Money as Emotion in the Distribution of Wealth at Divorce

Abstract

This chapter appears in a volume assessing the American Law Institute's Principles of the Law of Family Dissolution. [Reconceiving the Family: Critique on the American Law Institute's Principles of the Law of Family Dissolution, edited by Robin Fretwell Wilson, Cambridge University Press, July 2006.] The ALI attempts to separate financial matters from nonfinancial matters (behavior and emotions), in divorce proceedings. This separation effort pervades the Principles, appearing in provisions governing alimony, property distribution, marital agreements, and the grounds for divorce. This chapter evaluates this effort in several areas, ending with a focus on the ALI's treatment of financial misconduct. It concludes that the impulse to separate financial from emotional issues at divorce is understandable, but futile. Finances are not distinct from emotions in relationships. Rather, they are an avenue through which emotions are expressed. Money in relationships is not distinctly transparent, but complicated by emotional exchanges, just as are betrayal, apology, laziness, tolerance, loyalty, or daily bargaining. The ALI's attempt to bury the thorniest issues presented by a divorce proceeding is futile, because those issues will resurface in different forms in the doctrine. Courts cannot disentangle finance from emotions or behavior within relationships.

Keywords: Divorce, Emotions, Marriage, Property Division, Premarital Agreements, ALI Principles

JEL Classification: K19, K11, K12, K39