Friday, March 6, 2009
Associate Professor Alicia Brokars Kelly of Weidener University School of Law has posted to SSRN her article, Money Matters in Marriage: Unmasking Interdependence in Ongoing Spousal Economic Relations, forthcoming in the Louisville Law Review (2008). Her abstract of the article indicates that:
This Article presents a rare exploration of the interactions among money, marriage and law while the relationship is ongoing. Using insights on the relational landscape from the social sciences as a lens, I examine the law’s regulation of spousal economic relations and its account of and potential impact within a functioning marriage. Building on my previous work, my claim is that the law governing money in marriage should be grounded on a distinctive and clarified model of partnership marriage that understands the relationship to be of equal persons who join forces to share the burdens and benefits of a shared life. Contrary to the view that a partnership ideal is not well suited for the task, the framework I propose includes and advances the values of sharing and intimacy, but also supports individual autonomy and equality. Uniquely bringing together and evaluating contemporary marital property regimes and the duty of support, I critique the majority approach to both as it privileges a solitary market achievement model of wealth acquisition, disregarding unpaid work. This hyper-individualistic view works to perpetuate gender hierarchy and threatens individual autonomy, and at the same time undermines the norms of sharing and interdependence that are central to the relationship. In contrast, I endorse the shared and equal ownership rule in community property states as it rightly reflects the values of partnership marriage, and I argue for adoption of default rules of shared control over much marital wealth. Partnership marriage also demands a transformation of the duty of support into a simpler and broader egalitarian rule of shared marital wealth, untied from dependency—and enforceable even during marriage.
Download the article at SSRN (last visited March 6, 2009 bgf)