An Incomplete Revolution: Feminists and the Legacy of Marital-Property Reform
Florida State University College of Law
Michigan Journal of Gender & Law, Forthcoming
Saint Louis U. Legal Studies Research Paper No. 2012-12
Did the divorce revolution betray the interests of American women? By focusing primarily on the history of no-fault rules, current studies suggest that marital-property rules fail to protect women’s interests partly because feminists remained largely uninvolved in debate about divorce reform. Still other scholars have argued that current marital-property reforms reflect the shortcomings of the formal-equality principles endorsed by second-wave feminists.
However, leading work on divorce law has not adequately addressed the history of marital-property reform or engaged with scholarship on the struggle for the Equal Rights Amendment to the federal Constitution. This Article puts these two bodies of work in dialogue with one another and, in so doing, provides the first comprehensive history of the role of women, both feminists and antifeminists, in revolutionizing the law of marital property in the United States.
If one looks at the divorce revolution debate in the context of the ERA struggle, different issues emerge. As we shall see, feminists did seek to rework the law of marital property, but the battle for the ERA heavily shaped the reforms they championed and the contentions they advanced. In particular, in countering anti-ERA claims, feminists sought to establish that they believed that the contributions and interests of homemakers were as important as those of working women. By focusing on what homemakers did contribute, as the Article will show, feminists did not fully consider the contributions of wage-earning spouses or evaluate what counted as marital property in the first place. Specifically, the marital-property laws promoted by feminists (and ultimately adopted by many states) did not explicitly define a wage-earning spouse’s human capital — the future earning potential that both spouses helped to create — as a marital asset. The ERA debate shaped the terms of the marital-property revolution, leaving a troubling legacy for women at divorce.
Number of Pages in PDF File: 44Accepted Paper Series
Date posted: June 19, 2012
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