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Wednesday, February 25, 2009

Kelly on Marital Property

Alicia B. Kelly (Widener) has posted Money Matters in Marriage: Unmasking Interdependence in Ongoing Spousal Economic Relations on SSRN.  Here's the abstract:

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.

Ben Barros

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http://lawprofessors.typepad.com/property/2009/02/kelly-on-marita.html

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Comments

Hilarious. Absolutely hilarious. 71 pages of the most cliched pablum one could read. And as predicted, I'm chiming in right on cue.

Part of the crap the author is putting forward involves attempting to quantify contributions by spouses. Yet the only way those contributions are usually quantified is in divorce proceedings: forums notoriously unfriendly to the husband/fathers and notoriously willing to recognize the nearly obsolete non-breadwinner roles of the wives/mothers.

I've read this all before. Oh, by the way. I love how the author felt the need to footnote her statement that money matters in marriages and is important to spouses. Gee, thanks. I was almost apoplectic contemplating having to read that statement without attribution or support. Whew!


Posted by: gompers | Feb 25, 2009 7:43:16 AM

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