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dc.contributor
dc.contributor.author Tait, Allison Anna
dc.date.accessioned 2015-11-16T17:42:45Z
dc.date.available 2015-11-16T17:42:45Z
dc.date.issued 2015-11
dc.identifier.citation 90 Wash. L. Rev. 1245 (2015) en_US
dc.identifier.issn 0043-0617
dc.identifier.uri http://hdl.handle.net/1773.1/1485
dc.description Volume 90, Number 3, October 2015 en_US
dc.description.abstract Allison Anna Tait, Assistant Professor, University of Richmond School of Law. Abstract: The battle for marriage equality has been spectacularly successful, producing great optimism about the transformation of marriage. The struggle to revolutionize the institution of marriage is, however, far from over. Next is the battle for divorce equality. With the initial wave of same-sex divorces starting to appear on court dockets, this Article addresses the distinctive property division problems that have begun to arise with same-sex divorce and that threaten, in the absence of rule reform, to both amplify and reinscribe problems with the conventional marital framework. Courts have failed to realize the cornerstone concept of equitable distribution—marriage as an economic partnership—in the context of different-sex marriage. Because same-sex divorce highlights this failing, this Article uses same-sex divorce as a lens through which to reexamine the untapped potential of equitable distribution statutes. Two questions drive the analysis. One question is how to decide which assets count as marital property and how to value one spouse’s contributions to the other spouse’s career success. I propose that courts characterize enhanced earning capacity as marital property and count indirect spousal contributions toward the growth in value of business assets. Without these changes, courts fail to capture the nature of marital partnership and properly compensate contributions made by non-earning spouses. Another question, made salient by same-sex “hybrid” cases in which the spouses have been long-term cohabiting partners but short-term marital partners, is how to determine when an economic partnership begins. I propose that courts use the category of “pre-marital” property in order to count assets and income acquired outside of the marriage itself. Addressing these questions is critical to the reformation of marriage because property rules impact how spouses bargain with one another, how diverse roles get valued in marital bargains, and how we assign and perform gender within marriage. Moreover, proper compensation for spousal contributions rewards individuals for making choices that benefit the couple rather than the individual, which is normatively positive behavior. These proposals for rule reform provide guidance for courts, both those encountering an increasing number of same-sex divorces as well those deliberating over how best to assess spousal contributions in different-sex marriages. Furthermore, the proposals in this Article provide a blueprint for advocates who seek to continue the work of marriage equality in the hopes of further unwinding the power of gender within marriage. en_US
dc.language.iso en_US en_US
dc.publisher Seattle: Washington Law Review, University of Washington School of Law en_US
dc.subject Article en_US
dc.title [90WashLRev1245] Divorce Equality en_US
dc.title.alternative Divorce Equality en_US
dc.type Article en_US
dc.rights.holder Copyright 2015 by Washington Law Review Association. en_US


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