California Law Review
Before they marry, few couples have any real alternative to one-size-fits-all marriage. Expectations are often very different, however, not only among different couples but between the partners in a particular couple as well. Because these different expectations are rarely explicit, they are rarely addressed. During the marriage, similarly, the law neither reflects nor accommodates the partners' diverse experiences. There are no legal mechanisms for realizing their hopes or cushioning their disappointments. Rather, the parties are left to "work things out" through endless negotiations and compromises. If we as a society value marriage, and want marriage to succeed, we should provide more support.
After the marriage, the parameters of the divorce settlement depend as much on the state in which the parties find themselves at the time - and the judge before whom they appear - as on their expectations before marriage or their experience during marriage. Marriage law has become a bizarre variation on the proverbial sausage factory: rather than all manner of ingredients going in and everything coming out 'sausage', everything is considered 'sausage' going in but comes out in inexplicably - and unpredictably - different forms.
This Article addresses this disjunction between a wide range of lived experience and the law. Part I explains why one-size-fits-all actually fits none and how, in fact, this has already been recognized by all of the states in connection with divorce. Part II suggests approaching the problem through what I call 'postmodern marriage law'. By way of illustration, it sets out some modular alternatives - 'Marriage Proposals' - to one-size-fits-all marriage.
Marriage Proposals are not simply an alternative to 'regular' marriage, but an acknowledgment that there is no 'regular' marriage. Marriage Proposals are not only necessary at divorce, but during marriage; not simply an alternative for a wealthy few, but for anyone who is married or who is considering marriage. I conclude that postmodern marriage law; that is, marriage law that explicitly contemplates varied, changing, contextualized forms of marriage, may in fact be more compatible with contingent, problematic, but nevertheless enduring human love, than the reified abstraction we now call 'marriage'.
Marriage Proposals: From One-Size-Fits-All to Postmodern Marriage Law, 89 Cal. L. Rev. 1479
Available at: http://scholarlycommons.law.hofstra.edu/faculty_scholarship/167