A Small Step Forward: The ALI Domestic Partners Recommendation

A Small Step Forward: The ALI Domestic Partners Recommendation* I. INTRODUCTION The American Law Institute ("ALI") has recently recommended that nonmarital, cohabiting couples should be presumed to have taken on certain financial obligations with respect to each other, absent explicit agreement to the contrary. For example, if the parties separate after having been together for a substantial period, one partner may be ordered to pay support to the other partner, and property acquired during the relationship will be presumed to belong to both parties and, thus, will be subject to distribution. In essence, the ALI recommendation treats the parties as married with regard to their financial obligations to each other but treats the parties as unmarried with regard to third parties' obligations to them. Although the ALI recommendation has a variety of strengths and deserves serious consideration, it is likely to generate some controversy. Some commentators are likely to suggest that the proposal does not go far enough, since the proposal is "confined to the inter se claims of domestic partners"1 and does not provide the basis for any claims against any third parties.2 Others are likely to worry that adoption of this proposal will adversely affect the traditional understanding of family. Those making this latter claim might have two very different fears in mind: (1) that this change will induce couples who otherwise would have married not to marry, and (2) that this change will make nonmarital status too close to marital status and, thus, will change the meaning of "marriage" or, perhaps, "family." Neither fear is well-founded, although for very different reasons. This Article focuses on (1) why the ALI recommendation will neither undermine marriage nor the family, and (2) why adoption of the ALI recommendation will promote fairness in many cases. Adoption of the ALI recommendation regarding the dissolution of domestic partnerships will not undermine the institutions of marriage and family because (1) the recommendation essentially reflects developing state law in many respects, (2) to the extent that it does not, the recommendation is unlikely to cause confusion either in the courts or in society about what marriage and family mean, who in fact is married, or what constitutes a family, and (3) the recommendation changes the current incentive structure in many states, thereby making marriage more attractive. Because the ALI recommendation restricts itself to inter se benefits and because states already recognize claims of nonmarital partners to a share of the assets acquired during the relationship, the ALI proposal is likely to have relatively little effect on societal or legal understandings of marriage but a potentially large effect on the lives of individual claimants. Part II of this Article describes which couples can qualify as domestic partners and how domestic partnerships differ from marriages. Part III discusses the policy and fairness considerations that militate in favor of imposing financial obligations on domestic partners with respect to one another and in favor of shifting the background presumptions regarding when the division of property or the provision of support would appropriately be ordered upon dissolution of such a relationship. Part IV discusses use of the contract paradigm to decide when support or a property division might be ordered, suggesting that although this model has certain advantages, the required "meeting of the minds"3 poses unnecessary difficulties. Part V discusses the potential for conceptual confusion regarding which relationships are marriages and which are not. This section makes clear that courts and society have had no difficulty in distinguishing between these different types of relationships and discusses how the contract paradigm itself mischaracterizes the nonmarital cohabitant relationship in important respects. The article concludes that although there are weaknesses in the ALI proposal, it has a variety of strengths and deserves serious consideration. …