Commercializing Marriage: A Proposal for Valuing Women's Work Through Premarital Security Agreements

Abstract

The twin problems of displaced homemaker indigency and the general devaluation of women?s work may be alleviated by commercializing marriage through premarital security agreements ("PSAs"). PSAs are modeled on commercial security agreements, and import the rights and duties of creditors and debtors to the marital relationship. This importation is justified because in a typical marriage the primary homemaker contributes substantially to the primary wage-earner?s stream of income, but post-divorce stream of income usually is not distributed upon divorce (even though it is often the most important asset in a marriage). This inequitable distribution of marital assets often leaves the homemaker in significantly worse financial shape than her former spouse. PSAs seek to remedy this situation by designating the primary homemaker as a creditor in relation to her primary wage-earning spouse on the theory that she gives value to her wage-earning spouse in the form of homemaking services and lost opportunity costs that facilitate maximization of his wage-earning potential. She does so in the expectation that she will share this stream of income throughout the wage-earner?s career, but this expectation is frustrated upon divorce. PSAs would explicitly recognize this debtor/creditor relationship between traditionalist spouses by calculating a debt that the primary-wage earner owes to the primary homemaker based on the duration of the marriage, the difference between the spouses? wages, and the age of any minor children. PSAs would secure the primary homemaker?s interest in repayment of this loan with collateral (50% of marital property, which is defined to include the primary wage-earner?s post-divorce income). Upon default, the homemaker, like a commercial secured creditor, would have the option to repossess or garnish the collateral to satisfy the unpaid portion of the debt. "Commercializing Marriage" suggests that PSAs have cross over potential in that they cohere with the approaches of disparate ideological approaches, including those of legal economic, as well as liberal, cultural, and radical feminist scholars. PSAs offer a new approach and thus contribute to a broad scholarly discourse searching for a theory justifying alimony that is consistent with contemporary understandings of gender. "Commercializing Marriage" analyzes how PSAs cohere with the approaches of disparate ideologies, including legal economics and liberal, cultural, and radical feminism. Legal economists would appreciate PSAs? commercial origins, and their power to efficiently deter opportunism. Cultural feminists might like the way PSAs increase the value of caretaking. While liberal feminist concerns are likely to arise around PSAs? potential to create incentives to adopt traditional gender roles, liberal feminists might appreciate PSAs? parallel potential to create incentives for more equal distribution of homemaking and wage labor. PSAs also serve the interests of radical feminism by transforming the cultural category of economically vulnerable housewife to that of a powerful market player, the secured creditor. In sum, PSAs may have cross-over analytical appeal as a solution to the problems of displaced homemaker indigency and the general devaluation of women?s work. While each ideological approach might be inconsistent in some respects with PSAs, "Commercializing Marriage" suggests that the benefits of PSAs outweigh shortcomings they may have under any particular ideological analysis. Finally, even if PSAs prove problematic as a substantive measure implementing post-divorce income sharing, they could serve the procedural function of implementing other theories of alimony, such as those based on partnership models. PSAs have both practical and theoretical benefits. Practically, they have the unique potential to commodify homemaking (and thus counter the devaluation of women?s work in both the home and market). Theoretically, they mine the common elements of disparate ideologies to reveal (and account for) the ways that domestic labor contributes to family wealth. As such PSAs illustrate how often-overlooked models from the market offer new solutions to entrenched financially inequities in family law.