O'Brien v. O'Brien: A Failed Reform, Unlikely Reformers

Abstract

2. It was said, for example, that to exclude earning capacity from the marital estate makes a mockery of the equal division rule, Lenore J. Weitzman, THE DIVORCE REVOLUTION: THE UNEXPECTED SOCIAL AND ECONOMIC CONSEQUENCES FOR WOMEN AND CHILDREN IN AMERICA 388 (1985). Once O’Brien was decided, it was compared favorably with the contrasting Colorado decision in Marriage of Graham, e.g., Deborah A. Batts, Remedy Refocus: in Search of Equity in Enhanced Spouse/other Spouse Divorces, 63 N.Y.U.L. Rev. 751 (1988). Later commentary focused more broadly on perceived defects in divorce law, but highlighted the failure of other states to follow O’Brien as a major defect. E.g., Allen M. Parkman, NO-FAULT DIVORCE: WHAT WENT WRONG? 7 (1992) ([F]ailure to incorporate the effects of marriage on the human capital of the spouses... in any systematic way is a major cause for divorced women suffering a substantial reduction in their welfare.); Deborah L. Rhode & Martha Minow, Reforming the Questions, Questioning the Reforms: Feminist Perspectives on Divorce Law, in DIVORCE REFORM AT THE CROSSROADS (Stephen D. Sugarman & Herma Hill Kay eds., 1990), at 200 (An approach that ignores future earning capacity in defining marital resources will reinforce gender disparities.); Joan C. Williams, Women and Property, in A PROPERTY ANTHOLOGY 256, at 258-59 (Richard H. Chused ed., 2d ed. 1997)(arguing that exclusion of human capital from property plays a role in impoverishment of women). Remarkably, the arguments for this position continue to be made. See, e.g., Carolyn J. Frantz & Hanoch Dagan, Properties of Marriage, 104 Colum.L.Rev. 75, 107 et.seq. (2004) (including earning capacity within the definition of marital property is necessary to achieve egalitarian marriage).