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>> 1 Introduction Marriage is a vital social institution. The exclusive commitment of two individuals to each other nurtures love and mutual support; it brings stability to our society. For those who choose to marry, and for their children, marriage provides an abundance of legal, financial, and social benefits. In return it imposes weighty legal, financial, and social obligations. —Goodridge v. Dep’t of Public Health, 798 N.E.2d 941, 948 (Mass. 2003) (holding Massachusetts’s ban on same-sex marriage unconstitutional) Promises that matter have consequences. Even children know this. Consider the case of little Brad, who hid behind his brother’s bedroom door after helping himself to an unauthorized share of his brother’s Halloween candy. “Did you eat Zach’s candy?” I asked. “No,” said Brad through chocolate lips. “Are you sure?” I asked. “Well, I ate some,” he said. “Promise me you won’t eat any more,” I said, stashing the plastic pumpkin head of sweets on a high closet shelf. “I promise,” said Brad. Brad’s promise bought him a reprieve from a time-out. But he knew that if he broke his promise, if he climbed on a chair, retrieved the pumpkin head, and helped himself to another serving of his brother’s candy, there would be a price to pay: the reprieve would be revoked and the dreaded time-out imposed. Brad’s promise mattered. 2 > 3 Of course, I don’t know the whole story of Casey’s marriage. Maybe she was a scoundrel, a reprobate disguised as a vulnerable, middle-aged mother. Maybe. But I wondered then and I wonder now why she should be reduced to a near-poverty existence after so many years as a homemaker and wife of a well-positioned husband. It didn’t seem right then and it doesn’t seem right now. What makes Casey’s fate seem so wrong? Surely, it is sad to see decent folks fall on hard times. But I believe the discomfort occasioned by Casey’s story goes deeper—to an unsettling awareness that the law turned her into a sucker for relying on the marriage promise. As we will see in the following chapters, primary caregivers like Casey typically experience lost opportunities and declining human capital as a result of their marital role, while their spouses often experience human capital gains as a result of career or job investments. If these gains and losses are not shared at divorce, the result is that one partner enjoys most of the long-term benefits of family teamwork while the other bears most of the costs. This outcome devalues the contributions of caregivers in raising the next generation, encourages an individualistic rather than a communal vision of marriage, and makes reliance on the marriage promise a dangerous, foolhardy proposition. Casey is no dinosaur; she cannot be dismissed as part of a dying breed of Betty Crockers and soccer moms. Casey is my colleague’s wife, my gay neighbor, my beautiful thirty-something niece—all the many varieties of marital partners who take on the lion’s share of family labor, a role that describes many contemporary homes. The point is not that the law should encourage primary caregiving—a posture that would trouble many of us for many reasons—but rather that the law should not denigrate and penalize this choice, surprising unwary caregivers with the news that they were foolish to invest in their families, foolish to think their marriage promises mattered. So how exactly should the law respond to the financial peril of divorcing caregivers? Family law gives divorce courts three (and only three) financial tools: child support, property distribution, and alimony. While child support orders are commonly entered at the time of divorce, their focus is not the spouses’ responsibility to each other, but rather their responsibility to common children. The distribution of marital property is a more appropriate tool for imposing divorce consequences, but 4 > 5 websites New Jersey Alimony Reform, where you will see tales of alimony abuse “more frightening than any Hollywood horror film,”6 and Alimony Slaves in America, where the blog name says it all.7 The Alimony Nightmares website doesn’t mention Casey. Nor do reports of alimony horrors tend to mention that, despite popular perceptions to the contrary, alimony is uncommon, usually short-term, and often limited to the rehabilitation of a needy spouse. Alimony is complex—more complex than Alimony Nightmares or popular fiction or Casey’s story can fully convey...

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