Duty in Divorce: Shared Income as a Path to Equality

Fordham Law Review, Dec 1990

By Jane Rutheford, Published on 01/01/90

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Duty in Divorce: Shared Income as a Path to Equality

Duty in Divorce: Shared Income as a Path to Equality Jane Rutheford 0 0 Thi s Article is brought to you for free and open access by FLASH: The F ordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The F ordham Law Archive of Scholarship and History. For more information , please contact Recommended Citation Jane Rutheford, Duty in Divorce: Shared Income as a Path to Equality, 58 Fordham L. Rev. 539 (1990). Available at: http://ir.lawnet.fordham.edu/flr/vol58/iss4/1 - Article 1 * Assistant Professor, DePaul College of Law. A.B. University of Chicago; J.D. University of Michigan. I would like to thank Martha Minow, Timothy O'Neill, Carol Parker and Mark Weber for their invaluable comments on earlier drafts of this article. I am also grateful to James Anderson and Zena Shuber for their excellent research. This Article was funded by the Faculty Research Fund of DePaul University College of Law. 572 574 FOR many years American divorce law was typified by the vengeful X motto of an "eye for [an] eye, [and a] tooth for [a] tooth"' or more accurately, a house for an extramarital affair. The concept of fault permeated divorce law. The fault concept established the permissible grounds for divorce and provided the basis for resolving the financial affairs of the divorcing couple. If a party could not demonstrate that a spouse was at fault, no divorce would be granted.' Carried to its logical extreme, the fault-based theory of divorce resulted in the doctrine of recrimination, which provided that when both parties were guilty no divorce could be granted.' 1. Exodus 21:24. 2. See H. Clark, The Law ofDomestic Relations in the United States § 12.1, at 40809 (2d Student ed. 1987); Friedman, RightsofPassage: DivorceLaw in HistoricalPerspective, 63 Or. L. Rev. 649, 653 (1984). 3. See, e.g., Rankin v. Rankin, 181 Pa. Super. 414, 124 A.2d 639 (1956). In Rankin, the husband allegedly kicked his wife and stood on top of her after she fell, causing her to suffer a herniated disc. On other occasions the wife allegedly threatened the husband with a butcher knife, tried to run him down with a car and threw a chair at him. Nevertheless, the court refused to grant a divorce: "If both are equally at fault, neither can clearly be said to be the innocent and injured spouse, and the law will leave them where they put themselves ... ." Id. at 424, 124 A.2d at 644. The irony of forcing two such individuals to remain married has not escaped criticism. For example, Walter Wadlington likened recrimination to the absurdist Sartre play, No Typical grounds for divorce included adultery, desertion, cruelty, habitual drunkenness, impotence, and infection with venereal disease.' The grounds for divorce operated as a list of prohibited behavior that set norms for couples who remained married. The statutes impliedly created duties during marriage. For example, a statute that defined adultery as a ground for divorce implied a duty to be faithful during marriage. Thus, fault created a tort model for divorce.' Accordingly, fault affected the financial allocations between divorcing spouses. Some states directly tied the availability of certain remedies to the absence of fault. For example, in most states alimony was available only to "innocent" wives. 6 Even in those states that did not directly condition remedies on good conduct, fault played an important role in the bargaining for a financial settlement.7 Because the "guilty" spouse needed grounds for divorce, the "innocent" spouse could block the divorce if dissatisfied with the financial settlement. This connection between fault and financial allocations was a double-edged sword. If the wealthier party was guilty, the other spouse could threaten to block the divorce and bargain for a better financial settlement.' This system, however, did little to protect powerless but guilty spouses. Thus, poverty might be the price of an extra-marital affair.9 This theme of poverty as an inevitable result of adultery is common in literature. 1 Given the tremendous impact of a finding of fault, many witnesses in divorce proceedings were less than candid about their conduct. In the 1970s, critics began to attack what they viewed as the hypocrisy of a system that required parties to perjure themselves to secure a divorce." Soon the motto changed to "Let he who is without sin cast the first stone."12 This motto reflected several major criticisms of the fault Exit. See Wadlington, Divorce Without Fault Without Perury,52 Va. L. Rev. 32, 38-39 (1966). 4. See, ag., Ill. Ann. Stat. ch. 40, para. 401 (Smith-Hurd 1980). 5. See H. Clark, supra note 2, § 12.1, at 409. 6. At one time, virtually all the states denied alimony to guilty spouses. See L. Weitzman, The Divorce Revolution: The Unexpected Social and Economic Consequences for Women and Children in America 146 (1985). Seven jurisdictions still consider fault to be a bar to spousal support. See Ga. Code Ann. § 19-6-1(b) (1982); Idaho Code § 32-705 (1983); La. Civ. Code Ann. art. 160 (West Supp. 1990); N.C. Gen. Stat. § 50-16.6 (1984); S.C. Code Ann. § 20-3-130 (1985); Va. Code Ann. § 20-107.1 (Cum. Supp. 1985); P.R. Laws Ann. tit. 31, § 385 (1967). 7. See L. Weitzman, supra note 6, at 13 ("Since both the granting of the divorce and the financial settlements were linked to fault, the 'innocent party' had a powerful lever to use in property and alimony negotiations."). 8. See id. at 26 (arguing that this enhanced bargaining power of the innocent spouse was an important financial protection for women). 9. See id. at 323. 10. See, e.g., T. Dreiser, Sister Carrie (1900); L. Tolstoy, Anna Karenina (J. Carmichael trans. 1960). 11. See Wadlington, supranote 3, at 33 n.2 (quoting a judge "I have never been comfortable in a matrimonial court.... We find nothing but perjury and collusion."). 12. Indeed, this rule arose in the context of adultery. The Old Testament punishment for adultery was to be stoned to death. According to the biblical story, a crowd brought ['Vol. 58 system: first, that both spouses are likely to engage in some degree of misbehavior in any troubled marriage; second, that the law should not encourage people to lie about their behavior; and finally, that courts should not examine private marital conduct. By 1985, all fifty states had adopted some form of a no-fault divorce statute."3 Although the no-fault scheme seemed more realistic, it undermined the old rules for allocating money and property. The old rules had been built on a theory of "You play, you pay." The rejection of the fault scheme does not imply rejection of the fault rules for allocating resources at divorce in the absence of a better alternative. Since the fault system also had defined marital duties, the no-fault approach would have to redefine such duties as well as allocate financial resources. Two alternative sources for duty come to mind: contract and partnership. Although both approaches offer some insights, neither is completely appropriate for use in family law. Although there are some similarities between partnerships and families, partnership law is not entirely appropriate for use in family law. Each member of a family has both personal interests and group interests. Problems arise in deciding when group claims can validly trump14 individual claims and in deciding what principles should guide a choice between competing claims of individuals within the family. These problems really involve issues of power. Such power usually has an economic base. The law tends to favor the economically powerful party. Frequently, this preference takes the form of protecting property interests or capital, or both, at the expense of labor. For example, when a business partnership dissolves, partners are entitled to recover their capital contributions, but are not entitled to be paid for their services1. Thus, when one partner contributes most of the capital while another contributes most of the services, the rich partner recovers his or her investment, but the hard worker does not. 16 The contract model is also inconsistent with how families operate. Spouses often provide free services to their families. Generally, wives an adulteress to Jesus to be punished, and Jesus responded with the famous adage, "'He who is without sin among you, let him throw a stone at her first.'" John 8:7. 13. South Dakota became the last state to adopt some form of no-fault statute in 1985. See S.D. Codified Laws Ann. § 25-4-2(7) (Supp. 1989). For a history of the adoption of no-fault divorce, see L. Halem, Divorce Reform 233-83 (1980). 14. See R. Dworkin, A Matter of Principle 370 (1985) (discussing when rights can "trump" utility). 15. Uniform Partnership Act section 18(a) provides for partners to recover their capital contributions, and section 18(f) provides: "No partner is entitled to remuneration for acting in the partnership business . . . ." UPA § 18(f), 6 U.L.A. 213 (1914). 16. Although courts may imply an agreement for compensation when some partners are completely inactive, generally courts refuse to compensate partners for their efforts, even when the efforts have been one-sided. See J. Crane & A. Bromberg, The Law of Partnership 375-79 (1968). For an analogy to the situation most women face in marriage, see infra notes 85-87 and accompanying text. provide more free services than do husbands. Indeed, at least one court expressly held that a wife "must perform 'her household and domestic duties ... without compensation therefor.' 117 This duty to contribute free labor is reflected in the trend toward decreasing" or eliminating alimony, which is arguably a form of payment for labor.19 Not surprisingly, the beneficiaries of this free labor fare better after divorce; divorced men experience a 42 percent increase in their standard of living, while divorced women experience a 73 percent decrease in their standard of 20 living. A duty of free service arguably arises from the terms of the original contract2. z Marriages, however, are not simple contracts that should be enforced so inequitably. Instead, the initial agreement between spouses should be viewed as a constitution which sets general ground rules for a relationship that will develop over time.22 Accordingly, there are problems with a simple contract model. To the extent that any duties arise from marital relationships, they do not arise from contract, but from the division of labor that evolves within the relationship.23 The duty that emerges from this division of labor is not the duty to work for free, but rather the mutual duty to share income. The thesis of this Article is that divorce law should strive to reach a fair or just result, rather than merely to reflect the existing power structure. Indeed, the power structure within the marriage may be influenced by the social and economic positions that each spouse occupies in society. Accordingly, when there are competing claims, we should strive to achieve an equitable result.2 4 Many previous attempts to foster equality have either been counter-productive, or have simultaneously encouraged selfishness at the expense of family solidarity.2 5 The goal of this piece is to suggest an approach that promotes both sharing and equality. This Article identifies the source and nature of certain family duties. Part I examines the unique character of the family and the advantages and disadvantages of searching for analogies elsewhere in law to define family duties. Part I criticizes the contract model because it has curtailed fault-based duties that protected families, without enforcing contractual duties with appropriate remedies. Part I goes on to examine the partnership model, which provides a more useful analogy in fiduciary duties, but which fails as a model for marital relationships in terms of purpose, context, and remedies and also fails to address the underlying problem of inequality. Part II discusses the real source of family duties: the division of labor within the family. Finally, Part III argues that income sharing can resolve problems created by the current state of divorce law and encourage both sharing and equality. I. THE NATURE OF FAMILY DUTIES Families are unusual because, in some instances, they create non-consensual relationships. 6 For example, children do not choose their parents, nor their siblings, nor in any meaningful sense do parents choose children. Generally, of course, parents choose to have children. But that choice is quite different from other voluntary relationships like the choice of a business partner. First, it is likely that far more children are accidentally conceived than partnerships. Second, a person searching for a business partner has the opportunity to meet and investigate the prospective partner first. Parents, in contrast, commit to receive an infant sight unseen. In some respects, however, marriages seem contractual in nature. The couple knows each other in advance, and may reduce their agreements to writing in an antenuptial agreement. There also may be a strong economic motive in marriage.2 7 Nevertheless, the primary goal of the marU. Fla. L. Rev. 627, 647-48 (1987); see also R. Dworkin, Taking Rights Seriously 272-73 (1977) (arguing that ( 1 ) the most fundamental right is the right to be treated equally, and ( 2 ) therefore we may need to redistribute some forms of wealth). 25. Thus, Olsen sets up a dilemma: "Reforms that increase the juridical equality of wives, however, also tend to undermine altruism and foster individual selfishness.... Reforms that encourage altruistic behavior within the family tend at the same time to encourage and legitimate sex hierarchy within the family." Olsen, The Family and the Market: A Study ofIdeology and Legal Reform, 96 Harv. L. Rev. 1497, 1559 (1983). 26. "The family, insofar as it differs from the relationship of husband and wife, is an institution. Yet it does not develop out of a constitutive contract. Children are born and reared without ever having agreed to become family members. Nor do parents ordinarily agree to be responsible for them." D. Funk, supra note 22, at 110. 27. Even Aristotle admits that marriage involves both a profit motive and an emotional one. "[-]uman beings cohabit not merely to produce children but to secure the necessities of life .... For this reason it is thought that both utility and pleasure have a place in conjugal love." Aristotle, The Ethics 280 (J.A.K. Thompson trans. 1976). riage is the relationship itself, rather than external motivations. Aristotle said, "[Pleople enjoy being loved for its own sake."2 8 Similarly, As Ferdinand Tonnies, the German sociologist, distinguishes between the kind of institution based on emotional commitment (a Gemeinschaft or community) from one based on more purely rational motives such as profit (a Gesellschaft or society).29 such caring cannot be generalized to a market.3 2 This Gemeinschaft spirit epitomizes another unique characteristic of families that distinguishes the family from other relationships. Families, at least ideally, are supposed to care.30 Even in unhappy homes, the atmosphere is emotionally charged. To the extent that marriages are based on love, spouses share not merely because they have agreed to, but because helping a loved one brings pleasure. 31 As Judith Areen has argued, The issue becomes how the goal of caring can be incorporated into a set of objective and enforceable legal duties in the context of divorce. Two models have been proposed, one based on contract law and the other on partnership law. As Frances Olsen has argued, there are remarkable parallels in the theories that support commercial and family law.3 3 Both have inherited a discourse based on individual self-interest that finds its basis in social contract theory. Under this view, government itself is the voluntary "social contract" entered into by inherently autonomous individuals. 34 If governments must be legitimated by contract then arguably the formation of smaller groups, such as families, must also be based on voluntary contract.35 The contract model presumes that duties can only arise from contract: we only owe those duties we have voluntarily assumed. Not all duties, however, are contractual. For example, Aristotle believed that the claims of justice increase with intimacy, so that we owe more to our family than to others.36 However, he did not see family as a contractual relationship.3 7 Similarly, the modern philosopher, Michael Sandel, believes that family duties are not exclusively based in contract. He has argued that although some duties may arise because we agree to assume them, others arise because we owe them as a matter of reciprocity or dependency. 38 For example, we may owe certain duties to our parents, not because we agreed to accept them, but because we should reciprocate for the care we have received. 39 These duties exist independent of any contract. 547-48 (1983) (arguing that wrongful dissolution provisions of the UPA should be interpreted broadly to be consistent with social contract theory); see also Teitelbaum, Family History and FamilyLaw, 1985 Wis. L. Rev. 1135, 1139 ("It is unclear whether the principles of family organization followed from principles generally governing social organization or the reverse."); cf L. Weitzman, The Marriage Contract xix (1981) (arguing that despite problems with the contract model of marriage, couples should reduce their commitments to contracts). 36. See Aristotle, supra note 27, at 273. 37. See id. at 280 ("The love between husband and wife is considered to be naturally inherent in them."). 38. "From the standpoint of reciprocity.., the need for consent fades, and I may be obligated in virtue of benefits I do not want or dependencies beyond my control." M. Sandel, Liberalism and the Limits of Justice 107 (1982). "[T]o some I owe more than justice requires or even permits, not by reason of agreements I have made but instead in virtue of those more or less enduring attachments and commitments which taken together partly define the person I am." Id. at 179. 39. Focusing on reciprocity, rather than the inherent value of the caring relationship, devalues love and overvalues commodifiable skills and money. Consider the example of my elderly mother who needed care in her declining years. If I look at our relationship in terms of reciprocity, then the argument is that I should help her now because she helped me when she was younger and more fit. Thus, because she fed me, educated me, took care of me when I was sick, and even babysat for my children, I should care for her now. Such a purely reciprocal model has two serious dangers. First, it diminishes the pleasure I take in caring for my elderly mother. I no longer engage in acts of love, but am rather paying off old, involuntary debts. After all, no child chooses its mother or volunteers to be born or cared for as a child. Thus, the reciprocal model transforms acts of joyful love into burdensome obligations. The reciprocal approach also robs my elderly mother of any vestige ofself esteem. My mother-comes to see herself as simply a burden and asks, "What good am I?" Her value in a purely reciprocal world is limited to the services she has contributed. Once too old or infirm to cook, clean, or babysit she has no value at all, either to herself or others. And yet I view my elderly mother as having immense value. The true value of my mother is not measured in the market value of the services she performs for me. I can purchase those services elsewhere. Her value comes from the relationship we have formed. My mother has inestimable value. Indeed, she is irreplaceable. Family is valuable simply because of its unique claim on our emotions, not because it has any market value. We have not established a sufficient standard for familial duty if we make my legal duty to care for my mother turn on how much I love her. If that were the standard, I would be rewarded for being an ingrate; I would owe her no duty if I did not love her. Even where some sort of a contract exists, the contract may create a relationship that implies duties we have not expressly agreed to accept." Thus, for example, two professionals may marry and agree that they will pay all of their own expenses. If one of the two later becomes ill, the healthy spouse may have a duty to pay for the sick spouse's medical expenses.41 The Uniform Partnership Act ("UPA") creates such duties beyond the scope of the contract. For example, UPA section 21 defines partners as fiduciaries.4 2 Fiduciaries are parties who occupy a position of trust and owe special duties.43 These duties arise from society's need to regulate the partners' behavior. Duties arising from social regulation are necessary to sustain the relationship between members of any group in which there is a division of labor. As Emile Durkheim wrote: "If society no longer imposes upon everybody certain uniform practices, it takes greater care to define and regulate the special relations between different social functions .. .,,4 Durkheim argues that these duties arise not from any contract, but from the division of labor itself.45 Although marital duties are largely non-contractual, the Uniform Marriage and Divorce Act ("UMDA") 46 defines marriage as a con40. See M. Sandel, supra note 38, at 108 ("Such obligations are thus not contractual in the strict sense that the contract creates the obligation, but rather in the limited epistemic or heuristic sense that the contract helps to identify or clarify an obligation that is already there." (citation omitted)); see also E. Durkheim, supra note 23, at 212 ("[Wjhat shows better than anything else that contracts give rise to obligations which have not been contracted for is that they 'make obligatory not only what there is expressed in them, but also all consequences which equity, usage, or the law imputes from the nature of the obligation.'" (citation omitted)). 41. For a discussion of the extent to which spouses are liable for expenses, see H. Clark, supra note 2, § 6.1, at 257-58. 42. See UPA § 21, 6 U.L.A. 258 (1914). 43. In Meinhard v. Salmon, 249 N.Y. 458, 464, 164 N.E. 545, 546 (1928), Justice Cardozo articulated a now famous definition of fiduciary duty: Many forms of conduct permissible in a workaday world for those acting at arm's length, are forbidden to those bound by fiduciary ties. A [fiduciary] is held to something stricter than the morals of the marketplace. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior. Id. 44. E. Durkheim, supra note 23, at 205. 45. See id. at 201 ("The hypothesis of a social contract is irreconcilable with the notion of the division of labor."). 46. The UMDA is used as a basis for comparison to the UPA throughout this Article because it represents a consensus of the commissioners of uniform laws. It also represents the national trend to limit alimony. See supra note 18. The UMDA has been adopted by eight states. See Ariz. Rev. Stat. Ann. §§ 25-311 to 25-339 (1976 & Supp. 1989); Colo. Rev. Stat. §§ 14-2-101 to 14-2-113, 14-10-101 to 1410-133 (1987 & Supp. 1989); Ill. Ann. Stat. ch. 40, para. 101 to 802 (Smith-Hurd 1980 & Supp. 1989); Ky. Rev. Stat. Ann. §§ 403.010, 403.110 to 403.350 (Michie/Bobbs-Merrill 1984 & Supp. 1988); Minn. Stat. Ann. §§ 518.002 to 518.66 (West Supp. 1990); Mo. Ann. Stat. §§ 452.300 to 452.415 (Vernon 1986 & Supp. 1990); Mont. Code Ann. §§ 40-1-101 FORDHAM LAW REVIEW[ tract.47 When marriages dissolve, the results usually are determined by agreement, rather than by litigation.4" The function of law is to provide default provisions that will govern if the parties cannot agree.49 Parties are unlikely to agree to give up more than is required by the legal rules, which, thus, operate as a practical limit on the terms of the agreement.5 0 B. Limits on the ContractModel The contract model is difficult to apply to families and divorce. Application of the contract model requires that some troublesome elements of family relations be discarded. The duty to support former spouses is an example. This duty provided former spouses some degree of financial protection. Dismantling the duty may not have been so devastating had the contract model consistently applied a contract measure of damages to supply protection. The shift from a tort theory to a contract theory, however, dismantled the duty, but refused to allow a non-breaching party to recover expectation damages. Thus, divorce law currently applies a contract model when it advances powerful interests, but abandons the model when it challenges those interests. This inconsistency results from trying to force marriage into a contract model, which also creates several additional problems. For example, marriage is not purely contractual because it evolves over time and because it must accommodate interests of children and society that do not arise from any contract. To the extent there are contractual elements of marriage, they are difficult to define. In addition, as currently defined by the UMDA, these contractual duties devalue sharing and caring. Finally, the search for a breaching party may be perilously close to the traditional search for fault. 1. The Nature of Marriage: Contract or Community? Marriage is not a simple contract. "[A] contract is a private 'ordering' in which a party binds himself to do, or not to do, a particular thing."5 1 to 40-1-404, 40-4-101 to 40-4-221 (1989); Wash. Rev. Code Ann. §§ 26.09.010 to 26.09.902 (1986 & Supp. 1990). 47. "Marriage is a personal relationship between a man and a woman arising out of a civil contractto which the consent of the parties is essential." UMDA § 201, 9A U.L.A. 160 (1973) (emphasis added). This language was meant to underscore the nature of marriage as a contract: "This section ...emphasizes the legal concept of marriage as a civil contractual status ...." UMDA § 201 comment, 9A U.L.A. 161 (1973). 48. Most divorces are uncontested. See Mnookin & Kornhauser, Bargainingin the Shadow of the Law: The Case of Divorce, 88 Yale L.J. 950, 951 (1979). 49. See id. at 957. 50. For example, some states have adopted statutes that set minimum percentages or amounts for child support. See, e.g., Cal. Civ. Code § 4722 (West Supp. 1990); Colo. Rev. Stat. § 14-10-115(10)(b) (1987); Ill. Ann. Stat. ch. 40, para. 505(a)( 1 ) (Smith-Hurd Supp. 1989). Although these statutes are supposed to provide the minimum, they actually operate as a ceiling or maximum, since supporting parents are unlikely to agree to pay more than they have to. 51. Joseph Martin, Jr. Delicatessen, Inc. v. Schumacher, 52 N.Y.2d 105, 109, 417 For example, a simple contract might require one party to perform a specific job in return for a specific price. Marriage does not require particular obligations; it requires the parties to relate to each other over time. 2 Changes that occur over time may be fundamental and cannot be accounted for by contract. 3 Indeed, our very personalities and values may change.5 4 The marriage we enter at twenty may not be the same as the one we leave at forty. For example, although a couple may agree in advance to have children, they cannot anticipate how having children may change their approach to their careers or each other. Some may react by working more to generate extra income. Others may limit their careers to spend more time with their children. These decisions are interdependent; it may only be possible for one spouse to work extra hours if the other spouse limits a career to assume a greater share of the child-rearing responsibilities. The particular obligations can and will change as the needs and values of the family change. Accordingly, the marriage vows operate more like a constitution, which sets the ground rules for a relationship, than a specific contract to achieve a particular result.5 Family duties also exist to limit the freedom of the spouses and protect the interests of children, creditors and society. Thus, spouses are not free to agree to neglect their children or cheat their creditors. These duties are not voluntarily assumed, but are imposed externally to protect third parties. Defining the Terms of the Contract Because marriage is not a simple contract, it is difficult to define the contractual terms of marriage. Marriage is similar to a contract because of a sense of mutuality, not because there is express agreement on most of the terms. The terms of a typical Christian marriage contract5 6 are usuN.E.2d 541, 543, 436 N.Y.S.2d 247, 249 (1981); accord K.C. Working Chemical Co. v. Eureka-Security Fire & Marine Ins. Co. 82 Cal. App. 2d 120, 133, 185 P.2d 832, 840 (1947); McInerney v. Detroit Trust Co., 279 Mich. 42, 46, 271 N.W. 545, 546 (1937). This definition is somewhat similar to what Ian Macneil calls "discrete exchange". Macneil, Relational Contract: What We Do and Do Not Know, 1985 Wis. L. Rev. 483, 485. Macneil argues that contract also must consider the relationships that form around the bargain as well. 52. In this sense, then, such relationships are more similar to Macneil's relational contract. See Macneil, supra note 51, at 485-86. 53. For a more detailed explanation of such fundamental changes that might justify restricting absolute freedom of contract, see Kronman, Paternalismand the Law of Contracts, 92 Yale L.J. 763 (1983). 54. See id. at 780-84. 55. David Funk refers to these underlying agreements as "constitutive contracts," and the resulting relationships as "constitutive contract institutions." D. Funk, supra note 22, at 109-10. 56. The Jewish tradition is quite different. Jews generally have a formal marriage document called a Ketubbah, which is designed to protect women financially at divorce and provides a specific amount to be paid in the event the husband divorces the wife. ally vague. Many couples promise to love and care for each other for better or worse, in sickness and in health, until death." Notably absent from such vows are promises about income or property during the course of the marriage, let alone at divorce. Indeed the contract model is inconsistent with our societal view of marriage based on romantic love.5" The happy newlyweds may each have very different ideas about the way they intend to handle their money. Accordingly, it may be difficult to determine what the original expectations of the couple were. As stated earlier, marriages must be able to adapt to changing circumstances. 59 For example, a couple initially may decide to keep their earnings separate. If one spouse later decides to change careers or return to school, then they may want to switch to an income sharing approach. Even more problematically, only one spouse may want to change. It might be more accurate to say that spouses agree to work things out as they go along. Such contracts are ambiguous at best. When faced with ambiguous contracts, courts sometimes look to the actual course of dealing between the parties to determine their intent. 60 Although the UMDA considers marriage a contract, it does not provide for any investigation into the actual intent of the parties. Instead, the UMDA establishes default provisions that take the place of the parties' expectations. The Effect of Contractual Families: Devaluing Caring and Sharing The terms of the UMDA default provisions are antithetical to the notion that married couples should provide support and share resources. The UMDA limits the duty to support a former spouse to instances in which the spouse is unable to work outside the home.6 1 Thus, the UMDA sets a norm of two spouses both working full-time outside the home to generate income. That norm is unrealistic. Even employed women do not earn as much as men. 62 Hence, the UMDA favors earners over homemakers, including employed homemakers. I use the term Ketubbahs, however, are seldom explicitly negotiated. Originally they were deeds signed only by the husband, and the amount to be paid was established by local custom. Currently, the Ketubbah usually is a standardized form. See M. Elon, The Principles of Jewish Law 388 (1975). 57. These are typical Christian vows. See, e.g., The Book of Common Prayer 424 (1979) ("[W]ill you have this man to be your husband; to live together in the covenant of marriage? Will you love him, comfort him, honor and keep him, in sickness and in health; and, forsaking all others, be faithful to him as long as you both shall live?" The husband makes nearly identical vows). 58. See L. Weitzman, supra note 6, at xvi. 59. See supra notes 51-54 and accompanying text. 60. See Restatement (Second) of Contracts § 202( 5 ) (1979). 61. See UMDA § 308, 9A U.L.A. 347-48 (1973) ("[T]he court may grant a maintenance order for either spouse only if it finds that the spouse seeking maintenance: ... is unable to support himself through appropriate employment .... "). 62. See United States Dep't of Commerce, Bureau of the Census, NationalDataBook and Guide to Sources, StatisticalAbstract of the United States 406 (1989) [hereinafter StatisticalAbstract]. 1990] "homemaker" to describe the person within a marriage who contributes most of the services in the home. Increasingly, homemakers are also employed outside the home.63 In a fully egalitarian household, both spouses may be homemakers. Instead of encouraging spouses to share income or engage in caretaking roles, the UMDA rewards partners who maximize their individual earnings. The time homemakers spend on household tasks cannot be spent earning money. Therefore, spouses who downplay household tasks to maximize their individual earnings do so at the expense of the family, either in higher costs for services, or in inferior services. Accordingly, the UMDA default provisions neither encourage sharing nor protect homemakers. Instead, the default provisions reward the powerful earner by eliminating the duty to support a former spouse. These provisions, which protect earners, were initially justified as a method to empower homemakers. In reality, they were not an attempt to make homemakers more powerful, but rather to transform them into earners. When powerful interests are at stake, the UMDA abandons the contract model. The UMDA creates a statutory duty to contribute labor," but it does not create any remedies to protect the laborer. The obvious contract remedy would be a breach of contract action. 4. Finding a Breaching Party: A Return to Fault Although the UMDA defines marriage as a contract, it does not treat a divorce as a breach of contract action. Traditionally, when a contract is breached, the remedy attempts to fulfill the expectations of the parties.65 At the time they marry, spouses arguably expect to share income for life. Although not all spouses expect to share all their income, most couples likely plan to share at least some income. For example, one spouse may at least contribute to living expenses, or create an allowance, even if he or she does not share income equally. Of course, even if the couple expects to share income, they may acknowledge the possibility that the marriage may end prematurely. However, at the time they marry, and while the marriage continues, they expect the relationship to continue.66 The UMDA rejects expectation damages partly to avoid assigning fault, which results from the necessity to find a breaching party. For example, if a wife has an extra-marital affair, has she breached the contract? Is her behavior excused if the husband had an affair first, or have they both breached the contract? What if she has affairs to retaliate be63. Thus the number of families in which both spouses were earners increased from 12,990,000 in 1980 to 14,955,000 in 1987. See id. at 407. 64. Thus the UMDA only allows maintenance when a spouse "is unable to support himself through appropriate employment .. " UMDA § 308(a)( 2 ), 9A U.L.A. 348 (1973). 65. See Restatement (Second) of Contracts § 347 comment a (1979). 66. See, e.g., S. Sheehan, A Welfare Mother 10 (1976) (quoting a welfare mother: "'When we married, I thought the marriage would last forever.' "). cause he drinks too much? Is her breach more serious? If so, does she become the breaching party? In fact, it may be unrealistic to assume that only one of the spouses caused the breach. Bad relationships develop over time, as do good ones. The spouse who commits the final breach "may merely be reacting to a situation which is not of his or her making."'6 7 Thus, in determining which spouse breached the contract, the *court would have to review each spouse's conduct during the entire marriage. In the past, courts were much more willing to talk in terms of fault, right and wrong. Carl Schneider has argued that courts used to speak in terms of morality, but that they now talk in terms of utility. We have changed from asking "what is right?" to "what works?"6 8 Frances Olsen sees this utilitarian discourse as a necessary outgrowth of the individualistic laissez-faire worldview. She argues that the laissez-faire view moves us beyond "what works?" to the more negative "nothing works." This skepticism about our ability to solve complex problems without creating new ones then justifies limiting state intervention in private matters.6 9 The Role of Privacy Family law has long been haunted by the notion that the state should not interfere in family matters. At its worst, the doctrine of non-intervention means that state resources are not available to protect individuals from other family members with greater physical, economic or legal power?0° At its best, the doctrine of non-intervention allows the family as a whole the freedom to make choices without government interference. This doctrine cannot properly be evaluated without carefully defining privacy. Privacy has many meanings.7 One of them is the right to keep things secret. However, the need for confidentiality does not justify the failure to inquire into fault. This interest can be satisfied by taking steps such as sealing the records, which keep the information free from general public scrutiny. Courts routinely take such measures in juvenile criminal proceedings.7 2 Privacy also refers to the right to make a decision free from 1990] government intervention. 73 This right supports the argument for consensual divorce. Consensual divorce is no longer an issue, however, because it is available in every state.7 4 Even if fault no longer supplies the grounds for divorce, it may be relevant in resolving financial matters. Such an inquiry does not conflict with the right to make decisions free of government intervention. Consensual decisions by the parties on how to divide their assets and income would still be available. Fault or breach only needs to be considered when the parties cannot arrive at such an agreement. The UMDA, however, precludes courts from considering fault. Although the UMDA defines marriage as a contract, it prohibits courts from considering misconduct.75 Misconduct, however, is merely a way of describing which party breached the contract. Traditional contract remedies depend on such an inquiry. 76 Thus, there is an internal inconsistency in the UMDA approach to marriage as contract. The UMDA creates implied contractual duties without permitting contractual remedies. The contract model has some serious drawbacks. It does not provide the flexibility to allow relationships to develop over time. Accordingly, it devalues caring and sharing, and ultimately returns to the conundrum of fault. Even worse, the contract model is susceptible to the manipulations of power. The partnership model may be more appealing. C. The PartnershipModel One reason that partnership law seems to provide an appealing analogy for family law is that partnership embodies the notions of sharing and equality7 7 that we seek for families. Nevertheless, partnerships, unlike families, are created solely for commercial purposes. Before we can examine whether marriage is similar to a commercial partnership, we should ask whether it is proper to make such a comparison at all. Many commentators have suggested that it is inappropriate to apply commercial analysis to family law questions. Some object because the comparison encourages us to think of people and personal relationships in financial terms.7" Others object because the law of the marketplace is premised on social contract theory, which focuses on individuals and their rights against others. This competitive model is inconsistent with the view of the family as a unit based on sharing, not competition.79 Finally, some object on more pragmatic grounds, arguing that adopting a competitive model will endanger those who have a competitive disadvantage in our society, specifically, women and children. 0 Although all these objections have merit, there are at least two reasons to proceed. First, courts"1 and legislatures analogize marriage to partnership. 2 Second, critics who are concerned about the commodification of family law, although rightfully wary, are like parents who are concerned that others may be a bad influence on their children and forget that their children may be a good influence on others. Thus, the sharing principles of family law may bring new insights into partnership law. 3 These insights may help protect the economically disadvantaged in partnerships as well as in families.s4 For example, understanding the problems of displaced homemakers may help us understand the similar problems of displaced partners. Frequently partnerships are formed to unite skill and capital. Some partners may provide money, while others provide expertise, and some provide 78. Margaret Jane Radin argues that by adopting the market analogy we denigrate "personhood" by measuring personal relationships in financial terms. For example, babies should not be sold because to do so would "commodify" them. See Radin, MarketInalienability, 100 Harv. L. Rev. 1849, 1925 (1987). Her fear seems justified. Some proponents of the pure market have proposed that babies should be bought and sold. See, e.g., Landes & Posner, The Economics of the Baby Shortage, 7 J. Legal Stud. 323, 324 (1978). In the course of comparing partnerships and marriage, I do not intend to encourage such commodification. 79. John Hardwig argues that the nature of intimate relationships requires that because we enjoy pleasing our loved ones, we are willing to do far more than they have a right to expect. Accordingly, Hardwig sees rights as the death knell of intimacy. See Hardwig, supra note 31, at 444. Similarly, Susan Westerberg Prager refers to a system of sharing as opposed to purely individualistic principles. See Prager, SharingPrinciplesand the Futureof MaritalProperty Law, 25 UCLA L. Rev. 1, 1-2 (1977). 80. Cf M. Glendon, supranote 19, at 61 (noting that women generally lost bargaining leverage with end of fault-based divorce). 81. See, e.g., Julsen v. Julsen, 741 P.2d 642, 648 (Alaska 1987); In re Marriage of Calisoff, 176 Ill. App. 3d 721, 725-26, 531 N.E.2d 810, 814 (1988); Kaye v. Kaye, 538 A.2d 288, 289 (Me. 1988). 82. See Smith, The PartnershipTheory of Marriage: A Borrowed Solution Fails, 68 Tex. L. Rev. 689, 695-97 (1990). 83. The literature in both family law and partnership law frequently borrow terminology from the other. See, e.g., Hillman, supranote 35, at 528-29 (referring to formation of partnership as "commercial marriage," breakup of partnership as "commercial divorce" that requires determination as to "custody of the business"). Nevertheless, that literature rarely analyzes either the theoretical or the doctrinal similarities and differences. Both partnership law and family law could be enriched by more serious analogies. 84. As Frances Olsen has suggested, maintaining a false dichotomy between the family and the market may help sustain exploitation in both spheres. Thus, it is easier to accept greed and competition in the market if we view it as necessary to sustain a moral homelife. See Olsen, supra note 25, at 1500-01. both. Just as a homemaking spouse may be willing to provide services at below market rates to secure future prosperity, a new partner may be willing to perform services for the partnership at below market rates in hope of future returns. The UPA, like the UMDA, undervalues these contributions of skills and services.85 Section 18 of the UPA provides that capital contributions will be repaid,86 but denies any payment for services rendered.87 Just as the decision to limit alimony fails to account for the lost opportunities of the displaced homemaker, the UPA fails to account for the lost opportunities of the displaced partner. Despite some flaws, partnership law expressly favors sharing and equality. For example, the UPA provides for partners to share profits and losses equally,8 8 share the management of the business equally,89 and share partnership property equally. 90 At face value these provisions provide a normative statement supporting the values of sharing and equality. Powerful partners, however, can overcome these provisions by entering into express partnership agreements that divide profits, losses, management fights, and property unequally. 9 1 Accordingly, the UPA provisions in favor of sharing and equality may be illusory. The partnership model must be examined in greater detail to determine if it provides a good analogy to marriage. 1. The Role of Contract in Partnership One of the major limits of the partnership analogy is the extent to which partners rely upon contracts to determine their rights. Although partners frequently consult lawyers and draft detailed partnership agreements, spouses rarely do. Moreover, marriage is a multi-purpose relationship that varies over time. A couple may marry for love, develop mutual interests in shared children and remain together because of economic interdependence. Partnership, on the other hand, has a single purpose: to create a profit. Family is a Gemeinschaftbased on emotional commitment, while a partnership is a Gesellschaft based on the more purely rational profit motive.92 Unlike families, the nature and profit motive of partnerships make it more appropriate to treat them as contracts. 85. For a more detailed discussion of this problem, see infra notes 205-206 and accompanying text. 86. See UPA § 18(a), 6 U.L.A. 213 (1914). 87. See id. § 18(f), 6 U.L.A. at 213. 88. See id. § 18(a), 6 U.L.A. at 213. 89. See id. § 18(e), 6 U.L.A. at 213. 90. See id. § 25( 2 )(a), 6 U.L.A. at 326. 91. UPA section 18 provides that the rights of partners are "subject to any agreement between them .... ." Id. § 18, 6 U.L.A. at 213. 92. Interestingly enough, Tonnies himself considered both families and partnerships to be Gemeinschaft. See F. Tonnies, supra note 29, at 196, 228-29. The Role of Fault in Partnership If a partnership is a contract, then failed partnerships raise the familiar specter of fault. Accordingly, it is hardly surprising that the partnership rules93 provide for financial allocations according to fault. A misbehaving partner is liable for damages,9 4 may be excluded from the ongoing business 95 and may be denied any recovery for partnership goodwill. 96 Such misbehavior includes both express breaches of the partnership agreement and more general wrongful behavior: failure to deliver signed documents,97 refusal to allow a partner the right to participate in the management or share in the profits,9" failure to provide an annual accounting9 9 and conversion of partnership property °° have all been considered sufficient to trigger a remedy. One reason that courts may be more willing to find a breaching party in partnership arrangements than in marriages is that the breaching partner does not walk away completely empty-handed. Although liable in damages, the breaching partner can still recover his or her share of the partnership assets. 101 Thus, although the partnership rules retain fault as a basis for financial allocations, they are more palatable than innocent spouse rules because they do not leave the misbehaving partner destitute. Nevertheless, fault-based dissolution rules in partnership share many of the familiar problems associated with fault in divorce. For example, courts must face the nearly impossible task of finding a single guilty party. 102 Thus, this explanation does not sufficiently explain why the law is more willing to determine the breaching party in a partnership than in a marriage. Another possible explanation is that family matters are considered private, while business matters are considered public." 3 This rationale might explain why divorce courts are willing to recompense "economic" 1990] misconduct, even though they reject recovery for fault in general." That distinction blurs, however, because many partnership cases involve "family" partnerships."-' If courts can decide which brother breached the oral partnership agreement, they can decide which spouse breached the marriage contract. 10 6 The real reason for the hesitancy to affix blame at divorce may be an unarticulated sense that family relationships are not purely contractual. The UPA acknowledges that partnerships are not purely contractual either, yet courts are still willing to search for fault in failed partnerships. Indeed, the UPA is careful to define a partnership not as a contract but as an "association." 107 Thus, individuals can become partners without entering into any agreement.' 0 8 Section 7( 4 ) of the UPA provides that profit sharing constitutes primafacie evidence of partnership.0 9 Sharing profits does not create an express agreement to be partners, but it does create a relationship between individuals that the law chooses to treat as a defacto partnership. Thus, both defacto partnerships and contractual partnerships are relationships rather than mere contracts. Because partnerships are more than simple contracts, the duties that arise from them are not always voluntarily assumed. The UPA provides 104. See Freed & Walker, Family Law in the Fifty States: An Overview, 20 Fam. L.Q. 439, 483-84 (1987) (noting that 19 states and the District of Columbia consider economic misconduct in making financial awards, see Price v. Price, 278 N.W.2d 455, 458 (S.D. 1979) (catch-all provision); Ariz. Rev. Stat. Ann. § 25-318(A) (West 1976 & Supp. 1989); Cal. Civ. Code § 4800(b)( 2 ) (West 1983 & Supp. 1990); Colo. Rev. Stat. § 14-10113( 1 )(d) (1987); Conn. Gen. Stat. § 46b-81(c) (West 1986 & Supp. 1989); Del. Code Ann. tit. 13, § 1513(a)(6) (1981); D.C. Code Ann. § 16-910(b) (1989); Fla. Stat. Ann. § 61.075(l)(g) (West Supp. 1989); Ga. Code Ann. § 19-6-1(c) (1982); Ill. Ann. Stat. ch. 40, para. 503(d)( 1 ) (Smith-Hurd Supp. 1989); Ind. Code Ann. § 31-1-11.5-11(c)( 4 ) (Burns Supp. 1989); Kan. Stat. Ann. § 60-1610(b)( 1 ) (1983); Minn. Stat. Ann. § 518.58( 1 ) (West Supp. 1990); Mont. Code Ann. § 40-4-202( 1 ) (1989); N.Y. Dom. Rel. Law § 236B( 5 )(d)(l1) (McKinney 1986); N.C. Gen. Stat. § 50-20(c)(11)(a) (1987); Pa. Stat. Ann. tit. 23, § 401(d)(7) (Purdon Supp. 1989); Vt. Stat. Ann. tit. 15 § 751(b)(11) (Supp. 1988); W. Va. Code § 48-2-32(c)( 4 ) (1986 & Supp. 1989)). 105. See, e.g., Page v. Page, 55 Cal. 2d 192, 194, 10 Cal. Rptr. 643, 645, 359 P.2d 41, 43 (1961) (partnership between brothers); Cyrus v. Cyrus, 242 Minn. 180, 181, 64 N.W.2d 538, 540 (1954) (same); Lipinski v. Lipinski, 227 Minn. 511, 512, 35 N.W.2d 708, 709 (1949) (same); Pulliam v. Pulliam, 226 Mont. 94, 733 P.2d 1299, 1299 (1987) (same). 106. When a court determines breach of a family partnership agreement it is not terminating the family relationship of the partners. Such decisions, however, will have a practical effiect on that relationship. 107. "A partnership is an association of two or more persons to carry on as co-owners a business for profit." UPA § 6( 1 ), 6 U.L.A. 22 (1914). 108. See, e.g., Zajac v. Harris, 241 Ark. 737, 740, 410 S.W.2d 593, 594-95 (1967) (partnership resulted although there was no express agreement and although one party viewed the relationship as one of employment). 109. See UPA § 7( 4 ), 6 U.L.A. 39 (1914). However, even if courts limit considerations of fault to financial allocations, they still face all the problems that arose under the old fault statutes. First, courts have to define fault and then determine which spouse is more guilty. Second, courts'face the sleazy practices that gave divorce law a bad name, including eavesdropping and perjury, and involve courts in probing into intimate details of sexual practices. Finally, courts would still sentence some spouses to impoverishment as a result of divorce because not all needy spouses are innocent ones. That result is particularly harsh when children live with the guilty spouse. These dependents would be punished for their parent's misconduct because their standard of living is tied to that of the custodial parent. A fault-based standard, therefore, can be harsh and unfair. c. Problems with the ContributionStandard In order to avoid the problems of need and fault, some reformers have focused on a contribution standard. Under the contribution standard, homemakers are rewarded for their contributions to the marriage. 2co For example, reformers in Wisconsin concentrated on contributions because of a misplaced faith in symbolic equality.21 At the time of this reform, there were three theories for the division of marital property: fault, need and contribution. "Only the contribution concept, however, was compatible with the reformers' overriding commitment to equality",202 because admitting that women were needy implied that they were incapable of supporting themselves. The contribution theory has two major problems, however. First, it fails to account for expectations. Second, it overcompensates earners and undercompensates homemakers because economic contributions are easier to measure. The contribution theory adopts the husbands' point of view. Because husbands frequently earn more than wives, typically they are able to contribute more money and property to the marriage. Wives, including working wives, frequently contribute more services.20 3 The services they provide have great value, even in economic terms; market rates are high for services such as babysitting, cleaning, cooking and laundry. 2 4 As explained earlier, one reason women may choose to provide these services at below market rates is their expectation of long-term benefit. They may be willing to be under-paid in the short term to secure their long-term prosperity by sharing in their spouses' income. Instead of looking forward to the expectations of the parties, the UMDA looks backwards at the contributions of the parties. This status quo ante ap200. Both versions of section 307 of the UMDA look backward at the contributions of the parties, including homemaker contributions, and the comment to § 307 notes that this is a "new concept in Anglo-American law." See UMDA § 307 comment, 9A U.L.A. 239 (1973). 201. See Fineman, supra note 199, at 877 & n.230. 202. Id. at 877. 203. See supra note 133. 204. See supra notes 132-133 and accompanying text. proach amounts to a tort measure of damages. Ironically, it was precisely the tort notions of fault that the UMDA sought to avoid. Although the UMDA purports to reward homemakers' contributions, 20 5 it does not reimburse them at market value rates. Indeed, it would be virtually impossible for most families to reimburse individuals for the market value of the services rendered for two reasons. First, it would be extremely difficult to tally all the services provided. Second, even if we could realistically estimate the value of the services, very few families could afford to pay for them at market rates.20 6 Similarly, the UPA does not provide for reimbursement of partners for services rendered20 7 because partners do not expect to be paid at the market rates, but do expect to share in future profits.20 The UPA fulfills such expectations even if there has been no breach of contract and no breaching party. The provisions that provide a right to share equally in the profits2 0 9 and that preclude a partner from being paid for services2 10 are part of the section entitled "Rules Determining Rights and Duties of Partners,"2'11 rather than part of the section on breach of the partnership agreement.2 12 Spouses, on the other hand, are not paid adequately for their contributions, and do not share equally in profits and losses. Like partners, they probably do not expect to be paid at market rates for their services. They do expect, however, to share in future prosperity. Problems with the Standardof Living Approach to Alimony Another way to avoid the disparities inherent in the need approach to alimony is to base awards on the pre-divorce standard of living.2 13 This approach is especially appealing when children are involved because we do not want to economically punish children for their parents' divorce.21 4 Nevertheless, this standard of living approach is both unfair and unrealistic. 1990] The standard of living approach freezes the couple at a specific moment. Both spouses cannot maintain their pre-divorce standard of living without new sources of income. Because housing expenses will necessarily increase when the couple adds an additional household, their standard of living will necessarily decline unless there is new income to offset these new expenses.2 1l Therefore, requiring a person to support an ex-spouse at the old standard of living is unfair. In theory it could turn the tables and lead to the masculinization of poverty. In reality, it has become an excuse not to award alimony at all. When critics maintain that few families can afford to pay alimony,2 16 they mean that few families can afford to keep a prior spouse at the pre-divorce standard of living, not that they cannot afford to pay anything at all. This approach would be more palatable if it were limited to families with children. The standard of living of the children is necessarily tied to that of the custodial parent.2 17 Payors, however, are more willing to support their children than to support their former spouses.2 1 8 If we do not want children to suffer the economic loss inherent in divorce, then the non-custodial parent should be required to maintain the children at the pre-divorce standard. Indeed, that is one of the factors the UMDA lists for courts to consider in awarding child support.2 19 Limiting the standard of living approach to child support has problems, however. It creates additional incentives to engage in custody battles and heightens the perception of unfairness that may contribute to non-payment. Use of the pre-divorce standard of living turns the custodial parent into a winner and the non-custodial parent into a loser; the custodial parent gets more time with the children and a substantially higher standard of living than the non-custodial parent. As a result, there is a much greater incentive to fight over custody of the children. Such battles are detrimental for children.2 20 The payor is bound to resent having to pay money so that his or her ex-spouse and children can live substantially better. The resulting disparity between the payor and the recipient spouse may seem even more 215. See Mnookin & Kornhauser, supra note 48, at 960 n.40. Indeed, Lenore Weitzman's statistics illustrate this point. If the standard of living remained static after divorce, we would expect the increase in the man's standard of living to correspond to an equal decrease in the woman's standard of living. That is not the case however. Although the woman's standard of living decreases 73 percent, her ex-husband's standard of living only increases by 42 percent. See L. Weitzman, supra note 6, at xii. Thus, as a couple, the total standard of living declines by 31 percent after divorce. 216. See M. Glendon, supra note 19, at 57 ("IT]he economic circumstance of most divorcing couples mean that spousal support is not and cannot be a common incident of divorce."). 217. See Mnookin & Kornhauser, supra note 48, at 960-61. 218. See id. at 960. 219. See UMDA § 309( 3 ), 9A U.L.A. 400 (1973). 220. See Note, Lawyeringfor the Child: Principlesof Representation in Custody and Visitation DisputesArisingfrom Divorce, 87 Yale L.J. 1126, 1131-32 & nn.19-24 (1978). unfair as child support payments cannot be deducted from the payor's income tax, and are not included as income for the recipient.2"' Maintaining a spouse at the pre-divorce standard of living can also be unfair to the recipient. A spouse may make compromises, struggle and save through the lean years, only to be discarded on the eve of comfort. For example, in Kulakowski v. Kulakowski2 2z the court admitted that it would be "grossly unfair and inequitable to compel [the wife] to live a reduced lifestyle commensurate with her anticipated limited earnings, while her husband is permitted to enjoy a substantially enhanced style of living . ,,22" Accordingly, the court granted the wife permanent alimony, which, together with her own income, allowed her to live on $24,000 per year. 2 The court considered this fair because it approximated one half of the couple's pre-divorce income of $49,500.225 Meanwhile, her husband increased his earnings to $90,000 annually. 226 To restrict such a spouse to the pre-divorce standard of living is unfair. C. The Role of PropertyDivision Alimony is only one mechanism for equalizing the financial situation of the spouses at divorce; property division is another. Increasingly, the law has turned to the division of property as a substitute for alimony, rather than as an additional remedy. 227 1. Problems with Property Division as a Substitute for Alimony Both the UMDA228 and the UPA229 tried to address equality problems by dividing property. Property division may seem more acceptable than shifting income, but it encourages the parties to liquidate scarce assets. Liquidation is unduly harsh and wasteful both in divorces 2 0 and in partnerships. 2 31 From an economic standpoint, the replacement cost of such property is frequently greater than its fair market value. Thus both parties lose when property is liquidated.2 32 1990] Liquidation is especially troubling in a family setting because of its enormous emotional cost, especially for children. The largest asset many families have is the family home. Forcing children who are already suffering the emotional trauma of divorce to move to new neighborhoods, change schools and leave the support of their friends is cruel.2 33 Such cruelty is inconsistent with the best interests of the child, which is the usual custody standard.2 3 4 The UMDA thus provides for "equitable" distribution of property and suggests that it is appropriate for a court to consider awarding the family home to the custodial parent.2 35 The UMDA, however, does not provide for maintenance to enable the custodial parent to make mortgage payments. Moreover, dividing property is not effective as a means of equalizing the financial situation at divorce. It does not compensate homemakers for two reasons. First, few couples have significant debt-free property.236 Indeed, many divorcing couples have greater liabilities than assets.23 7 The real asset of most Americans is their earning capacity.2 38 Even if a family is lucky enough to own a home outright, the share awarded to a divorced homemaker would not provide support for long. Second, homemakers expect to share in both the property and the future earnings of their spouses. Homemakers are cheated out of the benefit of their bargain if they receive only property. Problems with Re-Defining Income as Property Some commentators have tried to address this problem by re-defining income as property.2 3 9 In community property states, equal division of property is the norm.24 When confronted by the high proportion of nership Comm., Corporation Banking and Business Law Section 136 (April 1986) ("[T]he expelled partner should not be entitled to compel a liquidation of the partnership to discharge the partnership liabilities."). 233. See L. Weitzman, supra note 6, at xii. 234. See UMDA § 402, 9A U.L.A. 561 (1973). 235. The UMDA offers two different alternatives for property distribution: one for most separate property states, and one for community property states. Both alternatives provide for equitable rather than equal distribution. See UMDA § 307, 9A U.L.A. 23839 (1973). 236. A survey in Detroit in the 1950s showed 40 percent of divorced families had no property to divide. See Weitzman, The Economics ofDivorce: Social andEconomic Consequences ofProperty,Alimony and ChildSupport Awards, 28 UCLA L. Rev. 1181, 1189 n.34 (1981). Similarly, a more recent California study revealed that "about half of the divorcing couples in California had less than $11,000 of community property." Id. at 1189. 237. See id. at 1191 (one out of every eleven divorcing couples in California had greater debts than assets). 238. See L. Weitzman, supra note 6, at xiii. 239. See generally M. Glendon, supra note 19. 240. Four of the eight community property states provide for equal as opposed to equitable distribution of property. See Cunningham v. Cunningham, 96 N.M. 529, 531, 632 P.2d 1167, 1169 (1981); Cal. Civ. Code § 4800(a) (1983 & West Supp. 1990); Idaho Code § 32-712( 1 )(a) (1983); La. Rev. Stat. Ann. § 9:2801( 4 )(b) (1983). couples who have little property, some have tried to redefine property by arguing that items such as professional degrees are property.24 1 Four states currently recognize professional degrees, goodwill, licenses, or partnerships as marital property.24 2 Most of these states view such a property division as a way to repay a spouse for his or her contributions. The theory is just another version of the contribution theory of alimony. A spouse is entitled to recover his or her contributions by dividing the assets that were acquired by virtue of those contributions. The problem with this contribution-based theory is that it is frozen in time at the date of the divorce. There is an immediate problem in trying to determine the present value of future earnings. No system of valuing such "new property" can account for fortuitous changes that occur in every marriage. A determination of present value of future income may not account for the spouse who contracts a debilitating disease in middle age. This problem may result in one spouse receiving a windfall. The cost in terms of expert witnesses to prove the present value of future income may also be prohibitive. In addition, a realistic appraisal of a lifetime of earnings is likely to yield an enormous figure.243 Courts may tend to devalue actual earning capacity to reach a "reasonable" judgment. 2 " Indeed, if awards were actually made based on real future earning capacity, few spouses could satisfy such awards out of current assets or credit.2 45 Some courts, therefore, have limited the awards to the financial amount the spouse actually contributed to the professional education.24 6 Such limitations clearly cheat the recipient spouses out of the expected return on their investment. There are two problems with focusing on professional degrees as property. First, such a focus reflects an inherent middle-class bias favoring the value of contributions to education over the value of other contribu1990] tions. The "new" property approach tends to have little meaning for working-class couples who do not own large amounts of property and do not have professional degrees to divide up. They will, however, have a lifetime of earnings to share. Second, even if it is appropriate to value education over other contributions, only spouses who have financially supported their partner's acquisition of education or skills can recover. Contributions at home may be as supportive to a career as financing education. For example, the young husband who stays at home to run the house, wash, clean, raise children and entertain business clients frees his wife to devote full time to her budding career. His emotional commitment to tasks such as child rearing and entertaining may make him irreplaceable on the market. The money contributed to education, however, could have been borrowed on the open market at a fixed and known cost. In essence, courts only reward those who contribute money, not those who contribute love or time. Accordingly, those states that limit the "new property" approach to financial contributions reward "breadwinners" at the expense of "homemakers." These states thereby reaffirm the idea that economic contributions are more valuable than homemaking contributions. The tendency to focus on property is natural given the history of divorce. Friedman argues that absolute divorce grew out of the need to clear titles to property.2 4 7 Divorce law has long focused on property division. This focus has centered on who contributed to the property. Earners are able to make greater financial contributions, while the contributions of homemakers are more easily overlooked because they are harder to measure in monetary terms. One way around that problem is to presume that the contributions are equal because the spouses are partners. Interestingly enough, the UPA makes no such assumption about the contributions of partners. It provides for the partner who contributed capital to recover the full amount of his or her investment.24 It is profits that the UPA presumes to be split equally.2 4 9 Profits, by definition, amount to net income, not property. Although it is clever to define income as property, it seems more intellectually honest and fairer simply to admit that spouses expect to share income when they are married.2 50 Thus we should adopt some form of 247. See Friedman, supra note 2, at 655. 248. See UPA § 18(a), 6 U.L.A. 213 (1914). 249. See id. 250. This idea of the marriage as a partnership that shares earnings is not new. Suzanne Reynolds has traced it back to Spanish Civil Law. See Reynolds, Increases in Separate Property and the Evolving Marital Partnership,24 Wake Forest L. Rev. 239, 249-52 (1989). Indeed, Reynolds argues that it was this notion of the partnership owning the earnings of the spouses that formed the basis of separate and community property in California. See id. at 252-58. income sharing.2 51 A. Income sharing refers to a system in which the incomes of the former couple would be added and divided by the number of people to be supported. Each member of the family would receive an equal share. Income sharing differs from traditional permanent alimony in at least two respects. First, income sharing does not take the form of a fixed award of a specific dollar amount. Indeed, income sharing is not fixed at any given time. Instead, it recognizes the inevitable changes inherent in the passage of time. Rather than fixing a specific award that can only adapt to changed circumstances by court order, income sharing creates a formula that automatically adjusts to changed circumstances. Such income sharing should continue at least until remarriage, if not indefinitely. Second, the theoretical basis for income sharing is quite different from that of alimony. Income sharing is not based on need, pre-divorce standard of living, prior contributions, or fault. Instead, it represents a conscious effort to achieve equality between spouses who have divided their labors during marriage. If spouses have not divided the labor, either because they were not married long enough, or because they did not have children, then income sharing should not apply. The theoretical differences between alimony and income sharing have very real practical effects. Although several courts have awarded permanent alimony because of the disparate earning capacities of the spouses and the resulting post-divorce standards of living, none of them have divided all income equally. 252 Instead, these courts viewed themselves as 251. Indeed, Henna Hill Kay has suggested that attempts to treat others' income as property may be a form of slavery in violation of the 13th amendment. See Kay, An Appraisal of California'sNo-Fault Divorce Law, 75 Calif. L. Rev. 291, 312-13 (1987). Moreover, calling income property creates accounting problems of valuation. See Mullenix, The Valuation of an EducationalDegreeat Divorce, 16 Loy. L.A.L. Rev. 227, 25974 (1983). If, however, income sharing is merely a form of contract damages, these theoretical and practical problems fade. It is simply a matter of adding the husband's income to the wife's income and dividing by the number of people to be supported (2 in the case of a couple without children). 252. See, e.g., Kulakowski v. Kulakowski, 191 N.J. Super. 609, 612-13, 468 A.2d 733, 734-35 (1982) (awarding permanent alimony because otherwise the post-divorce difference in standards of living would be "grossly unfair," but leaving the husband with postdivorce income of $90,000 per year and the wife with $24,000 per year). Similarly, in Bullock v. Bullock, 354 N.W.2d 904 (N.D. 1984), the court noted that the disparity in earning capacity justified a permanent alimony award of $14,400 per year to an unemployed wife of an army officer who earned $50,000 per year. See id. at 911. In Weir v. Weir, 374 N.W.2d 858 (N.D. 1985), the court stated that "[t]he awarding of spousal support in this case is an attempt to provide an equitable sharingof the overall reduction in the parties'separatestandardsof living .... ." Id. at 864 (emphasis in original). The husband earned a salary of $79,392 per year. See id. at 865. With bonuses his earnings reached up to $107,000 per year. See id. at 862. The wife was 44 years old, see id. at 859, and unemployed, but hoped to earn $15,000 after a few years of education and experience. See id. at 865. The final support order provided for $18,000 in maintenance. See id. at 866. Thus the wife would have a total income of $33,000 annually, while the 1990] magnanimous merely for granting permanent rather than rehabilitative alimony. For example, in Mees v. Mees,253 the court considered the future of a couple in their fifties who had been married for thirty-four years. The wife testified that her husband recently had begun to abuse her physically. The husband had an annual income of $16,600 per year, while the wife netted only $6,600 annually. 25 4 The trial court granted the wife monthly alimony of $75 ($900/year) for two years. 5' The wife appealed, and the appellate court sustained the amount, but converted it to permanent alimony because of the earning disparity between the parties; the final result left the wife with an income of $7,500 per year, while the husband netted $15,700 annually. One of the real differences between income sharing and alimony is the amount of discretion permitted the trial judge. Because alimony standards are usually both vague and conflicting, judges have a tremendous amount of discretion in setting the awards.25 6 Such discretion is problematic because it leads to disparate results. Disparate results reduce both confidence in the judicial system and predictability. 2 7 Judges rarely exercise their discretion to ensure equality of income. Even judges who have expressed concern with the disparity of income capacity have typically kept women at income levels half that of their former husbands. 258 Although spousal support statutes typically list a range of factors to be considered in setting support, not a single state suggests that equality should be the goal of post-divorce support. B. The Advantages of Income Sharing Income sharing has four distinct advantages. First, it fosters the kind of sharing and caring that should typify families. Second, income sharing offers a way out of the fault conundrum. Third, income sharing empowers the financially disadvantaged who may be economically trapped in destructive relationships. Fourth, it provides a path to equality that automatically adjusts to reflect the actual market situation of the parties over time. husband's net income would be $89,000 per year. The appellate court remanded for the limited purpose of determining whether the husband was capable of paying so much support in light of his other obligations. 253. 325 N.W.2d 207 (N.D. 1982). 254. See id. at 208. 255. See id. at 207. 256. See H. Clark, supra note 2, § 16.4, at 644. 257. Moreover, wide discretion without adequate guidelines makes the judge's task much more difficult. Judges looking for guidance cannot even hope for much help from the appellate courts, because the abuse of discretion standard of review is so deferential that few cases will be reversed even when the appellate court strongly disagrees. See id. at 645. 258. See supra notes 251-252 and accompanying text. 1. Income Sharing as a Method to Foster Sharing and Caring Shared income after divorce fosters caring in two ways. First, it reinforces sharing as the model for family life. Law is not only a mechanism to settle disputes. It also sets normative standards for how we ought to behave.2 59 If the family is viewed as a shared enterprise for the common good, our rules about income distribution within the family should reflect sharing principles. The UMDA duty to get a job really begins during marriage. A homemaker who waits until divorce to start working will be in considerable financial straits. There is some correlation between earning power and family decisional power.2 "° Therefore, encouraging women to work outside the home during the course of the marriage may give them more bargaining power within the marriage. Moreover, such women will be much better off financially in the event of divorce. Some critics believe that encouraging women to stay at home has relegated them to a separate and inherently unequal position.2 6 1 That theory, however, adopts the view that economic productivity has a greater societal value than caretaking functions. If we really believe that homemaking and caretaking are valuable contributions, we ought not to discourage them. Indeed, children are the real losers as more and more homemakers join the paid work force.26 2 A California study showed that seven out of eight married couples have children,263 and women get custody of the children in approximately 90 percent of uncontested divorces.2" Rather than encourage homemakers to take on more of the earning burden, perhaps we should encourage earners to assume more of the caretaking burden. The homemakers' viewpoint is not very well represented in the legal process. Legislators and legal scholars share a legal perspective. Although many lawyers are also homemakers, we have chosen to be earners too. More importantly, as lawyers, we are trained to anticipate the worst and draft documents that will help to avoid problems before 259. See R. Dworkin, supranote 24, at 19-20 (arguing that a rule is different from an order because a rule is normative and sets standards for behavior that affect the subject of the rule beyond the mere threat of enforcement). 260. See, e.g., Hallenbeck, supra note 191, at 200 (balance of power in marriage belongs to the spouse bringing the most resources to the marriage). 261. See, eg., Stark, supra note 193, at 1177 ("To the extent that couples conform to male-breadwinner/female-homemaker stereotypes, the hardship for women is exacerbated."). 262. Some proponents of equality are openly resentful of the needs of children and view them as an inherent impediment to equality. See, e.g., Miller, supra note 171, at 36 ("The early years ofchildrearing were very difficult.... I resented that degree of involvement; it seemed to interfere terribly with the work I desperately wanted to achieve in."); id. at 38 ("Indeed, [women's] concentration on, nay absorption with, children makes even a low-level decent relationship, let alone an egalitarian one, difficult."). 263. See D. Funk supra note 22, at 546. 264. See L. Weitzman, supra note 6, at 227, 257. they arise. Thus, lawyers naturally concentrate on the impact of divorce rather than marriage. If lawmakers assume that a marriage will endure rather than end in divorce, they might understand a homemaker's choice to limit his or her career to devote more time to the family. First, family relationships may be more fulfilling than many jobs.26 For many Americans, work is merely a means to live rather than an inherently joyful experience.2 66 Family ties, on the other hand, are more likely to be emotional ties. Second, for families with substantial caretaking responsibilities for either the young or the old, outside employment may cost as much or more than it generates, because the median income for a married woman is $313 per week.2 67 Thus, there may be strong financial incentives to adjust the division of labor at home in order to maximize family income. Some commentators have argued that we should discourage a traditional division of labor.2 68 In reality, however, we have not changed the division of labor, we have merely penalized both employed and unemployed homemakers. Income sharing may actually foster a more equal division of labor at home. Currently, the UMDA encourages couples to maximize individual profits. This creates an incentive for the party with greater earning ability to shift homemaking tasks to the party who earns less in order to maximize income. If men and women earned equal amounts in the job market, there would be a greater incentive to share homemaking burdens to avoid jeopardizing either job. Therefore, income sharing provides divorced men with an incentive to help eradicate gender discrimination in the job market. Similarly, there will be a greater incentive to share the burdens of childcare, as the economic burden will be reduced if each contributes 265. See generally V. Woolf, To the Lighthouse (1927). There the wife and mother always worked in the background, enabling her husband to be the brilliant scholar. Nevertheless, it was the mother whom the children loved, and in his old age the father tried to recapture the lost opportunity to enjoy his children with a belated expedition to the lighthouse. 266. Cf Stark, ForLove or Money?, 22 Psychology Today 18 (Feb. 1988) (less than half of people surveyed listed interesting and meaningful work as most important job criterion). See generally Dowd, Work and Family: The GenderParadoxand the Limitations of DiscriminationAnalysis in Restructuringthe Workplace, 24 Harv. C.R.-C.L. L. Rev. 79, 91 n.40 (1989) (study of dual career families showed that husbands' mental health depended equally on job and life satisfaction while wives' depended on life satisfaction). 267. See StatisticalAbstract, supra note 62, at 406. It is difficult to pay the cost of taxes, caretaking services, transportation, and a work wardrobe from such a small budget. 268. See Stark, supra note 193, at 1179 ("The major premise of this Article is that gender-based division of labor, in the marketplace as well as the home, is responsible for women's impoverishment."); see also Kay, supra note 18, at 80 ("In the long run, however, I do not believe that we should encourage future couples entering marriage to make choices that will be economically disabling for women, thereby perpetuating their traditional financial dependence upon men and contributing to their inequality with men at divorce."). enough childcare to enable the former spouse to earn an equal amount of money. Most of the earning disparity between married men and married women can be accounted for by the difference in their family burdens.16 9 If both spouses limit their careers to share the family labors equally, both will suffer financial penalties in the job market. Income sharing protects a spouse who devotes a relatively greater share of his or her time to homemaking duties. Such a spouse will share in whatever economic benefits or losses ensue. Of course, the fact that we want to encourage sharing during the marriage does not necessarily mean that we want to encourage sharing after the relationship terminates. However, such income sharing may be the only fair way to treat the parties. For example, analogizing to partnership law, the UPA provides that partners are presumed to share profits equally during the existence of the partnership.2 7 ° This provision sets a norm that encourages both equality and sharing. In appropriate cases, partners may be required to continue sharing profits even after the partnership has dissolved. 71 On a more pragmatic level, income sharing enables both employed and unemployed homemakers to take the time to provide the necessary family services. Shared income may also allow the parent of young children to devote full time to the care of his or her children.2 72 Finally, income sharing can address these changing needs without re269. See Ellman, supranote 136, at 4 n.2. Thus, if men and women shared the homemaking tasks equally, women would earn 90 percent of what men do, instead of 67 percent. Man's earnings: Woman's earnings: $100 $67 70% of $33 = about $23 $23 + $67 = $90 Difference $33 270. See UPA § 18(a), 6 U.L.A. 213 (1914). 271. "A partner may not dissolve a partnership to gain the benefits of the business for himself, unless he fully compensates his co-partner for his share of the prospective business opportunity." Page v. Page, 55 Cal. 2d 192, 197, 10 Cal. Rptr. 643, 646, 359 P.2d 41, 44 (1961). There are, of course, problems in determining the value of future profits. See H. Reuschlein & W. Gregory, Handbook on the Law of Agency and Partnership 348 (1979). 272. Indeed, this is hardly a radical idea. The UMDA currently provides for maintenance for parents who care for young children. See UMDA § 308(a)( 2 ), 9A U.L.A. 348 (1973). There are, however, three problems with the UMDA approach: ( 1 ) it does not cover spouses who contribute household services other than childcare; ( 2 ) it is need based; and ( 3 ) it fails to recognize that a spouse who takes time from his or her career may suffer permanent economic penalties. As we have seen, the conditions in the job market provide an incentive for women to devote a higher proportion of their time to the household responsibilities of the couple. Even childless couples need to cook, do laundry, clean house, pay bills, hire help, and run errands. These chores are disproportionately performed by wives, at some expense. There are no UMDA provisions to redress this problem. Moreover, because the UMDA maintenance provisions are based on need, a homemaking spouse who is barely making ends meet out of available property or personal income is penalized for his or her role in the couple's division of labor. The non-caretaking spouse is freed from substantial caretaking responsibility and is free to devote more time sort to repeated court battles over need and changed circumstances. Changed circumstances will be accounted for simply by continuing to share the couple's available income. Of course, some methods of enforcement will involve the court more than others. A system in which income is withheld at source, as in the case of child support, would require little court involvement or contact between the parties. 2. Income Sharing as an Escape from Fault In the case of divorce, it seems that all roads lead to fault. The drafters of the UMDA adopted the contract model of divorce to escape the fault system.273 Ironically, a contract model leads right back to fault when determining which spouse breached the contract. To avoid this problem, the UMDA abandoned the contract measure of damages rather than rethink the contract model. Although simple contract damages lead inevitably to fault, a focus on fulfilling expectations of the parties can avoid the fault morass, as the partnership model reveals. That seems a particularly appropriate analogy, because both partnerships and marriages are consensual relationships based on trust. Our concern in such a relationship should not be who breached a mythical contract, but rather how to approximate the expectations of those who entered into the relationship, while preserving equality. Sharing income can achieve these goals. Income Sharing as a Form of Empowerment Income sharing empowers those who are disadvantaged by the existing division of labor by providing a means of escape to spouses who are economically trapped in destructive marriages. For example, some physically abused spouses may remain in their marriages because they are unemployed, or because they care for young children and cannot support themselves if they leave. One study found that a significant portion of abused women who returned to their husbands did so because they had no other place to go.274 By providing them with a source of income reto producing a higher income. The caretaker, on the other hand, continues at the subsistence level. The UMDA also fails to recognize that there are permanent financial penalties for taking time out of a career. Necessary skills may become rusty and less marketable with time. For example, a computer programmer who has taken five years out of a career to raise children may find his or her knowledge obsolete. Even when he or she finds a job, an unemployed person has less bargaining power over salary and benefits than a person who is currently employed. Such a person cannot wait as long for the "right" job and does not have a current salary to use as a base from which to bargain. Furthermore, a break in service usually terminates valuable benefits that may vest over time, such as pension and disability benefits. Even when the spouse again qualifies for such benefits, he or she has fewer years in which to work and compile pension contributions. 273. See UMDA prefatory note, 9A U.L.A. 148 (1973) ("[The Act has totally eliminated the traditional concept that divorce is a remedy granted to an innocent spouse, based on the marital fault of the other spouse .... ). 274. See A. Jones, Women Who Kill 297 (1980) (citing sources). gardless of their marketability, we reduce the financial obstacles to leaving abusive spouses. 275 If income sharing empowers spouses to leave relationships, then arguably it is a tool for divisiveness rather than sharing. That argument ignores two important points. First, a good marriage is a community or Gemeinschaft in which people stay because they want to, 2 7 6 not because they are economically trapped. Second, by removing the penalty for a division of labor that allows spouses to put a high priority on family, we may encourage a commitment to family. 4. Income Sharing as a Route to Equality Finally, income sharing provides a route to actual financial equality between the spouses. Currently, there is a vast difference in the financial impact of divorce on men and women. Income sharing would eliminate that difference. Moreover, because income sharing considers the income of both spouses, it automatically adjusts to the actual market situation of the couple. If two spouses earned the same amount, no transfer would be made. Any disparity, however, would be rectified. Accordingly, income sharing does not assume inequality. One of the traditional criticisms of alimony is that it condones economic disparity between men and women. Income sharing, however, will work even when the millennium comes and both sexes have equal earning power. Moreover, unlike the UMDA, income sharing achieves equality without placing any stigma on the party who earns less money. C. Problems with Income Sharing Hegel has been quoted as saying, "Whatever is reasonable is true, and whatever is true is reasonable."2'7 7 Thus, we should be wary of income sharing if for no other reason than the fact that so many people seem to think it is so unreasonable. 278 There are some genuine problems with income sharing that must be addressed. 275. Of course, income sharing is not a panacea for this problem because not all families will be able to support two households on the available income. Moreover, the financial obstacles are only part of the problem in abuse situations. A full discussion of the problems of abuse is beyond the scope of this Article. 276. See generally Hardwig, supranote 31, at 445-46 (intimate relationships should be ends in themselves rather than means to an end). 277. A New Dictionary of Quotations 1223 (H.L. Mencken, ed. 1952). Similarly, Descartes has warned us not to accept anything unless we can be absolutely free from doubt about it. See R. Descartes, Meditations on First Philosophy 43 (J. Cottingham trans. 1986) (1641). 278. Cf Kay, supranote 251, at 313 (criticizing treatment of income as property); see also L. Weitzman, supra note 6, at 152 (Only 9 percent of women and 3 percent of men thought that alimony should be paid because men had promised to support women for life. Weitzman did not directly ask about either income sharing, or whether alimony should be paid to achieve equal standards of living between the two.). 1. The Problem of the Clean Break Some commentators criticize income sharing because it may deter divorced couples from making a clean break with each other.2 79 Before we can evaluate whether we should be encouraging clean breaks, we need to consider who gets the break. Current rules that deny support to homemakers trap them in marriages and provide a disincentive to make any break at all. It is only earners who get a clean break from their obligation to support their families.2 " To the extent that a clean break is merely a euphemism for irresponsibility, we should not be encouraging clean breaks. Nevertheless, commentators still view clean breaks as not only desirable, but possibly even required. For example, Herma Hill Kay implies that the problem of making a clean break may even approach constitutional dimensions, citing Zablocki v. Redhail2,81 which held that marriage is a fundamental right that the state cannot prohibit to people who are unable to support their prior children. If Zablocki is read to mean that it is unconstitutional to enforce any commitment to a prior relationship, then all child and spousal support legislation would be unconstitutional. That was not the holding of Zablocki. Zablocki merely held that indigents cannot be prohibited from marrying. To the extent that income sharing operates as a deterrent to creating multiple families, that result is to be applauded. As one California court said regarding traditional maintenance: [a]s to deterring remarriage, we can only say that to the extent the rule makes persons realize that they may not pursue their own pleasures in utter disregard of an earlier marriage of 22 years that has produced four children and a dependent spouse, it is to be commended rather than faulted.28 2 When children are involved, a clean break is neither desirable nor possible.2 83 Spouses must continue to deal with each other to arrange visits and exchange information about the children. Indeed, a goal of family law should be to foster a continued sense of family for the children with both parents.2 4 Currently, most non-custodial fathers fail to maintain 279. See Kay, supra note 251, at 313, 318. 280. See Note, supra note 184, at 668 ("In fact, rehabilitative alimony allows divorcing husbands to make a clean break but discourages wives from making any break at all."). 281. 434 U.S. 374 (1978). 282. In re Marriage of Ramer, 187 Cal. App. 3d 263, 273, 231 Cal. Rptr. 647, 652 (1986). 283. See Glendon, FamilyLaw Reform in the 1980's, 44 La. L. Rev. 1553, 1558 (1984) ("[T]he idea of efflecting a clean break by dividing property between the spouses and excluding maintenance after divorce does not come to grips with the fact that no legal system has been able to achieve this result on a widespread basis because, in most divorce cases, children are present and there is insufficient property."). 284. See Bartlett, Rethinking Parenthoodas an Exclusive Status: The Needfor Legal Alternatives when the Premiseof the NuclearFamily has Failed,70 Va. L. Rev. 879, 909 (1984) ("Children of divorce who do not maintain contacts with their noncustodial parcontact with their children.285 In fact, divorced fathers who contribute financially are more likely to maintain an active interest in their children, and vice versa.2 86 Thus, when minor children are involved, the difficulty in making a clean break is actually an added benefit of income sharing.287 Income sharing does not necessarily prevent a clean break. The parties involved may decide to make a clean break. Income sharing would result only if the parties fail to agree between themselves. The parties can enter into an agreement at the time of the divorce that settles their financial dealings, including their obligations to share income. Even if the parties decide not to share income, the provision gives the financially weaker spouse increased bargaining power to negotiate a deal closer to his or her original expectations. A spouse may be willing to forego income sharing in return for a larger share of the property or a larger share of income. Because most divorces are uncontested,2 8 8 this additional bargaining power is one of the chief advantages of the income sharing proposal. The Problem of Remarriage The problem of the clean break is related to another troublesome set of problems having to do with remarriage. Commentators have argued that maintaining financial ties to a first marriage strains a second marriage2. 8 9 The response to this problem depends on one's view of the purpose of income sharing. If the primary concern is equality, then new marriages would simply be added into the formula to try to even out the standards of living of the families. If, however, income sharing's primary goal is to fulfill the parties' expectations, then income sharing should be terminated upon remarriage. In balancing equality and expectations, we must realize that remarriage raises two related questions. First, we must consider whether remarriage should terminate either the duty or the right to share income. Returning to the partnership model, we need to look at the expectations of the parties. The recipient spouse expected, at the time of the ents suffer harm at every developmental stage; those who maintain ties with noncustodial parents adjust more easily to their new situations." (footnotes omitted)). 285. See Chambers, The Coming Curtailmentof Compulsory Child Support, 80 Mich. L. Rev. 1614, 1623-24 (1982) (noting that 52 percent ofthe children who lived with their mothers had no contact with their fathers in at least a year). 286. See L. Weitzman, supra note 6, at 297-98. 287. Of course, there may be situations such as abuse in which we do not want to encourage further contact. In such cases we should simply minimize the necessity for such contact by arranging for payment through a third party, or withholding at source. 288. See Mnookin & Kornhauser, supra note 48, at 951. 289. See H. Clark, The Law of Domestic Relations in the United States § 14.9, at 457 (1968) ("Continuation of alimony in... [remarriage] only leads to discord by interfering with the husband's support of a possible second wife, and by humiliating the wife's second husband."); D. Funk, supra note 22, at 554 ("Where the law requires continuing financial ties to the first family, the second marriage becomes one of 'his, her, and our money,' a situation hardly conducive to marital harmony in the second marriage."). marriage, to share income from one spouse, not two. Permitting the spouse to receive income from both the current spouse and the ex-spouse arguably creates a windfall.2 90 Thus, if we concentrate on expectations, when a payor spouse remarries only that spouse's income is considered, not that of a new spouse. Similarly, if expectations are our primary concern, the recipient's remarriage terminates the payor's duty to share2 91 and the payor's remarriage does not entitle the recipient to any share of the new spouse's income. The second point of concern is whether the economic circumstances of the new family should affect the amount to be shared. It would completely defeat the purposes of income sharing to let the paying spouse completely avoid his or her obligations by remarrying. To do so would actually provide incentives for creating multiple families and would exacerbate existing inequalities. The paying spouse would not have the obligation to share income regardless of the state of his or her ex-spouse. The situation of the recipient spouse is different. Traditionally, ali mony terminated on remarriage.2 92 for necessities.29 3 Of course, that presumption is not necessarily correct. The new spouse may not be able to provide for these needs. Even when the new spouse can provide basic necessities, however, there certainly is no guarantee that the new spouse earns as much as the prior spouse.29 4 Hence, we could still end up with substantial differences in the standards of living.2 95 Some courts have recognized this problem by granting the 290. See H. Clark, supra note 2, § 16.5, at 657. At one time, Homer Clark saw the duty to support a spouse as the quid pro quo for monogamy. See H. Clark, supra note 289, § 14.9, at 457. Apparently, one spouse buys fidelity in marriage, and must continue to pay the price as long as the other spouse continues to be faithful, albeit celibate. However, once the other spouse remarries, that spouse has resold his or her fidelity, and the obligation to support ends. This view manages to blend notions of contract, fault and need: a spouse (a) only contracted to have one spouse at a time; (b) is innocent as long as he or she is celibate; and (c) will have his or her needs provided for by a new spouse. But see H. Clark, supra note 2, § 16.5, at 663 (which seems to recant the connection to monogamy). 291. There is, of course, the troubling question of whether the recipient should continue to receive income while co-habiting, but unmarried. There are no easy answers to this problem. On the one hand, we do not want to provide an incentive for co-habitation, rather than marriage. On the other hand, we do not want to return to fault and punish former spouses for sexual conduct. In any event, this problem is no different for income sharing than for traditional alimony/maintenance. 292. See H. Clark, supra note 2, § 16.5, at 663. 293. See id. 294. A cynical market analysis could be made. Since the value in a market depends on demand, the more available a product is, the lower the price it can command. Since women outlive men, and the percentage of women in the population steadily increases from birth, the older a woman becomes, the less valuable she is in the marriage market. Thus, if a husband's earnings are viewed as the price of a wife, we would expect each successive husband to earn less than the previous one. Similarly, men become more valuable in the marriage market with age, both because they are scarcer, and because their personal earnings increase with age. 295. Any resulting inequalities will be even worse if there are children from both marright to receive maintenance even after remarriage.2 96 Indeed, one reason for adopting the income sharing approach is to move away from the need standard in alimony and move more directly to equality of financial result. One reason that divorced men fare so much better than divorced women may be that divorced men remarry sooner and are able to share in a new spouse's income. 29 7 Thus, even if the original couple shares income equally, the husband may have a higher standard of living. In some states, a new spouse's income can justify an increase in support. 29 The new spouse is not viewed as owing any duty to support a prior spouse or children. However, the new spouse should be able to contribute to joint living expenses, thereby freeing some of the divorced spouse's income for additional support of the prior family.29 9 On the other hand, remarriage may increase the burdens on the paying spouse. For example, a paying spouse may need to support a new family and additional children. If the paying spouse must continue to share income with an ex-spouse at the old rate, the new family may be shortchanged. Thus, if we limit income sharing to the income of the original couple, we may still end up with inequitable situations. If the primary purpose of income sharing is to provide equality between the spouses, we should simply equalize the standard of living of all affected households. That would require income sharing that reflected the earnings of any new spouses, as well as the earnings of the original couple. The Problem of the Loafer Income sharing may also seem unwise because it may encourage dependency or even loafing. There is, however, a built-in incentive to work. Any income either spouse earns increases the pool to be divided, so both spouses will always be better off working.3" It is only in the rare marriages. All the children of any given parent should have the same standard of living, regardless of who the parent divorces or marries. See Shuba v. Division ofChild Support Enforcement ex rel. Reese, 15 Fain. L. Rptr. 1518 (Del. Sup. Ct. Aug. 16, 1989) (best interests ofthe child require that both marital and non-marital children are entitled to the same amount of child support based on the father's standard of living). 296. See, e.g., Mottel v. Mottel, 664 S.W.2d 25, 27 (Mo. Ct. App. 1984); Gunkel v. Gunkel, 633 S.W.2d 108, 109 (Mo. Ct. App. 1982). But see Greene v. Knukel, 729 S.W.2d 34, 35 (Mo. Ct. App. 1987). 297. See Goldfarb, supra note 133, at 369. 298. See, e.g., Gammell v. Gammell, 90 Cal. App. 3d 90, 93, 153 Cal. Rptr. 169, 171 (1979); Manaker v. Manaker, 11 Conn. App. 653, 655, 528 A.2d 1170, 1171 (1987) (affirming the trial court's decision that a "housemate's financial resources [are] relevant in determining the defendant's living expenses."). 299. See, e.g., In re Marriage of Ramer, 187 Cal. App. 3d 263, 272-73, 231 Cal. Rptr. 647, 651-52 (1986) ("The new spouse's earnings are considered available to defray expenses of the new community and thus obviously increase the amount available for payment of support."); see also H. Clark, supra note 2, § 16.5, at 662 ("If the second spouse has income, that income should be taken into account in determining the resources of the payer. . "). 300. Indeed, for years the federal government taxed some individuals at a rate of 50 riage where one spouse earns enough money to support two households comfortably that there will be any disincentive to work. Even then, there are very strong societal pressures to work. Jobs have become so central to our lives that they nearly define our very identity.3 0 ' Some might argue that saddling an earner with a non-earning spouse for life is a strict penalty for an improvident marriage. Indeed, the case for income sharing is weakest in childless marriages of young people, who have the time and the opportunity to improve their circumstances, and in cases of those married a short time. Income sharing is a better option in marriages that have lasted for many years because the spouses have relied on each other and therefore restricted their options. This problem can be solved by creating a grace period of three to five years 0 2 before a childless divorced couple is required to share income. A more difficult problem arises when one of the spouses either refuses or is unable to work. 33 Here, the partnership model might prove helpful. Partners generally are not entitled to be reimbursed for their services." ° Partnership law carves out an exception, however, for those partnerships in which one partner does all the work. 05 There should be a similar exception to income sharing. When a spouse is not contributing anything, either homemaking services or earnings, he or she should not be supported, absent a compelling excuse such as incapacity. 4. Special Problems in Low-Income Families Income sharing presents different problems in low-income families. If the original family was barely making ends meet on the available income, increasing the number of households to be supported will result in worsened poverty. If one of the households keeps the bulk of the available income, only one household ends up in poverty. If, however, the income is divided equally between the two households, then both households will percent. Nevertheless, most people in this bracket not only continued working, they continued trying to increase their income. 301. See M. Glendon, supra note 19, at 169. 302. New Zealand currently has different rules for dividing the property in marriages that last less than three years. In these short marriages, the parties leave with what they brought into the marriage. In longer marriages, the property is shared. See McCall, Dissolvingthe Economic Partnershipof Marriage,14 U.W. Australia L. Rev. 365, 403-04 (1982). 303. We tread a slippery slope toward fault when we try to enumerate legitimate reasons for unemployment. Although age and opportunity provide useful guidelines, they do not offer a panacea. For example, we might want to continue income sharing for an older displaced homemaker, or a steelworker who can no longer find work. However, we might be more reluctant to require a spouse to share income with an older unemployed alcoholic or drug addict. Indeed, even a distinction based on health would not help, since these conditions are considered diseases. We should not, however, presume that all spouses can or should work. To do so would simply reinforce the financial value over the caring value again. 304. See UPA § 18(f), 6 U.L.A. 213 (1914). 305. See J. Crane & A. Bromberg, supra note 16, at 376. fall into poverty.3 °6 If we accept the market theory, which assumes that people regulate their personal lives to maximize profit, forced income sharing would create an incentive not to create second and third families. Unfortunately, the decisions to marry, divorce, or have children are seldom so rational.307 The problem of income sharing in low-income families can be mitigated, however, by allowing individuals to retain enough separate income to support themselves at a minimum level. For example, each spouse's first five thousand dollars of annual income could be exempted from any sharing requirement. Such an exemption would not only prevent throwing two households into poverty, it would also prevent complicated sharing arrangements when there were only minor differences in the spouses' earnings. Of course, that solution might continue to perpetuate inequality. We face a dilemma when equality means increased poverty. This outcome is not acceptable. No system of allocating resources within the family can solve the problem of poverty. It takes redistribution of income throughout society to even begin to address the problem. Counter-Productive Incentives Created by Income Sharing Income sharing might also create some new problems. First, income sharing could discourage marriage. Many prospective spouses may be deterred by the prospect of sharing income for life. If discouraging marriage means that couples think harder about marriage and therefore take the commitment more seriously, then income sharing is to be commended.30 s If, however, not marrying merely means having less commitment to the family one has already created, income sharing makes a bad situation worse. Income sharing is designed to ease the burdens on homemakers and to encourage responsibility. One solution to this problem, of course, is to apply the same income sharing requirements to parents, regardless of marital status. The wisdom of that suggestion, however, is beyond the scope of this Article. 306. I am indebted to my colleague, Ellen Morgan, who gave me this insight in conversation. 307. See, e.g., S. Sheehan, supra note 66, at xi (At one point a caseworker asks the welfare mother why she had nine children. "'He had been sure she had not had them simply to get more welfare.... ' Anyone who had spent five years as a caseworker, as he had, knew that life for... women like [this one] was far more a series of accidents, both happy and unhappy, than popular wisdom realized. It was not in [her] nature to think about what she was going to eat for dinner until an hour or so before dinnertime, and it was not in her nature to go to bed with a man thinking that it might lead to an increase in her welfare check."). Although middle-class families may do more planning, there is no reason to believe that their decisions on these issues are any more rational. 308. Indeed, others have suggested that having high entry barriers to marriage may result in a better sense of community within marriage. See D. Funk, supra note 22, at 551 (arguing that age and licensing requirements as well as waiting periods before marriage encourages marital integration). A more disturbing problem is that income sharing may make certain classes of people less attractive marriage prospects. Thus, if an individual knows that if he or she marries he or she will have to share income with his or her spouse for life, he or she may be willing to marry only people with equal or greater earning power. The result may be to overvalue earning power and undervalue other desirable qualities such as personal warmth and caring. Second, spouses trapped by income sharing may resort to unacceptable escape routes. Ann Jones argues that in times when divorces were difficult or impossible to get, spouses turned to spousal homicide as a solution. 09 While income sharing does not trap spouses in as difficult a situation as does forced marriage, forced income sharing may fan the fires of hate that sometimes rage between former spouses. Similarly, Frances Olsen has warned us against intruding on an individual's personal sphere with "forced community."31 Sharing income, however, need not force a community on anyone. The financial transactions required need not involve any more contact than paying taxes does. Income sharing calls for a financial transfer that could be achieved through impersonal means such as withholding at source, or electronic funds transfers. Income sharing may also discourage divorce. Currently, courts are reluctant to enforce any obligation to share income during the marriage, even in relatively oppressive circumstances. For example, in McGuire v. McGuire,"' the court refused to compel a relatively wealthy husband to share his resources with his elderly wife even though they lived in a rundown house without running water. If courts enforce income sharing only at divorce, it could create an incentive to financially abandon spouses rather than divorce them. This problem arises from the difference in the way courts treat the duty to share with a spouse in marriage and divorce. Rather than abandoning the duty to share at divorce, we might more appropriately require spouses to share during a marriage. Others have already made such a proposal3.1 2 In any event, the problem is exaggerated because the abandoned spouse is not prevented from obtaining a divorce. Unfortunately, if a divorce occurs after the payor spouse has disappeared, an income sharing order may not be very helpful. Indeed, the continual struggle to collect support payments under the current system casts considerable doubt on the efficacy of post-abandonment collection. More serious enforcement methods are just beginning to be tried. Certainly, withholding 309. See generally A. Jones, supra note 274, at 76-139 (detailing instances of wives murdering their husbands to escape unhappy or abusive marriages). 310. See Olsen, Statutory Rape: A FeministCritiqueofRights Analysis, 63 Tex. L. Rev. 387, 393 (1984). 311. 157 Neb. 226, 59 N.W.2d 336 (1953). 312. See, e.g., Krauskopf & Thomas, PartnershipMarriage: The Solution to an Ineffective andInequitableLaw of Support, 35 Ohio St. L.J. 558, 586-91 (1974) (proposing that husband and wife share equally in net income of family). CONCLUSION Income sharing is a model that accommodates many needs. It provides a model for sharing that encourages spouses to care. Although income sharing could be viewed as fulfilling the expectations of many parties, it may or may not actually fulfill the expectations of any particular couple. Of course, if income sharing becomes the legal standard, parties will adjust their expectations and bargaining to fit it. Income sharing is not a matter of contract. Rather it is a legal duty, similar to the fiduciary duties of partnership, which society should impose on spouses at divorce. It is a duty not because spouses have agreed to assume it, but because of the mutuality inherent in the division of labor within a marriage. It is a duty required to encourage sharing and equality. 2. Defining the Terms of the Contract ................ 3. The Effect of Contractual Families: Devaluing Caring and Sharing ............................... 4. Finding a Breaching Party: A Return to Fault .... 5. The Role of Privacy .............................. 1. The Role of Contract in Partnership .. ............. 2. The Role of Fault in Partnership .. ................ 3. Fiduciary Duties .................................. II. The Division of Labor: The Source of Duty ............... 1. The Maintenance Myths .......................... 2. Problems with the Existing Alimony Standards .... c. Problems with the ContributionStandard ....... 549 550 551 552 553 555 556 557 559 560 562 564 565 566 568 569 570 570 570 571 d. Problems with the Standardof Living Approach to Alimony .................................... 1. Problems with Property Division as a Substitute for Alim ony .......................................... 2. Problems with Re-Defining Income as Property .... III. The Case for Income Sharing ............................. 1. Income Sharing as a Method to Foster Sharing and Caring ........................................... 2. Income Sharing as an Escape from Fault .......... 3. Income Sharing as a Form of Empowerment ....... 4. Income Sharing as a Route to Equality ............ 1. Problem of the Clean Break ....................... 2. The Problem of Remarriage ....................... 3. The Problem of the Loafer ........................ 4. Special Problems in Low-Income Families ......... 5. Counter-Productive Incentives Created by Income Sharing ........................................... 17. Rucci v. Rucci , 23 Conn. Supp. 221 , 224 , 181 A.2d 125 , 127 ( 1962 ). Although courts may be less willing to articulate this attitude today, the impact of the current alimony rules creates a similar duty . See infra notes 153-154 and accompanying text. 18. Hernia Hill Kay notes the "disturbing tendency of trial court judges to cut back on already meager alimony awards and to limit even those awards to brief periods of time." Kay, Equality and Difference: A Perspective on No-FaultDivorce and its Aftermath, 56 U. Cin . L. Rev. 1 , 58 ( 1987 ) ; see , e.g., Ind.Code Ann. 31-1-11 .5 -1l(e)(2) (Burns Cum . Supp. 1989 ) (limiting permanent alimony to spouses who care for handicapped children); see also UMDA § 308(a ), 9A U.L.A. 347 - 48 ( 1973 ) (limiting alimony to spouses who cannot support themselves). 19. The contribution theory of alimony essentially sees alimony as a repayment for work performed during the marriage. For a discussion of the problems of the contribution standard , see infra notes 202-212 and accompanying text. For a fuller discussion of the parallels between the employment relationship and the family relationship, see M. Glendon , The New Family and the New Property 143-46 ( 1981 ). Glendon points out that the master/servant relationship used to be considered as part of family law . 20. See L ,Weitzman, supra note 6 , at xii. 21. See Rucci v. Rucci , 23 Conn. Supp. 221 , 224 , 181 A.2d 125 , 127 ( 1962 ). Thus in finding such duties, the court referred to them as "the fair demands of the marriage contract . " Id. at 224-25, 181 A.2d at 127. 22. See D. Funk , Group Dynamic Law: Integrating Constitutive Contract Institutions 109-10 ( 1982 ). 23. See E. Durkheim , The Division of Labor in Society 212 (G. Simpson trans. 1933 ). 24. See Rutherford , Beyond IndividualPrivacy: A New Theory ofFamily Rights , 39 28. Id . at 271. 29. See F. Tonnies , Community & Society 33 -35 (C. Loomis trans. 1957 ). 30. Teitelbaum argues that the family is an emotional system which ideally provides unconditional acceptance . See Teitelbaum , Placingthe Family in Context, 22 U.C. Davis L. Rev . 801 , 817 ( 1989 ). For a discussion of the historical view of the family as a safe haven from the harsh economic world, see id . at 809-12. 31. See Hardwig , Should Women Think in Terms of Rights?, 94 Ethics 441 , 443 ( 1984 ). 32. See Areen , A Need for Caring (Book Review), 86 Mich. L. Rev . 1067 , 1075 ( 1988 ). 33. Olsen sees them as both firmly rooted in laissez-fairefreedom from state intervention and the triumph ofthe free market: "The basic assumptions that underlie arguments in favor ofthe private family are similar to those underlying the arguments in favor of the free market . " Olsen, supra note 25 , at 1504. 34. Men being, as has been said, by nature all free, equal, and independent, no one can be put out of this estate and subjected to the political power of another without his own consent. The only way whereby any one divests himself of his natural liberty, and puts on the bonds of civil society, is by agreeing with other men to join and unite into a community for their comfortable, safe, and peaceable living one amongst another .... J. Locke, Two Treatises of Government 168 -69 (T.Cook ed. 1947 ) (1690). 35. See Hillman , Misconduct as a Basisfor Excludingor Expellinga Partner: Effecting CommercialDivorce and Securing Custody of the Business , 78 Nw. U.L. Rev. 527 , 67. Chalmers v. Chalmers , 65 N.J. 186 , 193 , 320 A.2d 478 , 482 ( 1974 ). 68. See generally Schneider, Moral Discourse and the Transformation of American Family Law, 83 Mich. L. Rev . 1803 , 1808 - 22 ( 1985 ) (discussing the decline of moral discourse in family law). 69. See Olsen, supra note 25 , at 1507. 70. For example, in State v. Rhodes , 61 N.C. (Phil. Law) 349 ( 1868 ), the court refused to protect a battered wife because it would have violated the privacy of the marital bedchamber . See id. at 353-54. 71. For a discussion of the various meanings of privacy, see Minow, We, the Family: ConstitutionalRights andAmerican Families ,in The Constitution and American Life 299 (D. Thelen ed. 1987 ). 72. See , e.g., Ind. Code Ann. §§ 31-6-8-1 , 31 -6-8- 1 .2, 31 -6-8- 1 .5 ( Bums 1987 ). 73. See Allen , Taking Liberties: Privacy,Private Choice, andSocial Contract Theory , 56 U. Cin . L. Rev. 461 , 465 - 66 ( 1987 ). 74. See supra note 13. 75. See UMDA § 307 , 9A U.L.A. 238 , 239 ( 1973 ) ; id . § 308 ( b ), 9A U.L.A. at 348. The comment to section 308 suggests that an inquiry into misconduct is irrelevant . See id. § 308 comment , 9A U.L.A. at 348. 76. See Restatement (Second) of Contracts § 347 . The notions of fault and breach apply equally well to marriages. "[C]onsideration of fault ... may be based on sound and traditional principles of contract. Where two parties enter into a marriage contract to last until the death of either party and one party breaches that contract by an earlier termination of the marriage, general contract principles dictate that the breaching party bear the economic loss." Butler & Russell, Casting Stones: The Role of Faultin Virginia Divorce Proceedings ,20 U. Rich . L. Rev. 295 , 310 ( 1986 ). 77. See UPA § 18 , 6 U.L.A. 213 ( 1914 ). 93. Most partnership rules come from the UPA, which is currently in effect in 52 jurisdictions . See 6 U.L.A. (Cum. Annual Pocket Part) 1 ( 1989 ). 94. See UPA § 38 ( 2)(a)(II), 6 U.L.A. 456 ( 1914 ). 95. See id. § 38 ( 2 )(b), 6 U.L.A. at 456. 96. See id. § 38 ( 2)(c)(II), 6 U.L.A. at 456-57. 97. See Zeibak v. Nasser, 12 Cal. 2d 1 , 9 , 82 P.2d 375 , 379 ( 1938 ). 98. See Herman v. Pepper , 311 Pa. 104 , 108 , 166 A. 587 , 588 ( 1933 ). 99. See Lavoine v. Casey , 251 Mass. 124 , 127 , 146 N.E. 241 , 242 ( 1925 ). 100. See Schroer v. Schroer , 248 S.W.2d 617 , 622 (Mo. 1952 ). 101. See UPA § 38 ( 2)(c)(I), 6 U.L.A. 456 ( 1914 ). 102. For example , Zeibak v. Nasser, 12 Cal. 2d 1 , 82 P.2d 375 ( 1938 ), turned on whether Zeibak breached the partnership agreement because he refused to deliver documents that he had signed, or whether the Nassers breached the agreement because they froze Zeibak out of the business . See id. at 7-9 , 82 P.2d at 378 - 79 . This search for a single breaching party may reflect a false dichotomy since it frequently takes two to tangle. Nevertheless, the court was willing to affix blame. Although phrased in contractual terms, the court was really deciding which partner was at fault . 103. Anita Allen has condemned this use of privacy: "On the whole, women have had too much of the wrong kinds of privacy. They have had modesty, chastity, and family homes when what they have needed are the forms of privacy that foster moral independence . " Allen, supra note 73 , at 471. 205. Thus, the UMDA points out that it makes "allowance for the contibution ... of the 'homemaker's services to the family unit.'" UMDA § 307 comment , 9A U.L.A. 239 ( 1973 ). 206. See supra notes 132-134 and accompanying text. 207. See UPA § 18 (f), 6 U.L.A. 213 ( 1914 ). 208. "These profits constitute, in the absence of other agreement, the stipulated reward for services to be rendered, and there is no right to other compensation based on the reasonable value of the services actually rendered . " J. Crane & A. Bromberg, supra note 16 , at 376. Indeed, at least one court has held that the presumption of non-compensation only applies when partners equally share profits and liabilities . See Steinberg v. Goodman , 27 N.Y.2d 304 , 309 , 265 N.E.2d 758 , 761 , 317 N.Y.S.2d 342 , 345 ( 1970 ). 209. See UPA § 18 ( a ), 6 U.L.A. 213 ( 1914 ). 210. See id. § 18 (f), 6 U.L.A. at 213. 211. Id . § 18 , 6 U.L.A. at 213. 212. See id. § 38 , 6 U.L.A. at 456-57. 213. See J. Areen , supra note 175, at 594. 214. See Mnookin & Kornhauser, supra note 48, at 961; see also UMDA § 309 ( 3 ), 9A U.L.A. 400 ( 1973 ) (listing "the standard of living the child would have enjoyed had the marriage not been dissolved" as a factor in child support payments). 221. See I.R.C. § 71 (b) (alimony); id. § 71(c) (child support) ( 1988 ). 222. 191 N.J. Super . 609 , 468 A.2d 733 ( 1982 ). 223. Id . at 612 , 468 A.2d at 734. 224. See id. at 613, 468 A.2d at 735. 225. See id. at 612, 468 A.2d at 734. 226. See id. 227. See , e.g., UMDA § 308 comment , 9A U.L.A. 348 ( 1973 ) (" The... intention... is to encourage the court to provide for the financial needs of the spouses by property disposition rather than by an award of maintenance."). 228. See id. 229. See UPA § 38 , 6 U.L.A. 456 - 57 ( 1914 ). 230. See generally L. Weitzman, supra note 6, at 79 (many attorneys and judges surveyed expressed concern regarding liquidation of family home, "especially in families with minor children" ). 231. See Hillman, supra note 35 , at 533. 232. Accordingly , an American Bar Association committee has recommended that the UPA be amended to make forced liquidation more difficult . See Should the Uniform PartnershipAct Be Revised?, Report of the UPA Revision Subcomm. of the A.B.A. Part- 241. See , e.g., Batts, Remedy Refocus: In Search ofEquity in "EnhancedSpouse/Other Spouse" Divorces , 63 N.Y.U. L. Rev. 751 , 758 - 64 ( 1988 ) (enhanced earning capacity is property subject to distribution upon divorce). 242. See Wilson v. Wilson, 294 Ark. 194 , 204 , 741 S.W.2d 640 , 647 ( 1987 ) (medical degree and earning capacity not marital property, but goodwill from medical practice is); Daniels v . Daniels , 165 Mich. App. 726 , 731 , 418 N.W.2d 924 , 927 ( 1988 ) (medical degree part of marital property); O'Brien v . O'Brien , 66 N.Y.2d 576 , 580 - 81 , 489 N.E.2d 712 , 716 - 17 ( 1985 ) (same); Buckl v . Buckl , 373 Pa. Super. 521 , 526 , 542 A.2d 65 , 69 ( 1988 ) (partnership interest). 243. Consider a professional spouse age 40 earning $50,000 per year . Such a spouse would earn $1 , 250 , 000 over the next 25 years, presuming no increases in earnings, even for inflation. If the divorced spouse is entitled to half that income, he or she would have a right to a judgment of $625,000 . 244. See Krauskopf , Recompense for FinancingSpouse's Education: Legal Protection for the MaritalInvestor in Human Capital,28 U. Kan . L. Rev. 379 , 414 ( 1980 ) ("[T]he court feared that the desire to prevent unjust enrichment would lead to uncontrollably large awards."). 245. See , e.g., McNally v . McNally, 516 So. 2d 499 , 501 (Miss. 1987 ) (dentist who had just entered practice did not have enough income to pay his wife appropriate support). 246. See , e.g., Inman v . Inman , 648 S.W.2d 847 , 852 (Ky. 1982 ).


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Jane Rutheford. Duty in Divorce: Shared Income as a Path to Equality, Fordham Law Review, 1990,