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
