Key Note Adress: Why the Community Property System Fails Divorced Women and Children (1998)

Hon. Bea Ann Smith* Marriage was once seen as a permanent institution, providing some guarantee that children would be cared for and that the women who cared for them would be offered old-age insurance. Early in this century, Karl Llewellyn commented that the primary economic function of marriage was to kick[ ] the husband toward [permanent] support of the family: He could run away and he could not fire a wife who was used up.1 As states began to adopt no-fault divorce laws, marriage was transformed from a permanent relationship into a relationship terminable at-will. The reformers had to make some provisions for the economic security of the family members outside of marriage. Without analyzing the division of labor typical within marriage and without recognizing that the different domestic roles assumed by men and women during a typical marriage would impose greater economic hardships on women outside of marriage, the reformers found an easy solution to the economic consequences of no-fault divorce. They suggested distributing between the spouses all property acquired during marriage, adopting only at the divorce the approach of community property states during marriage. The community property system recognizes the spouses' joint ownership in assets acquired during marriage. This concept seemed to reflect the growing cultural view of marriage as a partnership to which each spouse makes different but equally valuable contributions. To solve the economic hardship created by no-fault divorce, the common law states incorporated into their divorce laws the sharing principles of marriage as a partnership.3 Without recognizing actual joint ownership during marriage, they adopted a system of equitable distribution that allowed courts to ignore legal in order to distribute at divorce any asset acquired during marriage.4 This change represents a major departure from the traditional rule in most separate property states, where title controlled and the divorce court had no jurisdiction over property that was held in the name of one spouse. Thus, for example, if the house was in the husband's name, it belonged to him alone and could not be divided by a court upon divorce.5 The partnership theory of marriage underlying equitable distribution is a construct, a device that permits courts to soften the harsh economic consequences of divorce. So what is wrong with this approach to a law of marital dissolution? Almost ten years ago, I began to look in-depth at the partnership theory of marriage as it governs the distribution of property upon divorce. I had discovered in my law practice that, all too often, our community property system in Texas offered arbitrary and inadequate solutions to the division of economic benefits and burdens at the end of a marriage. Why would other states copy a system that seems to work so poorly? And why would a system that recognizes the equal contributions of both spouses to the marriage produce such unequal economic results that routinely disadvantage women and children? The results of my inquiry are set forth in a Texas Law Review article entitled The Partnership Theory of Marriage: A Borrowed Solution Fails.6 The partnership theory of marriage seemed to fit the ideology of the times: Women were seeking new roles in the workplace, as well as in relationships, and claiming their equality in every arena. So why not view marriage as a partnership to which each spouse makes equal, if different, contributions? This presumed partnership of equals supplied a legal justification for women's equal claims to assets acquired during marriage, regardless of whose wages purchased the assets or who held legal title. But was this the best rationale to supply some economic security for family members outside of marriage? Our collective experience with this experiment has proven it was not at all a good solution. Thirty years after the silent revolution of no-fault divorce, divorced women and their children have replaced the elderly as the household most likely to exist at or below the poverty line. …