community property, conflict of law, choice of law, marital property

Document Type



Justice Cardozo is reported to have said that "the average judge, when confronted by a problem in the conflict of laws, feels almost completely lost, and, like a drowning man, will grasp at a straw." Conflict of laws can be vexing, but the resolution of a controversy involving multiple states' marital property systems can quickly become impenetrable. This is in part due to the fundamental conceptual differences between community property and common law marital property paradigms, the inconsistencies in the use of similar terms in the different systems, and the significant differences among the laws of the community property states themselves. Added to the multitude of variations in the marital property law rules to be applied, there are the myriad potential fact patterns as well as layers of other legal issues, competing for application of the determining choice of law. Courts continue to turn to traditional conflict-of-laws principles that were initially found in the Restatement (First) of Conflict of Laws (First Restatement), choosing the law of the situs for real property and the law of the domicile for characterization of marital personalty, but these rules are deceptively simple and ill-equipped to answer the more complex choice-of-law dilemmas in this area. Even with more modern approaches to conflicts of law analysis, courts struggle. The confusion affects more than just property rights between two spouses, but also creates uncertainty whenever a person does business with a married person in another state.

To set the stage, this Article begins with a description of three cases that deal with one state's rule on spousal liability for guaranty agreements, as it applies in the interstate setting. The different courts end up with three dramatically different results, using very different analytic approaches. Next, so that the reader is familiar with the various marital property laws that are in conflict in the cases discussed, the Article briefly describes community property in the United States, the common features among the nine traditional community property states, examples of variations among those states' laws, and the fundamental differences between community property and common law marital property regimes. It also summarizes the available choice of law principles that are invoked in U.S. courts when two or more regimes are involved in a particular controversy.

The Article then identifies common marital property issues that raise conflicts concerns. There are some issues that are relatively straightforward and are dealt with by courts with some consistency. But the farther away the issue strays from the basic question of ownership in property of married persons, the harder it is for courts to apply the available analytic tools to arrive at consistent results. The Article proposes that courts abandon recent attempts to parrot rule-based norms and instead approach the cases by directly considering the interests and policies present in the particular case, and the effect of the various solutions on those interests and policies, before choosing the solution. That case-by-case approach might be criticized as leading to unpredictability, but it is hard to imagine a less predictable body of case law than what we have presently.

The descriptions and variations of the U.S. marital property regimes, the catalog of potential conflicts issues that can arise with respect to marital property, and the description of cases resolving choice-of-law issues with respect to marital property contained in this Article are not comprehensive but are only representative and intended to illustrate the confusion and inadequacy of traditional choice-of-law jurisprudence to resolve these issues fairly.



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