You and Me Against the World: Marriage and Divorce from Creditors' Perspective, in Reconceiving the Family: Critique on the American Law Institute's Principles of the Law of Family Dissolution

Abstract

The Principles of the Law of Family Dissolution addresses the financial rights and obligations of family participants with respect to each other. But, legal regulation of families affects more than just family participants. It affects relationships with outsiders such as credit card issuers, tort claimants, taxing authorities, and medical care providers. Although the Principles expressly do not address these non-family relationships, the subjects the Principles do address necessarily affect creditors in ways that may be surprising. This chapter shows that family law and creditors' rights are inescapably related. Part I explains how two or more persons can collaborate to shield wealth from their creditors and how creditors can protect themselves from this behavior. Part II explains some of the ways marital and divorce law facilitate wealth-shielding behavior. Part III makes some observations about the Principles' potential effect on the balance between the property rights of adults in marital or cohabiting relationships inter se and the rights of their creditors. To understand the full impact of the Principles, we must consider creditors' perspective. Indeed, only when we take into account how creditors will perceive changes in regulation of marriage and families, can we fully appreciate the social impact of the proposed regulation.