Properties of Marriage

This chapter delves into a specific and particularly important species of a liberal commons: marital property. It endorses a vision of marriage as an egalitarian liberal community, and takes this as the regulative principle of marital property law. This vision endorses commitment to a marital community where spouses share without reference to individual desert, together with a concern for nonsubordination and for the protection of individual autonomy, primarily through free exit. It argues that, contrary to the common assumption, not only are these goals not incompatible but they can also be accommodated to a remarkable degree. It then traces the implications of this vision of marriage for marital property law, relying on it to defend the equal division rule for existing marital property, which is broadly defined to include increases and decreases in the spouses' earning capacity during the pendency of their marriage. The chapter also discusses alimony, generally endorsing the practice of rehabilitative alimony and property governance during marriage, arguing in favor of management rules currently applied in many community property states.