Economic Sharing During Marriage: Equal Protection, Spousal Support and the Doctrine of Necessaries

Abstract:     
The two types of marital property systems in the United States differ dramatically in the approach taken to ownership of marital property. Shared ownership of assets acquired by the efforts of the spouses during marriage characterizes the community property system. The common law property system, on the other hand, is premised on the principle of separate ownership. All assets acquired by either spouse during marriage, along with property brought to the marriage, belong exclusively to the acquiring spouse.

Exceptions to the principle of separate ownership during marriage exist in the common law marital property system. The law of support establishes limited rights for each spouse in the property of the other, although enforcement of the rights during marriage is problematic. The doctrine of necessaries, enabling creditors to collect support debts on a noncontractual basis, is premised on the spousal support obligation.

The traditional laws of support and necessaries, applicable to husbands only, do not satisfy the fourteenth amendment's equal protection requirement. While these laws fall short of creating true financial equality in marriage, their abrogation would be most inappropriate. In extending the laws of support and necessaries to wives, concerns about protection of dependent spouses, administrative convenience and creditor rights arise. A gender neutral rule that accommodates all of these interests can and must be formulated in order to retain this limited element of sharing during marriage in the separate property states.

Number of Pages in PDF File: 41

Keywords: marital property systems, shared ownership, separate ownership, common law ownership, assets, economic sharing, equal protection, spousal support, doctrine of necessaries, community property system, common law property system, legal reform, legislation

JEL Classification: K39, K11

Accepted Paper Series