All’s Fair in Love and War: But What About in Divorce? The Fairness of Property Division in American and English Big Money Divorce Cases
Indiana University Robert H. McKinney School of Law
August 7, 2009
North Dakota Law Review, Vol. 86, No. 1, pp. 115-147, 2010
Eyebrows have recently arched not only at the high sums involved in big money divorce cases, but also at the amount of ink spilled on this relatively small subset of divorce cases. Yet, it is precisely in big money cases, wherein judges have discretion over resources that significantly exceed the needs of the parties, that fairness acquires substantial haziness. The question of fairness is particularly acute in short marriages, as well as when one spouse is at fault for the divorce or when one spouse contributes extraordinarily to the marriage. Courts in both England and the United States have been encountering these issues with increasing frequency and differing results. The majority of American courts have employed the principle of equitable distribution, resulting in a disproportionate property division between spouses, particularly when the marital estate grew because of one spouse’s extraordinary efforts. England, on the other hand, has recently implemented a yardstick of equality that aims for near equal property division between spouses, representing a major shift in English case law and a doctrinal break from American law. This article examines these changes in the comparative context, underscoring the consequences of country’s interpretation of fairness in post-divorce property division.
Number of Pages in PDF File: 34
Keywords: family law, domestic relations, comparative law, comparative family law, property division, property distribution, divorce, English law, equitable distribution, community property
Date posted: August 7, 2009 ; Last revised: June 15, 2013