Using Formulas to Separate Marital and Nonmarital Property: A Policy Oriented Approach to the Division of Appreciated Property upon Divorce

Authors

Louise Everett Graham, University of Kentucky College of LawFollow

Abstract

Over the past ten years every writer venturing to discuss domestic relations must have been tempted to emphasize the importance of his or her work by opening with mention of the growing number of divorce cases confronting the court system. Beyond its numerical impact upon the judicial process, however, divorce litigation provides an important opportunity for the study of property rights and the institutions from which those fights are derived. Divorce cases increasingly involve difficult and complex questions concerning the marital property rights of the marriage partners. The importance of marital property cases is broader than the individual rules that they teach. By studying the answers to the marital property puzzle, we learn about the status of the institution of marriage itself. Whatever the social value attached to that institution in theory, the actual treatment of the parties and their property rights upon marriage dissolution gives concrete answers to questions concerning the risks and benefits that derive from marriage and how those risks and benefits are divided between the parties.

The purpose of this Article is to examine the Kentucky approach in light of the Uniform Marriage and Divorce Act, to compare the Kentucky approach with that used in other states with similar marital property laws, to determine whether the Kentucky approach comports with other policies underlying the Uniform Marriage and Divorce Act as adopted in this state, and to evaluate both the usefulness and the fairness of the formulas. Section I of the Article sets out the background of the Kentucky approach. Section II analyzes the impact of the Uniform Marriage and Divorce Act and examines the approaches of other states to the problem of appreciated property. Section III addresses the problem of choosing between divergent approaches. Section IV discusses particular issues raised by the use of formulas for allocating the shares of the separate and marital estates.

Document Type

Article

Publication Date

1985

5-18-2012

Notes/Citation Information

Kentucky Law Journal, Vol. 73, No. 1 (1984-1985), pp. 41-74

Repository Citation

Louise Everett Graham, Using Formulas to Separate Marital and Nonmarital Property: A Policy Oriented Approach to the Division of Appreciated Property upon Divorce, 73 Ky. L.J. 41 (1985).