Альманах семейного права = Family Law Almanac. Вып. 2. Правовое регулирование имущественных отношений супругов современное состояние и перспективы = L

Economic consequences of divorce in common law states in the United States

quite different earning capacities and career prospects. These differences in career prospects can be mitigated by an alimony award.

There are three basic types of alimony in the U. S. One is “reimbursement” alimony, where the alimony is intended to reimburse a spouse for support provided during marriage so that the other spouse could obtain education or training. Another type is “rehabilitative” alimony, support for a specified short period so the recipient can obtain education or career training after divorce. The third type of alimony might be called “general purpose” alimony, where the spouse making a claim for support does not desire additional education or training but “needs” support. This last type of alimony is the most controversial1.

“Alimony” (sometimes referred to as spousal support) is customarily awarded in the form of a monthly payment by one divorcing spouse to the other for a specified duration. (As will be mentioned below, in some states then obligation can continue until the obligor spouse dies or the recipient spouse dies, remarries or cohabits with another). It seems to be generally accepted that, even if the parties have very different career prospects at divorce, general purpose alimony should not be awarded to a person divorcing after a marriage of “short” duration. In Maine, there is a rebuttable presumption that no alimony should be awarded if the marriage did not last ten years2.

Different states conceptualize the purpose of alimony differently. In a few states, alimony currently is an obligation that generally cannot exceed a specified maximum duration, such as three to five years3. In these states, the purpose of an alimony award appears to be solely a form of support for a transitional period while the recipient obtains education or training for a career.

During the 1970s and 1980s in the U. S., when many women were entering the work force and more were going to university, there was a hope that women could become economically independent after divorce and that substantial alimony awards for long periods would no longer be needed4. However, a number of judges and legislators gradually realized that, at least for a woman who had been out of the work force for a long period, it was not realistic to assume that a person in that situation at divorce could quickly become economically independent5. In what has been referred to

1  See generally Krause, Elrod & Oldham, Family Law, chapter 16. 2  See Maine Stat., tit. 19, Sec. 951-A.

3  See Ind. Code Sec. 31-15-17-2.

4  See Otis v. Otis, 299 N.W.2d 114 (Minn. 1980).

5  See J. Thomas Oldham, Changes in the Economic Consequences of Divorces, 1958–2008, 42 Fam. L. Q. 419, 432 (2008).

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as the “second wave” of U. S. alimony reform, the argument was made (and accepted in a number of states) that, at least for spouses divorcing after a marriage of long duration, if the parties have quite different earning capacities at divorce, spousal support could be awarded for an indefinite duration1. This “indefinite duration” alimony today is the most controversial type of alimony.

In the U. S. today, the rationale for general purpose alimony is not clear. Many state statutes instruct a divorce judge, when deciding whether to award alimony, to consider a number of factors. These factors provide little specific guidance about when to award alimony or how the amount and duration of the award should be determined2. Spouses can have different career prospects at divorce for at least three reasons. The first is that they chose careers with very different probable salaries. The second situation would be those instances where a spouse has become ill or injured during marriage. The third instance arises when one spouse has removed himself or herself from the work force to care for the parties' children. Of these three scenarios, it seems most obvious that the spouse with the higher income should provide post-divorce support in the last scenario. It is less clear whether a support obligation should arise from the other two scenarios. However, U. S. courts do not appear to distinguish among these three scenarios when making a support award. The inquiry appears to be, when spouses are divorcing after a “long” duration marriage with very different career prospects, whether one spouse “needs” support and whether the other can afford to pay it3.

If a court decides to award what I have referred to as “general purpose” alimony, the parties generally do not equally share post-divorce income. What normally occurs is that the spouse claiming support submits a budget to the court setting forth his or her “reasonable needs”, as well as a summary of why he or she needs alimony of a certain amount to meet those needs4. Under this process, the spouse with the higher income normally retains a majority of his or her income5.

1  See Chamberlain v. Chamberlain, 615 N.W.2d 405 (Minn. App. 2000).

2  See Robert Kirkman Collins, The Theory of Marital Residuals: Applying an Income Adjustment Calculus to the Enigma of Alimony, 24 Harv. Women’s L. J. 23, 33 (2001).

3  See J. Thomas Oldham, An Overview of the Rules in the USA Regarding the Award of Post-Divorce Spousal Support in 2019, 41 Houston J. Int. L .525 (2019).

4  See Naramore v. Naramore, 611 S.W.3d 281 (Ky. App. 2000).

5  See, for example, Marriage of Mauer, 874 N.W.2d 103 (Iowa 2016); Jacobi v. Jacobi, 498 P.3d 689 (Hawaii 2021).

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Economic consequences of divorce in common law states in the United States

B. Alimony Guidelines

During the past ten years, approximately five states have adopted spousal support guidelines1. These guidelines do not impact the decision to award alimony. Once the court decides to award alimony, the guidelines provide a suggestion of how the court should determine the amount and duration of the award. All of the guidelines suggest that the award duration should be some specified fraction of the marital duration. Most provide that the support amount should be determined by, first, calculating the difference in the spouses' respective net incomes, and then multiplying that amount by a certain specified percentage.

Note that the rationale for alimony under the guidelines is somewhat different from the traditional rationale for alimony. As mentioned above, the traditional rationale for alimony was that the spouse claiming a right to support “needed” the support, and the support amount would be tailored to meeting the recipient's needs. Under the guidelines, the spouse claiming support does not have to show a financial need; once the judge decides to award support, the recipient would presumptively receive an award of a certain percentage of the difference in the parties' post-divorce net incomes.

C. Modifying Alimony

Once an alimony award is made, it can be modified upon a showing that the circumstances of the parties have changed in a way not foreseen when the original order was made2.

IV. Marital Agreements

A.Premarital Agreements

1.In general

During the later part of the twentieth century, all U. S. states accepted the general idea that, before marrying, people could sign a premarital agreement addressing their rights and obligations if the marriage ended by divorce. States have disagreed regarding what procedural safeguards need to be followed to

1  See Oldham, Houston Journal of International Law article. 2  See Krause, Elrod & Oldham, Family Law, chapter 20.

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create an enforceable agreement, as well as whether “unfair” or “unconscionable” agreements should be enforced.

There seems to be general acceptance of the principle that, to be enforced, the agreement needs to have been signed “voluntarily”. Courts have disagreed regarding what this means in the context of the negotiation of a premarital agreement1.

Most states do not require that each spouse consult with a lawyer2. In California, the waiver of a right to alimony is not enforceable if the party signing the waiver did not consult with a lawyer3. In West Virginia, if a party did not have independent counsel in connection with signing the agreement, the agreement will not be enforced if the court determines that the party did not understand the agreement when it was signed4. The Minnesota Supreme Court has held that, if the agreement significantly limits the rights at divorce of a party who did not have a lawyer, the agreement should not be enforced5.

2.Voluntary Execution a. Timing

One area of disagreement in the U. S. is whether an agreement should be enforced if the proponent of the agreement gives the other prospective spouse a draft of the agreement for the first time shortly before the scheduled wedding and tells that spouse that he or she needs to sign the agreement or the wedding will be called off. This sort of bargaining obviously puts the spouse in a very awkward position. Some courts have ruled that, particularly if the agreement involves a substantial waiver of rights and the person to whom the agreement is presented is unsophisticated, the agreement should be considered involuntarily signed and therefore unenforceable6. Other courts have concluded that, even though the person to whom the agreement was presented was under pressure, he or she decided to sign it “freely”, so the

1  See Barbara Atwood & Brian Bix, A New Uniform Law for Premarital and Marital Agreements 46 Fam. L. Q. 313 (2012).

2  See generally J. Thomas Oldham, With All My Worldly Goods I Thee Endow, or Maybe Not: A Reevaluation of the Uniform Premarital Agreement Act after Three Decades, 19 Duke J. Gender Law & Policy 83 (2011).

3  See Cal. Fam. Code Sec. 1612.

4  See Owen v. Owen, 759 S.E.2d 468 (W. Va. 2014).

5  See Kremer v. Kremer, 912 N.W.2d 917 (Minn. 2018). 6  See Estate of Hollett, 834 A.2d 348 (N.H. 2003).

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Economic consequences of divorce in common law states in the United States

agreement should be enforced1. A compromise position has been adopted in some states that the agreement will be considered involuntarily signed if the person challenging the agreement can establish that there were a number of people that had been invited to the wedding, and it therefore would have been extremely awkward and expensive to cancel or postpone it at the last minute2. In these jurisdictions, the agreement could be successfully challenged if there were a number of wedding guests3, but not if the planned wedding was small4.

b. Fraud

Another scenario where courts have held that an agreement had been involuntarily signed arises in those instances where, after the premarital agreement was presented to the other party, that party consulted a lawyer and the lawyer proposed changes to the draft agreement. In these cases, the party who initially presented the agreement and his lawyer agreed to make the suggested changes. However, the changes were not made to the original draft, and the execution of the agreement was organized in such a way that the other party could not verify with her lawyer that the changes had in fact been made. Courts have held that this constitutes fraud, which should invalidate the agreement5.

c. Domestic Violence

An agreement would not be enforced if the complaining party can prove that he or she signed the agreement under a threat of violence.

d. Alimony Waivers

In a few states, agreements limiting or waiving the right to claim alimony are never enforced6. A number of other states will enforce alimony waivers

1  See DeLorean v. DeLorean, 511 A.2d 1257 (N.J. Sup. Ct. 1986).

2  See Oldham, Duke J. Gender Law & Policy article. Under the Uniform Premarital and Marital Agreements Act, inadequate financial disclosure is a ground to invalidate the agreement if there was no waiver of the right to disclosure. See Turney Berry & Barbara Atwood, The Uniform Premarital and Marital Agreements Act, 151 Trust & Estates 13-14 (2012).

3  See Fletcher v. Fletcher, 628 N.W.2d 1343, 1348 (Ohio 1994). 4  See Marriage of Bonds, 5 P.3d 815 (Cal. 2000).

5  See Moore v. Moore, 383 S.W.3d 190 (Tex. App. 2012). 6  See Oldham, Duke Law Journal article.

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in premarital agreements1. A third approach is not to enforce a provision limiting the right to claim alimony if the circumstances have changed during marriage so it would be unfair to enforce the provision or cause an undue hardship2.

3. Financial Disclosure

In a few states, an agreement will not be enforced if the parties did not exchange substantial information about their finances before the agreement was signed3. In most states, even if there was no exchange of financial information, the agreement will be enforced, unless it is determined that the agreement was unconscionable when it was signed, which is quite difficult to establish4.

4. Limiting Child Support Obligations

All states agree that child support obligations cannot be limited or waived via a premarital agreement5.

5. Unfair or Unconscionable Agreements

The majority rule is that a premarital agreement should be enforced even if it would be unfair or unconscionable to enforce the agreement6. The minority rule is that the agreement should be enforced if it would be unconscionable to do so or it would cause undue hardship7.

In Massachusetts, to be enforced an agreement must have been “fair and reasonable” when it was signed8.

1  See Oldham, Duke Law Journal article. See generally Sanford v. Sanford, 694 N.W.2d 283, 288 n. 2 (S. D. 2005) (citing numerous cases).

2  See generally Oldham, Duke J. Gender Law & Policy article. 3  See DeLoprean v. DeLorean.

4  See Oldham, Duke Law Journal article.

5  See Marriage of Best, 901 N.E.2d 967, 970 (Ill. 2009).

6  See generally Oldham, Duke J. Gender Law & Policy article.

7  See J. Thomas Oldham, Would Enactment of the Uniform Premarital and Marital Agreements Act in All Fifty States Change U.S. Law Regarding Premarital Agreements?, 46 Fam. L. Q. 367, 378–381 (2012). See also, Conn. Gen. Stat. Sec. 46-b-36g (premarital agreement should not be enforced if it was unconscionable when signed or at the time of divorce).

8  See Biliourris v. Biliourris, 852 N.E.2d 687 (Mass. App. 2006).

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Teiko Tamaki

MATRIMONIAL PROPERTY SYSTEM IN JAPAN

WITH A FOCUS ON THE GENDER

EQUALITY PERSPECTIVE1

1. Introduction

The matrimonial property system in Japan is provided for in Civil Code articles2 from 755 to 7623. Art 755 stipulates the basic mechanisms relating to the matrimonial property system which states that spouses are free to define their post-nuptial property relationship by means of a matrimonial property contract. A husband and a wife, as independent and equal legal subjects, may enter into a contract with regard to their property, both its rights and duties, before marriage. A matrimonial property contract needs to be registered prior to the notification of marriage, or the statutory property system shall be automatically applied in cases where such contracts were not made.

As a matrimonial property contract is also a contract that is subject to the general provisions on juristic acts4, it is invalid if the contract in question offends public order and morality. Moreover, since such a contract may affect the couple's heirs and successors and the third parties, it requires registration at the time of marriage notification and to clarify its content in order to protect the trade safety of third parties and avoid unnecessary disputes with interested parties (Art 756).

The Civil Code does not place any provisions on the content or type of matrimonial property contract, leaving it at the disposal of the parties.

1  The author gratefully acknowledges the editorial assistance of English proofreading of Ms. Siri Rasmussen.

2  English translation of the Japanese Civil Code can be referrable at “Japanese Law Translation” website operated by the Ministry of Justice, see Civil Code (Part IV and Part V) for reference on family law at https://www.japaneselawtranslation.go.jp/en/laws/view/4275 (accessed 23 January 2025).

3  Numbers of provision hereinafter in the paper are of Civil Code if not otherwise specified. Art 757 was deleted in 1989 in accordance with a change in other laws, since this provision regulated a case of non-Japanese husband which is included in private international law.

4  Art 90 prescribes that any juristic act that is against public order and morality is void.

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Matrimonial property system in Japan with a focus on the gender equality perspective

It seemingly guarantees the freedom of making a matrimonial property contract, the freedom is in fact restricted in that it is rather inflexible, since the contract should be concluded before marriage and no alteration be permitted after marriage1. In practice, these prenuptial contracts are seldom made in Japan as the recent statistics below show:

Table 1 Statistics of matrimonial property contract 1998-20212

The reasons why the vast majority of marrying couples in Japan do not conclude prenuptial contracts can be summarised as follows3. Firstly, since marital property relations are often at issue upon the breakdown of a marriage, people are reluctant to prepare for the potential ‘failure of a marriage’. Secondly no change or modification of the prenuptial agreement is permitted after marriage. Any agreement prior to the marriage cannot be adapted to accommodate circumstances that arise during the marriage. And thirdly, the content of the matrimonial property contract is not clear in related provisions which at most provide when it can be concluded (before notification of marriage) so that it is hard to know what can be excluded and what can be concluded in such contract.

It is therefore certain that most married couples' property arrangements are within the scope of the statutory property system, which is laid out in only three provisions of Arts 760–762.

1  Art 758 states the restriction on change of property arrangement between husband and wife after marriage. In common with the pre-war and post-war periods, legislators did not see the need for a matrimonial property contract. However, since the 1975 Interim Report by the Subcommittee on Personal Status Law of the Civil Law Division of the Legislative Council referred to the effective use of matrimonial property contracts, it triggered a debate that the inadequacies of the existing law should be corrected to make such a contract more accessible. See Matsuhisa, K. (2020) ‘Fu-fu zaisansei to fu-fukan no kouhei (Matrimonial Property System and Equality between Husband and Wife)’ in S. Ninomiya (ed.) Gendai Kazoku-ho Ko-za 2: Konin to Rikon (Modern Family Law Series vol. 2: Marriage and Divorce), Nihon Hyo-ron Sha at 114–115.

2  e-Stat: Portal Site of Official Statistics of Japan website, https://www.e-stat.go.jp/ dbview?sid=0003268738 (accessed 23 January 2025).

3  Matsuhisa, K. (2020), ‘Matrimonial Property System’ in A. Motoyama (ed.) Chikujo Gaido Shinzoku-ho (An article-by-article guidebook on laws of relatives in Civil Code) at 77–78.

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2.Statutory matrimonial property regime

(1)Separate marital property system (Art 762)

The principle of the statutory property system is that property held by one of the spouses before the marriage and property acquired in his or her name during the marriage shall be proprietary property owned solely by the spouse concerned (Art 762(1)). This means that the effect of the marriage is not to create any variation in the ownership of the property of each of the spouses, the husband and wife share the expenses of married life but have control of their own property – acquired before and after marriage – at the same time. However, it is possibly unclear who acquired the property during the marriage. Such property therefore is presumed to be jointly owned by the couple, namely a property held in co-ownership (Art 762(2)).

The current law adopted the principle of individual ownership, which is contrary to the previous system, whereby under the Meiji Civil Code1, when a separate property system was also adopted at the time, it was less significant because the husband basically had the power to control all the matrimonial property including the wife's property2.

Such a separate property system, however, would result in substantial inequalities under circumstances where the living arrangements of married couples do not ensure that they both continue to work after marriage, earn the same level of income and share equally in housework and childcare. If a husband is a sole breadwinner and his wife is a housewife, the wife earns nothing which means that no property belongs to her under the system. This raises the problem of how to assess, within a marriage, the value of the contribution of housework performed by wives with no income.

It is clear from the following two precedents that the Supreme Court does not intend to reflect housework that does not involve any pecuniary reward in accrediting the property ownership, and that it does not become the property of a person owned solely by virtue of his or her name of the property, unless

1  The Civil Code of Japan (of Books 4 and 5 which regulate on family relations and inheritance) was established originally in 1898, 31st year of the Meiji Era. The current Civil Code is not newly legislated but had followed the post-war law reform of the original code in 1947 and some other revisions in later years. It is described as Meiji Civil Code here to distinguish from the current code.

2  Under the Meiji Civil Code, the household leader koshu, who was given a strong power over the members of his household including the wife, bore the whole living expenses and managed their property that a wife was regarded as an incompetent person having no property right and parental right over her children.

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