Marriage as partnership

Notre Dame Law Review

Volumn 73, Issue 5, 1998, Pages 1251-1273

  Katz, Sanford N ^a  

^a BOSTON COLLEGE   (United States)

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EID: 0032372442     PISSN: 07453515     EISSN: None     Source Type: Journal    
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References (82)

1. See MARY ANN GLENDON, THE NEW FAMILY AND THE NEW PROPERTY (1981).
2. Professor Glendon discusses this point as well in MARY ANN GLENDON, THE TRANSFORMATION OF FAMILY LAW 135 (1996).
3. This phenomenon is discussed in Thomas C. Kohler, Individualism and Communitarianism at Work, 1993 BYU L. REV. 727, 736 (1993) (citations omitted): It may be that instability increasingly characterizes many of the significant relationships among Americans: employment relationships in the U.S. now last an average of 4.5 years, while the average marriage lasts but seven. Trends are not wholly clear, but the average length of both may be on the way down.
4. Professors Kohler and Finkin have written: In his Commentaries, William Blackstone famously observed that the "three great relationships of private life are" those of "husband and wife," "parent and child," and "master and servant." . . . Family and work relationships may be elemental to any form of stable and well-ordered social and political life. But, in the American context, there is no denying that at least the first two of the bonds that Blackstone enumerates hardly are flourishing. Although other nations are beginning to become more competitive in this arena, the United States continues to have the highest divorce rate in the world. As one group of researchers report about the American domestic scene, "the probability that a marriage taking place today will end in divorce or permanent separation is calculated to be a staggering 60 percent." Similarly, Frank Furstenberg and Andrew Cherlin estimate that sixty per cent of children born in the United States during the 1990's will live in a single-parent family before age sixteen. If employment, like marriage and, at least for men, parenthood, comes to assume the character of a spot (one hesitates to say a "just-in-time") relationship, we should not be surprised. One need pass no value judgments on any of these developments to suggest that they are not entirely unrelated. Although it may represent something of a "trailing" indicator, there is no reason to expect that the employment bond, which we strongly tend to characterize as representing purely economic association, should be any more durable than life's other significant relations. Our habits not only belay any such expectations, but prepare us to accept serial affiliations as the norm. Thomas C. Kohler & Matthew W. Finkin, Bonding and Flexibility: Employment Ordering in a Relationless Age, 46 AM. J. COMP. L. 1101, 1122-23 (1998) (punctuation altered) (citations omitted).
5. Mary Ann Glendon, Family Law Reform in the 1980's, 44 LA. L. REV. 1553, 1556 (1984) [hereinafter Glendon, Family Law Reform]; see also GLENDON, supra note 2, at 228.
6. Mary Ann Glendon, Family Law Reform in the 1980's, 44 LA. L. REV. 1553, 1556 (1984) [hereinafter Glendon, Family Law Reform]; see also GLENDON, supra note 2, at 228.
7. See Glendon, Family Law Reform, supra note 5, at 1560-61; see also MARY ANN GLENDON, ABORTION AND DIVORCE IN WESTERN LAW 94-95, 98-101 (1987).
8. See Glendon, Family Law Reform, supra note 5, at 1560-61; see also MARY ANN GLENDON, ABORTION AND DIVORCE IN WESTERN LAW 94-95, 98-101 (1987).
9. Most recently Professor Glendon's work has been cited in AMERICAN LAW INSTITUTE, PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION: ANALYSIS AND RECOMMENDATIONS § 4.07 (Proposed Final Draft Part I, February 14, 1997).
10. See WALTER O. WEYRAUCH & SANFORD N. KATZ, AMERICAN FAMILY LAW IN TRANSITION 115-71 (1983). Our later study builds on that work. See WALTER O. WEYRAUCH ET AL., FAMILY LAW - LEGAL CONCEPTS AND CHANGING HUMAN RELATIONSHIP (1994). See also Walter O. Weyrauch, Informal and Formal Marriage - An Appraisal of Trends in Family Organization, 28 U. CHI. L. REV. 88 (1960).
11. See WALTER O. WEYRAUCH & SANFORD N. KATZ, AMERICAN FAMILY LAW IN TRANSITION 115-71 (1983). Our later study builds on that work. See WALTER O. WEYRAUCH ET AL., FAMILY LAW - LEGAL CONCEPTS AND CHANGING HUMAN RELATIONSHIP (1994). See also Walter O. Weyrauch, Informal and Formal Marriage - An Appraisal of Trends in Family Organization, 28 U. CHI. L. REV. 88 (1960).
12. See WALTER O. WEYRAUCH & SANFORD N. KATZ, AMERICAN FAMILY LAW IN TRANSITION 115-71 (1983). Our later study builds on that work. See WALTER O. WEYRAUCH ET AL., FAMILY LAW - LEGAL CONCEPTS AND CHANGING HUMAN RELATIONSHIP (1994). See also Walter O. Weyrauch, Informal and Formal Marriage - An Appraisal of Trends in Family Organization, 28 U. CHI. L. REV. 88 (1960).
13. GLENDON, supra note 1, at 4.
14. Professors Joseph Goldstein and Jay Katz have written: Family law . . . is defined as the process for deciding what relationships should be labelled "family," under what circumstances such relationships may be established, administered, and reorganized, and what consequences should accompany these determinations. In perceiving the cycle of state and family interaction in terms of the three basic problems for decision - establishment, administration, and reorganization - we further define family law to include the processes for determining to what persons or agencies, should be assigned, under what circumstances, the role of promulgating, invoking, implementing, and appraising these decisions. JOSEPH GOLDSTEIN & JAY KATZ, THE FAMILY AND THE LAW 1 (1965).
15. On this point Professor Carl Schneider has written: "It is hard to produce a systematic view of an unsystematic subject, and perhaps family law must always be ad hoc, responsive to local conditions, sensitive to the day's sensibilities, and willing to compromise irreconcilable differences." Carl E. Schneider, The Next Step: Definition, Generalization, and Theory in American Family Law, 18 U. MICH. J.L. REFORM 1039, 1048 (1985).
16. Illustrative of this point is the practice of treating property acquired during pre-marital cohabitation as marital property subject to division upon divorce. See Moriarty v. Stone, 668 N.E.2d 1338 (Mass. App. Ct. 1996); In re Marriage of Dubnicay, 830 P.2d 608 (Or. Ct. App. 1992); Malek v. Malek, 768 P.2d 243 (Haw. Ct. App. 1989); In re Marriage of Burton, 758 P.2d 394 (Or. Ct. App. 1988); Chestnut v. Chestnut, 499 N.E.2d 783 (Ind. Ct. App. 1986).
17. My co-authors Walter O. Weyrauch, Frances Olsen, and I have written: A major trend over the past two centuries has been toward greater equality in marriage. This greater equality has generally taken the form of allowing the wife more autonomy within the marriage. While women have benefited from this increased autonomy, some observers believe that the sol-idarity of "the family" has suffered. It is striking how few reforms have aimed directly at allowing wives greater say in family decisions - democratizing the family - rather than just at allowing wives to opt out of decisions made by the husband, such as the "family" domicile. . . . Most commentators support the trend toward increasing equality within marriage. Less consensus exists, however, about what greater equality in marriage really means and about who should bear the brunt of the disruption during the period of readjustment. WEYRAUCH ET AL, supra note 8, at 309. See also Frances E. Olsen, The Family and the Market: A Study of Ideology and Legal Reform, 96 HARV. L. REV. 1497, 1530-35 (1983).
18. See GLENDON, supra note 1, at 61; GLENDON, supra note 2, at 135-40.
19. 125 U.S. 190 (1888).
20. Id. at 205.
21. 4 Fla. 23 (1851).
22. MICHAEL GROSSBERG, GOVERNING THE HEARTH 19 (1985). Professor Michael Grossberg's excellent work on the law and the family in nineteenth century America discusses this point. He has written that in the post-revolutionary era: [T]he law continued to portray marriage as a civil contract, [but] in a vital transition the accent shifted from the first word to the second. The new emphasis was on the consensual nature of marriage. It also reflected the broader use of contract as the central metaphor for social and economic relations in early nineteenth-century America. . . . Contractualism gained strength from the same forces that were eroding the hierarchical conception of society. Rather than viewing the body politic as an amalgam of interdependent, status-defined groups, contract ideology stemmed from a world view whose lode star was the untrammeled autonomy of the individual will. Relations of all kinds were to be governed by the intentions, not the ascribed status, of their makers. The English philosopher Sir Henry Maine characterized this transition as the "movement from status to contract." Id. The concept of marriage as partnership could also be found in eighteenth century America. Professor Grossberg finds support in quotes from the 1792 Lady's Magazine: A self-described "Matrimonial Republican" defined the new perception. . . . She objected to the word "obey in the marriage service because it is a general word, without limitations or definitions." Instead, the writer insisted that the "obedience between man and wife, I conceive, is, or ought to be, mutual. Marriage ought never to be considered as a contract between a superior and inferior, but a reciprocal union of interests, an implied partnership of interests, where all differences are accommodated by conference; and decision admits of no retrospect." Id. (citations omitted).
23. Ponder, 4 Fla. at 45.
24. See, e.g., Loving v. Virginia, 388 U.S. 1, 7 (1967) (citing Maynard v. Hill, 125 U.S. 190 (1888), for the proposition that "marriage is a social relation subject to the State's police power."). See also Ryan v. Ryan, 277 So. 2d 266, 268 (Fla. 1973) (citing Ponder for the proposition that "marriage is a contract" in holding that Florida's nofault divorce law was constitutional).
25. Professor Ira Ellman has made this point in Ira Ellman, The Theory of Alimony, 77 CAL. L. REV. 1, 10-11 (1989). See also Ira Mark Ellman & Sharon Lohr, Marriage as Contract, Opportunistic Violence, and Other Bad Arguments for Fault Divorce, 1997 U. ILL. L. REV. 719, 747.
26. Professor Ira Ellman has made this point in Ira Ellman, The Theory of Alimony, 77 CAL. L. REV. 1, 10-11 (1989). See also Ira Mark Ellman & Sharon Lohr, Marriage as Contract, Opportunistic Violence, and Other Bad Arguments for Fault Divorce, 1997 U. ILL. L. REV. 719, 747.
27. Using the contract metaphor, the marriage contract, while not based on a printed form, has some of the elements of a contract of adhesion in the sense that some marital duties are imposed by law. See WEYRAUCH & KATZ, supra note 8, at 2. The Massachusetts case of French v. McAnarney, 195 N.E. 714 (Mass. 1935) illustrates this point. In French, the Supreme Judicial Court of Massachusetts refused to enforce an antenuptial agreement, which effectively released the husband from his common law duty to support his wife. In reaching this decision, the court stated: The status of the parties as husband and wife was fixed when the marriage was solemnized. A marriage cannot be avoided or the obligations imposed by law as incident to the relation of husband and wife be relaxed by previous agreement between the parties. Marriage is not merely a contract between the parties. It is the foundation of the family. It is a social institution of the highest importance. . . . The moment the marriage relation comes into existence, certain rights and duties necessarily incident to that relation spring into being. One of these duties is the obligation imposed by law upon the husband to support his wife. . . . The enlarged contractual capacity conferred upon married women by [Massachusetts law] does not relieve the husband from this liability. Id. at 715-16 (citations omitted).
28. See GLENDON, supra note 1, at 63-68; GLENDON, supra note 2, at 135-40; Glendon, Family Law Reform, supra note 5, at 1565-70 (1984).
29. The case of In re Duncan's Estate, 285 P. 757 (Colo. 1930), illustrates this point. In that case Charles Duncan died intestate. The administrator of his estate denied his widow her widow's allowance, claiming that the couple's antenuptial agreement barred her claim. The agreement provided that: [S]hould at any time a condition exist that would disturb the harmony of the married life and domestic relations of said parties, they agree to a legal separation, with the following stipulations: The party of the first part [the husband] agrees to make a settlement with the party of the second part [the wife] at the rate of $100.00 for each year they shall have lived together as man and wife. . . . The said party of the second part agrees to accept said settlement within 24 hours of the time the said parties shall have ceased to live together as man and wife. The said party of the second part further agrees to vacate the house, rooms or premises the said parties shall have occupied, and to take from said house, rooms or premises all articles of household goods, furnishings, and wearing apparel which are her personal property, within 24 hours of receiving the foregoing settlement, and with no expense to the said party of the first part. In consideration of the foregoing, the party of the second part does hereby further agree to forever release the said party of the first part, his heirs and assigns, from any and all claims for alimony, support, maintenance, dower, or wife's or widow's rights; and not to contest any action for divorce that may be brought by the party of the first part. Id. at 757. In less than a year the couple separated. The wife acknowledged the receipt of $110.00 in full settlement of all claims she had against her husband. In holding that the antenuptial agreement was void and against public policy, the Supreme Court of Colorado stated that: The antenuptial contract was a wicked device to evade the laws applicable to marriage relations, property rights, and divorces. . . . It was nothing more, in effect, than an attempt, on the part of the deceased, in whose favor the contract was drawn, to legalize prostitution, under the name of marriage, at the price of $100 per year. Id. The court concluded its opinion with the following statement about marriage: The marriage relation lies at the foundation of our civilization. Marriage promotes public and private morals, and advances the well-being of society and social order. The marriage relation is so sacred in character that it is indissoluble except in conformity with legislative requirements and the solemn decree of the court. It cannot be annulled by contract, or at the pleasure of the parties. Id. at 758. The outcome of this case would most likely be the same in 1998 although a contemporary judge might omit the lofty statement about marriage.
30. The leading case on antenuptial agreements in Massachusetts is Osborne v. Osborne, 428 N.E.2d 810 (Mass. 1981). In that case Chief Justice Hennessey traced the history of the enforcement of antenuptial agreements. He wrote: In many jurisdictions it has been held that an antenuptial contract made in contemplation of divorce is void as against public policy. The reason most frequently given for invalidating such contracts are (1) they are not compatible with and denigrate the status of marriage, (2) they tend to facilitate divorce by providing inducements to end the marriage, and (3) a contract waiving or minimizing alimony may turn a spouse into a ward of the State. Id. at 814 (citations omitted).
31. 233 So. 2d 381 (Fla. 1970). Although Posner v. Posner h widely cited as being ground-breaking, Hudson v. Hudson, 350 P.2d 596 (Okla. 1960), predates Posner. In Hudson, the Oklahoma Supreme Court upheld a premarital contract in which alimony was waived.
32. Justice Roberts wrote: We know of no community or society in which the public policy that condemned a husband and wife to a lifetime of misery as an alternative to the opprobrium of divorce still exists. And a tendency to recognize this change in public policy and to give effect to the antenuptial agreements of the parties relating to divorce is clearly discernible. Posner, 233 So. 2d at 384. Perhaps Justice Roberts was restricting his remarks to the United States. In 1970 a limited number of countries did not allow divorce.
33. Walter O. Weyrauch, Metamorphoses of Marriage, 13 FAM. L.Q. 415, 420 (1980).
34. In Simeone v. Simeone, 581 A.2d 162, 165 (Pa. 1990), the Supreme Court of Pennsylvania stated that "[p]renuptial agreements are contracts, and, as such, should be evaluated under the same criteria as are applicable to other types of contracts." The court was unwilling to nullify an antenuptial agreement that had been signed on the eve of the couple's wedding. The court felt that "[c]ontracting parties are normally bound by their agreements, without regard to whether the terms thereof were read and fully understood and irrespective of whether the agreements embodied reasonable or good bargains." Id.
35. Section 2 of the Uniform Premarital Agreement Act illustrates one break with the common law of contracts in stating that "[a] premarital agreement must be in writing and signed by both parties. It is enforceable without consideration." UNIF. PREMARITAL AGREEMENT ACT § 2, 9B U.L.A. 372 (1987).
36. See Glendon, Family Law Reform, supra note 5, at 1567.
37. See E. ALLAN FARNSWORTH, CONTRACTS § 4.1 (2d ed. 1990).
38. See UNIF. PREMARITAL AGREEMENT ACT § 6, 9B U.L.A. 376 (1987). That section reads as follows: Section 6. Enforcement (a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves that: (1) that party did not execute the agreement voluntarily; or (2) the agreement was unconscionable when it was executed and, before execution of the agreement, that party: (i) was not provided a fair and reasonable disclosure of the property or financial obligations of the other party; (ii) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and (iii) did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party. (b) If a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to the agreement to be eligible for support under a program of public assistance at the time of separation or marital dissolution, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid that eligibility. (c) An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law. Id.
39. See Rosenberg v. Lipnick, 389 N.E.2d 385 (Mass. 1979). Rosenberg was the leading Massachusetts case on antenuptial agreements before Osborne v. Osborne, 428 N.E.2d 810 (Mass. 1981). In Rosenberg, the Supreme Judicial Court discussed how parties to an antenuptial agreement do not deal at arms length, but rather in an atmosphere of mutual trust.
40. See Glendon, Family Law Reform, supra note 5, at 1567. Professor Glendon differentiates between childless marriages and marriages with children. She believes that where a couple has children, "substantial limitations on freedom of contract . . . are appropriate, at least if there are dependent children at the time of divorce." Id. Caselaw in Massachusetts supports this position. See, e.g., Osborne, 428 N.E.2d at 816; Knox v. Remick, 358 N.E.2d 432, 436 (1976).
41. Professor Brod has written: Premarital agreements have a disparate impact on women - and thereby discriminate against them. Thus, the enforcement of premarital agreements implicates public policy concerns related to the eradication of gender discrimination, as well as concerns with individual autonomy and "freedom of contract" principles. Premarital agreements should be greeted with skepticism, not embraced with enthusiasm. In addition to strengthening the "freedom of contract" principle and supporting individual autonomy, the law governing the enforcement of premarital agreements should be fashioned to effectuate other public policies: the eradication of gender discrimination and the attainment of economic justice for the economically vulnerable spouse at the end of a marriage. The tension between these policies and the "freedom of contract" principle can be reconciled by the adoption of a regime that enforces a premarital agreement only if the agreement attains economic justice for the economically vulnerable spouse or, failing that, if the bargaining process culminating in execution of the agreement was demonstrably fair. In determining whether a premarital agreement should be enforced, the law may presume that an economically unjust agreement is the result of an unfair bargaining process and that an economicallyjust agreement is the result of a fair process . . . . By enforcing agreements only if there are guarantees of substantive or procedural fairness, the law will mitigate the disparate impact of premarital agreements on women as a class, while avoiding paternalism and respecting the rights of women (and men) to contract in their own interests. Gail Frommer Brod, Premarital Agreements and Gender Justice, 6 YALE J.L. & FEMINISM 229, 294-95 (1994). Professor Brod states that "the law governing the enforcement of premarital agreements should be fashioned to effectuate other public policies: the eradication of gender discrimination and the attainment of economic justice for the economically vulnerable spouse at the end of a marriage." Id. This description of a premarital agreement suggests to me that the agreement should be considered as a special kind of contract, perhaps like an adhesion contract, where the doctrines of public interest and superior bargaining power play a role in interpretation and enforcement. See Todd D. Rakoff, Contracts of Adhesion: An Essay in Reconstruction, 96 HARV. L. REV. 1173, 1192-97 (1983).
42. Marvin v. Marvin, 557 P.2d 106 (Cal. 1976); Marvin v. Marvin, 176 Cal. Rptr. 555 (Cal. Ct. App. 1981); Marvin v. Marvin, 5 FAM. L. REP. 3077 (1979).
43. See, e.g., Leong v. Leong, 27 F.2d 582 (9th Cir. 1928); In re Estate of Thornton, 499 P.2d 864 (Wash. 1972); Orner v. Orner, 523 P.2d 957 (Wash. Ct. App. 1974). This issue is discussed in WEYRAUCH ET AL, supra note 8. For a thorough review of the extent to which Marvin has been followed in the United States, see Carol S. Bruch, Cohabitation in the Common Law Countries a Decade After Marvin : Settled In or Moving Ahead?, 22 U.C. DAVIS L. REV. 717 (1989).
44. See Stanley v. Illinois, 405 U.S. 645 (1972). In Stanley, the United States Supreme Court struck down an Illinois statute that prevented a biological father from participating in a child protection case which would have deprived him of the custody of his children. Mr. Stanley had lived with the mother of the children in a family arrangement. Yet, by virtue of his not having married the mother of the children, the Illinois statute did not provide him with notice or an opportunity to be heard at the hearing.
45. See Jarrett v. Jarrett, 400 N.E.2d 421 (111. 1980) (enforcing 449 U.S. 927 (1980)).
46. 394 N.E.2d 1204 (111. 1979).
47. Illinois enacted its no-fault provision in 1995. See 750 ILL. COMP. STAT. ANN. 5/ 401 (a) (2) (West 1993 & Supp. 1995).
48. 190 N.E.2d 849 (111. App. Ct. 1963).
49. Id. at 850.
50. Id. at 859.
51. 302 N.E.2d 293 (111. 1973).
52. Id. at 225.
53. 413 N.E.2d 1154 (N.Y. 1980).
54. This argument was also stated in Marvin v. Marvin, 557 P.2d 106, 122 (Cal. 1976) when Justice Tobriner wrote: "As we have explained, the courts now hold that express agreements will be enforced unless they rest on an unlawful meretricious consideration."
55. Judge Meyer asked: Is the length of time the relationship has continued a factor? Do the principles apply only to accumulated personal property or do they encompass earnings as well? If earnings arc to be included how are the services of the homemaker to be valued? Should services which are generally regarded as amenities of cohabitation be included? Is there unfairness in compensating an unmarried renderer of domestic services but failing to accord the same rights to the legally married homemaker? Are the varying types of remedies allowed mutually exclusive or cumulative? Morone, 413 N.E.2d at 1156.
56. However, that is precisely what the California Superior Court did when it heard Marvin on remand from the Supreme Court of California. It awarded Michelle Marvin $104,000 "for rehabilitation purposes." Marvin v. Marvin, 5 FAM. L. REP. 3077, 3085 (1979). That award was reversed on appeal. See Marvin v. Marvin, 176 Cal. Rptr. 555 (Cal. Ct. App. 1981). Thus, after at least five years of litigation, Michelle Marvin received nothing. In Wilcox v. Trautz, No. SJC-07621 (Mass. April 21, 1998), the Supreme Judicial Court of Massachusetts enforced a cohabitation agreement between a man and a woman, which had been entered into during the period in which they lived together. In the course of the opinion, Justice Greaney briefly reviewed the status of persons in Massachusetts who live together without going through a ceremonial marriage. He stated, "we do not recognize common law marriage, do not extend to unmarried couples the rights possessed by married couples who divorce, and reject equitable remedies that might have the effect of dividing property between unmarried parties." Id., slip op. at 4.
57. GLENDON, supra note 2, at 281.
58. See Goode v. Goode, 396 S.E.2d 430 (W. Va. 1990). In Goode, the couple had lived together for twenty-eight years, had four children, and had held themselves out to the community as husband and wife. West Virginia does not recognize common law marriage and therefore divorce was not available. Yet the West Virginia Supreme Court applied a divorce-like remedy, considering such factors as "the purpose, duration, and stability of the relationship and the expectation of the parties." Id. at 438. See also Warden v. Warden, 676 P.2d 1037 (Wash. Ct. App. 1984). In Warden, the Washington Court of Appeals treated the couple as married for purposes of the distribution of assets upon the termination of their relationship.
59. See Bruch, supra note 38, at 727-40.
60. See Grace C. Blumberg, Cohabitation Without Marriage: A Different Perspective, 28 UCLA L. REV. 1125, 1140-49 (1981).
61. Even where there is a will and the testator leaves his estate to his companion, an attack of undue influence can be successful in defeating the will. Such was the case of In re Will of Kaufmann, 247 N.Y.S.2d 664 (App. Div. 1964), aff'd, 205 N.E.2d 864 (N.Y. 1965). In that case, the heirs of Robert Kaufmann were successful in defeating the claim of Walter Weiss, Mr. Kaufmann's companion, on the ground of undue influence even though the testator had left a letter to his family describing his relationship with Mr. Weiss, his intention to leave him an inheritance, and his hope that his family would be pleased with his gratitude toward his friend. The case is discussed in Ray D. Madoff, Unmasking Undue Influence, 81 MINN. L. REV. 571 (1997).
62. See, e.g., Elden v. Sheldon, 758 P.2d 582 (Cal. 1988); Feliciano v. Rosemar Silver Co., 514 N.E.2d 1095 (Mass. 1987).
63. See, e.g., Garcia v. Douglas Aircraft Co., 184 Cal. Rptr. 390 (Ct. App. 1982).
64. See, e.g., Califano v. Boles, 443 U.S. 282 (1979).
65. See Norman v. Unemployment Ins. Appeals Bd., 663 P.2d 904 (Cal. 1983) (disallowing recovery of workman's compensation benefits). But see MacGregor v. Unemployment Ins. Appeals Bd., 689 P.2d 453 (Cal. 1984) (allowing recovery). See also OR. REV. STAT. ANN. § 656.226 (Butterworth 1989).
66. See In re Adoption of Tammy, 619 N.E.2d 315 (Mass. 1993); Adoptions of B.L.V.B. & E.L.V.B., 628 A.2d 1271 (Vt. 1993).
67. At least two jurisdictions have required that a cohabitation contract be in writing. See MINN. STAT. §§ 513.075-.076 (1989); TEX. Bus. & COM. CODE ANN. § 26.01 (b) (3) (West 1987).
68. See SAN FRANCISCO RECOGNITION OF DOMESTIC PARTNERS LAW § 121, reprinted in WEYRAUCH ET AL, supra note 8, at 304-06.
69. S.B. 1994, 180th Gen. Court, 1997 Reg. Sess. (Mass.) (introduced Oct. 30, 1997).
70. GLENDON, supra note 2, at 197-99.
71. See id. at 228-33; GLENDON, supra note 1, at 65.
72. See GLENDON, supra note 1, at 65.
73. GLENDON, supra note 2, at 233.
74. See Victor Brudney, Contract and Fiduciary Duty in Corporate Law, 38 B.C. L. REV. 595, 607-10 (1997).
75. The three questions asked in the assignment of property upon divorce in an equitable distribution jurisdiction are: (1) what is marital property; (2) when should it be valued; and (3) how should it be distributed. In order to answer the first question, courts have come up with three concepts: tracing, commingling, and transmutation. Tracing of assets consists of determining the source of the use of marital funds. Commingling takes place where separate funds are brought into the marriage but become commingled with other assets so as to be untraceable. Transmutation of an asset is the term used to describe the change in character of the property from separate to marital or from marital to separate. This can be accomplished through use, contract, or gift. For an illustration of the application of these concepts, see Quinn v. Quinn, 512 A.2d 848 (R.I. 1986). For a discussion of the concepts, see J. Thomas Oldham, Tracing, Commingling, and Transmutation, 23 FAM. L.Q. 219 (1989). As to when marital property should be valued, three reference points are relevant: time of separation, time of the petition for divorce, and time of the divorce hearing.
76. See GLENDON, supra note 2.
77. Professor Glendon recommends a fifty-fifty split "limited to property acquired by gainful activity during the marriage, in the absence of agreement to the contrary." GLENDON, supra note 1, at 63. Professor Glendon sees the difficulty in defending her rule as one of fairness, but "given what is just as true - that no human judge can ever ascertain or quantify the true contribution of each spouse - the equal division of acquests commends itself as a rule of convenience without substantial demerit." Id.
78. Section 307 [Alternative A] reads as follows: (a) In a proceeding for dissolution of a marriage, separation, or disposition of property following a decree of dissolution of marriage or legal separation by a court which lacked personal jurisdiction over the absent spouse or lacked jurisdiction to dispose of the property, the court, without regard to marital misconduct, shall, and in a proceeding for legal separation may, finally equitably apportion between the parties the property and assets belonging to either or both however and whenever acquired, and whether the title thereto is in the name of the husband or wife or both. In making apportionment the court shall consider the duration of the marriage, any prior marriage of either party, antenuptial agreement of the parties, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties, custodial provisions, whether the apportionment is in lieu of or in addition to maintenance, and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution or dissipation of each party in the acquisition, preservation, depreciation, or appreciation in value of the respective estates, and the contribution of a spouse as a homemaker or to the family unit. UNIF. MARRIAGE AND DFVORCE ACT § 307 (Alternative A), 9A U.L.A. 238 (1973).
79. See O'Brien v. O'Brien, 489 N.E.2d 712 (N.Y. 1985). In O'Brien, the Court of Appeals of New York applied the New York Domestic Relations Law and considered Dr. O'Brien's license to practice medicine as marital property. New York is the only state that considers a license or a degree as property. The more common method of including it as part of the marital estate is to consider it as providing the holder of the degree as having an enhanced earning capacity because of the contribution of the supporting spouse and including it in an alimony award. For a full discussion of this issue, see AMERICAN LAW INSTITUTE, PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION: ANALYSIS AND RECOMMENDATIONS § 4.07 (Proposed Final Draft Part I, February 14, 1997).
80. See AMERICAN LAW INSTITUTE, PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION: ANALYSIS AND RECOMMENDATIONS § 4.08 (Proposed Final Draft Part I, February 14, 1997).
81. See Elkus v. Elkus, 572 N.Y.S.2d 901 (N.Y. App. Div. 1991).
82. See Brown v. Brown, 300 So. 2d 719 (Fla. Dist. Ct. App. 1974); Lacey v. Lacey, 173 N.W.2d 142 (Wis. 1970).