The Likely Impact of the ALI Principles of the Law of Family Dissolution on Property Division

The Likely Impact of the ALI Principles of the Law of Family Dissolution on Property Division* I. INTRODUCTION After a twenty-two-year marriage, a husband left his wife and children and filed for divorce. The couple's property included the marital residence, valued at $83,000, a second property, valued at $1,900, the wife's pension, a third property comprised of fifty acres, and a one-half interest, valued at $34,500, in two other parcels of land.1 The court awarded the husband $34,500 and one-half of the proceeds from the sale of the fifty acres, and the wife received the rest of the property.2 The husband complained about the unequal property division. Under the American Law Institute's Principles of the Law of Family Dissolution,3 ("Principles"), the husband would have had claim to one-half of all the property, including the wife's pension. Equal division on its face seems fair enough, but consider the facts of the case. During the course of the marriage, the husband was sporadically employed but never had a permanent job, and he would disappear for months at a time.4 On the other hand, the wife was employed full-time beginning a few years after their marriage and all the household expenses were paid from her salary. In addition to paying all the household expenses, she did all the housework, cooking, sewing, cutting the grass, gardening, and was the children's primary caregiver.5 Does an equal property division really make any sense in cases like this?6 The courts, in case after case, grapple with the question of how a couple's property should be divided when they divorce. The Principles, in their comprehensive treatment of divorce law, propose rules governing the division of property in chapter 4. This chapter thoroughly discusses property division law and proposes a careful framework of rules with illustrations and comments to guide property division.7 This article compares chapter 4 with current divorce property division law and concludes that chapter 4 is generally consistent with current law. Where chapter 4 is not consistent with current law, it is likely to have only a modest impact on family law, either because in most cases it will not change the ultimate property division, or because it will likely be rejected. Part II discusses the objectives, theoretical bases, and major features of chapter 4. The rules promoted in the Principles recognize marriage as a joint enterprise where both spouses contribute to the marriage in different but equally important ways. The ALI strives to achieve fair allocation of the spouses' property while insisting on consistent and predictable results. Part III considers the impact chapter 4 will have on family law and identifies some possible concerns. Property division rules promoted by the Principles are built on familiar concepts and generally are consistent with the majority views and current trends. There are, however, three important areas where chapter 4 does not follow current majority views. First, the ALI rejects equitable distribution and adopts a strong presumption of equal division. Second, the ALI re jects the discretionary factors currently used by most courts in equitable distribution. Third, the ALI proposes recharacterization of separate assets to marital assets over the course of a long marriage. Part III questions whether chapter 4's limitation of judicial discretion, with the concurrent loss of flexibility, is the best approach. It further considers whether the no-fault approach to property division in the Principles is justified. Finally, Part IV applauds the ALI's overall effort, but concludes that chapter 4 is likely to have only a modest impact on family law. II. FAIRNESS, CONSISTENCY, AND MAJOR FEATuREs OF CHAPTER 4 A. Theoretical Bases and Objectives of Chapter 4 Any analysis of rules governing property division upon marriage dissolution should identify the policy objectives those rules seek to achieve. …