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Liberty and Community in Marriage: Expanding on Massey's Proposal for a Community Property Option in New Hampshire

32 Pages Posted: 23 Feb 2017 Last revised: 22 Mar 2017

Jo J. Carrillo

UC, Hastings College of the Law

Date Written: February 17, 2017

Abstract

Liberty and Community in Marriage argues that intimate partners should have the right to adopt a default sharing economy within marriage no matter the state in which they are domiciled. Forty-one U.S. states employ a separate property regime for property acquired during marriage; of these, only two allow married couples to opt out of the state separate property system so as to hold their assets as community property by private contract or trust. Nine U.S. states allow default community property ownership during marriage.

In support of its claim, the article compares four marriage reform proposals: two based on taking the state out of marriage; one based on stronger enforcement of equitable distribution laws at divorce; and one based on the enablement of a community property option in a separate property state. Each proposed reform refers to market-metrics in assessing property rights between unmarried persons. Only the community property option proposal, however, allows for further theoretical development of the qualitative claim that an individual has a right to enter into and maintain a marriage between economic equals; and separate property states should further, not frustrate, the exercise of that right.

Keywords: marriage, nonmarriage, civil union, contract marriage, plural marriage, polyamory, polygyny, intimate partnership, dissolution, community property, separate property, Elizabeth Anderson, Laurie Shrage, John Stuart Mill, Harriet Taylor Mill

Suggested Citation

Carrillo, Jo J., Liberty and Community in Marriage: Expanding on Massey's Proposal for a Community Property Option in New Hampshire (February 17, 2017). University of New Hampshire Law Review, Vol. 15, No. 2, 2017; UC Hastings Research Paper No. 239. Available at SSRN: https://ssrn.com/abstract=2919605 or http://dx.doi.org/10.2139/ssrn.2919605

Jo Carrillo (Contact Author)

UC, Hastings College of the Law ( email )

200 McAllister Street
San Francisco, CA 94102
United States
(415) 565-4866 (Phone)

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