Fall 1996, Volume XII, Number 1 Family Law Family Law at Century's End By Milton C. Regan, Jr. Family law in recent years has emerged from relative obscurity to occupy center stage in numerous highly visible cultural dramas. Conflicts involving surrogate parent contracts, the claims of adoptive and biological parents, and same-sex marriage are but a few of the legal disputes that have galvanized the public imagination. These and other controversies suggest the erosion of a relative consensus about what model of family life should govern family law. There is no longer widespread acceptance of traditional gender roles or the primacy of biology as the blueprint for family rights and obligations. The result is both greater self-consciousness and greater conflict about the values we want family law to express. The experience of the last twenty-five years has heightened a sense that we are ambivalent about what we want from family life -- and therefore from family law. As a result, a single model of the family seems inadequate to capture aspirations and commitments that are in some tension. An image of dynamic equilibrium may be more true to our experience than a vision of overarching resolution. I would like here to focus on one particular area of family law and offer a case study to illustrate this dynamism and ambivalence. The area that I would like to examine is the law dealing with marriage; the case study that I'd like to discuss is the law governing financial awards at divorce. One way to think about modern American attitudes about marriage is that they reflect two competing commitments. On the one hand, we think that it is important for a spouse to maintain a sense of identity as a separate individual. Such an individual takes what I call an "external" stance toward her marriage -- a moment in which she critically evaluates whether marriage is meeting her distinct individual needs. Traditional liberal concepts such as distributive justice and consent are especially salient when we emphasize this perspective. On the other hand, we also believe that it's important for a spouse to commit to an intimate relationship in which identity as a couple blurs the sense of separateness between individuals. At this moment, a spouse takes an "internal" stance toward her marriage, treating it as a constituent of who she is. Concepts such as attachment and loyalty are particularly important from this perspective. Each stance captures something of genuine importance in marriage. Ideally, we seek an ongoing, tentative balance, rather than ultimate reconciliation, between them. One way to describe changes in the law of marriage and divorce over the past twenty-five years is as a more pronounced expression of the greater importance of the external stance. Individuals now have more freedom to arrange their marriages as they wish, and to determine whether and on what terms they divorce. Particularly for women, family roles are now a less encompassing aspect of identity. The gains from this more prominent emphasis on the external stance have led some to argue that this individualistic model should serve as the basic legal script for marriage. Appreciation of our complex aspirations for marriage, however, suggests that doing so would vindicate only one dimension of what it means to be a spouse. Furthermore, basing the law of marriage and divorce solely on the external stance ironically may worsen, rather than enhance, the welfare of women. Let's look at the law of divorce awards as an example of the points that I've just made. Until the 1970s divorce law generally promoted an internal stance toward marriage, although to different degrees for men and women. Marriage was treated primarily as a lifetime commitment to the welfare of a marital community, rather than an arrangement solely to promote each individual's happiness. Legal rights and obligations were based on one's role within this community. Wives were expected to care for the community through attention to household needs. Men had a duty to provide for the economic welfare of the family through work in the labor market. In return for care giving that left them economically dependent, wives were entitled to lifetime financial support from their husbands. Divorce was available not when either person desired it, but when one partner could be blamed for breach of communal duties. Alimony was the cornerstone of divorce awards in this legal regime. If the wife was the innocent party, the husband was held to his duty to provide lifetime support for her. Even after divorce, men and women were conceptualized as part of an ongoing community, in which the more financially fortunate member had a duty to respond to the need of the less fortunate one. It is true that the traditional legal regime promoted an internal stance toward marriage more thoroughly for women than for men. It is also true that only a relatively small percentage of women ever received alimony. Nonetheless, there was a coherent discourse of divorce awards that expressed the importance of an internal stance toward marriage. The language in which divorce awards were justified was one of reciprocal communal duties of care. No-fault divorce undermined the coherence of this discourse. Marriage was no longer necessarily a lifetime commitment but, rather, an arrangement to promote individual happiness. Divorce, therefore, no longer represented the breach of communal duty by a guilty party, but an individual's judgment that he or she would be happier elsewhere. There was, in other words, greater emphasis on an external stance toward marriage -- a heightened sense of spouses as individuals entitled to pursue their own interests. As a result, there seemed little justification for requiring a divorcing husband to continue to support his ex-wife after divorce. A new discourse of divorce awards emerged, based on the idea that marriage is an economic partnership. The idea is that each spouse contributes to the acquisition of marital assets through work in the labor market and the household. Each, therefore, is entitled to a share of these assets should the partnership end. At divorce, partners ideally divide the assets roughly equally between them and go their separate ways. This allows the parties to make a "clean break," with no further economic rights or duties with respect to one another. Financial claims rest on principles of economic justice, rather than on any duty of care that one member of the community has to the other. One partner's claim on the other must be couched in what I call "property rhetoric." That is, it must assert that the individual has an entitlement to resources based on principles of fair economic exchange. It has become apparent, however, that divorcing couples typically have few liquid assets to divide between them. The major asset of the marriage usually is the husband's earning power, but this is something he takes with him after divorce. Any real chance for improving ex-wives' financial situation after divorce depends on their ability to make a claim on their ex-husbands' income. But how can we justify such a claim? The old discourse of reciprocal communal duties offered a language for doing so, but its terms are inconsistent with the premises of property rhetoric. The most prominent attempt to frame claims on post-divorce income in terms of property rhetoric has been human capital theory. This theory argues that, by assuming primary responsibility for domestic tasks, one spouse often sacrifices her human capital, or earning power, so that the other spouse can maximize his. She does so because she expects to share in the resulting financial benefits. Divorce, however, often ends the partnership before she can do so. Human capital theory argues that in this case a spouse should receive some compensation for helping to enhance her partner's earning power. This theory, therefore, is consistent with an external stance toward marriage. In essence, it argues that divorce awards should redress unequal exchange between husband and wife. Payment represents satisfaction of a debt incurred to an economic partner, not fulfillment of a special duty to respond to the need of someone with whom one once shared a marital community. Human capital theory has undeniable advantages. It provides a rationale for compensating women in some instances in which traditionally it would have been denied. It highlights the fact that during marriage women often make subtle sacrifices, whose economic impact becomes apparent only at divorce. It offers a discourse of earned entitlement that may offer a more secure basis for divorce claims than a language of need and dependency. Its logic, however, can be used to limit or deny compensation in circumstances of need. First, even if she is needy, a woman must be able to identify a specific contribution that enhanced her husband's earning power in order to qualify for an award. Second, the greater her devotion to home and children, the less earning power a wife sacrifices during marriage -- and the lower her award. Finally, the logic of human capital theory suggests that the longer the marriage, the more the wife has been repaid by enjoying the increase in living standards that she has helped make possible. Yet denying compensation to middle-aged women who divorce after lengthy marriages is likely to impose particular hardship. Why the unease with these results? It is because we regard divorce awards based solely on an external stance toward marriage as expressing an incomplete vision. Marriage is not simply an economic partnership. We also want spouses to adopt an internal stance toward marriage -- to offer not simply equal exchange but mutual care. An internal stance reminds us that marriage ideally is an agreement between spouses to share in one another's fate. At the same time, the external stance cautions that financial obligations should not continue indefinitely after divorce. Thus, for instance, we might conclude that the extent to which spouses' fates have been intertwined is roughly a function of the length of the marriage. This might lead us to require that they share the same standard of living for some time related to the length of the marriage -- say, one year for every two years of marriage. In this way, we might combine recognition of spouses as separate individuals with appreciation that they have shared a life together as a couple. This brief journey through the law of divorce awards should make clear that family law not only settles the practical affairs of particular individuals. More generally, it also requires us to confront our profound ambivalence about the terms of human connection. Variety and complexity, rather than stability and unity, are thus likely to characterize family law in the modern era. Milton C. Regan, Jr. is Professor of Law at Georgetown University Law Center, Washington, DC 20001. Selected Bibliography Carbone, June and Margaret Brinig (1991) Rethinking Marriage: Feminist Ideology, Economic Change, and Divorce Reform. 65 Tulane Law Review 953. Ellman, Ira Mark (1989) The Theory of Alimony. 77 California Law Review 1. Fineman, Martha A. (1991) The Illusion of Equality: The Rhetoric and Reality of Divorce Reform. Chicago: University of Chicago Press. Garrison, Marsha (1991) Good Intentions Gone Awry: The Impact of New York's Equitable Distribution Law on Divorce Outcomes. 57 Brooklyn Law Review 619. O'Connell, Mary E. (1988) Alimony After No-Fault: A Practice in Search of a Theory. 23 New England Law Review 427. Parkman, Allen (1992) No-Fault Divorce: What Went Wrong? Boulder: Westview Press. Regan, Milton C., Jr. (1993) Family Law and the Pursuit of Intimacy. New York: New York University Press. Singer, Jana B. (1989) Divorce Reform and Gender Justice. 67 North Carolina Law Review 1103. Sugarman, Stephen D. and Herma Hill Kay, eds. (1990) Divorce Reform at the Crossroads. New Haven: Yale University Press. Symposium on Divorce and Feminist Legal Theory (1994) 82 Georgetown Law Journal 2119. 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