VAND. L. REV. 1 (1988).
209. ALI Tentative Draft, supra note 5, § 4.07(1), at cmt. a notes: Section 4.07 provides that spousal skills and earning capacity are not divisible property. An increment in spousal earning capacity during marriage therefore creates no property claim. Relative earning capacity is nonetheless relevant at divorce because it can give rise to a claim for compensatory payments.
210. This is the suggestion made in the ALI Tentative Draft, supra note 5. It seems to form some of the basis for the award in Mahoney, and, more explicitly, for that in DeLa Rosa v. DeLa Rosa, 309 N.W.2d 755 (Minn. 1981); Haugan v. Haugan, 343 N.W.2d 796, 803 (Wis. 1984) (the court fears that anything but calculation of the expected stream of income may give the student spouse a windfall and fail to recognize the supporting spouse's expectations). For a criticism of the ALI proposal, and an alternative suggestion of a more technical nature (relating earning capacity to acquisition of annuities), see ALAN KOCZELA, VALUING ADDITIONS TO A SPOUSE'S HUMAN CAPITAL FINANCED BY THE MARITAL ESTATE (working paper, George Mason University Department of Economics, 1996).
211. This is the suggestion made in the ALI Tentative Draft, supra note 5. It seems to form some of the basis for the award in Mahoney, and, more explicitly, for that in DeLa Rosa v. DeLa Rosa, 309 N.W.2d 755 (Minn. 1981); Haugan v. Haugan, 343 N.W.2d 796, 803 (Wis. 1984) (the court fears that anything but calculation of the expected stream of income may give the student spouse a windfall and fail to recognize the supporting spouse's expectations). For a criticism of the ALI proposal, and an alternative suggestion of a more technical nature (relating earning capacity to acquisition of annuities), see ALAN KOCZELA, VALUING ADDITIONS TO A SPOUSE'S HUMAN CAPITAL FINANCED BY THE MARITAL ESTATE (working paper, George Mason University Department of Economics, 1996).
212. We are thus back to the discussion of Fuller and Perdue made in Brinig & Carbone, supra note 45. Inman v. Inman, 578 S.W.2d 266, 269 (Ky. Ct. App. 1979) (interest was in fact awarded).
213. This was true of Ms. Graham and Mrs. Gagliano, both of whom ended up with nothing despite their work to further their husbands' careers. Graham v. Graham, 574 P.2d 75, 78 (Colo. 1979); Gagliano v. Gagliano, 211 S.E.2d 62 (Va. 1975). Mrs. Inman was able to recover her investment in her husband's degree despite her own career. Inman, 578 S.W.2d at 266.
214. See Srinavisan v. Srinavasan, 396 S.E.2d 675 (Va. Ct. App. 1990) (the wife, a perpetual student, did not gain tenure at her university, and therefore had to forego her career as an academic. Her husband, meanwhile, had made substantial sacrifices in terms of his own academic advancement).
215. Such a fault might be a voluntary unemployment, or the deliberate choice of a nonlucrative career. See, e.g., Antonelli v. Antonelli, 409 S.E.2d 117, 119 (Va. 1991); Matter of A.I., 435 N.Y.S.2d 928 (N.Y. Fam. Ct. 1981).
216. VA. CODE ANN. § 20-109 (Michie 1994) (alimony, now maintenance and support).
217. Discounting to present value requires that the decision maker calculate how much a sum today is likely to appreciate over the future (when the full amount would be due). The present value for a $300 payment to be made in three years, expecting 3% interest, is $300 ÷ (1.03 × 1.03 × 1.03) = $282.86.
218. For a suggestion that they may in fact be more risk-seeking and entrepreneurial, see Margaret F. Brinig & F.H. Buckley, The Market for Deadbeats, 25 J. LEGAL STUD. 201, 221 (1996).
219. This is an argument for deferring receipt of pensions even though immediate payment of the share's present value may be preferable. See, e.g., In re Nelson, 746 P.2d 1346 (Colo. 1987); Pulliam v. Pulliam, 796 P.2d 623, 626 (Okla. 1990).
220. For an example of how the equitable lien works in the family law context, see Robinson v. Robinson, 429 N.E.2d 183 (Ill. App. Ct. 1981) (Wife and husband made improvements on property that belonged to the husband's parents. Upon their divorce, husband and wife had an equitable lien on the property and could force a sale.). See generally Joan Krauskopf, Theories of Property Division/Spousal Support: Searching for Solutions to the Mystery, 23 FAM. L.Q. 253 (1989).
221. For an example of how the equitable lien works in the family law context, see Robinson v. Robinson, 429 N.E.2d 183 (Ill. App. Ct. 1981) (Wife and husband made improvements on property that belonged to the husband's parents. Upon their divorce, husband and wife had an equitable lien on the property and could force a sale.). See generally Joan Krauskopf, Theories of Property Division/Spousal Support: Searching for Solutions to the Mystery, 23 FAM. L.Q. 253 (1989).
222. For example, see G.K. Chesterton, The Superstition of Divorce, in IV COLLECTED WORKS (1987).
223. Both Ira Ellman's Theory, supra note 30, and the ALI Tentative Draft, supra note 5, provide for children.
224. To return to my students, this seems one of their primary objections to BECKER TREATISE, supra note 46. See Brinig, supra note 37. See, e.g., Wisner v. Wisner, 631 P.2d 115, 123 (Ariz. Ct. App. 1981): [I]n the absence of such an agreement, we believe it is improper for a court to treat a marriage as an arm's length transaction by allowing a spouse to come into court after the fact and make legal arguments regarding unjust enrichment by reason of the other receiving further education during coverture. In the absence of a specific agreement, such legal arguments simply do not fit the context of a marital relationship. In each marriage, for example, the couple decides on a certain division of labor, and while there is a value to what each spouse is doing, whether it be labor for monetary compensation or homemaking, that value is consumed by the community in the on-going relationship and forms no basis for a claim of unjust enrichment.
225. These would not be compensated under Ellman's Theory, supra note 30, restricted to career sacrifices for economically rational reasons. But see Jennifer Roback, Wages, Rents and Amenities: Differences Among Workers and Regions, 26 ECON. INQ. 23 (1988).
226. These would not be compensated under Ellman's Theory, supra note 30, restricted to career sacrifices for economically rational reasons. But see Jennifer Roback, Wages, Rents and Amenities: Differences Among Workers and Regions, 26 ECON. INQ. 23 (1988).