Property law tries to serve values of

Marital Property

1. 
   Justification for degree as property
   
   1. 
      Encourages investment/sharing in the marriage (productivity)
      
   2. 
      Labor – rcognize contribution that non-degreed spouse made to degree
      
   3. 
      Equality – would protect more vulnerable parties, typically women
      
   4. 
      Reliance – supporting spouse might have relied on explicit/ explicit promise that would share in the proceeds (although undercut by fact that 50% of marriages end in divorce)
      
   5. 
      Practical/policy reason – alimony wasn’t adequate support
      
2. 
   Probs. with recognizing increased earning capacity as property
   
   1. 
      Difficult to determine
      
   2. 
      Rigid – might have circumstances after award that would seem to call for reducing payments, e.g. non-degreed spouse remarries
      
   3. 
      American Law Institute recommended that alimony be re-conceived to include degree
      
3. 
   Professional skills and credentials/ Increased earning capacity
   
   1. 
      One view - Not property – property must be tangible, able to be transferred; essentialist view (like Moore) – professional credentials have no exchange value
      
      1. 
         Ex. In re Marriage of Graham (CO, 1978)
         
         1. 
            Whether acquisition of an MBA during a marriage constitutes marital property subject to division by the court.
            
         2. 
            Court found that MBA was not property b/c it could not be transferred or inherited but merely an intellectual achievement.
            
         3. 
            Concern about how wife could be awarded a share of something non-transferrable – valuation problems
            
         4. 
            But some things are not inheritable, e.g. life estates, but still have recognition as property; plus we do recognize property rights in intellectual achievement, e.g. IP, and property rts. in non-transferrable benefits, e.g. social security
            
         5. 
            Court said that it could take financial support of a spouse for her partner to obtain an education into consideration when there is a demonstrated need.
            
         6. 
            Dissent argued that increase in earning power constituted an asset that wife’s support conferred on D.
            
   2. 
      Equitable division states – can be considered marital property that is divided based on range of factors at time of divorce including who will maintain the children (NY as exception to general rule)
      
      1. 
         Some impose mandatory rule of equal division – 50/50
         
      2. 
         Others apply a presumption of equal division
         
      3. 
         Ex. Elkus v. Elkus
         
         1. 
            P sued to determine whether her career/celebrity status as an opera singer constituted marital property. D – her husband- had contributed in numerous ways to support her career (including voice lessons) and raise their children.
            
         2. 
            Court found that the contributions to her career and career potential made by her husband entitled him to share in P’s increased earning power – his contribution was direct and concrete and the nature and extent of the contributions justified the decision.
            
         3. 
            Found that things of value acquired during marriage are property even if outside the scope of traditional property concepts
            
         4. 
            Purpose of the statute was to prevent inequities and recognize the principal upon which equitable division is based – marriage is an economic partnership to which both parties contribute
            
   3. 
      Resititution
      
      1. 
         Might seem easier to award out of concern for valuation probs.
         
      2. 
         Ex. Mahoney v. Mahoney (New Jersey, 1982)
         
         1. 
            Professional degree seen as too speculative to value
            
         2. 
            Court thought idea of a spousal investment in human capital demeaned the concept of marriage
            
         3. 
            Suggested Reimbursement Alimony
            

4. 
   Non-married persons
   

1. 
   Recommendation that there be a shift away from contractual approach to status approach
   
   1. 
      Unmarried cohabitants should be deemed domestic partners if their relationship satisfied certain criteria – time, children, etc.
      
   2. 
      If are domestic partners should have similar rights as married couples
      
2. 
   Prob. – might be seen as undercutting the autonomy of non-married persons
   
   1. 
      Less persuasive for same-sex couples
      
   2. 
      This is only a default regime – can be contracted around
      
   3. 
      Shows that autonomy can be a reason for counseling against property rights