Labor, Luck, and Love: Reconsidering the Sanctity of Separate Property

Abstract:     
In most U.S. jurisdictions, property acquired prior to marriage and property received by gift or devise during marriage belongs to each spouse separately. Regardless of how long spouses have been together, divorcing property owners have no obligation to share this separate wealth. Earnings accumulated in the course of the marriage, on the other hand, are divisible at divorce. Thus, where a born rich dilettante divorces a self-made professional, only the worker is forced to share. Although the labor-centered classification principle permeates the overwhelming majority of scholarly, statutory, and judicial discussions of marital property law as a background presumption, it has gone largely unquestioned.

This Article critiques the labor-centered marital property principle and argues that if earnings are to belong to both spouses as a unit, a portion of what is currently classified as separate property should also be attributed to the marriage. The standard for classifying property as marital should look at the parties' overall financial picture and attribute to the couple a comparable level of risk and reward for the duration of the marriage. Specifically, marital property should include a percentage of premarital and unearned wealth based on the length of the marriage as well as on the age of the owner spouse. The guiding principle of the proposal is to attribute to the marriage a fraction of the owner spouse's estimated lifetime financial capability, effectively recognizing that in marriage, labor, luck, and love are intertwined.

Keywords: divorce, marriage, property, community, separate, labor, luck, gift, inheritence, earnings, spousal support, property distribution, division, partnership, life expectancy

Working Paper Series