The influence of Marvin v. Marvin on housework during marriage

Notre Dame Law Review

Volumn 76, Issue 5, 2001, Pages 1311-1339

  Brinig, Margaret F ^a,b  

^a UNIVERSITY OF IOWA   (United States)

^b Seton Hall ^*  (United States)

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EID: 11244326783     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (255)

1. The relationship ended "at his insistence." Marvin v. Marvin, 176 Cal. Rptr. 555, 557 (Ct. App. 1981).
2. Id. at 557-59 (discussing the various findings of the trial court and finding no basis for its award of $104,000 in rehabilitative support).
3. Id. at 557.
4. Marvin v. Marvin, 557 P.2d 106, 110 (Cal. 1976) ("Plaintiff avers that in October of 1964 she and defendant 'entered into an oral agreement' that while 'the parties lived together they would combine their efforts and earnings and would share equally any and all property accumulated as a result of their efforts whether individual or combined.'").
5. The court held, "In the absence of an express contract, the courts should inquire into the conduct of the parties to determine whether that conduct demonstrates an implied contract, agreement of partnership or joint venture, or some other tacit understanding between the parties." Id. The court also stated, "The courts may inquire into the conduct of the parties to determine whether that conduct demonstrates an implied contract or implied agreement of partnership or joint venture or some other tacit understanding between the parties." Id. at 122 (citation omitted).
6. "[P]laintiff agreed to 'give up her lucrative career as an entertainer (and) singer' in order to 'devote her full time to defendant . . . as a companion, homemaker, housekeeper and cook;' in return defendant agreed to 'provide for all of plaintiff's financial support and needs for the rest of her life.'" Id.
7. See id.
8. See Marvin, 176 Cal. Rptr. at 558.
9. CARL E. SCHNEIDER & MARGARET F. BRINIG, AN INVITATION TO FAMILY LAW: PRINCIPLES, PROCESS, AND PERSPECTIVES 501-15 (2d ed. 2000) (reprinting the opinion of Judge Marshall of the trial court on remand in Marvin v. Marvin, Civ. 59130 (Super. Ct. L.A. County 1979)).
10. See CAL. FAM. CODE §§ 4334-4335 (West 1994) (providing for support of former spouses for contingent and fixed periods of time, respectively).
11. Id. § 2550.
12. CAL. FAM. CODE § 2550 provides: Except upon the written agreement of the parties, or on oral stipulation of the parties in open court, or as otherwise provided in this division, in a proceeding for dissolution of marriage or for legal separation of the parties, the court shall, either in its judgment of dissolution of the marriage, in its judgment of legal separation of the parties, or at a later time if it expressly reserves jurisdiction to make such a property division, divide the community estate of the parties equally. Id.
13. See Marvin v. Marvin, 557 P.2d 106, 118 (Cal. 1976) ("Plaintiff's complaint. . . could be amended to state a cause of action founded upon theories of implied contract or equitable relief. As we have noted, both causes of action in plaintiff's complaint allege an express contract; neither assert any basis for relief independent from the contract.").
14. As of February 2001, six states unequivocally recognized breach of implied contracts for non-business contributions by cohabitants. In addition to California, these states are Connecticut, see Boland v. Catalano, 521 A.2d 142, 146 (Conn. 1987); Indiana, see Glasgo v. Glasgo, 410 N.E.2d 1325, 1331 (Ind. Ct. App. 1980); Michigan, see Featherston v. Steinhoff, 575 N.W.2d 6, 9 (Mich. Ct. App. 1997) (including a presumption that services performed are gratuitous, however); Oregon, see Pinto v. NOTRE DAME LAW REVIEW [VOL. 76:5 Smalz, 955 P.2d 770, 773 (Or. Ct. App. 1998); and Pennsylvania, see Knauer v. Knauer, 470 A.2d 553, 564 (Pa. Super. Ct. 1983). Other states will do so when the parties are engaged in a business relationship in addition to their personal one. See, e.g., Champion v. Frazier, 977 S.W.2d 61, 63 (Mo. Ct. App. 1998); Martin v. Coleman, 19 S.W.3d 757, 761 (Tenn. 2000); In re Estate of Thorton, 499 P.2d 864, 866 (Wash. 1972).
15. For two surveys, see generally Sanford N. Katz, Emerging Models for Alternatives to Marriage, 33 FAM. L.Q. 663 (1999), and Katherine C. Gordon, Note, The Necessity and Enforcement of Cohabitation Agreements: When Strings Will Attach and How to Prevent Them - A State Survey, 37 BRANDEIS L.J. 245 (1998-1999).
16. For two surveys, see generally Sanford N. Katz, Emerging Models for Alternatives to Marriage, 33 FAM. L.Q. 663 (1999), and Katherine C. Gordon, Note, The Necessity and Enforcement of Cohabitation Agreements: When Strings Will Attach and How to Prevent Them - A State Survey, 37 BRANDEIS L.J. 245 (1998-1999).
17. See, e.g., Rebecca Bailey-Harris, Financial Rights in Relationships Outside Marriage: A Decade of Reform in Australia, 9 INT'L J.L. & FAM. 233, 238-39 (1995); Craig A. Sloane, Note, A Rose by Any Other Name: Marriage and the Danish Registered Partnership Act, 5 CARDOZO J. INT'L & COMP. L. 189, 191 (1997).
18. See, e.g., Rebecca Bailey-Harris, Financial Rights in Relationships Outside Marriage: A Decade of Reform in Australia, 9 INT'L J.L. & FAM. 233, 238-39 (1995); Craig A. Sloane, Note, A Rose by Any Other Name: Marriage and the Danish Registered Partnership Act, 5 CARDOZO J. INT'L & COMP. L. 189, 191 (1997).
19. I suspect, with no empirical data to support my notion, that the analysis here will apply exactly to couples electing "civil union" under Vermont's new legislation. VT. STAT. ANN. tit. 15, §§ 1201-1207 (Supp. 2000). I also suspect that the distinction between married and cohabiting couples that I will draw for heterosexual couples will hold true for same-sex partners who, at least in Vermont, do not take advantage of such laws. See id. I am less sanguine about the results for couples elsewhere who have gone through "commitment ceremonies" and who consider themselves married, but who cannot many because state law forbids it. Were these heterosexual couples, some states would permit at least the "innocent" party to recover under "putative spouse" laws: they tried, they made the commitment, they conferred every benefit and undertook every sacrifice they would have if married, but, through no fault of their own, that "mere piece of paper" remained illusive. See, e.g., Marvin, 557 P.2d at 118; Hewitt v. Hewitt, 394 N.E.2d 1204, 1210 (Ill. 1979).
20. Bruch's influence on Marvin shines through the following section of the opinion: As Justice Curtis points out 'Unless it can be argued that a woman's services as cook, housekeeper, and homemaker are valueless, it would seem logical that if, when she contributes money to the purchase of property, her interest will be protected, then when she contributes her services in the home, her interest in property accumulated should be protected.' Marvin, 557 P.2d at 119 (citing Vallera v. Vallera, 134 P.2d 761, 764 (Cal. 1943) (Curtis, J., dissenting); Carol S. Bruch, Property Rights of De Facto Spouses Including Thoughts on the Value of Homemakers'Services, 10 FAM. L.Q. 101, 102 (1976)). The case also states: But although we reject the reasoning of Cary and Atherley, we share the perception of the Gary and Atherley courts that the application of former precedent in the factual setting of those cases would work an unfair distribution of the property accumulated by the couple. Justice Friedman in Beckman v. Mayhew. . . also questioned the continued viability of our decisions in Vallera and Keene; commentators have argued the need to reconsider those precedents. We should not, therefore, reject the authority of Gary and Atherley without also examining the deficiencies in the former law which led to those decisions. Id. at 120-21 (citing Carol S. Bruch, Property Rights of De Facto Spouses Including Thoughts on the Value of Homemakers'Services, 10 FAM. L.Q. 101, 102 (1976)).
21. Bruch's influence on Marvin shines through the following section of the opinion: As Justice Curtis points out 'Unless it can be argued that a woman's services as cook, housekeeper, and homemaker are valueless, it would seem logical that if, when she contributes money to the purchase of property, her interest will be protected, then when she contributes her services in the home, her interest in property accumulated should be protected.' Marvin, 557 P.2d at 119 (citing Vallera v. Vallera, 134 P.2d 761, 764 (Cal. 1943) (Curtis, J., dissenting); Carol S. Bruch, Property Rights of De Facto Spouses Including Thoughts on the Value of Homemakers'Services, 10 FAM. L.Q. 101, 102 (1976)). The case also states: But although we reject the reasoning of Cary and Atherley, we share the perception of the Gary and Atherley courts that the application of former precedent in the factual setting of those cases would work an unfair distribution of the property accumulated by the couple. Justice Friedman in Beckman v. Mayhew. . . also questioned the continued viability of our decisions in Vallera and Keene; commentators have argued the need to reconsider those precedents. We should not, therefore, reject the authority of Gary and Atherley without also examining the deficiencies in the former law which led to those decisions. Id. at 120-21 (citing Carol S. Bruch, Property Rights of De Facto Spouses Including Thoughts on the Value of Homemakers'Services, 10 FAM. L.Q. 101, 102 (1976)).
22. Carol S. Bruch, Property Rights of De Facto Spouses Including Thoughts on the Value of Homemakers'Services, 10 FAM. L.Q. 101, 102 (1976).
23. Lenore V. Weitzman, Legal Regulation of Marriage: Tradition and Change, 62 CAL. L. REV. 1169 (1974).
24. Id. at 1281.
25. See, e.g., LINDA J. WAITE & MAGGIE GALLAGHER, THE CASE FOR MARRIAGE: WHY MARRIED PEOPLE ARE HAPPIER, HEALTHIER, AND BETTER OFF FINANCIALLY 97-109 (2000); Gary S. Becker et al., An Economic Analysis of Marital Instability, 85 J. POL. ECON. 1141, 1142-46 (1977); Suzanne M. Bianchi & Daphne Spain, Women, Work, and Family in America, 51 POPULATION BULL. 2, 31-35 (1996); Shelley Coverman & Joseph F. Sheley, Change in Men's Housework and Child-Care Time, 1965-75, 48 J. MARRIAGE & FAM. 413, 420 (1986); Mary E. O'Connell, On the Fringe: Rethinking the Link Between Wages and Benefits, 67 TUL. L. REV. 1421, 1478-97 (1993); Amy L. Wax, Bargaining in the Shadow of the Market: Is There a Future for Egalitarian Marriage?, 84 VA. L. REV. 509, 599-603 (1998). See generally Gary S. Becker, A Theory of the Allocation of Time, 75 ECON. J. 493 (1965) (providing an economic analysis of the relationship between work and leisure time); Margaret F. Brinig, Equality and Sharing: Views of Household Across the Iron Curtain, 7 EUR. J.L. & ECON. 55 (1998) (exploring the results of German legislation seeking to remedy the inequality of housework contributed by husband and wife); Gillian K. Hadfield, Households at Work: Beyond Labor Market Policies to Remedy the Gender Gap, 82 GEO. L.J. 89 (1993) (suggesting how the relationship between home and market work contributes to the gender gap in compensation); Elisabeth M. Landes, Economics of Alimony, 7 J. LEGAL STUD. 35 (1978) (analyzing alimony awards with respect to the distinction of home versus market work for the wife); Frances E. Olsen, The Family and the Market: A Study of Ideology and Legal Reform, 96 HARV. L. REV. 1497 (1983) (arguing that the market/family dichotomy must be overcome in order for meaningful reform efforts aimed at improving the lives of women); Allen M. Parkman, Why Are Married Women Working So Hard?, 18 INT'L REV. L. & ECON. 41 (1998) (concluding that no-fault divorce has increased the number of hours worked in the market without a corresponding reduction of home work); Katharine Silbaugh, Turning Labor into Love: Housework and the Law, 91 Nw. U. L. REV. 1 (1996) (discussing the sociology, economics, and legal treatment of housework in comparison to market work); Nancy C, Staudt, Taxing Housework, 84 GEO. L.J. 1571 (1996) (discussing the tax code's distinction between home and market work and how it reflects sexual distinctions).
26. See, e.g., LINDA J. WAITE & MAGGIE GALLAGHER, THE CASE FOR MARRIAGE: WHY MARRIED PEOPLE ARE HAPPIER, HEALTHIER, AND BETTER OFF FINANCIALLY 97-109 (2000); Gary S. Becker et al., An Economic Analysis of Marital Instability, 85 J. POL. ECON. 1141, 1142-46 (1977); Suzanne M. Bianchi & Daphne Spain, Women, Work, and Family in America, 51 POPULATION BULL. 2, 31-35 (1996); Shelley Coverman & Joseph F. Sheley, Change in Men's Housework and Child-Care Time, 1965-75, 48 J. MARRIAGE & FAM. 413, 420 (1986); Mary E. O'Connell, On the Fringe: Rethinking the Link Between Wages and Benefits, 67 TUL. L. REV. 1421, 1478-97 (1993); Amy L. Wax, Bargaining in the Shadow of the Market: Is There a Future for Egalitarian Marriage?, 84 VA. L. REV. 509, 599-603 (1998). See generally Gary S. Becker, A Theory of the Allocation of Time, 75 ECON. J. 493 (1965) (providing an economic analysis of the relationship between work and leisure time); Margaret F. Brinig, Equality and Sharing: Views of Household Across the Iron Curtain, 7 EUR. J.L. & ECON. 55 (1998) (exploring the results of German legislation seeking to remedy the inequality of housework contributed by husband and wife); Gillian K. Hadfield, Households at Work: Beyond Labor Market Policies to Remedy the Gender Gap, 82 GEO. L.J. 89 (1993) (suggesting how the relationship between home and market work contributes to the gender gap in compensation); Elisabeth M. Landes, Economics of Alimony, 7 J. LEGAL STUD. 35 (1978) (analyzing alimony awards with respect to the distinction of home versus market work for the wife); Frances E. Olsen, The Family and the Market: A Study of Ideology and Legal Reform, 96 HARV. L. REV. 1497 (1983) (arguing that the market/family dichotomy must be overcome in order for meaningful reform efforts aimed at improving the lives of women); Allen M. Parkman, Why Are Married Women Working So Hard?, 18 INT'L REV. L. & ECON. 41 (1998) (concluding that no-fault divorce has increased the number of hours worked in the market without a corresponding reduction of home work); Katharine Silbaugh, Turning Labor into Love: Housework and the Law, 91 Nw. U. L. REV. 1 (1996) (discussing the sociology, economics, and legal treatment of housework in comparison to market work); Nancy C, Staudt, Taxing Housework, 84 GEO. L.J. 1571 (1996) (discussing the tax code's distinction between home and market work and how it reflects sexual distinctions).
27. See, e.g., LINDA J. WAITE & MAGGIE GALLAGHER, THE CASE FOR MARRIAGE: WHY MARRIED PEOPLE ARE HAPPIER, HEALTHIER, AND BETTER OFF FINANCIALLY 97-109 (2000); Gary S. Becker et al., An Economic Analysis of Marital Instability, 85 J. POL. ECON. 1141, 1142-46 (1977); Suzanne M. Bianchi & Daphne Spain, Women, Work, and Family in America, 51 POPULATION BULL. 2, 31-35 (1996); Shelley Coverman & Joseph F. Sheley, Change in Men's Housework and Child-Care Time, 1965-75, 48 J. MARRIAGE & FAM. 413, 420 (1986); Mary E. O'Connell, On the Fringe: Rethinking the Link Between Wages and Benefits, 67 TUL. L. REV. 1421, 1478-97 (1993); Amy L. Wax, Bargaining in the Shadow of the Market: Is There a Future for Egalitarian Marriage?, 84 VA. L. REV. 509, 599-603 (1998). See generally Gary S. Becker, A Theory of the Allocation of Time, 75 ECON. J. 493 (1965) (providing an economic analysis of the relationship between work and leisure time); Margaret F. Brinig, Equality and Sharing: Views of Household Across the Iron Curtain, 7 EUR. J.L. & ECON. 55 (1998) (exploring the results of German legislation seeking to remedy the inequality of housework contributed by husband and wife); Gillian K. Hadfield, Households at Work: Beyond Labor Market Policies to Remedy the Gender Gap, 82 GEO. L.J. 89 (1993) (suggesting how the relationship between home and market work contributes to the gender gap in compensation); Elisabeth M. Landes, Economics of Alimony, 7 J. LEGAL STUD. 35 (1978) (analyzing alimony awards with respect to the distinction of home versus market work for the wife); Frances E. Olsen, The Family and the Market: A Study of Ideology and Legal Reform, 96 HARV. L. REV. 1497 (1983) (arguing that the market/family dichotomy must be overcome in order for meaningful reform efforts aimed at improving the lives of women); Allen M. Parkman, Why Are Married Women Working So Hard?, 18 INT'L REV. L. & ECON. 41 (1998) (concluding that no-fault divorce has increased the number of hours worked in the market without a corresponding reduction of home work); Katharine Silbaugh, Turning Labor into Love: Housework and the Law, 91 Nw. U. L. REV. 1 (1996) (discussing the sociology, economics, and legal treatment of housework in comparison to market work); Nancy C, Staudt, Taxing Housework, 84 GEO. L.J. 1571 (1996) (discussing the tax code's distinction between home and market work and how it reflects sexual distinctions).
28. See, e.g., LINDA J. WAITE & MAGGIE GALLAGHER, THE CASE FOR MARRIAGE: WHY MARRIED PEOPLE ARE HAPPIER, HEALTHIER, AND BETTER OFF FINANCIALLY 97-109 (2000); Gary S. Becker et al., An Economic Analysis of Marital Instability, 85 J. POL. ECON. 1141, 1142-46 (1977); Suzanne M. Bianchi & Daphne Spain, Women, Work, and Family in America, 51 POPULATION BULL. 2, 31-35 (1996); Shelley Coverman & Joseph F. Sheley, Change in Men's Housework and Child-Care Time, 1965-75, 48 J. MARRIAGE & FAM. 413, 420 (1986); Mary E. O'Connell, On the Fringe: Rethinking the Link Between Wages and Benefits, 67 TUL. L. REV. 1421, 1478-97 (1993); Amy L. Wax, Bargaining in the Shadow of the Market: Is There a Future for Egalitarian Marriage?, 84 VA. L. REV. 509, 599-603 (1998). See generally Gary S. Becker, A Theory of the Allocation of Time, 75 ECON. J. 493 (1965) (providing an economic analysis of the relationship between work and leisure time); Margaret F. Brinig, Equality and Sharing: Views of Household Across the Iron Curtain, 7 EUR. J.L. & ECON. 55 (1998) (exploring the results of German legislation seeking to remedy the inequality of housework contributed by husband and wife); Gillian K. Hadfield, Households at Work: Beyond Labor Market Policies to Remedy the Gender Gap, 82 GEO. L.J. 89 (1993) (suggesting how the relationship between home and market work contributes to the gender gap in compensation); Elisabeth M. Landes, Economics of Alimony, 7 J. LEGAL STUD. 35 (1978) (analyzing alimony awards with respect to the distinction of home versus market work for the wife); Frances E. Olsen, The Family and the Market: A Study of Ideology and Legal Reform, 96 HARV. L. REV. 1497 (1983) (arguing that the market/family dichotomy must be overcome in order for meaningful reform efforts aimed at improving the lives of women); Allen M. Parkman, Why Are Married Women Working So Hard?, 18 INT'L REV. L. & ECON. 41 (1998) (concluding that no-fault divorce has increased the number of hours worked in the market without a corresponding reduction of home work); Katharine Silbaugh, Turning Labor into Love: Housework and the Law, 91 Nw. U. L. REV. 1 (1996) (discussing the sociology, economics, and legal treatment of housework in comparison to market work); Nancy C, Staudt, Taxing Housework, 84 GEO. L.J. 1571 (1996) (discussing the tax code's distinction between home and market work and how it reflects sexual distinctions).
29. See, e.g., LINDA J. WAITE & MAGGIE GALLAGHER, THE CASE FOR MARRIAGE: WHY MARRIED PEOPLE ARE HAPPIER, HEALTHIER, AND BETTER OFF FINANCIALLY 97-109 (2000); Gary S. Becker et al., An Economic Analysis of Marital Instability, 85 J. POL. ECON. 1141, 1142-46 (1977); Suzanne M. Bianchi & Daphne Spain, Women, Work, and Family in America, 51 POPULATION BULL. 2, 31-35 (1996); Shelley Coverman & Joseph F. Sheley, Change in Men's Housework and Child-Care Time, 1965-75, 48 J. MARRIAGE & FAM. 413, 420 (1986); Mary E. O'Connell, On the Fringe: Rethinking the Link Between Wages and Benefits, 67 TUL. L. REV. 1421, 1478-97 (1993); Amy L. Wax, Bargaining in the Shadow of the Market: Is There a Future for Egalitarian Marriage?, 84 VA. L. REV. 509, 599-603 (1998). See generally Gary S. Becker, A Theory of the Allocation of Time, 75 ECON. J. 493 (1965) (providing an economic analysis of the relationship between work and leisure time); Margaret F. Brinig, Equality and Sharing: Views of Household Across the Iron Curtain, 7 EUR. J.L. & ECON. 55 (1998) (exploring the results of German legislation seeking to remedy the inequality of housework contributed by husband and wife); Gillian K. Hadfield, Households at Work: Beyond Labor Market Policies to Remedy the Gender Gap, 82 GEO. L.J. 89 (1993) (suggesting how the relationship between home and market work contributes to the gender gap in compensation); Elisabeth M. Landes, Economics of Alimony, 7 J. LEGAL STUD. 35 (1978) (analyzing alimony awards with respect to the distinction of home versus market work for the wife); Frances E. Olsen, The Family and the Market: A Study of Ideology and Legal Reform, 96 HARV. L. REV. 1497 (1983) (arguing that the market/family dichotomy must be overcome in order for meaningful reform efforts aimed at improving the lives of women); Allen M. Parkman, Why Are Married Women Working So Hard?, 18 INT'L REV. L. & ECON. 41 (1998) (concluding that no-fault divorce has increased the number of hours worked in the market without a corresponding reduction of home work); Katharine Silbaugh, Turning Labor into Love: Housework and the Law, 91 Nw. U. L. REV. 1 (1996) (discussing the sociology, economics, and legal treatment of housework in comparison to market work); Nancy C, Staudt, Taxing Housework, 84 GEO. L.J. 1571 (1996) (discussing the tax code's distinction between home and market work and how it reflects sexual distinctions).
30. See, e.g., LINDA J. WAITE & MAGGIE GALLAGHER, THE CASE FOR MARRIAGE: WHY MARRIED PEOPLE ARE HAPPIER, HEALTHIER, AND BETTER OFF FINANCIALLY 97-109 (2000); Gary S. Becker et al., An Economic Analysis of Marital Instability, 85 J. POL. ECON. 1141, 1142-46 (1977); Suzanne M. Bianchi & Daphne Spain, Women, Work, and Family in America, 51 POPULATION BULL. 2, 31-35 (1996); Shelley Coverman & Joseph F. Sheley, Change in Men's Housework and Child-Care Time, 1965-75, 48 J. MARRIAGE & FAM. 413, 420 (1986); Mary E. O'Connell, On the Fringe: Rethinking the Link Between Wages and Benefits, 67 TUL. L. REV. 1421, 1478-97 (1993); Amy L. Wax, Bargaining in the Shadow of the Market: Is There a Future for Egalitarian Marriage?, 84 VA. L. REV. 509, 599-603 (1998). See generally Gary S. Becker, A Theory of the Allocation of Time, 75 ECON. J. 493 (1965) (providing an economic analysis of the relationship between work and leisure time); Margaret F. Brinig, Equality and Sharing: Views of Household Across the Iron Curtain, 7 EUR. J.L. & ECON. 55 (1998) (exploring the results of German legislation seeking to remedy the inequality of housework contributed by husband and wife); Gillian K. Hadfield, Households at Work: Beyond Labor Market Policies to Remedy the Gender Gap, 82 GEO. L.J. 89 (1993) (suggesting how the relationship between home and market work contributes to the gender gap in compensation); Elisabeth M. Landes, Economics of Alimony, 7 J. LEGAL STUD. 35 (1978) (analyzing alimony awards with respect to the distinction of home versus market work for the wife); Frances E. Olsen, The Family and the Market: A Study of Ideology and Legal Reform, 96 HARV. L. REV. 1497 (1983) (arguing that the market/family dichotomy must be overcome in order for meaningful reform efforts aimed at improving the lives of women); Allen M. Parkman, Why Are Married Women Working So Hard?, 18 INT'L REV. L. & ECON. 41 (1998) (concluding that no-fault divorce has increased the number of hours worked in the market without a corresponding reduction of home work); Katharine Silbaugh, Turning Labor into Love: Housework and the Law, 91 Nw. U. L. REV. 1 (1996) (discussing the sociology, economics, and legal treatment of housework in comparison to market work); Nancy C, Staudt, Taxing Housework, 84 GEO. L.J. 1571 (1996) (discussing the tax code's distinction between home and market work and how it reflects sexual distinctions).
31. See, e.g., LINDA J. WAITE & MAGGIE GALLAGHER, THE CASE FOR MARRIAGE: WHY MARRIED PEOPLE ARE HAPPIER, HEALTHIER, AND BETTER OFF FINANCIALLY 97-109 (2000); Gary S. Becker et al., An Economic Analysis of Marital Instability, 85 J. POL. ECON. 1141, 1142-46 (1977); Suzanne M. Bianchi & Daphne Spain, Women, Work, and Family in America, 51 POPULATION BULL. 2, 31-35 (1996); Shelley Coverman & Joseph F. Sheley, Change in Men's Housework and Child-Care Time, 1965-75, 48 J. MARRIAGE & FAM. 413, 420 (1986); Mary E. O'Connell, On the Fringe: Rethinking the Link Between Wages and Benefits, 67 TUL. L. REV. 1421, 1478-97 (1993); Amy L. Wax, Bargaining in the Shadow of the Market: Is There a Future for Egalitarian Marriage?, 84 VA. L. REV. 509, 599-603 (1998). See generally Gary S. Becker, A Theory of the Allocation of Time, 75 ECON. J. 493 (1965) (providing an economic analysis of the relationship between work and leisure time); Margaret F. Brinig, Equality and Sharing: Views of Household Across the Iron Curtain, 7 EUR. J.L. & ECON. 55 (1998) (exploring the results of German legislation seeking to remedy the inequality of housework contributed by husband and wife); Gillian K. Hadfield, Households at Work: Beyond Labor Market Policies to Remedy the Gender Gap, 82 GEO. L.J. 89 (1993) (suggesting how the relationship between home and market work contributes to the gender gap in compensation); Elisabeth M. Landes, Economics of Alimony, 7 J. LEGAL STUD. 35 (1978) (analyzing alimony awards with respect to the distinction of home versus market work for the wife); Frances E. Olsen, The Family and the Market: A Study of Ideology and Legal Reform, 96 HARV. L. REV. 1497 (1983) (arguing that the market/family dichotomy must be overcome in order for meaningful reform efforts aimed at improving the lives of women); Allen M. Parkman, Why Are Married Women Working So Hard?, 18 INT'L REV. L. & ECON. 41 (1998) (concluding that no-fault divorce has increased the number of hours worked in the market without a corresponding reduction of home work); Katharine Silbaugh, Turning Labor into Love: Housework and the Law, 91 Nw. U. L. REV. 1 (1996) (discussing the sociology, economics, and legal treatment of housework in comparison to market work); Nancy C, Staudt, Taxing Housework, 84 GEO. L.J. 1571 (1996) (discussing the tax code's distinction between home and market work and how it reflects sexual distinctions).
32. See, e.g., LINDA J. WAITE & MAGGIE GALLAGHER, THE CASE FOR MARRIAGE: WHY MARRIED PEOPLE ARE HAPPIER, HEALTHIER, AND BETTER OFF FINANCIALLY 97-109 (2000); Gary S. Becker et al., An Economic Analysis of Marital Instability, 85 J. POL. ECON. 1141, 1142-46 (1977); Suzanne M. Bianchi & Daphne Spain, Women, Work, and Family in America, 51 POPULATION BULL. 2, 31-35 (1996); Shelley Coverman & Joseph F. Sheley, Change in Men's Housework and Child-Care Time, 1965-75, 48 J. MARRIAGE & FAM. 413, 420 (1986); Mary E. O'Connell, On the Fringe: Rethinking the Link Between Wages and Benefits, 67 TUL. L. REV. 1421, 1478-97 (1993); Amy L. Wax, Bargaining in the Shadow of the Market: Is There a Future for Egalitarian Marriage?, 84 VA. L. REV. 509, 599-603 (1998). See generally Gary S. Becker, A Theory of the Allocation of Time, 75 ECON. J. 493 (1965) (providing an economic analysis of the relationship between work and leisure time); Margaret F. Brinig, Equality and Sharing: Views of Household Across the Iron Curtain, 7 EUR. J.L. & ECON. 55 (1998) (exploring the results of German legislation seeking to remedy the inequality of housework contributed by husband and wife); Gillian K. Hadfield, Households at Work: Beyond Labor Market Policies to Remedy the Gender Gap, 82 GEO. L.J. 89 (1993) (suggesting how the relationship between home and market work contributes to the gender gap in compensation); Elisabeth M. Landes, Economics of Alimony, 7 J. LEGAL STUD. 35 (1978) (analyzing alimony awards with respect to the distinction of home versus market work for the wife); Frances E. Olsen, The Family and the Market: A Study of Ideology and Legal Reform, 96 HARV. L. REV. 1497 (1983) (arguing that the market/family dichotomy must be overcome in order for meaningful reform efforts aimed at improving the lives of women); Allen M. Parkman, Why Are Married Women Working So Hard?, 18 INT'L REV. L. & ECON. 41 (1998) (concluding that no-fault divorce has increased the number of hours worked in the market without a corresponding reduction of home work); Katharine Silbaugh, Turning Labor into Love: Housework and the Law, 91 Nw. U. L. REV. 1 (1996) (discussing the sociology, economics, and legal treatment of housework in comparison to market work); Nancy C, Staudt, Taxing Housework, 84 GEO. L.J. 1571 (1996) (discussing the tax code's distinction between home and market work and how it reflects sexual distinctions).
33. See, e.g., LINDA J. WAITE & MAGGIE GALLAGHER, THE CASE FOR MARRIAGE: WHY MARRIED PEOPLE ARE HAPPIER, HEALTHIER, AND BETTER OFF FINANCIALLY 97-109 (2000); Gary S. Becker et al., An Economic Analysis of Marital Instability, 85 J. POL. ECON. 1141, 1142-46 (1977); Suzanne M. Bianchi & Daphne Spain, Women, Work, and Family in America, 51 POPULATION BULL. 2, 31-35 (1996); Shelley Coverman & Joseph F. Sheley, Change in Men's Housework and Child-Care Time, 1965-75, 48 J. MARRIAGE & FAM. 413, 420 (1986); Mary E. O'Connell, On the Fringe: Rethinking the Link Between Wages and Benefits, 67 TUL. L. REV. 1421, 1478-97 (1993); Amy L. Wax, Bargaining in the Shadow of the Market: Is There a Future for Egalitarian Marriage?, 84 VA. L. REV. 509, 599-603 (1998). See generally Gary S. Becker, A Theory of the Allocation of Time, 75 ECON. J. 493 (1965) (providing an economic analysis of the relationship between work and leisure time); Margaret F. Brinig, Equality and Sharing: Views of Household Across the Iron Curtain, 7 EUR. J.L. & ECON. 55 (1998) (exploring the results of German legislation seeking to remedy the inequality of housework contributed by husband and wife); Gillian K. Hadfield, Households at Work: Beyond Labor Market Policies to Remedy the Gender Gap, 82 GEO. L.J. 89 (1993) (suggesting how the relationship between home and market work contributes to the gender gap in compensation); Elisabeth M. Landes, Economics of Alimony, 7 J. LEGAL STUD. 35 (1978) (analyzing alimony awards with respect to the distinction of home versus market work for the wife); Frances E. Olsen, The Family and the Market: A Study of Ideology and Legal Reform, 96 HARV. L. REV. 1497 (1983) (arguing that the market/family dichotomy must be overcome in order for meaningful reform efforts aimed at improving the lives of women); Allen M. Parkman, Why Are Married Women Working So Hard?, 18 INT'L REV. L. & ECON. 41 (1998) (concluding that no-fault divorce has increased the number of hours worked in the market without a corresponding reduction of home work); Katharine Silbaugh, Turning Labor into Love: Housework and the Law, 91 Nw. U. L. REV. 1 (1996) (discussing the sociology, economics, and legal treatment of housework in comparison to market work); Nancy C, Staudt, Taxing Housework, 84 GEO. L.J. 1571 (1996) (discussing the tax code's distinction between home and market work and how it reflects sexual distinctions).
34. See, e.g., LINDA J. WAITE & MAGGIE GALLAGHER, THE CASE FOR MARRIAGE: WHY MARRIED PEOPLE ARE HAPPIER, HEALTHIER, AND BETTER OFF FINANCIALLY 97-109 (2000); Gary S. Becker et al., An Economic Analysis of Marital Instability, 85 J. POL. ECON. 1141, 1142-46 (1977); Suzanne M. Bianchi & Daphne Spain, Women, Work, and Family in America, 51 POPULATION BULL. 2, 31-35 (1996); Shelley Coverman & Joseph F. Sheley, Change in Men's Housework and Child-Care Time, 1965-75, 48 J. MARRIAGE & FAM. 413, 420 (1986); Mary E. O'Connell, On the Fringe: Rethinking the Link Between Wages and Benefits, 67 TUL. L. REV. 1421, 1478-97 (1993); Amy L. Wax, Bargaining in the Shadow of the Market: Is There a Future for Egalitarian Marriage?, 84 VA. L. REV. 509, 599-603 (1998). See generally Gary S. Becker, A Theory of the Allocation of Time, 75 ECON. J. 493 (1965) (providing an economic analysis of the relationship between work and leisure time); Margaret F. Brinig, Equality and Sharing: Views of Household Across the Iron Curtain, 7 EUR. J.L. & ECON. 55 (1998) (exploring the results of German legislation seeking to remedy the inequality of housework contributed by husband and wife); Gillian K. Hadfield, Households at Work: Beyond Labor Market Policies to Remedy the Gender Gap, 82 GEO. L.J. 89 (1993) (suggesting how the relationship between home and market work contributes to the gender gap in compensation); Elisabeth M. Landes, Economics of Alimony, 7 J. LEGAL STUD. 35 (1978) (analyzing alimony awards with respect to the distinction of home versus market work for the wife); Frances E. Olsen, The Family and the Market: A Study of Ideology and Legal Reform, 96 HARV. L. REV. 1497 (1983) (arguing that the market/family dichotomy must be overcome in order for meaningful reform efforts aimed at improving the lives of women); Allen M. Parkman, Why Are Married Women Working So Hard?, 18 INT'L REV. L. & ECON. 41 (1998) (concluding that no-fault divorce has increased the number of hours worked in the market without a corresponding reduction of home work); Katharine Silbaugh, Turning Labor into Love: Housework and the Law, 91 Nw. U. L. REV. 1 (1996) (discussing the sociology, economics, and legal treatment of housework in comparison to market work); Nancy C, Staudt, Taxing Housework, 84 GEO. L.J. 1571 (1996) (discussing the tax code's distinction between home and market work and how it reflects sexual distinctions).
35. See, e.g., LINDA J. WAITE & MAGGIE GALLAGHER, THE CASE FOR MARRIAGE: WHY MARRIED PEOPLE ARE HAPPIER, HEALTHIER, AND BETTER OFF FINANCIALLY 97-109 (2000); Gary S. Becker et al., An Economic Analysis of Marital Instability, 85 J. POL. ECON. 1141, 1142-46 (1977); Suzanne M. Bianchi & Daphne Spain, Women, Work, and Family in America, 51 POPULATION BULL. 2, 31-35 (1996); Shelley Coverman & Joseph F. Sheley, Change in Men's Housework and Child-Care Time, 1965-75, 48 J. MARRIAGE & FAM. 413, 420 (1986); Mary E. O'Connell, On the Fringe: Rethinking the Link Between Wages and Benefits, 67 TUL. L. REV. 1421, 1478-97 (1993); Amy L. Wax, Bargaining in the Shadow of the Market: Is There a Future for Egalitarian Marriage?, 84 VA. L. REV. 509, 599-603 (1998). See generally Gary S. Becker, A Theory of the Allocation of Time, 75 ECON. J. 493 (1965) (providing an economic analysis of the relationship between work and leisure time); Margaret F. Brinig, Equality and Sharing: Views of Household Across the Iron Curtain, 7 EUR. J.L. & ECON. 55 (1998) (exploring the results of German legislation seeking to remedy the inequality of housework contributed by husband and wife); Gillian K. Hadfield, Households at Work: Beyond Labor Market Policies to Remedy the Gender Gap, 82 GEO. L.J. 89 (1993) (suggesting how the relationship between home and market work contributes to the gender gap in compensation); Elisabeth M. Landes, Economics of Alimony, 7 J. LEGAL STUD. 35 (1978) (analyzing alimony awards with respect to the distinction of home versus market work for the wife); Frances E. Olsen, The Family and the Market: A Study of Ideology and Legal Reform, 96 HARV. L. REV. 1497 (1983) (arguing that the market/family dichotomy must be overcome in order for meaningful reform efforts aimed at improving the lives of women); Allen M. Parkman, Why Are Married Women Working So Hard?, 18 INT'L REV. L. & ECON. 41 (1998) (concluding that no-fault divorce has increased the number of hours worked in the market without a corresponding reduction of home work); Katharine Silbaugh, Turning Labor into Love: Housework and the Law, 91 Nw. U. L. REV. 1 (1996) (discussing the sociology, economics, and legal treatment of housework in comparison to market work); Nancy C, Staudt, Taxing Housework, 84 GEO. L.J. 1571 (1996) (discussing the tax code's distinction between home and market work and how it reflects sexual distinctions).
36. See, e.g., LINDA J. WAITE & MAGGIE GALLAGHER, THE CASE FOR MARRIAGE: WHY MARRIED PEOPLE ARE HAPPIER, HEALTHIER, AND BETTER OFF FINANCIALLY 97-109 (2000); Gary S. Becker et al., An Economic Analysis of Marital Instability, 85 J. POL. ECON. 1141, 1142-46 (1977); Suzanne M. Bianchi & Daphne Spain, Women, Work, and Family in America, 51 POPULATION BULL. 2, 31-35 (1996); Shelley Coverman & Joseph F. Sheley, Change in Men's Housework and Child-Care Time, 1965-75, 48 J. MARRIAGE & FAM. 413, 420 (1986); Mary E. O'Connell, On the Fringe: Rethinking the Link Between Wages and Benefits, 67 TUL. L. REV. 1421, 1478-97 (1993); Amy L. Wax, Bargaining in the Shadow of the Market: Is There a Future for Egalitarian Marriage?, 84 VA. L. REV. 509, 599-603 (1998). See generally Gary S. Becker, A Theory of the Allocation of Time, 75 ECON. J. 493 (1965) (providing an economic analysis of the relationship between work and leisure time); Margaret F. Brinig, Equality and Sharing: Views of Household Across the Iron Curtain, 7 EUR. J.L. & ECON. 55 (1998) (exploring the results of German legislation seeking to remedy the inequality of housework contributed by husband and wife); Gillian K. Hadfield, Households at Work: Beyond Labor Market Policies to Remedy the Gender Gap, 82 GEO. L.J. 89 (1993) (suggesting how the relationship between home and market work contributes to the gender gap in compensation); Elisabeth M. Landes, Economics of Alimony, 7 J. LEGAL STUD. 35 (1978) (analyzing alimony awards with respect to the distinction of home versus market work for the wife); Frances E. Olsen, The Family and the Market: A Study of Ideology and Legal Reform, 96 HARV. L. REV. 1497 (1983) (arguing that the market/family dichotomy must be overcome in order for meaningful reform efforts aimed at improving the lives of women); Allen M. Parkman, Why Are Married Women Working So Hard?, 18 INT'L REV. L. & ECON. 41 (1998) (concluding that no-fault divorce has increased the number of hours worked in the market without a corresponding reduction of home work); Katharine Silbaugh, Turning Labor into Love: Housework and the Law, 91 Nw. U. L. REV. 1 (1996) (discussing the sociology, economics, and legal treatment of housework in comparison to market work); Nancy C, Staudt, Taxing Housework, 84 GEO. L.J. 1571 (1996) (discussing the tax code's distinction between home and market work and how it reflects sexual distinctions).
37. See, e.g., LINDA J. WAITE & MAGGIE GALLAGHER, THE CASE FOR MARRIAGE: WHY MARRIED PEOPLE ARE HAPPIER, HEALTHIER, AND BETTER OFF FINANCIALLY 97-109 (2000); Gary S. Becker et al., An Economic Analysis of Marital Instability, 85 J. POL. ECON. 1141, 1142-46 (1977); Suzanne M. Bianchi & Daphne Spain, Women, Work, and Family in America, 51 POPULATION BULL. 2, 31-35 (1996); Shelley Coverman & Joseph F. Sheley, Change in Men's Housework and Child-Care Time, 1965-75, 48 J. MARRIAGE & FAM. 413, 420 (1986); Mary E. O'Connell, On the Fringe: Rethinking the Link Between Wages and Benefits, 67 TUL. L. REV. 1421, 1478-97 (1993); Amy L. Wax, Bargaining in the Shadow of the Market: Is There a Future for Egalitarian Marriage?, 84 VA. L. REV. 509, 599-603 (1998). See generally Gary S. Becker, A Theory of the Allocation of Time, 75 ECON. J. 493 (1965) (providing an economic analysis of the relationship between work and leisure time); Margaret F. Brinig, Equality and Sharing: Views of Household Across the Iron Curtain, 7 EUR. J.L. & ECON. 55 (1998) (exploring the results of German legislation seeking to remedy the inequality of housework contributed by husband and wife); Gillian K. Hadfield, Households at Work: Beyond Labor Market Policies to Remedy the Gender Gap, 82 GEO. L.J. 89 (1993) (suggesting how the relationship between home and market work contributes to the gender gap in compensation); Elisabeth M. Landes, Economics of Alimony, 7 J. LEGAL STUD. 35 (1978) (analyzing alimony awards with respect to the distinction of home versus market work for the wife); Frances E. Olsen, The Family and the Market: A Study of Ideology and Legal Reform, 96 HARV. L. REV. 1497 (1983) (arguing that the market/family dichotomy must be overcome in order for meaningful reform efforts aimed at improving the lives of women); Allen M. Parkman, Why Are Married Women Working So Hard?, 18 INT'L REV. L. & ECON. 41 (1998) (concluding that no-fault divorce has increased the number of hours worked in the market without a corresponding reduction of home work); Katharine Silbaugh, Turning Labor into Love: Housework and the Law, 91 Nw. U. L. REV. 1 (1996) (discussing the sociology, economics, and legal treatment of housework in comparison to market work); Nancy C, Staudt, Taxing Housework, 84 GEO. L.J. 1571 (1996) (discussing the tax code's distinction between home and market work and how it reflects sexual distinctions).
38. See, e.g., LINDA J. WAITE & MAGGIE GALLAGHER, THE CASE FOR MARRIAGE: WHY MARRIED PEOPLE ARE HAPPIER, HEALTHIER, AND BETTER OFF FINANCIALLY 97-109 (2000); Gary S. Becker et al., An Economic Analysis of Marital Instability, 85 J. POL. ECON. 1141, 1142-46 (1977); Suzanne M. Bianchi & Daphne Spain, Women, Work, and Family in America, 51 POPULATION BULL. 2, 31-35 (1996); Shelley Coverman & Joseph F. Sheley, Change in Men's Housework and Child-Care Time, 1965-75, 48 J. MARRIAGE & FAM. 413, 420 (1986); Mary E. O'Connell, On the Fringe: Rethinking the Link Between Wages and Benefits, 67 TUL. L. REV. 1421, 1478-97 (1993); Amy L. Wax, Bargaining in the Shadow of the Market: Is There a Future for Egalitarian Marriage?, 84 VA. L. REV. 509, 599-603 (1998). See generally Gary S. Becker, A Theory of the Allocation of Time, 75 ECON. J. 493 (1965) (providing an economic analysis of the relationship between work and leisure time); Margaret F. Brinig, Equality and Sharing: Views of Household Across the Iron Curtain, 7 EUR. J.L. & ECON. 55 (1998) (exploring the results of German legislation seeking to remedy the inequality of housework contributed by husband and wife); Gillian K. Hadfield, Households at Work: Beyond Labor Market Policies to Remedy the Gender Gap, 82 GEO. L.J. 89 (1993) (suggesting how the relationship between home and market work contributes to the gender gap in compensation); Elisabeth M. Landes, Economics of Alimony, 7 J. LEGAL STUD. 35 (1978) (analyzing alimony awards with respect to the distinction of home versus market work for the wife); Frances E. Olsen, The Family and the Market: A Study of Ideology and Legal Reform, 96 HARV. L. REV. 1497 (1983) (arguing that the market/family dichotomy must be overcome in order for meaningful reform efforts aimed at improving the lives of women); Allen M. Parkman, Why Are Married Women Working So Hard?, 18 INT'L REV. L. & ECON. 41 (1998) (concluding that no-fault divorce has increased the number of hours worked in the market without a corresponding reduction of home work); Katharine Silbaugh, Turning Labor into Love: Housework and the Law, 91 Nw. U. L. REV. 1 (1996) (discussing the sociology, economics, and legal treatment of housework in comparison to market work); Nancy C, Staudt, Taxing Housework, 84 GEO. L.J. 1571 (1996) (discussing the tax code's distinction between home and market work and how it reflects sexual distinctions).
39. PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION: ANALYSIS AND RECOMMENDATIONS (Tentative Draft No. 4, 2000) [hereinafter ALI PRINCIPLES (Tentative Draft 2000)].
40. See Actions Taken at 2000 Annual Meeting, at http://www.ali-aba.org/ali/ali2000_actionssummary.htm (last modified Oct. 19, 2000). Subject to the discussion at the meeting and to final editorial revisions, the Institute completed its review of the project by giving final approval both to Tentative Draft No. 4 and to earlier drafts that had been tentatively approved. The entire work will be integrated into a coherent final text, which is expected to be published in 2001. Id.
41. ALI Principles § 6.03(1) defines domestic partners as "two persons of the same or opposite sex, not married to one another, who for a significant period of time share a primary residence and a life together as a couple." ALI PRINCIPLES (Tentative Draft 2000), supra note 23, § 6.03(1).
42. Thus, ALI Principles § 6.04(1) defines domestic-partnership property, subject to distribution "if it would be marital property under Chapter 4, had the domestic partners been married to one another during the domestic-partnership period." Id. § 6.04(1). Section 6.06(1)(a) provides that unless stated otherwise "a domestic partner is entitled to compensatory payments on the same basis as a spouse under Chapter 5." Id. § 6.06(1)(a).
43. Some of the pragmatic problems for awarding emotional losses and gains are discussed in PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION: ANALYSIS AND RECOMMENDATIONS § 5.02 cmt. at 262-63 (Proposed Final Draft Part I, 1997) [hereinafter ALI PRINCIPLES (Proposed Final Draft 1997)]. Problems of allocating gain are discussed id. at 263-64. The contribution rationale for dividing marital property is discussed and rejected by the Reporter in the comments on § 5.05, see id. § 5.05 cmt. at 303-04.
44. See id. § 5.02. The career loss, or opportunity cost, is that alternative that most likely would have been taken by the sacrificing spouse had the couple found the money somewhere else. See id.
45. ALI Principles § 4.15(1) provides: "Exceptas provided in Paragraph (2) of this section, marital property and marital debts are divided at dissolution so that the spouses receive net shares equal in value, although not necessarily identical in kind." Id. § 4.15(1). For the rationale that supports this section, see id. § 4.15 cmt. (b) at 196-97.
46. See, e.g., Steven L. Nock, Turn-Taking as Rational Behavior, 27 Soc. Sci. RES. 235, 243 (1999) ("Several decades of research have shown, for example, that men are the greater beneficiaries of marriage than women.").
47. See WAITE & GALLACHER, supra note 22, at 51.
48. STEVEN L. NOCK, MARRIAGE IN MEN'S LIVES 66-68 (1999); see also VICTOR R. FUCHS, WOMEN'S QUEST FOR ECONOMIC EMPLOYMENT 60 (1988) (reporting that "married men earn more than married women at every age"). Women's income and hours of employment decrease following marriage. Fucus, supra, at 58-59; see also FRANCINE D. BLAU ET AL., THE ECONOMICS OF WOMEN, MEN, AND WORK 95 & tbl.4.4 (1998).
49. STEVEN L. NOCK, MARRIAGE IN MEN'S LIVES 66-68 (1999); see also VICTOR R. FUCHS, WOMEN'S QUEST FOR ECONOMIC EMPLOYMENT 60 (1988) (reporting that "married men earn more than married women at every age"). Women's income and hours of employment decrease following marriage. Fucus, supra, at 58-59; see also FRANCINE D. BLAU ET AL., THE ECONOMICS OF WOMEN, MEN, AND WORK 95 & tbl.4.4 (1998).
50. STEVEN L. NOCK, MARRIAGE IN MEN'S LIVES 66-68 (1999); see also VICTOR R. FUCHS, WOMEN'S QUEST FOR ECONOMIC EMPLOYMENT 60 (1988) (reporting that "married men earn more than married women at every age"). Women's income and hours of employment decrease following marriage. Fucus, supra, at 58-59; see also FRANCINE D. BLAU ET AL., THE ECONOMICS OF WOMEN, MEN, AND WORK 95 & tbl.4.4 (1998).
51. This seems to be the underlying basis of Nock's book, since he bases the changes upon a growth in the man's fundamental masculinity, stating, "Men can judge themselves as good or bad husbands because the standards of normative marriage are also well-known. Good husbands are mature, faithful, generous fathers and providers. Good husbands are expected to achieve, to help others, and to remain true to their promises. Good husbands are good men." NOCK, supra note 32, at 8.
52. See WAITE & GALLAGHER, supra note 22, at 55-56. Linda J. Waite, Does Marriage Matter?, 32 DEMOGRAPHY 483, 488 (1995), argues that wives "nag" their husbands into better behavior.
53. For descriptions of an "ideal worker" who has the support of a homemaker spouse, see JOAN WILLIAMS, UNBENDING GENDER: WHY FAMILY AND WORK CONFLICT AND WHAT To Do ABOUT IT 1-6 (2000), and Joan Williams, Gender Wars: Selfless Women in the Republic of Choice, 66 N.Y.U. L. REV. 1559, 1619 (1991).
54. For descriptions of an "ideal worker" who has the support of a homemaker spouse, see JOAN WILLIAMS, UNBENDING GENDER: WHY FAMILY AND WORK CONFLICT AND WHAT To Do ABOUT IT 1-6 (2000), and Joan Williams, Gender Wars: Selfless Women in the Republic of Choice, 66 N.Y.U. L. REV. 1559, 1619 (1991).
55. See Fucus, supra note 32, at 60. See generally ARLIE HOCHSCHILD & ANNE MACHUNG, THE SECOND SHIFT (1989) (arguing that women's struggles in the workplace are due to men's unwillingness to share in child-rearing and housework).
56. See Fucus, supra note 32, at 58-60; see also NOCK, supra note 32, at 66, app. at 143 (using the National Longitudinal Survey of Youth: 1979-1993, showing that the same married men earn $4260.85 more than before they were married, holding age constant).
57. See Nock, supra note 30, at 243 ("In their physical and mental health, social life, and overall satisfaction, marriage gives men more than it gives women. More interestingly, men appear to benefit from marriage regardless of the quality of the union. When women benefit from marriage, it is because they are part of a satisfying relationship.").
58. As Steven Nock puts it, "Cohabiting couples are more likely than married partners to believe that men and women should share equally in household chores, even while they tend to perform such tasks like married couples do. . . . [C]ohabiting couples are less committed to performance." STEVEN L. NOCK, MARRIAGE IN MEN'S LIVES 16 (1998).
59. This makes sense because only over the very long run will some of these "investments" bear fruit. Marriage and divorce laws also protect spouses who make them. The economic model of marriage is explained in relatively simple terms in Robert A. Moffitt, Female Wages, Male Wages, and the Economic Model of Marriage: The Basic Evidence, in THE TIES THAT BIND: PERSPECTIVES ON MARRIAGE AND COHABITATION 302, 303-06 (Linda J. Waite ed., 2000). Much of the work on the economics of households began with Gary Becker. See Gary S. Becker, A Theory of Marriage: Part I, 81 J. POL. ECON. 813 (1973); Gary S. Becker, A Theory of Marriage: Part II, 82 J. POL. ECON. S11 (1974); see also GARY S. BECKER, A TREATISE ON THE FAMILY 30-53 (enlarged ed. 1991) (presenting an economic analysis of such family matters as division of labor, procreative decisions, and divorce). For a recent argument, see WAITE & GALLAGHER, supra note 22, at 108-09. The mechanism for making these investments through marriage and enforcing them at divorce is discussed in June Carbone & Margaret F. Brinig, Rethinking Marriage: Feminist Ideology, Economic Change, and Divorce Reform, 65 TUL. L. REV. 953, 959 (1991).
60. This makes sense because only over the very long run will some of these "investments" bear fruit. Marriage and divorce laws also protect spouses who make them. The economic model of marriage is explained in relatively simple terms in Robert A. Moffitt, Female Wages, Male Wages, and the Economic Model of Marriage: The Basic Evidence, in THE TIES THAT BIND: PERSPECTIVES ON MARRIAGE AND COHABITATION 302, 303-06 (Linda J. Waite ed., 2000). Much of the work on the economics of households began with Gary Becker. See Gary S. Becker, A Theory of Marriage: Part I, 81 J. POL. ECON. 813 (1973); Gary S. Becker, A Theory of Marriage: Part II, 82 J. POL. ECON. S11 (1974); see also GARY S. BECKER, A TREATISE ON THE FAMILY 30-53 (enlarged ed. 1991) (presenting an economic analysis of such family matters as division of labor, procreative decisions, and divorce). For a recent argument, see WAITE & GALLAGHER, supra note 22, at 108-09. The mechanism for making these investments through marriage and enforcing them at divorce is discussed in June Carbone & Margaret F. Brinig, Rethinking Marriage: Feminist Ideology, Economic Change, and Divorce Reform, 65 TUL. L. REV. 953, 959 (1991).
61. This makes sense because only over the very long run will some of these "investments" bear fruit. Marriage and divorce laws also protect spouses who make them. The economic model of marriage is explained in relatively simple terms in Robert A. Moffitt, Female Wages, Male Wages, and the Economic Model of Marriage: The Basic Evidence, in THE TIES THAT BIND: PERSPECTIVES ON MARRIAGE AND COHABITATION 302, 303-06 (Linda J. Waite ed., 2000). Much of the work on the economics of households began with Gary Becker. See Gary S. Becker, A Theory of Marriage: Part I, 81 J. POL. ECON. 813 (1973); Gary S. Becker, A Theory of Marriage: Part II, 82 J. POL. ECON. S11 (1974); see also GARY S. BECKER, A TREATISE ON THE FAMILY 30-53 (enlarged ed. 1991) (presenting an economic analysis of such family matters as division of labor, procreative decisions, and divorce). For a recent argument, see WAITE & GALLAGHER, supra note 22, at 108-09. The mechanism for making these investments through marriage and enforcing them at divorce is discussed in June Carbone & Margaret F. Brinig, Rethinking Marriage: Feminist Ideology, Economic Change, and Divorce Reform, 65 TUL. L. REV. 953, 959 (1991).
62. This makes sense because only over the very long run will some of these "investments" bear fruit. Marriage and divorce laws also protect spouses who make them. The economic model of marriage is explained in relatively simple terms in Robert A. Moffitt, Female Wages, Male Wages, and the Economic Model of Marriage: The Basic Evidence, in THE TIES THAT BIND: PERSPECTIVES ON MARRIAGE AND COHABITATION 302, 303-06 (Linda J. Waite ed., 2000). Much of the work on the economics of households began with Gary Becker. See Gary S. Becker, A Theory of Marriage: Part I, 81 J. POL. ECON. 813 (1973); Gary S. Becker, A Theory of Marriage: Part II, 82 J. POL. ECON. S11 (1974); see also GARY S. BECKER, A TREATISE ON THE FAMILY 30-53 (enlarged ed. 1991) (presenting an economic analysis of such family matters as division of labor, procreative decisions, and divorce). For a recent argument, see WAITE & GALLAGHER, supra note 22, at 108-09. The mechanism for making these investments through marriage and enforcing them at divorce is discussed in June Carbone & Margaret F. Brinig, Rethinking Marriage: Feminist Ideology, Economic Change, and Divorce Reform, 65 TUL. L. REV. 953, 959 (1991).
63. This makes sense because only over the very long run will some of these "investments" bear fruit. Marriage and divorce laws also protect spouses who make them. The economic model of marriage is explained in relatively simple terms in Robert A. Moffitt, Female Wages, Male Wages, and the Economic Model of Marriage: The Basic Evidence, in THE TIES THAT BIND: PERSPECTIVES ON MARRIAGE AND COHABITATION 302, 303-06 (Linda J. Waite ed., 2000). Much of the work on the economics of households began with Gary Becker. See Gary S. Becker, A Theory of Marriage: Part I, 81 J. POL. ECON. 813 (1973); Gary S. Becker, A Theory of Marriage: Part II, 82 J. POL. ECON. S11 (1974); see also GARY S. BECKER, A TREATISE ON THE FAMILY 30-53 (enlarged ed. 1991) (presenting an economic analysis of such family matters as division of labor, procreative decisions, and divorce). For a recent argument, see WAITE & GALLAGHER, supra note 22, at 108-09. The mechanism for making these investments through marriage and enforcing them at divorce is discussed in June Carbone & Margaret F. Brinig, Rethinking Marriage: Feminist Ideology, Economic Change, and Divorce Reform, 65 TUL. L. REV. 953, 959 (1991).
64. See ARMEN ALCHIAN & WILLIAM R. ALLEN, EXCHANGE & PRODUCTION: COMPETITION, COORDINATION, & CONTROL 163-70 (3d ed. 1983); see also Armen A. Alchian & Harold Demsetz, Production, Information Costs, and Economic Organization, 62 A.M. ECON. REV. 777, 779-81 (1972) (describing the concept of "team production").
65. See ARMEN ALCHIAN & WILLIAM R. ALLEN, EXCHANGE & PRODUCTION: COMPETITION, COORDINATION, & CONTROL 163-70 (3d ed. 1983); see also Armen A. Alchian & Harold Demsetz, Production, Information Costs, and Economic Organization, 62 A.M. ECON. REV. 777, 779-81 (1972) (describing the concept of "team production").
66. See Alchian & Demsetz, supra note 41, at 779-82.
67. For a classic argument, see generally FRIEDRICH A. HAYEK, INDIVIDUALISM AND ECONOMIC ORDER 119-47 (1949). .
68. See Margaret M. Blair & Lynn A. Stout, A Team Production Theory of Corporate Law, 85 VA. L. REV. 247, 300-04 (1999).
69. See Cynthia Starnes, Divorce and the Displaced Homemaker: A Discourse on Playing with Paper Dolls, Partnership Buyouts and Dissociation under No-Fault, 60 U. CHI. L. REV. 67, 93 (1993); see also Saul Levmore, Unconditional Relationships, 76 B.U. L. REV. 807, 825 (1996) (explaining "the relevance of marriage to the communitarian perspective on the suitability of bargain" by looking at unenforceable marriage contracts); Elizabeth S. Scott & Robert E. Scott, Marriage as Relational Contract, 84 VA. L. REV. 1225, 1270-80 (1998) (discussing principles for distributing "the surplus from the marital bargain").
70. See Cynthia Starnes, Divorce and the Displaced Homemaker: A Discourse on Playing with Paper Dolls, Partnership Buyouts and Dissociation under No-Fault, 60 U. CHI. L. REV. 67, 93 (1993); see also Saul Levmore, Unconditional Relationships, 76 B.U. L. REV. 807, 825 (1996) (explaining "the relevance of marriage to the communitarian perspective on the suitability of bargain" by looking at unenforceable marriage contracts); Elizabeth S. Scott & Robert E. Scott, Marriage as Relational Contract, 84 VA. L. REV. 1225, 1270-80 (1998) (discussing principles for distributing "the surplus from the marital bargain").
71. See Cynthia Starnes, Divorce and the Displaced Homemaker: A Discourse on Playing with Paper Dolls, Partnership Buyouts and Dissociation under No-Fault, 60 U. CHI. L. REV. 67, 93 (1993); see also Saul Levmore, Unconditional Relationships, 76 B.U. L. REV. 807, 825 (1996) (explaining "the relevance of marriage to the communitarian perspective on the suitability of bargain" by looking at unenforceable marriage contracts); Elizabeth S. Scott & Robert E. Scott, Marriage as Relational Contract, 84 VA. L. REV. 1225, 1270-80 (1998) (discussing principles for distributing "the surplus from the marital bargain").
72. For an analysis of what wives and husbands perceive as "fair," see Herbert L. Smith et al., Identifying Underlying Dimensions in Spouses' Evaluations of Fairness in the Division of Household Labor, 27 Soc. Sci. RES. 305, 323-25 (1998).
73. ALCHIAN & ALLEN, supra note 41, at 170.
74. See, e.g., Stephen A. Ross, The Economic.Theory of Agency: The Principal's Problem, AM. ECON. REV., May 1973, at 134, 138; see also Joseph E. Stiglitz, Principal and Agent (ii), in 3 THE NEW PALGRAVE: A DICTIONARY OF ECONOMICS 966-71 (John Eatwell et al. eds., 1987) (identifying the "central problem of economic incentives" as the principalagent problem).
75. See, e.g., Stephen A. Ross, The Economic.Theory of Agency: The Principal's Problem, AM. ECON. REV., May 1973, at 134, 138; see also Joseph E. Stiglitz, Principal and Agent (ii), in 3 THE NEW PALGRAVE: A DICTIONARY OF ECONOMICS 966-71 (John Eatwell et al. eds., 1987) (identifying the "central problem of economic incentives" as the principalagent problem).
76. This is described in JACK HIRSHLEIFER, PRICE THEORY AND APPLICATIONS 283-86, 518 (1988). The idea is that two prisoners accused of a common crime are separated and questioned separately. See id. at 283. Each is told that if he confesses, he will get a reduced punishment. See id. at 283-84. If neither confesses, both will go free because there will not be enough evidence. See id. at 284. The theory is that they will both confess if they cannot communicate, because for each that is the lowest risk strategy. See id. For applications to family law, see, for example, Antony W. Dnes, ' Applications of Economic Analysis to Marital Law: Concerning a Proposal to Reform the Discretionary Approach to the Division of Marital Assets in England and Wales, 19 INT'L REV. L. & ECON. 533, 538-39 (1999); Milton C. Regan, Jr., Market Discourse and Moral Neutrality in Divorce Law, 1994 UTAH L. REV. 605, 646; Scott & Scott, supra note 45, at 1294-95. For applications to children, see Paula England & Nancy Folbre, Who Should Pay for the Kids?, 563 ANNALS AM. ACAD. POL. & Soc. Sci. 194, 203 (1999).
77. This is described in JACK HIRSHLEIFER, PRICE THEORY AND APPLICATIONS 283-86, 518 (1988). The idea is that two prisoners accused of a common crime are separated and questioned separately. See id. at 283. Each is told that if he confesses, he will get a reduced punishment. See id. at 283-84. If neither confesses, both will go free because there will not be enough evidence. See id. at 284. The theory is that they will both confess if they cannot communicate, because for each that is the lowest risk strategy. See id. For applications to family law, see, for example, Antony W. Dnes, ' Applications of Economic Analysis to Marital Law: Concerning a Proposal to Reform the Discretionary Approach to the Division of Marital Assets in England and Wales, 19 INT'L REV. L. & ECON. 533, 538-39 (1999); Milton C. Regan, Jr., Market Discourse and Moral Neutrality in Divorce Law, 1994 UTAH L. REV. 605, 646; Scott & Scott, supra note 45, at 1294-95. For applications to children, see Paula England & Nancy Folbre, Who Should Pay for the Kids?, 563 ANNALS AM. ACAD. POL. & Soc. Sci. 194, 203 (1999).
78. This is described in JACK HIRSHLEIFER, PRICE THEORY AND APPLICATIONS 283-86, 518 (1988). The idea is that two prisoners accused of a common crime are separated and questioned separately. See id. at 283. Each is told that if he confesses, he will get a reduced punishment. See id. at 283-84. If neither confesses, both will go free because there will not be enough evidence. See id. at 284. The theory is that they will both confess if they cannot communicate, because for each that is the lowest risk strategy. See id. For applications to family law, see, for example, Antony W. Dnes, ' Applications of Economic Analysis to Marital Law: Concerning a Proposal to Reform the Discretionary Approach to the Division of Marital Assets in England and Wales, 19 INT'L REV. L. & ECON. 533, 538-39 (1999); Milton C. Regan, Jr., Market Discourse and Moral Neutrality in Divorce Law, 1994 UTAH L. REV. 605, 646; Scott & Scott, supra note 45, at 1294-95. For applications to children, see Paula England & Nancy Folbre, Who Should Pay for the Kids?, 563 ANNALS AM. ACAD. POL. & Soc. Sci. 194, 203 (1999).
79. This is described in JACK HIRSHLEIFER, PRICE THEORY AND APPLICATIONS 283-86, 518 (1988). The idea is that two prisoners accused of a common crime are separated and questioned separately. See id. at 283. Each is told that if he confesses, he will get a reduced punishment. See id. at 283-84. If neither confesses, both will go free because there will not be enough evidence. See id. at 284. The theory is that they will both confess if they cannot communicate, because for each that is the lowest risk strategy. See id. For applications to family law, see, for example, Antony W. Dnes, ' Applications of Economic Analysis to Marital Law: Concerning a Proposal to Reform the Discretionary Approach to the Division of Marital Assets in England and Wales, 19 INT'L REV. L. & ECON. 533, 538-39 (1999); Milton C. Regan, Jr., Market Discourse and Moral Neutrality in Divorce Law, 1994 UTAH L. REV. 605, 646; Scott & Scott, supra note 45, at 1294-95. For applications to children, see Paula England & Nancy Folbre, Who Should Pay for the Kids?, 563 ANNALS AM. ACAD. POL. & Soc. Sci. 194, 203 (1999).
80. England & Folbre, supra note 49, at 203.
81. See id.
82. Alchian & Demsetz, supra note 41, at 781-82.
83. See, e.g., BECKER, supra note 40, at 30-32 (discussing shirking and specialization).
84. See Silbaugh, supra note 22, at 13-14. See generally WILLIAMS, supra note 35, at 145-76 (describing how gender wars "take on elements of class and race conflict").
85. We hold constant other possible contributors to divorce or stability: each spouse's income and education, children, race, divorce in their parent's background, cohabitation, length of marriage, age at marriage.
86. Steven L. Nock & Margaret F. Brinig, Weak Men and Disorderly Women: Divorce and the Division of Labor (manuscript at 20, on file with author), in MARRIAGE AND DIVORCE: A LAW AND ECONOMICS APPROACH (forthcoming 2001).
87. The widely publicized, unusually high dollar divorce of Lorna and Gary Wendt, the former CEO of General Electric Capital, provides a good example of this dichotomy. See Wendt v. Wendt, 1998 WL 161165 (Conn. Super. Ct. Mar. 31, 1998). For some of the popular literature, see Stanley Bing, Keep Your Mitts Off My Options, Dear!, FORTUNE, Feb. 2, 1998, at 51; Lisa Reilly Cullen, A Headliner Divorce Teaches You How to Get a Fairer Share from Your Spouse, MONEY, Feb. 1998, at 20. While the rationale used by the court is hardly clear, from the order it is apparent that Mrs. Wendt successfully claimed that she should be entitled to some of the vast wealth and income of her husband, because she provided significant "backup" for Mr. Wendt. See Wendt, 1998 WL 161165, at *3. In other words, because she was a model housewife (as the trial court said, she was "an excellent representative of motherhood, very organized, a very good cook" who "'even did windows,'" id. at *7), she relieved him of many of the strains he would otherwise have had in managing his busy schedule. Because he did not have to worry about his personal life, he could work long hours and come home drained.. See id. She also attempted to argue that she gave up her career as a piano instructor or public school teacher as what we have termed a marital sacrifice. Id. She said she had stopped working because of Gary Wendt's business requirements, but the court found that it was her voluntary choice so "she could go on luxury trips with him." Id. In other words, she had made no real sacrifice. Nonetheless, the court awarded her very substantial assets (more than $8,000,000) and support primarily because she "did give the defendant's career priority in her life," because both parties were part of the "GE team," and because she was a "team player." Id. at *8.
88. The widely publicized, unusually high dollar divorce of Lorna and Gary Wendt, the former CEO of General Electric Capital, provides a good example of this dichotomy. See Wendt v. Wendt, 1998 WL 161165 (Conn. Super. Ct. Mar. 31, 1998). For some of the popular literature, see Stanley Bing, Keep Your Mitts Off My Options, Dear!, FORTUNE, Feb. 2, 1998, at 51; Lisa Reilly Cullen, A Headliner Divorce Teaches You How to Get a Fairer Share from Your Spouse, MONEY, Feb. 1998, at 20. While the rationale used by the court is hardly clear, from the order it is apparent that Mrs. Wendt successfully claimed that she should be entitled to some of the vast wealth and income of her husband, because she provided significant "backup" for Mr. Wendt. See Wendt, 1998 WL 161165, at *3. In other words, because she was a model housewife (as the trial court said, she was "an excellent representative of motherhood, very organized, a very good cook" who "'even did windows,'" id. at *7), she relieved him of many of the strains he would otherwise have had in managing his busy schedule. Because he did not have to worry about his personal life, he could work long hours and come home drained.. See id. She also attempted to argue that she gave up her career as a piano instructor or public school teacher as what we have termed a marital sacrifice. Id. She said she had stopped working because of Gary Wendt's business requirements, but the court found that it was her voluntary choice so "she could go on luxury trips with him." Id. In other words, she had made no real sacrifice. Nonetheless, the court awarded her very substantial assets (more than $8,000,000) and support primarily because she "did give the defendant's career priority in her life," because both parties were part of the "GE team," and because she was a "team player." Id. at *8.
89. NOCK, supra note 32, at 3-5, 13-15.
90. See infra Table 1; see also Bianchi & Spain, supra note 22, at 31-32; Coverman & Sheley, supra note 22, at 420. Women are apparently both more committed and more dependent than are men. See Steven L. Nock, Comparison of Marriages and Cohabiting Relationships, 16 J. FAM. ISSUES 53, 66 tbl. 1 (1995).
91. See infra Table 1.
92. See id.
93. See, e.g., MILTON C. REGAN, JR., FAMILY LAW AND THE PURSUIT OF INTIMACY 146-47 (1993); Jana B. Singer, Divorce Reform and Gender Justice, 67 N.C. L. REV. 1103, 1121 (1989). Chapter 5 goes some way towards making compensatory payments more permanent. See ALI PRINCIPLES (Proposed Final Draft 1997), supra note 27, § 5.07.
94. See, e.g., MILTON C. REGAN, JR., FAMILY LAW AND THE PURSUIT OF INTIMACY 146-47 (1993); Jana B. Singer, Divorce Reform and Gender Justice, 67 N.C. L. REV. 1103, 1121 (1989). Chapter 5 goes some way towards making compensatory payments more permanent. See ALI PRINCIPLES (Proposed Final Draft 1997), supra note 27, § 5.07.
95. See MARGARET F. BRINIG, FROM CONTRACT TO COVENANT: BEYOND THE LAW AND ECONOMICS OF THE FAMILY 31 (2000).
96. Children provide smiles, entertainment, and achievements for their parents. See, e.g., MargaretF. Brinig, Tlie Family Franchise: Elderly Parents and Adult Siblings, 1996 UTAH L. REV. 393, 408-14.
97. They do not seem to do so during most marriages, see Cathleen D. Zick & Jane L. McCullough, Trends in Married Couples' Time Use: Evidence from 1977-78 and 1987-88, 24 SEX ROLES 459, 472-73 (1991); therefore, equal time sharing would not be the custody regime I would advocate upon divorce. For my position, which favors adoption of the ALI Principles' "approximation" regime, see Margaret F. Brinig & Douglas W. Allen, "These Boots Are Made for Walking": Why Most Divorce Filers Are Women, 2 AM. L. & ECON. REV. 126, 157 (2000).
98. They do not seem to do so during most marriages, see Cathleen D. Zick & Jane L. McCullough, Trends in Married Couples' Time Use: Evidence from 1977-78 and 1987-88, 24 SEX ROLES 459, 472-73 (1991); therefore, equal time sharing would not be the custody regime I would advocate upon divorce. For my position, which favors adoption of the ALI Principles' "approximation" regime, see Margaret F. Brinig & Douglas W. Allen, "These Boots Are Made for Walking": Why Most Divorce Filers Are Women, 2 AM. L. & ECON. REV. 126, 157 (2000).
99. See Margaret F. Brinig & Michael V. Alexeev, Trading at Divorce: Preferences, Legal Rules and Transaction Costs, 8 OHIO ST. J. ON DISP. RESOL. 279, 288-89 (1993) (discussing differing utility).
100. Steven N. S. Cheung, The Contractual Nature of the Firm, 26 J.L. & ECON. 1, 6 (1983).
101. See id. at 6-7.
102. That is, the husband may be trying to get out of doing the job by doing such a bad job that the wife takes over in disgust. Cf. Karen Czapanskiy, Volunteers and Draftees: The Struggle for Parental Equality, 38 UCLA L. REV. 1415, 1456 (1991) (child care). See generally Williams, supra note 35, at 1599 & n.221 (discussing the inequitable distribution of household labor).
103. See Cheung, supra note 67, at 8.
104. See id. at 9-10.
105. Gary L. Hanson, Moral Reasoning and the Marital Exchange Relationship, 131 J. Soc. PSYCHOL. 71, 79-81 (1991) ("[B]eing exchange oriented may adversely affect marital happiness.").
106. MILTON C. REGAN, JR., ALONE TOGETHER: LOVE AND THE MEANING OF MARRIAGE 24 (1999). Regan earlier defined that internal stance in marriage as a universe of shared meaning that serves as the taken-for-granted background for individual conduct. At this moment, a spouse stands "inside" the marriage as a participant who accepts its claims, not "outside" it as an observer who calls those claims into question. This stance makes possible the experience of lives lived in intimate concern, rather than mere parallel association. Milton C. Regan, Jr., Spousal Privilege and the Meanings of Marriage, 81 VA. L. REV. 2045, 2049 (1995).
107. MILTON C. REGAN, JR., ALONE TOGETHER: LOVE AND THE MEANING OF MARRIAGE 24 (1999). Regan earlier defined that internal stance in marriage as a universe of shared meaning that serves as the taken-for-granted background for individual conduct. At this moment, a spouse stands "inside" the marriage as a participant who accepts its claims, not "outside" it as an observer who calls those claims into question. This stance makes possible the experience of lives lived in intimate concern, rather than mere parallel association. Milton C. Regan, Jr., Spousal Privilege and the Meanings of Marriage, 81 VA. L. REV. 2045, 2049 (1995).
108. Cf. Anthony T. Kronman, Contract Law and the State of Nature, 1 J.L. ECON. & ORG. 5, 15-18 (1985) (arguing that the use of collateral - something valued by both parties - helps to ensure that promises will be kept without resorting to threats or violence).
109. See Nock, supra note 30, at 240-41; see also Margaret F. Brinig & F.H. Buckley, Joint Custody: Bonding and Monitoring Theories, 73 IND. L.J. 393, 402-04 (1998) (discussing how a long-term relationship with children acts as a bond between the parents; also discussing the concept of "hands-tying") [hereinafter Brinig & Buckley, Joint Custody]; Margaret F. Brinig & F.H. Buckley, No-Fault Laws and at Fault People, 18 INT'L REV. L. & ECON. 325, 329-30 (1998) (noting that when divorce was more difficult, people had incentives to invest more in marriage).
110. See Nock, supra note 30, at 240-41; see also Margaret F. Brinig & F.H. Buckley, Joint Custody: Bonding and Monitoring Theories, 73 IND. L.J. 393, 402-04 (1998) (discussing how a long-term relationship with children acts as a bond between the parents; also discussing the concept of "hands-tying") [hereinafter Brinig & Buckley, Joint Custody]; Margaret F. Brinig & F.H. Buckley, No-Fault Laws and at Fault People, 18 INT'L REV. L. & ECON. 325, 329-30 (1998) (noting that when divorce was more difficult, people had incentives to invest more in marriage).
111. For a discussion of marriage vows as hortatory, see Scott & Scott, supra note 45, at 1230.
112. See Margaret F. Brinig & Steven M. Crafton, Marriage and Opportunism, 23 J. LEGAL STUD. 869, 885-86 (1994); see also RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 146-48 (4th ed. 1992) (noting the economic importance of one spouse's "non-pecuniary contributions").
113. See Margaret F. Brinig & Steven M. Crafton, Marriage and Opportunism, 23 J. LEGAL STUD. 869, 885-86 (1994); see also RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 146-48 (4th ed. 1992) (noting the economic importance of one spouse's "non-pecuniary contributions").
114. See H. Leroy Gill & Donald R. Marvin, Wherever He May Go: How Wives Affect Their Husband's Career Decisions, 27 Soc. Sci. RES. 264, 277 (1998). Decisions about remaining in the service or leaving it are influenced by potential implications for the wife, especially her earnings capacity. However, traditional men make career decisions without much concern for their wives. Id.
115. See, e.g., Joan Krauskopf, Recompense for Financing Spouse's Education: Legal Protection of the Marital Investor in Human Capital, 28 KAN. L. REV. 379, 387 (1980).
116. For a general empirical discussion of why this may explain women's increased labor force participation, see Parkman, supra note 22.
117. One very angry father who apparently feels this way is Robert E. Fay, The Disenfranchised Father, 36 ADVANCES IN PEDIATRICS 407, 413-14 (1989).
118. See Brinig & Buckley, Joint Custody, supra note 75, at 402.
119. See id.
120. See, e.g., ALI PRINCIPLES (Proposed Final Draft 1997), supra note 27, §§ 5.03, 5.05 (providing for compensation for the loss in living standard experienced at dissolution by the spouse with less wealth or earning capacity in a marriage of significant duration). Compare June Carbone, Income Sharing: Redefining the Family in Terms of Community, 31 Hous. L. REV. 359, 414-15 (1994) ("Income sharing proposals insist on recognition of this reconstituted community, of the custodial family's continuing claim on the absent parent's income, and of the identity of interests between custodial parent and child."), with Singer, supra note 62, at 1121 (sharing of spousal income for the benefit of wife, who may or may not have children, after long-term marriage).
121. See, e.g., ALI PRINCIPLES (Proposed Final Draft 1997), supra note 27, §§ 5.03, 5.05 (providing for compensation for the loss in living standard experienced at dissolution by the spouse with less wealth or earning capacity in a marriage of significant duration). Compare June Carbone, Income Sharing: Redefining the Family in Terms of Community, 31 Hous. L. REV. 359, 414-15 (1994) ("Income sharing proposals insist on recognition of this reconstituted community, of the custodial family's continuing claim on the absent parent's income, and of the identity of interests between custodial parent and child."), with Singer, supra note 62, at 1121 (sharing of spousal income for the benefit of wife, who may or may not have children, after long-term marriage).
122. Cf. Katharine B. Silbaugh, Marriage Contracts and the Family Economy, 93 Nw. U. L. REV. 65, 142-43 (1998) (arguing that monetary contracts should not be enforced because nonmonetary contracts are not enforced; "monetary and nonmonetary components of marriage need to be treated equally in order to properly value unpaid family labor").
123. BECKER, supra note 40, at 30-31 ("Virtually all societies have developed longterm protection for married women; one can even say that 'marriage' is defined by a long-term commitment between a man and a woman."); see also Douglas W. Allen, "What Does She See in Him?": The Effect of Sharing on the Choice of Spouse, 30 ECON. INQUIRY 57, 66 (1992).
124. See Allen, supra note 86, at 66.
125. See Landes, supra note 22, at 44-45. This concept first surfaced in the legal literature in Krauskopf, supra note 79, at 388.
126. BECKER, supra note 40, at 33. For a criticism, see Margaret F. Brinig, Comment on Jana Singer's Alimony and Efficiency, 82 GEO. L.J. 2461, 2469-73 (1994) (finding that a household is not efficient if diminishing returns to scale and psychic costs as well as financial gains are considered).
127. Brinig, supra note 89, at 2470 n.58.
128. See Marsha Garrison, Marriage: The Status of Conduct, 131 U. PA. L. REV. 1039, 1060 (1983) (book review); Herma Hill Kay, An Appraisal of California's No-Fault Divorce Law, 75 CAL. L. REV. 291, 309 (1987); Herma Hill Kay, Equality and Difference: A Perspective on No-Fault Divorce and Its Aftermath, 56 U. CIN. L. REV. 1, 80, 85 (1987).
129. See Marsha Garrison, Marriage: The Status of Conduct, 131 U. PA. L. REV. 1039, 1060 (1983) (book review); Herma Hill Kay, An Appraisal of California's No-Fault Divorce Law, 75 CAL. L. REV. 291, 309 (1987); Herma Hill Kay, Equality and Difference: A Perspective on No-Fault Divorce and Its Aftermath, 56 U. CIN. L. REV. 1, 80, 85 (1987).
130. See Marsha Garrison, Marriage: The Status of Conduct, 131 U. PA. L. REV. 1039, 1060 (1983) (book review); Herma Hill Kay, An Appraisal of California's No-Fault Divorce Law, 75 CAL. L. REV. 291, 309 (1987); Herma Hill Kay, Equality and Difference: A Perspective on No-Fault Divorce and Its Aftermath, 56 U. CIN. L. REV. 1, 80, 85 (1987).
131. See Brinig, supra note 22, at 59.
132. Brinig, supra note 89, at 2472 ("[N] either spouse really benefits from 'all work and no life," as my teenage daughter puts it. Society does not benefit either, as the line for the couple's joint benefits show's.").
133. For many couples, home cooking, home nursing when one spouse is ill, and, certainly, sexual pleasure fall into this category.
134. See, e.g., Bea Ann Smith, The Partnership Theory of Marriage: A Borrowed Solution Fails, 68 TEX. L. REV. 689, 695-96 (1990); Williams, supra note 35, at 1619.
135. This is a somewhat circular proposition since wives rationally choose house-hold production because of their lower opportunity costs of remaining out of the job market. See Silbaugh, supra note 22, at 17-21; Wax, supra note 22, at 530.
136. See, e.g., Carbone, supra note 84, at 413-15; Jana B. Singer, Alimony and Efficiency: The Gendered Costs and Benefits of the Economic Justification for Alimony, 82 GEO. L.J. 2423, 2454 (1994); 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, 70-71 (1993).
137. See, e.g., Carbone, supra note 84, at 413-15; Jana B. Singer, Alimony and Efficiency: The Gendered Costs and Benefits of the Economic Justification for Alimony, 82 GEO. L.J. 2423, 2454 (1994); 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, 70-71 (1993).
138. See sources cited supra note 97.
139. See Kay, An Appraisal of California's No-Fault Divorce Law, supra note 91, at 317-18; Wendy W. Williams, The Equality Crisis: Some Reflections on Culture, Courts, and Feminism, in FEMINIST LEGAL THEORY: READINGS IN LAW AND GENDER 15, 22-25 (Katharine T. Bartlett & Roseanne Kennedy eds., 1991).
140. See Kay, An Appraisal of California's No-Fault Divorce Law, supra note 91, at 317-18; Wendy W. Williams, The Equality Crisis: Some Reflections on Culture, Courts, and Feminism, in FEMINIST LEGAL THEORY: READINGS IN LAW AND GENDER 15, 22-25 (Katharine T. Bartlett & Roseanne Kennedy eds., 1991).
141. ALI PRINCIPLES (Proposed Final Draft 1997), supra note 27, § 5.05.
142. For a lengthy discussion of this "franchise" concept, see Brinig, supra note 64. See also BRINIG, supra note 63, at 181-207 (describing the "family franchise" - relationships that exist after the legal bonds of family have been broken).
143. The concept is defined for families in BRINIG, supra note 63, at 7. Briefly, it refers to the portion of a covenant family that remains when the legal relationship between participants ends at adoption, emancipation, or divorce.
144. See Margaret F. Brinig, Property Distribution Physics: The Talisman of Time and Middle Class Law, 31 FAM. L.Q. 93, 106-13 (1997) (discussing why the prevailing "clean break" theory of divorce doesn't fit what happens in most dissolving families); Rosemary Shaw Sackett & Cheryl K. Munyon, Alimony: A Retreat from Traditional Concepts of Spousal Support, 35 DRAKE L. REV. 297, 302 (1986) ("With the bitterness that frequently follows a dissolution, the ideal situation would be to put the parties' economic differences to rest with the property division. Where possible, each party should be given his or her own separate assets.").
145. See Margaret F. Brinig, Property Distribution Physics: The Talisman of Time and Middle Class Law, 31 FAM. L.Q. 93, 106-13 (1997) (discussing why the prevailing "clean break" theory of divorce doesn't fit what happens in most dissolving families); Rosemary Shaw Sackett & Cheryl K. Munyon, Alimony: A Retreat from Traditional Concepts of Spousal Support, 35 DRAKE L. REV. 297, 302 (1986) ("With the bitterness that frequently follows a dissolution, the ideal situation would be to put the parties' economic differences to rest with the property division. Where possible, each party should be given his or her own separate assets.").
146. To some extent this is captured in Chapters 4 and 5 of the ALI Principles, though in them spouses are compensated at dissolution for career losses occasioned by these investments. In other words, loss (sacrifice) is the basis rather than gain (investment), though the ALI Principles are couched in terms of earning capacity rather than non-human capital assets. See BRINIG, supra note 63, at 171 & n.202 (referring to ALI PRINCIPLES (Proposed Final Draft 1997), supra note 27, § 4.07(1), cmt. A). The rationale for equating property distribution and compensatory payments is discussed. See id. at 100-01.
147. See Ira Ellman, The Theory of Alimony, 77 CAL. L. REV. 1, 50-51 (1989).
148. 442 N.W.2d 59 (Iowa 1989). It was a medical-degree case with facts that made the supporting wife's case rather more sympathetic than in the more well-known Mahoney case that appears in most casebooks. See Mahoney v. Mahoney, 453 A.2d 527 (N.J. 1982). The court in Francis reasoned that an investment in a professional degree, like any other asset that earns money, comes from two sources: labor and capital. See Francis, 442 N.W.2d at 65. Labor contributions come entirely from the spouse in school. Contributions to capital, on the other hand, can come from either spouse. These contributions may be in cash or in kind - through earnings in the labor force or relieving the student spouse of the labor of caring for the house and the children. Although the returns on labor vary enormously, economists regard the returns on capital as quite predictable and easy to measure. (Financial institutions make such calculations all the time when they establish interest rates for lending money.) See id. The expert witness who testified in Francis said the conventional ratio of labor to capital in investments is seventy to thirty. See id. The spouse seeking a return on investment, instead of recompense for career loss, would multiply the value of the advanced degree (or other earnings enhancement) times thirty percent times the proportion of the capital investment he or she had made. See generally BRINIG, supra note 63, at 110-12 (providing a general discussion of the type of calculation that would be warranted).
149. She had an in-home daycare business. See Francis, 442 N.W.2d at 61. The court noted: "From the outset of their marriage, Thomas and Diana agreed that Diana would care for their children and earn income for the family by caring for other people's children in their home. This arrangement continued throughout the marriage except for a brief period shortly after Melissa was born." Id. at 64.
150. Id. at 64-65 ("During the summer before medical school began, Thomas worked as a gardener and earned approximately $1200. Diana earned roughly $5000 per year from her in-home day care business. Thomas' parents contributed $11,500 and Diana's mother gave them $12,000. Student loans accounted for $45,500 over the six-year period.").
151. Id. at 65.
152. See Nock & Brinig, supra note 56 (manuscript at 5).
153. See, e.g., Bianchi & Spain, supra note 22, at 31-33; Coverman & Sheley, supra note 22, at 420; Nock & Brinig, supra note 56 (manuscript at 5, tbl.1).
154. Fucus, supra note 32, at 73-74; see also Bianchi & Spain, supra note 22, at 32 (reporting that the hours women spend on housework have decreased over ten years, and "[i]n families in which the wife works outside the home . . . husbands perform a greater share of domestic tasks and child care"); sources cited in Brinig, supra note 89, at 2477 & n.90.
155. Nock & Brinig, supra note 56 (manuscript at 26, tbl.2).
156. Id. People's time is divided roughly into labor, leisure, and housework. Studies show that women have less leisure time than do men. See, e.g., BECKER, supra note 40, at 76, 2S.1 (reporting that in 1975 to 1976, the average leisure hours for all married women was 26.7, for men 27.1 and that, when employed full-time, women had 21 hours of leisure per week, men 23).
157. WILLIAMS, supra note 35, at 71-72; Williams, supra note 35, at 1596-97.
158. Nock & Brinig, supra note 56 (manuscript at 27, tbl.3).
159. PAULA ENGLAND & GEORGE FARKAS, HOUSEHOLDS, EMPLOYMENT AND GENDER 80-82 (1986); FUCHS, supra note 32, at 64.
160. But see WILLIAMS, supra note 35, at 64-113. See generally FRANCES K. GOLDSCHEIDER & LINDA J. WAITE, NEW FAMILIES, No FAMILIES? THE TRANSFORMATION OF THE AMERCIAN HOME (1991); ARLIE RUSSELL HOCHSCHILD, THE TIME BIND: WHEN WORK BECOMES HOME AND HOME BECOMES WORK (1997) (discussing the increased participation of women in the workforce).
161. But see WILLIAMS, supra note 35, at 64-113. See generally FRANCES K. GOLDSCHEIDER & LINDA J. WAITE, NEW FAMILIES, No FAMILIES? THE TRANSFORMATION OF THE AMERCIAN HOME (1991); ARLIE RUSSELL HOCHSCHILD, THE TIME BIND: WHEN WORK BECOMES HOME AND HOME BECOMES WORK (1997) (discussing the increased participation of women in the workforce).
162. For descriptions of men's and women's work in the paid labor force, see William T. Bielby & James N. Baron, Sex Segregation Within Occupations, AM. ECON. REV., May 1986, at 43; Katherine Silbaugh, Grounded Applications: Feminism and Law at the Millennium, 50 ME. L. REV. 201, 202 (1998); and Shelley Wright, Women and the Global Economic Order: A Feminist Perspective, 10 AM. U. J. INT'L L. & POL'Y 861, 868 (1995). For examples of the differences in compensation, see BUREAU OF LABOR STATISTICS, U.S. DEP'T OF LABOR, NATIONAL EMPLOYMENT, HOURS, AND EARNINGS, 1981-93 (1993), which reports annual average weekly earnings for 1988 of $461 for carpentry and floor work, id. at 24, $531 for plumbing, heating, and air conditioning, id. at 21, and $299 for auto repair, services, and parking, id. at 438. The same Bureau of Labor Statistics data shows weekly earnings of $215 for residential care, id. at 463, $146 for miscellaneous personal services, $214 for laundry, cleaning, and garment services, id. at 424, and $172 for retail bakeries, id. at 381. In 1985, men employed as repairers and mechanics earned an average of $400 weekly, compared to the $130 women earned in private household service. UNITED STATES BUREAU OF THE CENSUS, STATISTICAL ABSTRACT OF THE UNITED STATES, 436, tbl.696 (1998).
163. For descriptions of men's and women's work in the paid labor force, see William T. Bielby & James N. Baron, Sex Segregation Within Occupations, AM. ECON. REV., May 1986, at 43; Katherine Silbaugh, Grounded Applications: Feminism and Law at the Millennium, 50 ME. L. REV. 201, 202 (1998); and Shelley Wright, Women and the Global Economic Order: A Feminist Perspective, 10 AM. U. J. INT'L L. & POL'Y 861, 868 (1995). For examples of the differences in compensation, see BUREAU OF LABOR STATISTICS, U.S. DEP'T OF LABOR, NATIONAL EMPLOYMENT, HOURS, AND EARNINGS, 1981-93 (1993), which reports annual average weekly earnings for 1988 of $461 for carpentry and floor work, id. at 24, $531 for plumbing, heating, and air conditioning, id. at 21, and $299 for auto repair, services, and parking, id. at 438. The same Bureau of Labor Statistics data shows weekly earnings of $215 for residential care, id. at 463, $146 for miscellaneous personal services, $214 for laundry, cleaning, and garment services, id. at 424, and $172 for retail bakeries, id. at 381. In 1985, men employed as repairers and mechanics earned an average of $400 weekly, compared to the $130 women earned in private household service. UNITED STATES BUREAU OF THE CENSUS, STATISTICAL ABSTRACT OF THE UNITED STATES, 436, tbl.696 (1998).
164. For descriptions of men's and women's work in the paid labor force, see William T. Bielby & James N. Baron, Sex Segregation Within Occupations, AM. ECON. REV., May 1986, at 43; Katherine Silbaugh, Grounded Applications: Feminism and Law at the Millennium, 50 ME. L. REV. 201, 202 (1998); and Shelley Wright, Women and the Global Economic Order: A Feminist Perspective, 10 AM. U. J. INT'L L. & POL'Y 861, 868 (1995). For examples of the differences in compensation, see BUREAU OF LABOR STATISTICS, U.S. DEP'T OF LABOR, NATIONAL EMPLOYMENT, HOURS, AND EARNINGS, 1981-93 (1993), which reports annual average weekly earnings for 1988 of $461 for carpentry and floor work, id. at 24, $531 for plumbing, heating, and air conditioning, id. at 21, and $299 for auto repair, services, and parking, id. at 438. The same Bureau of Labor Statistics data shows weekly earnings of $215 for residential care, id. at 463, $146 for miscellaneous personal services, $214 for laundry, cleaning, and garment services, id. at 424, and $172 for retail bakeries, id. at 381. In 1985, men employed as repairers and mechanics earned an average of $400 weekly, compared to the $130 women earned in private household service. UNITED STATES BUREAU OF THE CENSUS, STATISTICAL ABSTRACT OF THE UNITED STATES, 436, tbl.696 (1998).
165. For descriptions of men's and women's work in the paid labor force, see William T. Bielby & James N. Baron, Sex Segregation Within Occupations, AM. ECON. REV., May 1986, at 43; Katherine Silbaugh, Grounded Applications: Feminism and Law at the Millennium, 50 ME. L. REV. 201, 202 (1998); and Shelley Wright, Women and the Global Economic Order: A Feminist Perspective, 10 AM. U. J. INT'L L. & POL'Y 861, 868 (1995). For examples of the differences in compensation, see BUREAU OF LABOR STATISTICS, U.S. DEP'T OF LABOR, NATIONAL EMPLOYMENT, HOURS, AND EARNINGS, 1981-93 (1993), which reports annual average weekly earnings for 1988 of $461 for carpentry and floor work, id. at 24, $531 for plumbing, heating, and air conditioning, id. at 21, and $299 for auto repair, services, and parking, id. at 438. The same Bureau of Labor Statistics data shows weekly earnings of $215 for residential care, id. at 463, $146 for miscellaneous personal services, $214 for laundry, cleaning, and garment services, id. at 424, and $172 for retail bakeries, id. at 381. In 1985, men employed as repairers and mechanics earned an average of $400 weekly, compared to the $130 women earned in private household service. UNITED STATES BUREAU OF THE CENSUS, STATISTICAL ABSTRACT OF THE UNITED STATES, 436, tbl.696 (1998).
166. For descriptions of men's and women's work in the paid labor force, see William T. Bielby & James N. Baron, Sex Segregation Within Occupations, AM. ECON. REV., May 1986, at 43; Katherine Silbaugh, Grounded Applications: Feminism and Law at the Millennium, 50 ME. L. REV. 201, 202 (1998); and Shelley Wright, Women and the Global Economic Order: A Feminist Perspective, 10 AM. U. J. INT'L L. & POL'Y 861, 868 (1995). For examples of the differences in compensation, see BUREAU OF LABOR STATISTICS, U.S. DEP'T OF LABOR, NATIONAL EMPLOYMENT, HOURS, AND EARNINGS, 1981-93 (1993), which reports annual average weekly earnings for 1988 of $461 for carpentry and floor work, id. at 24, $531 for plumbing, heating, and air conditioning, id. at 21, and $299 for auto repair, services, and parking, id. at 438. The same Bureau of Labor Statistics data shows weekly earnings of $215 for residential care, id. at 463, $146 for miscellaneous personal services, $214 for laundry, cleaning, and garment services, id. at 424, and $172 for retail bakeries, id. at 381. In 1985, men employed as repairers and mechanics earned an average of $400 weekly, compared to the $130 women earned in private household service. UNITED STATES BUREAU OF THE CENSUS, STATISTICAL ABSTRACT OF THE UNITED STATES, 436, tbl.696 (1998).
167. Nock & Brinig, supra note 56 (manuscript at 28-29, tbl.4).
168. See, e.g., ALA. CODE § 6-10-98 (1975) (marital homestead); OHIO REV. CODE ANN. § 143.43 (Anderson 1999) (survivor benefits); 31 P.R. LAWS ANN. § 3621 (1993) (providing that earnings or profits of a conjugal partnership are divided upon dissolution).
169. See, e.g., ALA. CODE § 6-10-98 (1975) (marital homestead); OHIO REV. CODE ANN. § 143.43 (Anderson 1999) (survivor benefits); 31 P.R. LAWS ANN. § 3621 (1993) (providing that earnings or profits of a conjugal partnership are divided upon dissolution).
170. See, e.g., ALA. CODE § 6-10-98 (1975) (marital homestead); OHIO REV. CODE ANN. § 143.43 (Anderson 1999) (survivor benefits); 31 P.R. LAWS ANN. § 3621 (1993) (providing that earnings or profits of a conjugal partnership are divided upon dissolution).
171. See, e.g., KAHLIL GIBRAN, On Marriage, in THE PROPHET 15 (1923). But let there be spaces in your togetherness, And let the winds of the heavens dance between you. Love one another, but make not a bond of love: Let it rather be a moving sea between the shores of your souls. Id. at 15.
172. See Scott & Scott, supra note 45, at 1302-04. Privacy of course has its downside, particularly for women. Many feminists, as Dean Bartlett recently observed, have questioned the premises of family privacy, insisting that just because relationships are private does not make them beyond public concern. They have challenged the inevitability of naturalness of family privacy, arguing that where the line is drawn between private and public is itself a highly discretionary, political act. And they have exposed the hypocrisy of a construct that purports to be neutral but that suppresses recognition of the kinds of harms from which women disproportionately suffer, while leaving room for prohibition of the kinds of harms men experience. Katharine T. Bartlett, Feminism and Family Law, 33 FAM. L.Q. 475, 475 (1999). See generally Jana B. Singer, The Privatization of Family Law, 1992 WIS. L. REV. 1443 (exploring the privatization of family law and arguing that this trend brings new dangers for families).
173. See Scott & Scott, supra note 45, at 1302-04. Privacy of course has its downside, particularly for women. Many feminists, as Dean Bartlett recently observed, have questioned the premises of family privacy, insisting that just because relationships are private does not make them beyond public concern. They have challenged the inevitability of naturalness of family privacy, arguing that where the line is drawn between private and public is itself a highly discretionary, political act. And they have exposed the hypocrisy of a construct that purports to be neutral but that suppresses recognition of the kinds of harms from which women disproportionately suffer, while leaving room for prohibition of the kinds of harms men experience. Katharine T. Bartlett, Feminism and Family Law, 33 FAM. L.Q. 475, 475 (1999). See generally Jana B. Singer, The Privatization of Family Law, 1992 WIS. L. REV. 1443 (exploring the privatization of family law and arguing that this trend brings new dangers for families).
174. There is an extensive discussion of this line of reasoning in the Supreme Court case of United States v. Trammel, 445 U.S. 40, 43-45 (1980) (discussing immunity from adverse testimony by a spouse). This reasoníng appears in Sundin v. Klein, 269 S.E.2d 787, 790-91 (Va. 1980), where a murdered wife's estate tried to recover property held by the spouses as "tenants by the entireties."
175. See, e.g., Keister's Adm'r v. Keister's Ex'r, 96 S.E. 315, 322 (Va. 1918) (Burke, J., concurring) (The duties of marriage "forbid the idea that this One flesh' may so divide itself that either spouse may sue the other."); see also 1 WILLIAM BLACKSTONE, COMMENTARIES *442.
176. Although the tenancy by the entireties still exists in a few states (for example, Virginia permits this holding if the intent to create it explicitly appears in the deed, VA. CODE ANN. § 55-20 (Michie 1995)), and the marital community flourishes in others, customs like dower and courtesy (giving wives and husbands, respectively, shares in the property acquired by the other during the marriage) are abolished. For one of the last holdouts, see VA. CODE ANN. § 64.1-19.2 (Michie 1995).
177. Although the tenancy by the entireties still exists in a few states (for example, Virginia permits this holding if the intent to create it explicitly appears in the deed, VA. CODE ANN. § 55-20 (Michie 1995)), and the marital community flourishes in others, customs like dower and courtesy (giving wives and husbands, respectively, shares in the property acquired by the other during the marriage) are abolished. For one of the last holdouts, see VA. CODE ANN. § 64.1-19.2 (Michie 1995).
178. Wait v. Pierce, 209 N.W. 475, 482 (Wis. 1926) (Eschweiler, J., dissenting) (noting that allowing suits between spouses would encourage litigation over things so trivial as the unwanted kiss).
179. For a modern example of a court struggling with this problem and ultimately declining to allow a wife to recover in tort for intentional infliction of emotional distress, see Hakkila v. Hakkila, 812 P.2d 1320 (N.M. Ct. App. 1991). The opinion states: "Even though one may question the utility of such comments, spouses are also free to express negative opinions of one another. "You look awful' or even 'I don't love you' can be very wounding, but these statements cannot justify liability." Id. at 1325.
180. The phrase comes from Menefee v. Commonwealth, 55 S.E.2d 9, 15 (Va. 1949) (discussing the marital communications privilege).
181. See, e.g., DAVID W. BARNES & LYNN A. STOUT, CASES AND MATERIALS ON LAW AND ECONOMICS 53-60 (1992).
182. See the discussion in Hakkila: The connection between the outrageousness of the conduct of one spouse and the severe emotional distress of the other will likely be obscure. Although the victim spouse may well be suffering severe emotional distress, was it caused by the outrageousness of the conduct or by the implied (and privileged) message of antipathy? Hakkila, 812 P.2d at 1325.
183. See, e.g., Lewis v. Lewis, 351 N.E.2d 526, 532-33 (Mass. 1976).
184. Merenoff v. Merenoff, 388 A.2d 951, 962 (N.J. 1978).
185. See, e.g., Surratt v. Thompson, 183 S.E.2d 200, 202 (Va. 1971).
186. For a survey, see generally Robert G. Spector, Marital Torts: The Current Legal Landscape, 33 FAM. L.Q. 745 (1999) (outlining the tort actions that are currently available in the marital context).
187. See, e.g., Eagan v. Calhoun, 698 A.2d 1097, 1099 (Md. 1997). See generally Note, Litigation Between Husband and Wife, 79 HARV. L. REV. 1650, 1659-63 (1966), for an old version of the doctrine and Singer, supra note 123, at 1463-64, for a modern feminist approach.
188. Planned Parenthood v. Casey, 505 U.S. 833, 893-94 (1992).
189. 410 U.S. 113 (1973).
190. Casey, 505 U.S. at 889-94.
191. Favrot v. Burns, 332 So. 2d 873, 875 (La. Ct. App. 1976).
192. See Bartlett, supra note 123, at 488-94 (discussing feminist concerns about sex and reproductive issues).
193. Cf. Poe v. Ullman, 367 U.S. 497, 521 (1961) (finding that a law prohibiting the "use" of contraceptives "reaches into the intimacies of the marriage relationship"; proof of its violation involves "an invasion of privacy that is implicit in a free society"); id. at 548-49 (Harlan, J., dissenting) (discussing contraceptive use by married couples).
194. See In re Pamela P. v. Frank S., 443 N.Y.S.2d 343, 346 (Fam. Ct. 1981) ("Constitutional doctrine as to procreative freedom has developed mainly in the context of women's rights. There can be no question, however, that the Fourteenth Amendment to the Constitution guarantees to a man equally with a woman freedom of choice to use contraception and avoid procreation.") (citing Eisenstadt v. Baird, 405 U.S. 438, 448-49, 453 (1972)).
195. Ephesians 5:28.
196. See PEGGY A. RABKIN, FATHERS TO DAUGHTERS: THE LEGAL FOUNDATIONS OF FEMALE EMANCIPATION 154-55 (1980). See generally RICHARD H. CHUSED, PRIVATE ACTS IN PUBLIC PLACES: A SOCIAL HISTORY OF DIVORCE IN THE FORMATIVE ERA OF AMERICAN FAMILY LAW (1994) (noting the connection between Married Women's Property Acts and the availability of judicial divorce); Reva B. Siegal, Home as Work: The First Woman's Rights Claims Concerning Wives' Household Labor, 1850-1880, 103 YALE L.J. 1073 (1994) (exploring the rise and retreat of the movement for joint property advocacy).
197. See PEGGY A. RABKIN, FATHERS TO DAUGHTERS: THE LEGAL FOUNDATIONS OF FEMALE EMANCIPATION 154-55 (1980). See generally RICHARD H. CHUSED, PRIVATE ACTS IN PUBLIC PLACES: A SOCIAL HISTORY OF DIVORCE IN THE FORMATIVE ERA OF AMERICAN FAMILY LAW (1994) (noting the connection between Married Women's Property Acts and the availability of judicial divorce); Reva B. Siegal, Home as Work: The First Woman's Rights Claims Concerning Wives' Household Labor, 1850-1880, 103 YALE L.J. 1073 (1994) (exploring the rise and retreat of the movement for joint property advocacy).
198. See PEGGY A. RABKIN, FATHERS TO DAUGHTERS: THE LEGAL FOUNDATIONS OF FEMALE EMANCIPATION 154-55 (1980). See generally RICHARD H. CHUSED, PRIVATE ACTS IN PUBLIC PLACES: A SOCIAL HISTORY OF DIVORCE IN THE FORMATIVE ERA OF AMERICAN FAMILY LAW (1994) (noting the connection between Married Women's Property Acts and the availability of judicial divorce); Reva B. Siegal, Home as Work: The First Woman's Rights Claims Concerning Wives' Household Labor, 1850-1880, 103 YALE L.J. 1073 (1994) (exploring the rise and retreat of the movement for joint property advocacy).
199. 2 FREDERICK POLLOCK & FREDERIC WILLIAM MAITLAND, THE HISTORY OF ENGLISH LAW 436 (2d ed. reprint 1923) (1898).
200. 1 MATTHEW HALE, THE HISTORY OF THE PLEAS OF THE CROWN 629 (1736).
201. See, e.g., State v. Smith, 426 A.2d 38, 42-43 (N.J. 1981). Further, no-fault divorce gave the wife the right to voluntarily withdraw from the marital relationship, terminating any such marital contract. See Weishaupt v. Commonwealth, 315 S.E.2d 847, 855 (Va. 1984).
202. See, e.g., VA. CODE ANN. § 18.2-57.2 (Michie 1996) (criminalizing marital sexual assault); id. § 18.2-67.2:1 (requiring marital sexual assault to be reported within sixty days of the offense). See generally Jill Elaine Hasday, Contest and Consent: A Legal History of Marital Rape, 88 CAL. L. REV. 1373 (2000) (describing the evolution of marital rape laws from the 19th century to today).
203. See, e.g., VA. CODE ANN. § 18.2-57.2 (Michie 1996) (criminalizing marital sexual assault); id. § 18.2-67.2:1 (requiring marital sexual assault to be reported within sixty days of the offense). See generally Jill Elaine Hasday, Contest and Consent: A Legal History of Marital Rape, 88 CAL. L. REV. 1373 (2000) (describing the evolution of marital rape laws from the 19th century to today).
204. See, e.g., Kizer v. Commonwealth, 321 S.E.2d 291, 294 (Va. 1984).
205. See Oliver E. Williamson, Transaction-Cost Economics: The Governance of Contractual Relations, 22 J. L. & ECON. 233, 258 (1979); see also Scott & Scott, supra note 45, at 1228-29 (arguing that marriage can and should be analyzed as a long-term relational contract).
206. See Charles J. Goetz & Robert E. Scott, Principles of Relational Contracts, 67 VA. L. REV. 1089, 1092-93 (1981).
207. See Elizabeth S. Scott, Rational Decisionmaking About Marriage and Divorce, 76 VA. L. REV. 9, 42-44 (1990).
208. See id. at 50; Marjorie Maguire Shultz, Contractual Ordering of Marriage: A New Model for State Policy, 70 CAL. L. REV. 204, 209 (1982). One other reason is that couples during engagement are convinced that their particular marriage will not end in divorce, although they are aware that half of all marriages will. Lynn A. Baker & Robert E. Emery, When Every Relationship Is Above Average: Perceptions and Expectations of Divorce at the Time of Marriage, 17 LAW & HUM. BEHAV. 439, 443 (1993) (observing that "the median response of the marriage license applicants was 0% when assessing the likelihood that they personally would divorce").
209. See id. at 50; Marjorie Maguire Shultz, Contractual Ordering of Marriage: A New Model for State Policy, 70 CAL. L. REV. 204, 209 (1982). One other reason is that couples during engagement are convinced that their particular marriage will not end in divorce, although they are aware that half of all marriages will. Lynn A. Baker & Robert E. Emery, When Every Relationship Is Above Average: Perceptions and Expectations of Divorce at the Time of Marriage, 17 LAW & HUM. BEHAV. 439, 443 (1993) (observing that "the median response of the marriage license applicants was 0% when assessing the likelihood that they personally would divorce").
210. See generally Saul Levmore, Love It or Leave It: Property Rules, Liability Rules, and Exclusivity of Remedies in Partnership and Marriage, 58 LAW & CONTEMP. PROBS. 221 (1995) (comparing the "love-it-or-leave-it" rule of marriage dissolution to partnership law).
211. Milton C. Regan, Jr., Spousal Privilege and the Meanings of Marriage, 81 VA. L. REV. 2045, 2049 (1995).
212. Lloyd Cohen, Marriage, Divorce, and Quasi Rents; or, "I Gave Him the Best Years of My Life," 16 J. LEGAL STUD. 267, 300-02 (1987).
213. See Cass R. Sunstein, Incommensurability and Valuation in Law, 92 MICH. L. REV. 779, 814-16 (1994).
214. See generally Nock & Brinig, supra note 56 (demonstrating "how husbands' involvement in women's tasks and wives' involvement in men's tasks affects the chances of marital disruption . . . . explor[ing] the extent to which attitudes, as opposed to fair division of labor, matter for marital stability").
215. See id. (manuscript at 6).
216. See James Sweet et al., The Design and Content of the National Survey of Families and Households, in CENTER FOR DEMOGRAPHY AND ECOLOGY, UNIVERSITY OF WISCONSIN-MADISON, NATIONAL SURVEY OF FAMILIES AND HOUSEHOLDS WORKING PAPER No.1 (1988), available at http://www.ssc.wisc.edu/cde/nsfhwp/nsfhl.pdf (last modified Dec. 15, 1995).
217. Nock & Brinig, supra note 56 (manuscript at 26, tbl.2).
218. See id. (manuscript at 27, tbl.4).
219. See id. (manuscript at 7).
220. See id. (manuscript at 28-29, tbl.4).
221. See id.
222. See id.
223. See id.; see also Nock, supra note 30, at 239-41 (stating that certain behavior in marriage only makes sense if its turn-taking nature is considered and that marriages exist not only in the present, but more vividly in their "histories and futures"); Smith et al., supra note 46, at 321 (reporting that wives do not view their disproportionate share of housework to be unfair when they believe it "helps create a happy and harmonic life").
224. See supra note 119.
225. See Margaret F. Brinig & Steven L. Nock, "I Only Want Trust": Norms, Trust and Autonomy (unpublished manuscript at 15, on file with author).
226. See id. (manuscript at 15-17). For a more general application of the Heisenberg principle of quantum mechanics to economics, see Eric Blankmeyer, The Heisenberg Principle in Economics, available at http://netec.mcc.ac.uk/WoPEc/data/Papers/wpawuwpgt9904004.html (Apr. 20, 1999).
227. See generally Liana C. Sayer & Suzanne M. Bianchi, Women's Economic Independence and the Probability of Divorce: A Review and Reexamination, 21 J. FAM. ISSUES 906 (2000) (concluding that women's greater economic independence does not destabilize marriage). Sayer and Bianchi are trying to disprove the common supposition that women's increased employment (and economic power) destabilizes marriage. They found, using the National Survey of Families and Households (NSFH), that "indicators of marital commitment and satisfaction are better predictors of marital dissolution than are measures of economic independence." Id. at 938. Interest" ingly, Sayer and Bianchi's piece, supra, found that if the husband felt the marriage was troubled or unhappy, it was not a statistically significant predictor of divorce within the next five years. See id. at 932-33. If the wife felt the marriage was troubled or unhappy, there was a statistically significant relationship, holding other things constant, at least to p < .01 and in one model to p < .001. Id. at 929-31 & tbl.3.
228. See Stacy J. Rogers & Paul R. Amato, Have Changes in Gender Relations Affected Marital Quality?, 79 Soc. FORCES 731, 732 (2000); see also Parkman, supra note 22, at 44 (arguing that married women may work outside of the home in order to protect themselves against the economic consequences of no-fault divorce).
229. See Sayer & Bianchi, supra note 172, at 918-19, 932-33.
230. See, e.g., Martha L. Fineman, Implementing Equality Ideology, Contradiction and Social Change, 1983 WIS. L. REV. 789, 809-11; O'Connell, supra note 22, at 1494-98; Marcia O'Kelly, Entitlements to Spousal Support After Divorce, 61' N.D. L. REV. 225, 225-26 (1985).
231. See, e.g., Martha L. Fineman, Implementing Equality Ideology, Contradiction and Social Change, 1983 WIS. L. REV. 789, 809-11; O'Connell, supra note 22, at 1494-98; Marcia O'Kelly, Entitlements to Spousal Support After Divorce, 61' N.D. L. REV. 225, 225-26 (1985).
232. By the winter of 1983, thirty-two states considered nonmonetary contributions (such as being a homemaker, serving as a parent, contributing to career potential of the other spouse, or contributing to the well-being of the family) in determining property distribution and/or maintenance. Doris Jonas Freed & Henry H. Foster, Family Law in the Fifty States: An Overview, 17 FAM. L.Q. 365, 381 & tbl.V (1984).
233. One suggested solution to this problem is to restrict divorce so that the inequalities never surface. Thus some writers have suggested changes in divorce grounds to allow "no fault" divorces only when there is mutual consent. See, e.g., ALLEN M. PARKMAN, NO-FAULT DIVORCE: WHAT WENT WRONG? 137-40 (1992); Allen M. Parkman, Bringing Consistency to the Financial Arrangements at Divorce, 87 KY. L.J. 51, 61 & n.43 (1999); Allen M. Parkman, Reform of the Divorce Provisions of the Marriage Contract, 8 BYU J. PUB. L. 91, 106 (1993). Scott and Scott, supra note 45, argue that divorce, as the termination of relational contract, requires a reasonable opportunity for "winding down" the marriage partnership so that each spouse can disentangle or realize investment. See Scott & Scott, supra note 45, at 1263-84. The Scotts' provision basically gives notice that a divorce will occur after, say, two years. Id. at 1262. But this does not help the spouse who has been emotionally abused nor the spouse who is emotionally reaping no satisfaction from the relationship who also has made career investments.
234. One suggested solution to this problem is to restrict divorce so that the inequalities never surface. Thus some writers have suggested changes in divorce grounds to allow "no fault" divorces only when there is mutual consent. See, e.g., ALLEN M. PARKMAN, NO-FAULT DIVORCE: WHAT WENT WRONG? 137-40 (1992); Allen M. Parkman, Bringing Consistency to the Financial Arrangements at Divorce, 87 KY. L.J. 51, 61 & n.43 (1999); Allen M. Parkman, Reform of the Divorce Provisions of the Marriage Contract, 8 BYU J. PUB. L. 91, 106 (1993). Scott and Scott, supra note 45, argue that divorce, as the termination of relational contract, requires a reasonable opportunity for "winding down" the marriage partnership so that each spouse can disentangle or realize investment. See Scott & Scott, supra note 45, at 1263-84. The Scotts' provision basically gives notice that a divorce will occur after, say, two years. Id. at 1262. But this does not help the spouse who has been emotionally abused nor the spouse who is emotionally reaping no satisfaction from the relationship who also has made career investments.
235. One suggested solution to this problem is to restrict divorce so that the inequalities never surface. Thus some writers have suggested changes in divorce grounds to allow "no fault" divorces only when there is mutual consent. See, e.g., ALLEN M. PARKMAN, NO-FAULT DIVORCE: WHAT WENT WRONG? 137-40 (1992); Allen M. Parkman, Bringing Consistency to the Financial Arrangements at Divorce, 87 KY. L.J. 51, 61 & n.43 (1999); Allen M. Parkman, Reform of the Divorce Provisions of the Marriage Contract, 8 BYU J. PUB. L. 91, 106 (1993). Scott and Scott, supra note 45, argue that divorce, as the termination of relational contract, requires a reasonable opportunity for "winding down" the marriage partnership so that each spouse can disentangle or realize investment. See Scott & Scott, supra note 45, at 1263-84. The Scotts' provision basically gives notice that a divorce will occur after, say, two years. Id. at 1262. But this does not help the spouse who has been emotionally abused nor the spouse who is emotionally reaping no satisfaction from the relationship who also has made career investments.
236. For a discussion noting that many feminists favored equal division of property during divorce reform efforts of the 1970s and 1980s, see Bartlett, supra note 123, at 479-80. See also Fineman, supra note 175, at 836 (noting that the Wisconsin Marriage and Divorce Act has a rebuttable presumption of equal division instead of needs-based settlement); Isabel Marcus, Locked In and Locked Out: Reflections on the History of Divorce Law Reform in New York State, 37 BUFF. L. REV. 375, 450 (1988-89) (noting that many feminists find the "rebuttable presumption of equal distribution" more attractive than "equitable distribution").
237. See Susan Westerberg Prager, Sharing Principles and the Future of Marital Property Law, 25 UCLA L. REV. 1, 1 (1977); Michael J. Vaughn, The Policy of Community Property and Inter-spousal Transactions, 19 BAYLOR L. REV. 20, 20-21 (1967).
238. See Susan Westerberg Prager, Sharing Principles and the Future of Marital Property Law, 25 UCLA L. REV. 1, 1 (1977); Michael J. Vaughn, The Policy of Community Property and Inter-spousal Transactions, 19 BAYLOR L. REV. 20, 20-21 (1967).
239. See, e.g., Marcus, supra note 178, at 438-39 & n.255 (stating that otherwise the system is fundamentally unfair).
240. See Brinig, supra note 64, at 423.
241. See June Carbone, Economics, Feminism, and the Reinvention of Alimony: A Reply to Ira Ellman, 43 VAND. L. REV. 1463, 1487 & n.100 (1990).
242. ALI PRINCIPLES (Proposed Final Draft 1997), supra note 27, § 5.05.
243. This is what I see as the primary problem of a number of contract-based solutions. See generally Brian Bix, Bargaining in the Shadow of Love: The Enforcement of Premarital Agreements and How We Think About Marriage, 40 WM. & MARY L. REV. 145 (1998) (arguing that a contractual, market-based model of marriage is not entirely appropriate); Wax, supra note 22 (describing how strictly market based notions fail to capture the full reality of "marital bargaining").
244. See Nock, supra note 30, at 238-39.
245. Staudt, supra note 22, at 1647 (proposing taxing women's contributions to GNP like any other work so that these contributions will be valued and also "earn" such benefits as Social Security). For a more recent approach on getting rid of marriage tax, see Amy L. Wax, Caring Enough: Sex Roles, Work and Taxing Women, 44 VILL. L. REV. 495, 518-23 (1999) (suggesting that removal of the more burdensome tax on the second, more elastic, earner will reduce women's immiseration; finding the source of the role inequality not in housework but in childcare). See generally EDWARD J. MCCAFFERY, TAXING WOMEN (1997), for a discussion of these principles.
246. Staudt, supra note 22, at 1647 (proposing taxing women's contributions to GNP like any other work so that these contributions will be valued and also "earn" such benefits as Social Security). For a more recent approach on getting rid of marriage tax, see Amy L. Wax, Caring Enough: Sex Roles, Work and Taxing Women, 44 VILL. L. REV. 495, 518-23 (1999) (suggesting that removal of the more burdensome tax on the second, more elastic, earner will reduce women's immiseration; finding the source of the role inequality not in housework but in childcare). See generally EDWARD J. MCCAFFERY, TAXING WOMEN (1997), for a discussion of these principles.
247. See Elizabeth S. Scott & Robert E. Scott, Parents as Fiduciaries, 81 VA. L. REV. 2401, 2450-51 (1995) (advocating giving parents privileges to compensate them as fiduciaries unless they are shown to be unfit).
248. See Sandra J. Libeson, Comment, Reviving the Comparable Worth Debate in the United States: A Look Toward the European Community, 16 COMP. LAB. L.J. 358, 394-96 (1995).
249. See, e.g., UGa President's Wife to Receive Stipend, FLA. TIMES-UNION, Oct. 19, 2000, at B5 (reporting that the president's wife will receive a $30,000 annual compensation). See generally Julianne Basinger, A Paycheck for Presidents' Spouses?, CHRON. OF HIGHER EDUC., Sept. 22, 2000, at A37 (citing survey data and discussing the case of Mary Ann Shaw, who has a formal title with the provost's office and earns $65,000 at Syracuse University).
250. See, e.g., UGa President's Wife to Receive Stipend, FLA. TIMES-UNION, Oct. 19, 2000, at B5 (reporting that the president's wife will receive a $30,000 annual compensation). See generally Julianne Basinger, A Paycheck for Presidents' Spouses?, CHRON. OF HIGHER EDUC., Sept. 22, 2000, at A37 (citing survey data and discussing the case of Mary Ann Shaw, who has a formal title with the provost's office and earns $65,000 at Syracuse University).
251. See MARTHA ALBERTSON FINEMAN, THE NEUTERED MOTHER, THE SEXUAL FAMILY AND OTHER TWENTIETH CENTURY TRAGEDIES 161-64, 231-32 (1995) (advocating that "inevitable dependants" should be placed along with their caregivers in the legal category of the family); see also Martha L.A. Fineman, Masking Dependency: The Political Role of Family Rhetoric, 81 VA. L. REV. 2181, 2200 (1995).
252. See MARTHA ALBERTSON FINEMAN, THE NEUTERED MOTHER, THE SEXUAL FAMILY AND OTHER TWENTIETH CENTURY TRAGEDIES 161-64, 231-32 (1995) (advocating that "inevitable dependants" should be placed along with their caregivers in the legal category of the family); see also Martha L.A. Fineman, Masking Dependency: The Political Role of Family Rhetoric, 81 VA. L. REV. 2181, 2200 (1995).
253. See generally Scott M. Stanley et al., Strengthening Marriages and Preventing Divorce: New Directions in Prevention Research, 44 FAM. REL. 392 (1995) (reporting on the Prevention and Relationship Enhancement Program (PREP) eighteen-year follow-up study). The program focuses on couples' communication skills and handling of conflict. See id. at 394; see also William Doherty Home Page, at http://www.nco.northfield.mn.us./doherty/index.html (last visited Mar. 22, 2001) (featuring many publications of William Doherty, Director of the Marriage and Family Therapy Program at the University of Minnesota and proponent of couple education).
254. See generally Scott M. Stanley et al., Strengthening Marriages and Preventing Divorce: New Directions in Prevention Research, 44 FAM. REL. 392 (1995) (reporting on the Prevention and Relationship Enhancement Program (PREP) eighteen-year follow-up study). The program focuses on couples' communication skills and handling of conflict. See id. at 394; see also William Doherty Home Page, at http://www.nco.northfield.mn.us./doherty/index.html (last visited Mar. 22, 2001) (featuring many publications of William Doherty, Director of the Marriage and Family Therapy Program at the University of Minnesota and proponent of couple education).
255. Bartlett, supra note 123, at 475. Feminists have questioned "the justice of a legal regime that has permitted, even reinforced, the subordination of some family members to others." Id.