Should Marital Property Rights Be Inalienable? Preserving the Marriage Ante

The intersection of family law and property law raises intriguing questions related to identifying and protecting marital property rights. Because the viability of inalienable marital property depends upon the continuation of marriage as a status, Part I of this article questions the continuing viability of marriage as a means of financial, familial, and social order. Part II tracks the evolution of marital property in the United States and proposes that an inalienability rule reinvests the relationship of marriage with the economic consequences originally intended by state legislatures. Part III examines the metamorphosis of premarital agreements contemplating divorce from legally void to valid, negating the potential value of marital property. Part IV proposes that marital property should be deemed inalienable until divorce at which time such property can be identified, valued, and distributed based upon the circumstances existing at the time of divorce. In conclusion, Part V of the article anticipates and addresses potential arguments favoring the continued alienability of marital property rights