Monday, April 27, 2015

Article Summary: Extramarital Relationships and the Theoretical Rationales for the Joint Property Rules - A New Model, by Yitshak Cohen

Cohen's article examines the impact that extramarital relationships have on property distributions at the time of divorce under the laws of the varying United States as well as Israel, and then using these laws the author proposes a new model accounting for extramarital relationships in property distribution where they are the dominant cause for divorce.

Cohen first explains the different systems of property distribution used by the different states--joint property, equitable distribution, and equal distribution.  While specifics vary from state to state, the majority use the equitable distribution scheme, with equal distribution being the starting point, augmented by facts of the case and tempered with great judicial discretion. An analysis of the development of the no-fault divorce in American family law follows, providing a background on which the discussion about extramarital relationships and their inclusion in divorce proceedings is made.  With the introduction of no-fault divorce states had to determine whether to consider fault, including extramarital sexual fault, in property distribution.  The uniform laws proposed recommended that fault not be considered in distribution of family property. States have adopted a wide variety of rules, and Cohen divides them into five categories based on whether the courts may consider fault in determining property distribution and alimony.

The second part of the article analyzes the theoretical basis for weighing extramarital relationships in property distribution.  The moral argument centers on the role of the family in society and moral arguments made in family law. On one side, Cohen writes, moral arguments should not be considered in property distribution, and only economic factors, such as contribution to family property, should be considered.  On the other side, allowing fault to be considered in property distribution can serve as a legally-backed social encouragement of the type of behavior society deems to be appropriate and helpful.  They argue that the idea of justice and fairness prohibit an adulterous spouse from leaving with half or more of the marital property.  Cohen then explains the dilemma the moral argument faces: the complexities of marriage, relationships, and the multitude of criteria that would go into a court's determination of who was at fault and to what degree. This leads to judicial arbitrariness, lack of predictability, and lack of uniformity for which the law strives; no-fault solves this by not considering these factors at all.  Additionally, some argue that fault, and any harm caused by it, should be dealt with by other fields of law, namely torts, since the fault actions are analogous to tort actions: infliction of emotional distress, negligence, etc..

Cohen gives an overview of Israel's law, going through several cases and their holdings regarding extramarital relationships and their impact on property distribution.  In Israel, extramarital relationships are excluded from consideration in family property distribution.  However, external and personal property owned by one spouse prior to the relationship can be impacted by extramarital relationships.  The Property Relations Law is explained by Cohen, and it sets forth a system of determining how property is treated in marriage and divided in divorce.  There is a distinction between the civil laws and religious laws, with fault being excluded from property distribution because civil decisions cannot be based on religious laws. 
Combining a study of both U.S. and Israel law, as well as the rationales behind joint property law and moral considerations, Cohen proposes a model for utilizing extramarital relationships in the property distribution upon divorce: the dominant cause model.  This model balances the abovementioned considerations and concludes that fault be considered only in "severe circumstances" including those in which extramarital relationships are the dominant cause of the dissolution.  This excludes situations, however, where other factors may have impacted the dissolution, such as economic stress, personality conflict or change, abuse, and others.  Using this model, Cohen allows for some judicial discretion once the facts support a dominant cause to utilize fault in determining property distributions in marriage dissolutions, while still allowing for economics to dominate true no-fault property distributions that have become the norm. 

- Justin Moody