WHAT IF THE BECKHAMS MOVE TO L.A. AND DIVORCE? MARITAL
PROPERTY RIGHTS OF MOBILE SPOUSES WHEN THEY DIVORCE IN THE U.S.
By J. Thomas Oldham
Table of Contents
I. Introduction
II. Current Approaches
A. The Primary European Approach
B. U.S. Approaches
1. Introduction to U.S. Rules Regarding Marital Property Rights and
Mobile Spouses.
a. During an Intact Marriage
b. At Divorce
2. Partial Mutability
3. Total Mutability
C. Current U.S. Attempts to Apply Modern Conflicts of Law Theories to Mobile
Spouses at Divorce
1. An Introduction to U.S. Conflict of Laws Analysis
2. Cases When One Spouse Moves to the Forum
a. Acquisitions Before the Move
b. Acquisitions After the Move
3. Cases When Both Spouses Move to the Forum
4. Summary
III. Contemplating the Best Rule
A. Approaches That Would Require the Court to Apply the Law of Two or More
States in Each Divorce
1. Partial Mutability
2. Distinguishing between Realty and Personalty
B. Approaches That Result in the Divorce Court Applying One Law to Govern
the Parties’ Rights.
1. Party Autonomy
a. Party Choice of the Applicable Law and/or Forum

John Freeman Professor of Law, University of Houston Law School. The author is very grateful for the
helpful comments made to earlier drafts by many colleagues, including Brian Bix, Joost Blom, Aaron
Bruhl, Nina Dethloff, David Hodson, Nicole La Violette, Bill Reppy, Jack Sampson, Mark Strasser,
Symeon Symeonides, and Russell Weintraub. The author is also grateful for all of the word processing
help provided by Amanda Parker, Nadia Mosqueda, Abraham Roberts and Rose Verde.
1
b. Party Description of the Agreed Economic Consequences of
Divorce via Marital Agreement.
2. Total Immutability
3. Application of Forum Law
4. Application of the Law of the State with the Most Significant
Relationship with the Parties
5. Applying the Law of the Last Primary Common Residence
IV. Conclusion
I. Introduction
In our mobile culture, spouses increasingly live in more than one jurisdiction,
sometimes many, during the course of their marriage1. This presents a conflict of laws
conundrum faced by both European Union countries and U.S. states: which law (laws?)
should govern their marital property rights if they divorce?
Each EU country, of course, is a separate nation with its own family laws, including
marital property rules.2 In the U.S., marital property rights derive from state law.
Because marital property rules vary markedly among EU countries as well as among U.S.
states, the choice of the applicable law at divorce can be significant. Spouses in the EU,
like those in the United States, are increasingly transient. So, in both Europe and the
United States, divorce courts must determine what law to apply to determine the marital
property rights of spouses who have lived in different places. EU and U.S. courts,
surprisingly, have applied different approaches to this issue.
Europe has recently shown some interest in this issue. For example, the Convention on
the Law Applicable to Matrimonial Property Regimes was promulgated at The Hague in
1
In 2004 and 2005, more than 1,200,000 American married couples moved to another state each year. See
U.S. CENSUS BUREAU, CURRENT POPULATION SURVEY, 2005 ANNUAL SOCIAL AND ECONOMIC
SUPPLEMENT tbl. 4 (2005), available at
http://www.census.gov/population/socdemo/migration/cps2005/tab03-1.xls. See also U.S. CENSUS
BUREAU, CURRENT POPULATION SURVEY, 2004 ANNUAL SOCIAL AND ECONOMIC SUPPLEMENT tbl. 4
(2004), available at http://www.census.gov/population/socdemo/migration/cps2004/tab03-1.xls. A
significant number of separated couples also move to another state or country (177,000 “separated” people
moved to another state in 2005, and 40,000 moved to the U.S. from another country). See 2005 statistics
from the American Community Survey: http://factfinder.census.gov/servlet/DTTable?_bm=y&geo_id=01000US&-ds_name=ACS_2005_EST_G00_&-SubjectID=14572520&-_lang=en&mt_name=ACS_2005_EST_G2000_B07008&-format=&-CONTEXT=dt. In 2005, 360,000 married
couples moved to the U.S. Id. For 2004 statistics from the American Community Survey:
http://factfinder.census.gov/servlet/DTTable?_bm=y&-content=dt&-ds_name=ACS_2004_EST_G00_&CONTENT-dt&-mt_name=ACS_2004_EST_G2000_B07008&-.
The Census Bureau announced that in 2002 and 2003 a total of approximately eight million Americans
moved from one state to another. See U.S. Census Bureau press release, dated March 23, 2004, found at
http://www.census.gov/Press_Release/www/releases/archives/mobility_of_the_population/.
2
See Gert Steenhoff, A Matrimonial Property System for the EU?, INT. FAM. L. (June 2005) 74.
2
the 1970’s, although it has been ratified by only a few countries.3 More recently, in 2006
the Council of Europe issued a Green Paper on this topic, requesting comments on
current law as well as how it might be improved.4
In contrast, with the exception of the attention which was given to the unfortunate
rules that evolved regarding couples who moved from non-community property states to
community property states,5 U.S. commentators have largely ignored this topic,
particularly during the last few decades.
In this essay, I will summarize the majority rule that has evolved in Europe to deal
with this problem and compare that to the approaches that have been accepted in the
United States. I will evaluate the advantages of each approach, and suggest the wisest
course for United States courts.
II. Current Approaches
A. The Primary European Approach
The traditional rule accepted throughout most of continental Europe is that one regime
governs the marital rights of spouses, and that this regime should be determined when the
spouses marry. The most common approaches now look to either the law of the first
marital domicile or the common nationality of the spouses.6
The major characteristics to note about the majority approach in Europe are that (i) an
applicable law is chosen at the time of marriage (absent a postnuptial agreement) and (ii)
that law governs their rights throughout the marriage. Such a system is frequently
referred to as a system of “total immutability,” in that a regime is chosen at the time of
the marriage and isn’t changed, even if the parties move to another jurisdiction shortly
after the wedding.
The obvious benefit of the majority European majority approach is that the rule is
clear, and the law applicable to the parties’ rights is known from the beginning of the
3
See Prof. Dr. Katharina Boele-Woelki, An Overview of the Current Situation in the Field of Private
International Law and Substantive Law, INT. FAM. L. [Sept. 2006] 149, 152. See generally
http://www.hcch.net/index_en.php?act=conventions.text&cid=87.
4
See Commission of the European Communities, Green Paper on Applicable Law and Jurisdiction in
Divorce Matters, COM (2005) 82, final SEC (2005) 331.
5
See e.g., John J. Sampson, Interstate Spouses, Interstate Property, and Divorce, 13 TEX. TECH. L.REV.
1285 (1982); Russell Weintraub, Obstacles to Sensible Choice of Law for Determining Marital Property
Rights on Divorce or in Probate: Hanau and the Situs Rule, 25 HOUS. L. REV.1113 (1988).
6
See Symeon Symeonides, Louisiana’s Draft on Successions and Marital Property, 35 AM. J. COMP. L.
259, 271 (1987). There are a few exceptions. For example, Professor Dethloff states that Switzerland
applies a system of total mutability, a system which will be discussed below. See Dethloff, infra note 7, at
48 n. 63. Also, those countries that have adopted the Hague Convention apply a different rule which will be
discussed below. See note 22 & accompanying text infra.
Israel has accepted the principle of total immutability regarding the marital property rights of mobile
spouses. Spouses (Property Relation) Law 1973 §15, Laws of the State of Israel, vol. 27, pp. 313.
3
marriage. If the parties want another regime, they can consider a marital agreement.
Another benefit is that in each case divorce courts have to learn and apply only one
jurisdiction’s law. Of course, this might well be the marital law of a jurisdiction other
than the forum, and one with which the forum court may not be familiar. If this occurs, it
might require each party to provide expert testimony about the law of the other
jurisdiction, which would involve an added expense, and the court’s competence to apply
the law in such an instance could be questioned.7
B.
U.S. Approaches
1. Introduction to U.S. Rules Regarding Marital Property Rights and Mobile Spouses
Any discussion of the marital property rights of mobile spouses under American law
needs to distinguish between the law applicable to determine the ownership rights of
spouses in property during an intact marriage, and the law applicable to decide their
property if they divorce.
a. During an Intact Marriage
In the U.S., spouses’ marital property ownership rights in personalty are determined
based on the law of the marital domicile at the time the property is acquired.8 Marital
property ownership rights in realty have traditionally been determined by the law of the
situs of the property.9 Under this approach, however, if personalty (cash) acquired in the
marital domicile is used to buy realty in another state, the parties’ respective ownership
interests in the cash will continue into the realty exchanged for the cash.10
In the U.S., it is generally agreed that a spouse’s ownership rights should not be
impacted by a move to another state.11 So, when spouses move from a community
property state to a common law state12 or from a common law state to community
property state13, if an issue relating to property ownership in an intact ongoing marriage
7
See Nina Dethloff, Arguments for the Unification and Harmonisation of Family Law in Europe, in
PERSPECTIVES FOR THE UNIFICATION AND HARMONISATION OF FAMILY LAW IN EUROPE (Katharina BoeleWoelki, ed. 2003), at 42-43. This issue will be discussed in more detail below.
8
See generally RESTATEMENT (SECOND) OF THE CONFLICT OF LAWS § 258; RUSSELL WEINTRAUB,
COMMENTARY ON THE CONFLICTS OF LAWS (5th Ed. 20006) § 8.14; LA. CIV. CODE art. 3523; Marriage of
Zahm, 978 P.2d 498 (Wash. 1999); Estate of Perry, 480 S.W.2d 893 (Mo. 1972); Tirado v. Tirado, 357
S.W.2d 468 (Tex. App. 1962); Estate of Crichton, 228 N.E.2d 799 (N.Y. 1967).
9
See RESTATEMENT (SECOND) OF THE CONFLICT OF LAWS § 234; LA. CIV. CODE ART. § 3524; Bell v. Bell,
180 S.W.2d 466 (Tex. App. 1944); Houston v. Colonial Trust Co, 266 S.W.2d 231 (Tex. App. 1954);
Commissioner v. Skaggs, 122 F.2d 721 (5 th Cir. 1941). Professor Weintraub and others have argued that
the situs rule should be discarded. See Weintraub, supra n. 5, at 1122.
10
Compare Estate of Erickson, 368 N.W.2d 525 (N.D. 1985) with Rozan v. Rozan, 129 N.W.2d 694 (N.D.
1964). See, generally J. Thomas Oldham, Conflict of Laws and Marital Property Rights, 39 BAYLOR L.
REV. 1255 (1987); HAROLD MARSH, MARITAL PROPERTY IN CONFLICT OF LAWS (1952).
11
See RESTATEMENT (SECOND) OF THE CONFLICT OF LAWS § 259 (1971).
12
Quintana v. Ordono, 195 So.2d 577 (Fla. App. 1967). See also n.5 supra.
13
See generally Norvie L. Lay, Property Rights Following Migration from a Community Property State, 19
ALA. L. REV. 298 (1966-67).
4
arises in the new state of residence, a court in that state attempts to fashion an ownership
interest under its property law that approximates rights that existed regarding the property
pursuant to the law of the former domicile. (So, for example, in Quintana14 when spouses
moved from a male management community property state (Cuba) to a common law
state, the court in the new residence concluded that the wife’s community property
interest was transformed into a 50%, resulting trust interest when the spouses moved.)
As was noted above, once spouses establish a new domicile the spouses’ ownership
interests in all personalty thereafter accumulated are governed by the law of the new
domicile. Note that this differs significantly from the majority EU view, whereby the law
governing spouses’ marital property rights in future acquisitions are not affected by a
change of domicile.
b.
At Divorce
Rules regarding property division at divorce in most U.S. states do not relate to
ownership. In all 41 non-community property states, some or all property “owned” by
one spouse may be divided at divorce.15 All accept some type of deferred community at
divorce. So, like some EU countries, rules regarding ownership rights during an intact
marriage do not govern property division at divorce.16 In two U.S. community property
states, the divisible estate is not limited to community property.17 In a number of other
community property states, the community estate may be divided “fairly,” which need
not result in an equal division of community property.18
Although the rules governing ownership rights of mobile spouses (and the law
applicable to determine them) in property during an intact marriage are fairly clear in the
U.S., it is much less clear what law should be applied to divide the parties’ property, if
the parties have lived in more than one state during marriage. This distinction between
ownership rights and rules applicable at divorce would not exist in those EU countries
that accept a marital regime of a community of acquests that must be divided equally at
divorce.19 In such countries the rule applicable to ownership during marriage would
dictate the result at divorce.
The choice of the applicable U.S. property division rules can significantly impact the
result. For example, some states allow a divorce court to divide at divorce all of the
property owned by either spouse, regardless of when or how it was acquired. In contrast,
most states distinguish between divisible and nondivisible property, but do not agree
upon the rules for making this distinction.20
14
See n. 12 supra.
J.T. OLDHAM, DIVORCE, SEPARATION AND THE DISTRIBUTION OF PROPERTY § 3.03 (2007). These states
accept some form of deferred community.
16
See Gert Steenhoff, A Matrimonal System for the EU?, [June 2005] INT. FAM. LAW 74 (contains a
summary of the property division rules applicable in different EU countries).
17
See WASH. REV. CODE ANN. § 26.09.080; WISC. CODE § 767.61.
18
See, e.g., TEX. FAM. CODE § 7.001; NEV. REV. STAT. § 125.150; IDAHO CODE § 32-712.1.
19
For example, Belgium, France, Italy, Portugal, and Spain. See Steenhoff, supra n. 2.
20
See notes 80-82 & accompanying text infra.
15
5
2. Divorce Property Division Based on Partial Mutability
In contrast to the majority EU approach of “total immutability,” where spouses’ rights
are not impacted by a change of domicile, it was outlined above that under U.S. law it is
now clear that spouses’ ownership rights during an intact marriage in personalty acquired
after a move are impacted by the move; the rights are determined by the law of the new
domicile. The law of the new domicile does not govern the spouses’ ownership rights
during an intact marriage in all accumulations during marriage; only those accumulations
after the move are governed by the law of the new residence. The spouses’ ownership
interests in property acquired before the move would be governed by the law of the prior
domicile.
It has been suggested that the same approach should be applied to determine how
property should be divided at divorce. Property acquired in one jurisdiction should be
governed by that state’s divorce law, and acquisitions in another should be governed by
that law at divorce. This is a rule of “partial mutability;” the laws of the new domicile
would govern the divorce property division of only that property accumulated after the
move. Some U.S. courts have accepted the rule of partial mutability for purposes of
dividing property at divorce.21
If the notion of partial mutability is found attractive, the jurisdiction would need to
decide whether the parties need to remain in the new domicile for a certain period before
the law of the new domicile would govern any of their marital property rights on divorce.
As will be discussed below, U.S. courts have not added any such requirement. In
contrast, the Hague Convention provides that the parties’ rights are governed by the law
of the new domicile if (i) they become citizens of the domicile or (ii) if they continuously
live there 10 years.22
To the extent that one believes that people are familiar with the laws of their place of
residence, and believe they would be governed by that law as to property accumulated
while living there if they divorce, the rule of partial mutability protects reasonable
expectations. One disadvantage of this rule is that, if the parties divorce, it may require
the judge to become familiar with the laws of one or more jurisdictions other than his
own. Some contend that this would be burdensome, confusing, and expensive. These
concerns will be discussed in more detail below.
3. Divorce Property Division Based on Total Mutability
21
See Berle v. Berle, 546 P.2d 407 (Idaho 1976); Mc Hugh v. Mc Hugh, 699 P.2d 1361 (Idaho 1985); Rau
v. Rau, 432 P.2d 910 (Ariz. App. 1967; Burton v. Burton, 531 P.2d 204 (Ariz. App. 1975) (these 2 Arizona
cases were superceded by the new Arizona statute, Ariz. Rev. Stat. § 25-318); Marriage of Zahm, 978 P.2d
498 (Wash. 1999); Quinn v. Quinn, 689 N.W.2d 605 (Neb. App. 2004).
22
Hague Convention, Article 7. See Anders Agell, The Division of Property upon Divorce from a
European Perspective, in DROIT COMPARE DES PERSONNES ET DE LA FAMILLE (Marie-Therese MeuldersKlein ed. 1998) 17.
6
The other approach that has been accepted in the United States regarding division of
property at divorce is total mutability. Under this approach, all of the spouses’ marital
property rights at divorce are to be determined by the law of the jurisdiction where the
divorce is granted, regardless of when or where their property was acquired. Notice that,
under this approach (as contrasted with partial mutability), property accumulated while
living elsewhere is divided based on forum law. A number of U.S. divorce courts have
applied this approach of total mutability.23
This approach has the same benefit as total immutability in that the court has to apply
the law of only one jurisdiction to resolve the parties’ rights. And, more importantly, that
law to be applied is the law of the forum, a set of laws one would hope the court would
be familiar with and competent to administer. So, this rule presumably should be
efficient for the court and inexpensive for the parties, since they would avoid having to
retain experts to explain the marital property rules of another jurisdiction.
It should be noted that the system of total mutability is one that applies to the parties’
rights if they migrate to another jurisdiction and then at some later point file for divorce.
As mentioned above, the parties’ respective ownership rights in acquisitions before the
move are not immediately affected solely by the move.24 Indeed, there is (admittedly
old) authority that it would be unconstitutional if the marital rights of spouses in prior
acquisitions would be impacted solely by a move.25
What are the drawbacks of total mutability? At worst, it rewards forum shopping. For
example, in Dawson-Austin v. Austin26 the husband started a business before marriage in
Minnesota and devoted a substantial amount of his time during marriage to building this
business, and it substantially increased in value. At some point thereafter, the marriage
broke down. The husband moved to Texas and filed for divorce, asking the court to
divide the marital estate, including his business. Reading between the lines, it seems
clear that the husband learned when the marriage was breaking down that the marital
property laws of Texas were much more favorable to him than the laws of his marital
domicile (or that of California, where his wife had moved).27 The husband was
unsuccessful in his attempt to shop for the most favorable law, but only because the
Texas Supreme Court ruled that Texas did not have “personal jurisdiction” over his wife,
so Texas courts could not constitutionally divide the property. In contrast, if the wife had
been served with process while visiting Texas, he would have been successful in his
attempt to forum shop, even though the parties had never jointly lived in Texas.28
23
See Aleem v. Aleem, 931 A.2d 1123 (Md. App. 2007); Fransen v. Fransen, 190 Cal. Rptr. 885 (Cal. App.
1983); Marriage of Scott, 835 P.2d 710 (Mont. 1992); Ismail v. Ismail, 702 S.W.2d 216 (Tex. App. 1985);
Martin v. Martin, 752 P.2d 1026 (Ariz. App. 1986); Savelle v. Savelle, 650 So.2d 476 (Miss. 1995).
24
See RESTATEMENT (SECOND) OF THE CONFLICT OF LAWS § 259 (1971).
25
Estate of Thornton, 33 P.2d 1 (Cal. 1934).
26
968 S.W.2d 319 (Tex. 1998).
27
Compare Nardini v. Nardini, 414 N.W.2d 184 (Minn. 1987) with Jensen v. Jensen, 665 S.W.2d 107 (Tex.
1984).
28
For example, the court of appeals in Dawson-Austin ruled that the wife had waived her right to challenge
the jurisdiction of the Texas court and that Texas law should apply to determine the parties’ marital
property rights. See Dawson-Austin v. Austin, 920 S.W.2d 776 (Tex. App. 1996).
7
The response to recent changes in English law also supports this concern. England
has applied a rule of total mutability. English law gives judges great discretion in
dividing a couple’s property at divorce. Recently, English courts have announced new
rules regarding property division at divorce which are very favorable to people who have
married an already wealthy spouse. As a result, some English lawyers are reporting that
they are being contacted by potential European clients about whether they should relocate
to England.29
In addition to the forum-shopping concern, total mutability may undermine reasonable
expectations as well. For example, assume a spouse is supporting his spouse through
professional school in New York. The spouse providing support might believe that, if
they divorce in New York, he will get a share of the value of the professional degree his
wife is working to earn.30 If they move to Texas after graduation and shortly thereafter
divorce, a rule of total mutability would deprive him of his claim to a part of the value of
the degree (because the law of Texas is very different regarding how to treat at divorce
professional degrees earned during marriage). 31 This seems quite unfair, if one
concludes that he had a reasonable expectation N.Y. law would apply if they ever
divorced.
The rule chosen to govern spouses’ marital property rights at divorce ideally should
fulfill a spouse’s reasonable expectations. Determining whether a spouse has any
expectations regarding applicable divorce law, though, is not an easy task. In most states,
as was pointed out above, divorce law rules apply only if the spouses divorce. One U.S.
study has found that very few spouses (at least at the time of the wedding) believe there is
a significant likelihood they will divorce.32 One might argue that this suggests that many
U.S. couples do not contemplate the economic consequences of divorce during marriage.
The increasing prevalence of premarital agreements might be thought to suggest the
opposite. Of course, even if spouses believe at the wedding there is a small chance of
divorce, this assessment might change during the course of the marriage.
If one is attracted to a system of total mutability, an additional question that needs to
be addressed is what level of contact the parties need to have with the forum before its
law would govern their marital rights. No U.S. court to date has imposed any minimum
residence period before the total mutability system would govern at divorce. (Indeed,
courts generally have not required that the state even have been the spouses’ marital
domicile.) In contrast, Dean Symeonides has drafted proposed legislation for Puerto Rico
that would enact a system of total mutability for all purposes, but only if the spouses so
agree, or if they live in Puerto Rico for five years.33 This issue will be discussed in more
detail below.
See Michael Freedman, “Splittsville, U.K.,” Forbes, June 19 , 2006, at 54.
See J.T. OLDHAM, supra note 15, § 9.02 (discussing the New York rule).
31
Id.
32
Baker & Emery, When Every Relationship is Above Average: Perceptions and Expectations of Divorce at
Time of Marriage, 17 LAW & HUM. BEHAV. 439 (1993).
33
See email, dated 2/21/07, to the author from Dean Symeonides, attaching proposed Chapter 4, Articles
22-25, as proposed additions to the Puerto Rico Civil Code.
29
30
8
C. Current U.S. Attempts to Apply Modern Conflicts of Law Theories to Mobile Spouses
at Divorce
1. An Introduction to U.S. Conflict of Laws Analysis
In cases that have arisen regarding this topic, some U.S. courts have applied either the
Restatement’s “most significant relationship approach” or “governmental interest
analysis.” Under interest analysis, courts are asked to attempt to determine the policies
and legitimate state interests that underlie the laws of the involved states. After
undertaking such an analysis, the court determines that (i) both states have a legitimate
interest in the application of its law (a “true conflict”), (ii) only one state will have such
an interest (a “false conflict”), or (iii) neither state has such an interest (an “unprovidedfor case”).34 If there is a false conflict, the law of the state with an interest in seeing its
law applied should be chosen.35 For true conflicts, Brainerd Currie (the creator of interest
analysis) urged that forum law should apply;36 others have suggested different
approaches.37 There is less agreement about what law should govern unprovided-for
cases; some suggest forum law.38
How would a court determine which states have an interest in the application of its
law? Although some disagree,39 the majority view is that it is appropriate to distinguish
between residents and non-residents, for purposes of determining a state’s interest in the
application of its law.40 So, for example, if the policy underlying a law is thought to
protect a certain class of people, a state would have an interest in applying its law only if
a person to be protected was a resident.41
For example, some states have a policy of awarding less than half of the marital estate
to a spouse “at fault” in a divorce. This is perceived as a law whose policy is to protect
innocent spouses. Under interest analysis, one would therefore distinguish between
resident innocent spouses and non-resident innocent spouses;42 the state would only have
a legitimate interest in protecting innocent spouses who resided in the state.43
34
Robert Sedler, The Governmental Interest Approach to Choice of Law: An Analysis and Reformulation,
25 U.C.L.A. L.REV. 181 (1977).
35
Id. at 186.
36
Id. at 188.
37
Louise Weinberg, Book Review, 103 MICH. L.REV 1631, 1643 (2005); Reppy, Electicism in Choice of
Law, 34 MERCER L.REV. 645, 648 (1983); Herma Hill Kay, Theory Into Practice: Choice of Law in the
Courts, 34 MERCER L.REV. 521, 548-49 (1983).
38
Sedler, supra n. 34, at 234, n. 283.
39
Ely, Choice of Law and the State’s Interest in Protecting Its Own, 23 WM. & MARY L.REV. 173 (1981).
40
Comment, False Conflicts, 55 CALIF. L.REV. 74, 80-81 (1967).
41
Id.
42
Williams v. Williams, 390 A.2d 4 (D.C. App. 1978).
43
So, as will be discussed below, the D.C. Appeals court correctly determined in Williams (supra n. 41)
that the forum had no interest in applying its law of this type to protect a non-resident innocent spouse.
9
Under the Restatement (Second), a court is instructed to apply the law of the
jurisdiction with the “most significant relationship” to the parties.44 The Restatement
suggests a number of factors a court should consider in connection with making this
determination.45 Discussions contained in the Restatement regarding marital property are
primarily focused on choosing the law applicable to determine the spouses’ respective
ownership interests in property during an intact marriage. (This is perhaps not surprising,
since the Restatement was drafted before most states enacted equitable distribution at
divorce.) As a general rule, the drafters suggest applying the law of the spouses’
matrimonial domicile at the time of acquisition to determine the spouses’ ownership
interests in property acquired.46 Unfortunately, this focus is not of great assistance when
the issue is not the spouses’ respective ownership interests in property in an intact
marriage but what law to apply to determine how to divide the marital estate upon
divorce, which in most states is not based on ownership.47 In contrast, in community
property states, property division at divorce can be substantially affected by conclusions
about the nature of the spouses’ ownership interests. Still, courts have disagreed about
the appropriate application of the Restatement to some marital property issues.
For example, in one case, the spouses’ last marital domicile was Texas. The parties
separated; the wife stayed in Texas (a community property state) and the husband moved
to Washington (also a community property state). The parties never divorced and
subsequently the husband won the lottery. Under Washington community property law,
spouses stop accumulating marital property upon permanent separation; under Texas law,
community property continues to accrue until divorce. In litigation in Washington
regarding the ownership of the lottery proceeds, the court of appeals determined that
Texas had the most significant relationship (due to its interest in protecting the
abandoned spouse who lived there), so its law should govern the spouses’ rights.48 On
appeal, the Washington Supreme Court reversed and applied Washington law, in large
part because that was the husband’s domicile when he won the lottery.49
A detailed examination of the Restatement in the context of divorce property division
is found in Dawson-Austin v. Austin.50 The marital domicile was Minnesota. After the
relationship broke down the wife moved to California and the husband moved to Texas
and filed for divorce. The Texas court noted that neither party at that time lived in
Minnesota, and the wife “did not appear to have taken any actions in reliance on the
44
RESTATMENT (SECOND), CONFLICT OF LAWS § 6 (1971); Willis Reese, Conflict of Laws and the
Restatement (Second), 28 LAW & CONTEMP. PROBS. 679 (1963); Willis Reese, The Second Restatement of
Conflict of Laws Revisited, 34 MERCER L.REV. 501 (1983).
45
See Dawson-Austin v. Austin, 920 S.W.2d 776, 790-91 (Tex. App. 1996) (citing to § 6 of the
Restatement, referring to factors such as (a) the needs of the interstate and international systems, (b)
policies of the forum, (c) policies of the interested states and the relative interests of those states, (d) the
protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty,
predictability and uniformity of result, and (g) ease in the determination and application of the law to be
applied).
46
See RESTATEMENT (SECOND), CONFLICT OF LAWS § 258 (Movables).
47
See Sampson, supra n. 5, at 1320.
48
Seitzer v. Sessions, 915 P.2d 553 (Wash. App. 1996).
49
Seizer v. Sessions, 940 P.2d 261 (Wash. 1997).
50
920 S.W.2d 776 (Tex. App. 1996).
10
application of Minnesota law.” The court next considered the ease in the determination
and application of the law to be applied. The court concluded that it would be much
easier and simpler for a Texas court to apply its divorce law to divide the parties’
property, regardless when it was acquired. If the court had to apply the divorce law of
the state where the property was acquired, this “would be a tremendous burden.” The
court concluded that Texas law should be applied to determine how to divide all the
parties’ property.
2. Cases When One Spouse Moves to the Forum
a. Acquisitions before the Move
A number of cases involve disputes where one spouse leaves the last marital domicile
and files for divorce in a new state of residence. Under U.S. law, a divorce court must
have “personal jurisdiction” over both spouses to divide property outside the state.51 To
date, this has not generally been an issue in the cases where only one spouse moved to the
forum, either because the issue was not raised, the other spouse consented to jurisdiction,
or because both spouses had contacts with the forum.
In Marriage of Roesch,52 after one spouse moved to California from Pennsylvania the
marital domicile and filed for divorce, the California appellate court concluded that the
law of the last common marital domicile, Pennsylvania, should be applied to govern the
division of the marital estate acquired before the husband moved. The court emphasized
that Pennsylvania had a “substantial” interest in the application of its law. Pennsylvania
law at the time allowed a spouse who worked outside the home to keep most of the
property the spouses accumulated during marriage if they divorced; presumably this law
was intended to reward the spouse who worked outside the home during marriage.
Because the spouse who worked outside the home was a non-resident at the time of
divorce, the evaluation of Pennsylvania’s interest in the application of its law seems
wrong, at least in terms of interest analysis.53 In addition, in Roesch the court stated that,
because the wife was still living in Pennsylvania, it would be unconstitutional for
California to apply its divorce law to property acquired before the husband moved there.
A New Mexico court would reach the same result as Roesch, because its quasicommunity property statute specifically provides that its law applies only when both
spouses have moved to the forum.54
In Williams v. Williams,55 a couple lived in Maryland and acquired realty there. The
wife moved to the District of Columbia when the marriage broke down, and the husband
sued her for divorce in D.C. Under Maryland law, the property (titled in both their
names) would have been divided equally; in D.C., under the particular facts the wife
51
See Dawson-Austin v. Austin, 968 S.W.2d. 319 (Tex. 1998). This can arise either as a result of the
parties contracts with the forum or from a party being served in the forum.
52
147 Cal. Rptr. 586 (Cal. App. 1978).
53
See Oldham, Property Division in a Texas Divorce of a Migrant Spouse, 19 HOUS. L. REV. 1, 28 n. 134.
(1981).
54
See N.M. STATS. § 40-3-8.
55
390 A.2d 4 (D.C. App. 1978).
11
would have received less than half the realty (and possibly nothing), based on her marital
fault. The court concluded that the policy underlying the D.C. law was to protect an
innocent spouse from a guilty spouse’s wrongdoing, and that the District would have
“scant interest” in the application of its law, since in this instance the innocent spouse
was a Maryland resident.56 The court found that, under the law of Maryland, when the
spouses took title jointly to property acquired during marriage they are still considered
equal owners upon divorce, regardless of the fault of either spouse. The court perceived
the policy underlying this law as deriving from a concern for land title stability, which
would be advanced by the application of its law. The court argued that this was therefore
a false conflict, with only Maryland having an interest in seeing its law applied. Under
more traditional interest analysis, because D.C. law harms its resident and Maryland law
harms its resident, it would be considered an unprovided for case, which usually would
result in the application of forum law.57
A similar case again arose in the District of Columbia four years later. In Anderson v.
Anderson,58 a Maryland couple jointly bought a house in Maryland; when the marriage
broke down, the wife moved to D.C. A divorce action was filed in D.C., whose law was
more favorable in this instance to the wife (here the wife was not at fault), when
compared to the Maryland rule of equal division. The court construed Williams as
requiring the application of the law of Maryland, the last marital domicile. The court
stated that the “reasoning outlined [in Williams] applies equally to the present case,”
seeming to ignore the importance of the wife’s fault in the prior case (and her lack of
fault in Anderson) in terms of determining the legitimate interests of the District of
Columbia in the application of its law.
So, in these three cases, the forum court determined, for different reasons, that the law
of the state of the last common domicile, not that of the forum, should govern the
spouses’ rights in property accumulated before one spouse moved to the forum and filed
for divorce. Other courts have reached different conclusions when one spouse has moved
to the forum.
In Dawson-Austin v. Austin,59 when the marriage broke down the husband moved
from Minnesota, the last common marital domicile, to Texas and filed for divorce; the
wife moved to California. The Texas court of appeals, applying the second Restatement
“most significant relationship” approach, concluded that Texas was the state with the
most significant relationship to the dispute, so Texas law should be applied to determine
the character of property accumulated while they lived in Minnesota. (This decision was
later reversed on appeal on jurisdictional grounds.)
In Zeolla v. Zeolla, 60 the parties lived in Massachusetts and acquired realty there and
in Maine. The wife moved to Maine for a period and filed for divorce. The trial court
56
See n. 41 supra & accompanying text.
See Sedler, supra n. 34, at 234 n. 283.
58
449 A.2d 334 (D.C. App. 1982).
59
920 S.W.2d 776 (Tex. App. 1996), reversed, 968 S.W.2d 319 (Tex. 1998).
60
908 A.2d 629 (Me. 2006).
57
12
applied Maine law to divide all the parties’ property (including property located in
Massachusetts). When the court’s choice of law was challenged on appeal, the appellate
court affirmed, noting that “in our increasingly transient society, a court [otherwise]
could be limited by the property distribution laws of every state a migratory marriage
touched.”
In a Utah case61 the parties had been living in Pennsylvania. The husband moved to
Utah for a job, and the wife apparently stayed behind. The husband then filed for divorce
in Utah, and the question arose whether Utah law should apply to govern the parties’
marital property rights, including rights in Pennsylvania realty. The court applied Utah
law, even though the result was disadvantageous to its domiciliary (when compared to the
Pennsylvania rule).
In Ismail v. Ismail62 the spouses were Egyptian nationals who throughout the course of
their marriage had lived in various places, including Texas (a number of years before the
divorce action was filed). The last common marital domicile was Egypt. The wife
moved to Texas and filed for divorce. Among other things, the husband contended that,
because only the wife had moved to Texas, Texas law should not govern their marital
rights. The Texas court held that Texas law should govern, even though under Egyptian
law the property could not be divided. Like the court of appeals in Dawson-Austin, the
court emphasized that this result would promote uniformity and would be easy for Texas
courts to apply.
In a California case, the marital domicile was Israel. The wife was American and the
husband Israeli. The wife went to California, ostensibly to visit her mother, and filed for
divorce. The husband accepted service in California and personally appeared in the
action. The court applied California law to award the wife 50% of the parties’ realty in
Israel, but the husband apparently did not challenge whether California law should
apply.63
b. Acquisitions After the Move
In some cases, property acquisitions after a move by one spouse are the issue at
divorce. For example, a Washington case involved a couple who married in Texas. They
then moved to New York and had a child. When the wife developed a mental illness, the
husband went back to Texas with his wife, apparently so that she could reside with her
parents. Shortly thereafter, the husband left Texas (without divorcing) and lived in a
number of places, before finally settling in Washington. The parties were not in contact
for at least 3 decades. In 1989, the man purchased a winning lottery ticket, which entitled
him to $97,000 annually. The question arose whether the wife had any claim to the ticket
and the annual payments. The pivotal issue was whether Texas or Washington law
should apply. The Washington Supreme Court concluded that Washington had the most
61
Dority v. Dority, 645 P.2d 56 (Utah 1982).
702 S.W.2d 216 (Tex. App. 1985).
63
Marriage of Ben-Yehoshua, 154 Cal. Rptr. 80 (Cal. App. 1979).
62
13
significant relationship to the issue of the rights of the spouses as to property acquired by
a separated spouse living in Washington, and therefore applied Washington law.64
The spouses in Martin v. Martin65 had lived in many places and countries during their
marriage. The husband was transferred by his employer from Singapore to California in
August 1979. The husband and wife intended to retire in Arizona in the future. So, in
December 1979 the parties bought a home in Arizona and the wife moved there to live,
while the husband stayed in California. In 1982, the wife filed for a divorce in Arizona;
the issue was whether Arizona or California law should govern the character of the
husband’s earnings after the parties separated and the wife moved to Arizona. Under
Arizona law, the earnings were community; California law would treat them as the
husband’s separate property. The husband argued that the Arizona court should follow
Roesch,66 and not apply forum law when only one spouse had moved to the forum. The
court declined to follow Roesch, noting that the court “gave no rationale why it
interpreted California’s statute in such a restrictive manner.” The Arizona court
concluded that “factors such as uniformity of result and judicial economy favor
application of [forum] law to all divorces filed in this state,” citing Ismail.67 The court
considered whether to apply the Restatement “most significant relationship approach” to
determine what law to apply. It assumed that such an approach would lead to a system of
partial mutability, and was concerned that under such an approach, particularly for
spouses who had lived in a number of places, the court might have to attempt to apply the
law of a variety of jurisdictions, based on where the parties lived when an item of
property was acquired. The court concluded that such an approach would be unworkable.
In a Louisiana case,68 after the spouses had lived in a number of states, as well as in
England, the husband moved to Louisiana. He filed for divorce two years after relocating
there. The issue was whether Louisiana community property law should govern the
parties’ rights in personalty acquired by the husband while in Louisiana. The Louisiana
Supreme Court concluded that Louisiana community property law should apply only if
both spouses moved to Louisiana. So, the husband’s acquisitions after he moved to
Louisiana were not community property.
3. Cases When Both Spouses Move to the Forum
Similar issues can arise when spouses accumulate property in one jurisdiction and
then both move to the forum. In Savelle v. Savelle69 the parties lived in Louisiana for 30
64
Seitzer v. Sessions, 940 P.2d 261 (Wash. 1997).
752 P.2d 1026 (Ariz. App. 1986).
66
See n. 52 supra.
67
See n. 62 supra.
68
Hand v. Hand, 802 So.2d 560 (La. 2001), rehearing granted in part, 812 So.2d 625 (La. 2002), on
remand, 834 So.2d 619 (La. App. 2002). On the remand, the appellate court focused only on whether,
under Louisiana law, the wife had any ground for relief regarding the husband’s acquisitions of personalty
while domiciled in Louisiana. 834 So.2d at 622. The court applied Louisiana law and concluded that, under
Louisiana law the accumulations by the husband after his move to Louisiana were his separate property,
and the wife had no ground for recovery in Louisiana regarding such property.
69
650 So.2d 476 (Miss. 1995).
65
14
years, and then moved to Mississippi. A few years later, a divorce action was filed in
their new domicile. The Supreme Court affirmed the application of Mississippi law to
determine the parties’ rights at divorce in the property accumulated in Louisiana. The
Montana Supreme Court reached a similar result in Marriage of Scott,70 where the parties
initially lived in Washington. They then moved to Montana and later filed for divorce.
The forum court applied its law to determine the parties’ rights at divorce in all property.
Some community property states have enacted statutes (generally called “quasicommunity property” statutes) that apparently require their application at divorce to all
the parties’ property, even to property acquired while living elsewhere.71 For example, in
Fransen v. Fransen72 a couple had lived in many states. They obtained a divorce in
Idaho, but the decree did not address their property rights. Later the parties both moved
to California, where an action was filed to divide the parties’ property. The court applied
California law to determine the parties’ rights in all of their property accumulated in
various domiciles.
It appears that a growing number of U.S. states apply a rule of total mutability to
transient spouses at divorce. In contrast, a minority of U.S. states apply the law of the
place of acquisition to determine the parties’ rights in such property at divorce. This
approach was developed by some states as a strategy to deal with the situation when
spouses move from a non-community property state to a community property state. It is
now accepted in Idaho,73 Nevada,74 and Washington.75
At least one other recent decision reached a similar conclusion in a different situation.
In Quinn v. Quinn76 the parties acquired realty while living in Washington (a community
property state). They then moved to Nebraska, (not a community property state) sold the
Washington realty and divorced. The Nebraska divorce court applied Washington law to
determine the parties’ rights at divorce to proceeds received from the Washington realty,
based both on the Restatement (Second) approach and the conclusion that the parties’
interest in realty should be governed by situs law.
An Iowa case has applied this partial mutability approach in a different manner. In
Marriage of Whelchel77 the parties initially lived in Texas (a community property state),
where they accumulated cash in a brokerage account. They then moved to Iowa (not a
community property state) and later divorced, never having moved the brokerage
account to Iowa. Applying the Restatement (Second) approach, the Iowa court applied
Texas law to determine the parties’ ownership interest in the account, but applied its own
rules regarding forum property division.
70
835 P.2d 710 (Mont. 1992).
See TEX. FAM. CODE § 7.002; CAL. FAM. CODE § § 63, 125, 2550; ARIZ. REV. STAT. § 25-318; N.M.
STAT. ANN. § 40-3-8.
72
190 Cal.Rptr. 885 (Cal. App. 1983).
73
Mc Hugh v. Mc Hugh, 699 P.2d 136 (Idaho 1985).
74
Braddock v. Braddock, 542 P.2d 1060 (Nev. 1975).
75
Marriage of Zahn, 978 P.2d 498 (Wash. 1999).
76
689 N.W.2d 605 (Neb. App. 2004).
77
467 N.W.2d 104 (Iowa App. 1991).
71
15
Louisiana has accepted a blend of total mutability and partial mutability if both
spouses move there. Under its conflict of laws rules, Louisiana first applies its law to
determine the character of the parties’ property. If it is determined to be community
(regardless where acquired), the analysis ends, and the property is to be divided equally.
If property is found to be separate under Louisiana law, the law of the prior domicile is
applied to divide that property (if it was acquired there), if it would enlarge the divisible
marital estate.78
4. Summary of the U.S. Approaches
U.S. courts do not agree about how to choose the law that will govern the division of
the spouses’ property at divorce. Some apply “partial mutability,” applying the divorce
law rules of the jurisdiction where the parties were living when the particular property
was acquired. Some others would apply forum law to divide personalty and situs law to
divide foreign realty. The trend, however, seems to be to apply forum law to divide all
the parties’ property, as long as the forum has personal jurisdiction over both parties,
regardless of when the property was acquired or whether the forum ever was the parties’
marital domicile. This rule is applied regardless of whether the spouses are U.S. citizens
or foreign nationals.
III. Contemplating the Best Rule for U.S. Courts
A. Approaches That Would Require the Court To Apply the Law of Two or More States
in Each Divorce
1. Partial Mutability
Partial mutability advances what might be assumed to be the reasonable expectations
of parties: namely, that their rights would be governed by the law of their domicile when
property is acquired. This assumes, of course, that parties have a general familiarity with
the divorce law of their current domicile and take actions in reliance thereon. It is
difficult to know whether this is true for a significant number of couples. It is interesting
to note that, despite the European tradition of total immutability, the drafters of the Hague
Convention on Matrimonial Regimes in the 1970s proposed the principle of partial
mutability.79 Partial mutability does seem firmly entrenched in U.S. marital conflicts law
as to the ownership rights of spouses in an intact marriage. Would it make sense to
extend it to divorce property division as well?
Partial mutability shares with party autonomy (and total immutability) the
characteristic that the forum court may need to apply the marital property law of another
jurisdiction to divide property, something it is almost certain not to be particularly
qualified to do. It is somewhat difficult to evaluate how burdensome this would be. It is
78
See LA. CIV. CODE art. 3526.
See Anders Agell, The Division of Property upon Divorce from a European Perspective, in DROIT
COMPARE DES PERSONNES ET DE LA FAMILLE (Marie-Therese Meulders-Klein ed. 1998), at 17.
79
16
not a concern commonly expressed in conflicts literature. Courts are generally presumed
to be able to discover and apply the law of other jurisdictions. Are marital property rules
different?
In the U.S., there are three general types of marital property systems that operate upon
divorce. In the most common one, some property, commonly that acquired by either
spouse during marriage by efforts, is divisible. All other property (normally pre-marriage
savings, as well as gifts or inheritances received during marriage) is not. This is a
community of acquests.80 Another type permits a divorce court to divide all the parties’
property, regardless of when or how it was acquired. This is a universal community.81
The third type generally permits the division of only the marital estate (a community of
acquests), but permits the division of other property if hardship would otherwise result.82
Even within one of these systems, such as community of acquests, different U.S.
jurisdictions have come to different conclusions about how to treat specific types of
property. For example, many jurisdictions have determined that, if a spouse obtains a
professional degree during marriage, this degree is not divisible property upon divorce.83
Courts in one state, New York, have reached the very different conclusion that a
professional degree is a valuable marital property right and that it should be valued in
terms of the predicted increase in lifetime earnings the degree will allow the spouse to
receive.84 New York divorce courts have developed significant expertise in making such
calculations. Doubtless, courts in other states would be much less able to apply this law
and make such calculations. Similarly, different states have reached very different
conclusions about the extent to which the marital estate is entitled at divorce to share in
the value of “goodwill” of a business started during marriage, particularly if the goodwill
is related to a spouse’s reputation.85 It might be difficult for courts in one state to apply
another state’s law as to such an issue, and to calculate the correct value of the amount of
the marital claim.
Some U.S. states now apply the rule of partial mutability to property division at
divorce. To date, it doesn’t appear that this rule has imposed substantial burdens on state
divorce courts. One case that might suggest otherwise is McHugh v. McHugh.86 In this
case, the parties married in Maryland, where the husband had acquired realty before
marriage. During the marriage, the husband used marital funds to make the payments
due for the realty. They eventually moved to Idaho, and at some point thereafter filed for
divorce there, while still owning the Maryland realty. Idaho courts apply a rule of partial
mutability, so the Idaho divorce court had to determine the Maryland rule for how to
calculate the marital claim when a spouse buys realty before marriage and continues to
make payments during marriage with marital funds. The Idaho Supreme Court
80
See J. T. OLDHAM, DIVORCE, SEPARATION AND THE DISTRIBUTION OF PROPERTY § 3.03 (2007).
Id.
82
Id.
83
Id. at § 9.02.
84
See O’Brien v. O’Brien, 489 N.E. 2d 712 (N.Y. 1985).
85
See Oldham, supra n.15, at § 10.03.
86
699 P.2d 1361 (Idaho 1985).
81
17
determined that the trial court applied the wrong rule, and summarized how to correctly
calculate the marital claim (under Maryland law).
One could conclude that this case shows that a forum court can apply even rather
complicated foreign marital property rules. Conversely, one might argue that this
required an appeal to the state supreme court, not a particularly efficient process.
Prof. Dethloff has argued that in Europe it has been very difficult for courts to apply
the marital law of other jurisdictions. Foreign codes are not widely available. Even if
they are available, courts have had difficulty in applying them correctly. Her conclusion
is that this process is inefficient and expensive for the parties.87 Professor Cooke has
reported that other EU countries have incorrectly applied English rules regarding
financial awards in connection with divorce.88
Many couples who have been involved in U.S. appellate divorce cases pertaining to
mobile spouses have lived in a number of places.89 So, the acceptance of a rule of partial
mutability would not require just the application of two marital regimes, but in some
instances a larger number. This could present a court with significant challenges. In
addition, a number of these couples have resided outside the U.S. at some point during
marriage.90 So, a system of partial mutability could also require U.S. divorce courts to
apply the marital law of other countries. Courts that have endorsed a view that a forum
court should apply its law to divide all the parties’ property, regardless where acquired
(sometimes called a retroactive approach or a rule of total mutability) have emphasized
the concern that it would be quite burdensome for a divorce court to apply two or more
property division systems to divide the marital estate of a transient couple divorcing in
the forum.91
The application of the law of two different states could at times be complicated, in
addition to being potentially burdensome. For example, assume a spouse buys a house in
state 1 before marriage and then makes payments on that house with marital funds while
the spouses live in that state. If they move to state 2, and continue to make payments on
that realty after a move to state 2, would state 1 law govern their rights in the property
due to the payments made before the move, and state 2 law as to later payments? Similar
87
See Nina Dethloff, Arguments for the Unification and Harmonisation of Family Law in Europe, in
PERSPECTIVES FOR THE UNIFICATION AND HARMONIZATION OF FAMILY LAW IN EUROPE (Katharina BoeleWoelki, ed.) at 42-43.
88
See Elizabeth Cooke, The Green Paper on Matrimonial Property Regimes: Reflections from England and
Wales, September [2007] INT. FAM. LAW. 120.
89
Fransen, supra n. 72; Seitzer, supra n. 49; Ismail, supra n. 62; Martin, supra n. 65; Hand, supra n.
68.
90
Ismail, supra n. 62; Martin, supra n. 65; Hand, supra n. 68. See also Marriage of Ramadan, 891 A.2d
1186 (N.H. 2006); Akinci-Unal v. Unal, 31 Fam. L. Rep. (BNA) 1449 (Mass. App. 2005); Naguib v.
Naguib, 137 S.W.3d 367 (Tex. App. 2004), Nationwide Resources Corp. v. Massabni, 694 P.2d 290 (Ariz.
App. 1984); Lane-Burslem v. Commissioner, 659 F.2d 209 (D.C. Cir. 1981); Aleem v. Aleem, 931 A.2d
1123 (Md. App. 2007).
91
See Dawson-Austin, supra n. 59; Zeolla, supra n. 60; Ismail, supra n. 62; Martin, supra n. 65.
18
issues could arise in connection with other types of rights, such as defined benefit
pension rights earned while living in two or more states.92
Application of partial mutability could result in similar types of property being treated
differently, which parties may well perceive as unfair. For example, assume one spouse
inherits funds while living in one state and the other inherits funds after they have moved
to another. If the two states have different rules about whether inheritances can be
divided at divorce, application of different rules to each inheritance could well seem
arbitrary and unfair.
Another complication presented by partial mutability relates to the possibility that the
law of the previous domicile might change after the spouses move. Under partial
mutability, the divorce court presumably would apply the law of the prior residence at the
time of divorce, not the law as it existed at the time of acquisition. For example, in Berle
v. Berle,93 the couple lived in New Jersey from 1938 through October 1971, when the
husband moved to Idaho with property accumulated during their long marriage. In the
Idaho divorce, the court applied New Jersey’s equitable distribution law, which took
effect in September 1971. So, to the extent that partial mutability is based on fulfilling
the spouses’ expectations, this would be undermined by any changes in the law of the
prior domicile.94
So, because partial mutability would require the application of the divorce law of two
or more jurisdictions, which could create various difficulties for the court and may also
result in a perception that the process is unfair, partial mutability should not be accepted.
2. The Distinction between Realty and Personalty
There is authority under U.S. law that, when determining the spouses’ ownership
interests in property acquired during marriage, different conflict of laws rules are
appropriate, based on whether the property is realty or personalty.95 Some cases have
extended this approach to deal with dividing property at divorce. 96 I would contend that,
regardless of whether one accepts the distinction between realty and personalty for
purposes of ownership, it should not be extended to govern choice of law for division of
property. It would be much fairer and simpler if the parties’ rights in all property owned
at divorce would be governed by one law.97
92
Professor Reppy discussed other complications that could arise in connection with partial mutability in
William A. Reppy, Jr., Louisiana’s Proposed “Hybrid” Quasi-Community Property Statute Could Cause
Unfairness, 13 COMM. PROP. J. 1, 3-4 (1986).
93
546 P.2d 407 (Idaho 1976).
94
See Brian H. Bix, Choice of Law and Marriage: A Proposal, 36 F.L.Q. 255, 270 (2002).
95
See Weintraub, supra n. 5, at 1119-1121.
96
See Quinn, supra n. 76; Mc Hugh, supra n. 86. A minority of Canadian provinces have adopted this rule.
See note 119 infra.
97
See Zeolla, supra n. 60; Dority, supra n. 61; Whelchel, supra n. 77. See generally Weintraub, supra n.5,
at 1121-1127.
19
B. Approaches That Result in the Divorce Court Applying One Law To Govern
the Parties’ Rights
1. Party Autonomy
a. Party Choice of the Applicable Law and/or Forum
One potential solution to choosing the law applicable to govern the marital property
rights of mobile spouses at divorce would be to grant to couples the right to specify
which jurisdiction’s laws would govern their marital rights. Contractual choice of
governing law is generally accepted in U.S. law, as long as the parties have some
connection with the jurisdiction and the law does not violate an important policy of the
forum. To the extent that it is perceived to be important to fulfill the parties’ reasonable
expectations regarding the law to that will govern important matters, this would be one
way of doing it in connection with selecting the rules applicable to a possible divorce.
Party autonomy would present a few problems, of course. One is the concern that the
parties might choose the law of a jurisdiction with which the forum court is unfamiliar, so
parties will thereby incur the expense of hiring experts to explain the law and the court
therefore will have difficulty applying (or being aware of) the law chosen. In addition,
the law chosen might be so different from the law of the forum that it violates important
policies.
Some of these concerns could be avoided if parties were encouraged to sign a
premarital agreement that not only designated the applicable law, but also contained a
clause which provided that, if the marriage ever broke down, the parties agreed to divorce
only in that forum.98 This strategy would be complicated in the U.S. by residency
requirements; in the U.S., all states have residency requirements of a certain prescribed
minimum period before one can file for divorce. If the parties are not living in the
chosen forum at the time the marriage breaks down, fulfilling the residency requirement
might make this provision difficult to take advantage of, and could, if considered
enforceable, create barriers to reasonable access to divorce.
Finally, although premarital agreements apparently are more frequently entered into
today in the U.S. than a generation ago, they still are relatively rare. Also, when spouses
sign premarital agreements in the U.S., they rarely choose a law to govern their marital
rights at divorce.99 So, for a number of reasons, party choice of applicable marital
98
In Steiner v. Steiner, 23 Fam. L.Rep. (BNA) 1242 (N.Y. Sup. 1997), the court enforced such a provision.
This may be more common in Europe. For example, see Ella v. Ella [2007] EWCA Civ. 99 (Court of
Appeal) (Where parties agreed Israeli law would govern their rights); Bentinck v. Bentinck [2007] EWCA
Civ. 175 (Court of Appeal) (Where the parties agreed Swiss law would govern their rights).
In Marriage of Procter, 125 P.3d 801 (Ore. App. 2005), the spouses signed a premarital agreement
which included a clause stating: “This agreement is made and entered into between the parties in California
and shall be construed in accordance with the laws of the State of California.” In connection with an
Oregon divorce, the trial court construed this agreement as one which chose California law to govern their
marital property rights, so the court applied California to determine their rights. On appeal, the court
99
20
property rules via a premarital agreement does not seem a practical and workable solution
to this issue for U.S. couples.
b. Party Description of the Agreed Economic Consequences of Divorce via
Marital Agreement
During the past three decades, U.S. jurisdictions have become much more accepting of
premarital agreements that address the economic consequences of divorce.100 Such
agreements typically set forth the parties’ understanding about the economic rights each
party will have if the relationship breaks down. For example, an agreement might
provide that certain property, such as a business started before marriage or a party’s
pension rights, will not be part of any divisible marital estate and will be awarded to that
spouse if the marriage ends in divorce. Other agreements limit or completely waive the
right to post-divorce support.
All U.S. states permit such agreements. However, states have promulgated
inconsistent rules about the extent of any equitable limits to the parties’ ability to vary via
contract “normal” marital property rights at divorce and post-divorce support rules.
About half of the states have adopted a uniform law known as the Uniform Premarital
Agreement Act, which gives the parties great freedom to change via contract customary
marital property default rules at divorce.101 Other states enforce premarital agreements,
but only if they are “fair” or “not unconscionable” at divorce.102
In addition, many U.S. jurisdictions require compliance with certain procedural
requirements before a premarital agreement will be enforced. The most common
requirement is that the spouses must have exchanged sufficient financial information so
that they both generally understand each other’s financial situation when the contract is
signed.103 Some other states also require that the agreement be signed a sufficient time
before the wedding so the parties could consult a lawyer, if desired.104
As a general rule, parties to a contract may choose the law that will be applied to
govern its enforceability, as long as the jurisdiction chosen has some connection with the
parties. However, courts do not enforce such party choice of law provisions if the law
chosen violates an important policy of the forum. It is fairly common for parties to
include party choice of law provisions in a premarital agreement, and the law chosen has
reversed, holding that the parties had agreed only that California law would govern the construction of the
agreement, and so Oregon law should govern their rights in connection with an Oregon divorce.
100
See generally Judith Younger, Perspectives on Antenuptial Agreements, 40 RUTGERS L. REV. 1059
(1988); Brian Bix, The ALI Principles and Agreements: Seeking a Balance Between Status and Contract,
in RECONCEIVING THE FAMILY (Robin Fretwell Wilson ed. 2006).
101
See generally J. T. OLDHAM, DIVORCE, SEPARATION AND THE DISTRIBUTION OF PROPERTY § 4.03
(2007). See also, http://www.nccusl.org/Update/.
102
See, e.g. Gross v. Gross, 464 N.E.2d 500 (Ohio 1984) (discussing spousal support limits); Rosenberg v.
Lipnick, 389 N.E.2d 385 (Mass. 1979); N.Y. DOM. REL. LAW § 236(B)(3); CAL. FAM. CODE § 1612(c);
IOWA CODE § 596.5(g)(2).
103
See J.T. OLDHAM, supra note 101, § 4.03.
104
Id.
21
frequently been accepted by courts.105 Still, it is conceivable that the forum might find
the law chosen problematic. For example, assume the parties chose the law of a forum
that had fairly lax standards for determining whether to enforce a premarital agreement,
compared to forum law. The forum might refuse to apply the chosen law.106 If the
parties don’t choose an applicable law, it’s less clear what law will be applied to
determine validity.107
With this background information, it can be seen that U.S. law regarding premarital
agreements and mobile spouses remains somewhat unsettled. If the spouses sign a
premarital agreement while living in a state with relatively lax laws regarding the
enforcement of premarital agreements and then move to another state with stricter rules
regarding premarital agreements and divorce, the law governing the enforceability of the
agreement remains less than certain, even if the parties chose a law to govern the
agreement.
U.S. law also is similarly unsettled regarding whether a U.S. divorce property division
involving divorcing foreign nationals will be affected by marital regime elections made
by the parties at the time of marriage in another country. It is unclear whether U.S.
divorce courts will apply forum rules regarding premarital agreements to determine
whether to enforce marital regime choices made in other countries. For example, in those
U.S. jurisdictions that require substantial disclosure before a premarital agreement will be
enforced, or those that require the agreement to be fair, the application of forum law
could often result in the marital regime choices (such as a choice to waive community
property rights) being declared unenforceable under forum law, even if valid under the
law of the country where the parties married. To date, when this issue has been
presented, some courts have looked to the law of place of execution and have enforced
such agreements.108 Most courts, however, have applied forum law to determine whether
to enforce such agreements made in connection with a marriage in another county.109
105
See Jundt v. Jundt, 2006 WL 917592 (Minn. App. 2006); Rhyne-Morris v. Morris, 671 So.2d 748 (Ala.
App. 1995); Nanini v. Nanini, 802 P.2d 438 (Ariz. App. 1990); Elgar v. Elgar, 679 A.2d 937 (Conn. 1996);
Marcovitz v. Rogers, 675 N.W.2d 132 (Neb. 2004); De Lorean v De Lorean, 511 A.2d 1257 (N.J. Super.
1986).
106
Compare Scherer v. Scherer, 292 S.E.2d 662 (Ga. 1982) (choice of law not enforced) with De Lorean v.
De Lorean 511 P.2d A.2d 1257 (N.J. Super. 1986) (choice of law enforced by forum court). See generally
J.T. OLDHAM, supra note 101, § 4.08.
107
Compare Lewis v. Lewis, 748 P.2d 1362 (Hawaii 1988); Estate of Davis, 184 S.W.3d 231 (Tenn. App.
2004); Gordon v. Russell, 561 So.2d 603 (Fla. App. 1990); Upham v. Upham, 603 N.E.2d 307 (Mass. App.
1994); Rivers v. Rivers, 21 S.W.3d 117 (Mo. App. 2000) (all applying forum law) with Braddock v.
Braddock, 542 P.2d 1060 (Nev. 1975); Sabad v. Fessenden, 825 A.2d 682 (Pa. Super. 2003); Black v.
Powers, 628 S.E.2d 546 (Va. App. 2006); Gamache v. Sanuno, 904 A.2d 91 (Vermont 2006) (all applying
the law of the place of execution).
108
See Van Kipnis v. Van Kipnis, 33 Fam. L. Rep. (BNA) 1428 (N.Y. App. Div. 2007); Fernandez v.
Fernandez, 15 Cal. Rptr. 374 (Cal. App. 1961); Mehtar v. Mehtar, 1997 WL 576549 (Conn. Super. 1997);
Chaudry v. Chaudry, 388 A.2d 1000 (N.J. App. Div. 1987).
109
See In re Osborn, 564 N.E.2d 1325 (Ill. App. 1990); Upham v. Upham, 630 N.E.2d 307 (Mass. App.
1994); Gustafson v. Jensen, 515 So.2d 1298 (Fla. App. 1987); Atassi v. Atassi, 451 S.E.2d 371 (N.C. App.
1995); Marriage of Dajani, 251 Cal. Rptr. 871 (Cal. App. 1988); Shaban v. Shaban, 105 Cal. Rptr.2d 863
(Cal. App. 2001). See also Aleem v. ALeem, 931 A.2d 1123 (Md. App. 2007).
22
2. Total Immutability
It seems the least likely that U.S. courts and legislatures will opt for a system of total
immutability as a solution to the marital property rights of mobile spouses at divorce. No
U.S. appellate case or legislature has adopted it. Its primary benefit is that it gives parties
clear notice of the law applicable to them from the beginning of marriage. However, it
also guarantees that, if the parties change their marital domicile, even shortly after
marriage, the forum court will have to apply the law of another jurisdiction to divide all
the parties’ property, thereby probably maximizing the burden on the forum court. If this
set of rules is that of another country, rather than another state, this could further burden
the forum court. (In the nineteenth century, because so many American residents were
married in other countries, this may have increased the reluctance of U.S. courts to
embrace total immutability.110)
So, total immutability does not currently seem an attractive solution in the U.S. to the
question of marital property rights of mobile spouses at divorce
3. Application of Forum Law
A significant body of U.S. case law supports the view that a forum court should
always apply its law if it has personal jurisdiction over both parties, regardless of whether
the forum ever was the common residence of the parties.111 These cases are unfair and
very unwise. Admittedly, the rule simplifies matters for the court, because it never
requires the court to apply foreign law. Still, it seems obviously unacceptable to allow the
choice of applicable law to be determined based on where a sophisticated spouse chooses
to move after the marriage breaks down.
A “first to file” rule, among other things, invites races to various courthouses and
creates substantial uncertainty regarding the spouses’ rights. For example, a review of a
recent issue of “Family Law” (an English periodical that summarizes recent
developments) includes a summary of three cases where, apparently due to unclear
choice of law rules, couples are maintaining competing actions in different countries.112
Uncertain rules regarding choice of law at divorce caused an American couple living
in London to file competing actions in the U.S. and England. 113 Similar problems exist in
Australia.114 It would be very helpful if clearer rules could be established and eliminate
the incenture to initiate simultaneous actions in different states.
110
See Frederich Junger, Marital Property and the Conflict of Laws: A Tale of Two Countries, 81 COLUM.
L. REV. 1061 (1981).
111
See notes 51 - 78 & accompanying text supra.
112
See Ella v. Ella [2007] EWCA Civ. 99 (Court of Appeal); Bentinck v. Bentinck [2007] EWCA Civ. 175
(Court of Appeal); Moore v. Moore [2007] EWCA Civ. 361 (Court of Appeal) (all summarized in the June
2007 issue).
113
See Dart v. Dart [1996] 2 FLR 286 (Court of Appeals); Dart v. Dart, 597 N.W. 2d 82 (Mich. 1999). For
a case involving concurrent divorce litigation in New York and France, see Bourbon v. Bourbon, 751
N.Y.S.2d 302 (N.Y. App. Div. 2002).
114
See Cashil and Corr (2005) FLC 93-232 [Aust.].
23
It is true that in some U.S. cases where only one spouse had moved to the forum, the
law of the forum was less favorable to the migrating spouse than the law of the last
common domicile.115 In others, however, the law of the forum was more favorable to the
migrating spouse.116 On balance, it seems clear that the marital property rights of a couple
should not be determined at the last moment based on where one spouse chooses to file
for divorce. The forum shopping incentives are too great. Before a forum’s law is to be
applies to govern spouses’ marital property rights, both parties need to have more
significant connection with the forum.
4. Application of the Law of the State with the Most Significant Relationship with
the Parties
As mentioned above, one school of conflicts analysis instructs a court to apply the law
of the state with the most significant relationship to the parties and the dispute.117 Under
this approach, the parties’ marital property rights at divorce would be governed by the
state with the most significant relationship with them and their marriage. This would have
the benefit that the parties by definition would have significant contacts with the state
whose law is chosen to govern their rights.
The application of the most significant relationship approach in this situation could
present some problems. It might not be clear what state had the most significant
relationship with the parties, so the applicable law could be unclear. In addition, the
approach could require a forum court to apply foreign marital property law in many
instances, thereby adding significant cost and complexity to numerous divorces.
An optimum solution would (i) provide a clear and predictable rule, (ii) result in the
application of a law of a state that had a significant connection with the parties, and (iii)
not require the forum frequently to apply foreign law. Does such a solution exist? I
believe so.
5. Applying the Law of the Last Primary Common Residence
The most fruitful approach would be to look to the parties’ last primary common
residence as a starting point for deciding upon the applicable law. This approach has a
number of advantages. First, it requires more than one spouse’s unilateral act of moving
to a forum and filing for divorce as a justification for the application of forum law.
Second, the rule can be stated so it is relatively clear and predictable. Should the law of
the spouses’ last common residence always govern? Or should a more substantial
minimum connection be necessary?
115
See Roesch, supra n. 52; Williams, supra n. 55; Hand, supra n. 68; Zoella, supra n. 60; Dority, supra n.
61.
116
See Dawson-Austin, supra n. 51; Anderson, supra n. 58; Seitzer, supra n. 49; Martin, supra n. 65.
117
See note 44 & accompanying text supra.
24
This issue is nicely framed by the Oregon case of Marriage of Day.118 In this case, the
parties married in California in 1985. They lived there and bought a house. The husband
inherited $500,000 in 1990, and shortly thereafter used $200,000 of that amount to pay
off their home loan. After the husband received this inheritance, both parties stopped
working outside the home and the family lived off investment income generated by the
inheritance. They moved to Oregon in August 1992. The parties separated four months
later, with the wife filing in Oregon and the husband initiating divorce litigation in
California. Under California law, inheritances are not divisible at divorce, while they
generally are under Oregon law.
The Oregon trial court applied California law to govern the husband’s rights to the
California realty, either under the theory that that was the situs of the realty or that it was
the parties’ domicile when the loan was paid off. Under this approach, the husband was
credited with $200,000 for the loan repayment with his separate funds, and the remainder
of their estate was divided under Oregon law approximately equally. (The wife received
property worth approximately $167,000, and the husband received approximately
$132,000, plus the $200,000 related to the loan repayment.) The appellate court reversed
the trial court, holding that Oregon law should apply to all the parties’ rights, including
the California house, so that all the parties’ property should be presumptively equally
divided.
Under California law, the husband would presumably have received most of the parties’
remaining property at divorce (assuming he had not commingled community property
with the inheritance), because funds received by one spouse as an inheritance, and
income generated from such funds, are not divisible at divorce. In contrast, under
Oregon law, all property, including inheritances, are divisible. Does the move to Oregon
for a few months justify this substantially different result? The fairness of this result
depends in part upon whether one believes the husband had any awareness of California
community property law, and had any legitimate reliance interest which the law should
protect that their rights would be governed by California law, the place where they lived
most of the marriage.
One way of looking at this question is whether the spouses take any action in reliance
upon forum law. It is conceivable that spouses could do such things. For example, if Mr.
Day knew when he was getting married that it was likely he would receive a substantial
inheritance in the near future, he might decide to forego a premarital agreement to protect
such an inheritance, in reliance on the California provisions that protect such acquisitions.
Similarly, a spouse like Mr. Day might decide not to segregate income generated from his
inheritance from his inheritance itself, because California law does not make any
distinction between the two. If the couple moves to another jurisdiction whose law
provides that income from separate property is divisible, is it fair to apply this set of rules
to govern the parties’ rights, as to income generated in the prior domicile?
A problem with this analysis is that it would be quite difficult to discern whether a
spouse really relied on the law of the prior domicile. How would Mr. Day establish that
118
904 P.2d 171 (Ore. App. 1995).
25
he chose not to ask for a premarital agreement, due to his familiarity with California law?
Or that his lack of segregation of income from his inheritance was not merely somewhat
casual accounting, but the result of his familiarity with California law?
Another way of looking at this issue is from a perspective of whether the parties have
a significant connection with the last common residence. Normally, under conventional
U.S. conflicts analysis, one applies a state’s law to govern an issue only if the parties and
the issue have a significant connection with the state. From this perspective, it seems
clear that the Days did not have a significant connection with Oregon. It seems intuitively
correct that, before a state’s law should govern all the parties’ property rights at divorce,
the parties should have more of a connection with the state than merely the last common
residence.
One way of requiring a more significant connection with the state would be to seek the
parties’ last common “habitual” residence. For example, a number of Canadian provinces
have adopted such a rule.119 The term is construed to require more connection with the
state than merely the “last common residence.”120
I would suggest a different way of determining a significant connection with the
forum. I propose that the parties’ marital property rights at divorce should be governed by
the last state where they maintained a primary common residence for a certain specified
minimum period, such as two years. This would be fairly clear and would require both
parties to have some significant contact with the state before being governed by the law
of that state at divorce. In some instances, the court would need to apply foreign law.
Alternatively, in such instances the court could be receptive to a forum non conveniens
motion.121 The sole exception to this choice of law rule would be that the forum should
not be required to apply the law of the last common residence if that law violates an
important policy of the forum.122
IV. Conclusion
119
See Prince Edward Island Statutes, Family Law Act, § 16; Northwest Territories Statutes, Family Law
Act, § 47; Nova Scotia Statutes, Matrimonial Property Act, § 22 (distinguishing between realty and
personalty); Newfoundland and Labrador Statutes, Family Law Act § 32 (same); Ont. Fam. Law Act,
Revised Statutes Ontario 1990, Chapter F.3 § 15.
120
See Adderson v. Adderson, 51 Alta. L.R. 2d 193, 7 R.F.L. 3d 185 (Alberta App. 1987); Pershad singh v.
Pershad singh, 9 R.F. L. 3d 359, 60 O.R. 2d 437 (Ont. 1987); Adam v. Adam, 7 R.F.L. (4th) 63 (Ont. Ct.J.
1994).
When construing the Hague Convention on the Civil Aspects of International Child Abduction, U.S.
courts have construed the term “habitual residence” to require more than physical presence. See Ruiz v.
Tenorio, 392 F.3d 1247 (11th Cir. 2004); Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001).
A potential problem with this approach is that an English court has determined that a person may
simultaneously have two habitual residences. Ikimi v. Ikimi (2001) EWCA Civ. 873, [2001] 2 FLR 1288.
121
See Jagger v. Superior Court, 158 Cal. Rpts. 163 (Cal. App. 1979).
122
So, for example, if under the law of the last common residence the husband retains all property after
divorce and the wife receives little or nothing, a U.S. court presumably would determine that the
application of that law would violate an important policy of the forum.
26
An increasing number of couples who divorce in the U.S. have lived in more than one
state or country during their marriage. To date, U.S. courts have not agreed upon how the
marital property rights of such couples should be determined at divorce. Courts have
applied different approaches, all of which I argue above are undesirable.
I have argued above that, if both parties moved to the forum for a significant period
before divorce, unless the parties have agreed which state’s law will govern their rights,
the application of the law of the forum where the parties divorce will generally be the
simplest, fairest, and most efficient way to resolve their rights upon divorce. Of course,
if the parties want to clarify the economic terms that will govern any possible future
divorce, they could sign a premarital agreement that outlines these terms. A majority of
U.S. states would enforce such an agreement at divorce, as long as the agreement was
voluntarily signed and adequate financial information was exchanged. If only one party
has moved to the forum, or the parties have not lived in the forum for a significant period,
the court should apply the law of the place the parties last lived for a significant period,
unless that law violates an important policy of the forum. Alternatively, in such a
situation the court could stay the proceedings and invite the parties to file for divorce in
the forum whose law will govern their property rights.
27