Societal Factors Affecting the Creation of Legal Rules for Distribution of Property at Divorce
Martha Albertson Fineman
Emory University School of Law
Family Law Quarterly, Vol. XXII, No. 2, Summer 1989
Emory Public Law Research Paper, Forthcoming
The way that we as a society perceive marriage and the relationship between husband and wife profoundly affects the way that we select, develop, and apply rules governing property distribution at divorce. A consensus about what constitutes equity and justice is not easily attained.
Legal actors must develop and apply rules in a legal system where the long-standing recognition of dependency and need on the part of mothers and children within families is increasingly offset by the desire for symbolically compelling presentations of gender equality and independence. The law of property distribution at divorce has often become the crude instrument with which we attempt to both implement equality and address dependency and need. When the law is expected to do incompatible or contradictory things simultaneously, it is no wonder that the results are confusing.
This paper explores the factors involved in deciding distribution, categorizing them into the concepts of need and contribution, concluding that the present state of distribution rules leads to undesirable results. Because many cases do not fit neatly into one or the other of the competing concepts, in some situations women may be overbenefited while in others they will be undercompensated.
Number of Pages in PDF File: 22
Keywords: Equality, divorce, contribution, distribution, partnership, feminist legal theory, feminism, dependency, need
Date posted: August 21, 2012