Friday, December 2, 2011
Ratner: "Distribution of Marital Assets in Community Property Jurisdictions: Equitable Doesn't Equal Equal"
James Ratner (Univ. of Arizona) has posted "Distribution of Marital Assets in Community Property Jurisdictions: Equitable Doesn't Equal Equal" (72 La. L. Rev. 21 (2011)) on SSRN. [He also gave a great talk on it at a community property symposium LSU Law hosted in the spring - thanks, Jamie!] Here is the abstract:
The hallmark of an American community property system is that community property is owned in present undivided one-half ownership by each spouse. At divorce, however, most community property jurisdictions parrot common law jurisdictions and divide the community property "equitably" rather than "equally." While “equitable” could be interpreted to differ from “equal” only in that “equal” requires a 50/50 split of each community asset and “equitable” requires only equal division of the community worth, “equitable” has recently been interpreted in a far more open-ended manner. As a result, vague factors including need, contribution, duration of the marriage, the age of the divorcing parties, as well as the behavior of the parties during the marriage, are used to justify substantially unequal divisions of community property at divorce. Recent Arizona cases exemplify this approach. The question of an equitable rather than equal division comes down to whether the flexibility of an open-ended, standardless notion of equitable division of the community worth is necessary to permit something other than a 50/50 distribution in the occasional situation where "everybody knows a 50/50 split yields a bad result." The need to address unusual situations likely led to the open-ended concept of equitable division articulated in the Arizona cases, but that interpretation cannot be constrained to the highly stylized facts that led to the interpretation. Instead, the interpretation injects into every divorce the potential for a fight over the need to depart from a 50/50 split of the community worth. In addition, because the open-ended conception of “equitable” includes authorizing divorce courts to consider whether spouses contributed to the marriage relationship, the use of “equitable” as envisioned by those decisions injects a form of fault inquiry into the calculus concerning the proper share of the community worth. The costs of the flexibility to adjust in a small number of situations seem far outweighed by the harms of distortion to the vast majority of divorces. Equal, rather than equitable, offers a superior, although imperfect, compromise between the competing claims of contribution and need as well as the legitimate societal desire to enable judicial flexibility.