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65 Tul. L. Rev. 953 (1990-1991)


Making sense of divorce requires making sense of marriage. Yet, while the legal literature abounds with publications about the difficulties with modern divorce, it rarely mentions marriage. What is the role of marriage in the modern era? Does it continue to involve a lifelong commitment? Does it depend on the perpetuation of different roles assigned by gender? Should marriage remain the principal focus of societal provisions for childrearing? What is the role of the state in regulating this most intimate of relationships?

This Article attempts to address these questions by working backwards. With the decline in the importance of religion and of the other societal and economic forces that made lifelong unions central to the social order, there may be no accepted definition of marriage, but there is also no dearth of rules governing divorce. What do those rules and the proposals to reform them say about the nature of marriage?

In an effort to use divorce to examine marriage, this Article draws on several disciplines. The first Part uses modern theories of civil obligation, influenced by the insights of law and economics, to explain the significance of recent divorce reform. Economists approach civil liability as a system of incentives designed to encourage or deter future behavior. While financial incentives may not influence marital behavior to the extent that they influence commercial behavior, divorce awards reinforce selected marital ideals at a symbolic level. Viewed in this light, the abolition of fault, not only as a prerequisite for divorce but also as a consideration in determining divorce awards, ushered in a revolution in divorce jurisprudence. Divorce awards under the old system served as a selective form of specific performance dependent on the inviolability of marital obligations. Modern awards, justified by need or lost career opportunities, deny the existence of an obligation to remain married. The wisdom of the resulting awards depends on the marital behavior to be encouraged or deterred.

The second Part of this Article uses an historical approach to explain the forces underlying divorce reform. This section compares revisions in nineteenth- and twentieth-century family law, explaining these revisions in terms of changes in the division of labor. The nineteenth century, which witnessed the transformation of much of the country from an agrarian to an industrial society, involved both greater specialization among men to supply the needs of the emerging industrial economy and an increasingly rigid division between the male world of the market and the female world of the home. The latter part of the twentieth century has involved the transformation from a manufacturing to a service economy—increasing the demand for women workers. Specialization among women, who were once limited to the relatively undifferentiated role of homemaker, is now matching specialization among men as even married middle-class mothers join their husbands in the labor market, hiring other women to satisfy the family's domestic needs.

The third Part of this Article uses the relationships between divorce proposals and the division of labor within marriage to critique the existing theoretical perspectives. This section demonstrates that the traditionalist approach to marriage championed by Chicago School economists like Gary Becker depends on the argument that one spouse, preferably the wife, should bear the primary childrearing role. According to this approach the only way to encourage such a division of responsibilities is to tie the financial consequences of divorce to the performance of relatively traditional roles. In contrast, liberal feminists, led by Herma Hill Kay, caution against the expansion of divorce awards. They believe that women will achieve substantial equality only when they become financially independent, and that society must withdraw its support for traditional marital roles if this is to occur. In between are two other groups. The first group argues for a divorce award system tied to compensation for lost career opportunities. This system is designed to encourage married women both to remain in the labor market and to bear the primary responsibility for childrearing. Secondly, a newer group of feminists, employing an expanded partnership approach, argues that the childrearing role should be made less perilous without penalizing women's decisions either to value family more than career or to leave a particular marriage.

The Article concludes that to resolve these issues, to complete a vision of the future of marriage, requires examining not only the relationship between men and women, but also that between marriage and children. Feminists, divided on the degree to which men and women's roles should differ, should nonetheless be able to agree on the need to separate support for childrearing from the continuation of existing marriages. Should such a separation occur, however, it will mark a new beginning, not an end, for the rethinking of marriage.


Reprinted: in Cases and Materials on Family Law, 3d ed., Judith Areen, Foundation Press (1992)

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