This article argues that intimate partners should have the right to adopt a sharing economy within marriage. Forty-one U.S. states employ a separate property regime for property acquired during marriage; of these, only two allow married couples to opt out of the separate property system and hold their assets as community property. Nine U.S. states are community property states. To encourage equal partnership in marriage, Calvin Massey proposed that New Hampshire, a separate property state, enable a community property option. This essay expands on Massey’s proposal by comparing it to three other marriage reform proposals: two based on privatization, and another focused on equitable distribution laws. To be sure, all four reforms refer to market-metrics, but only the community property option proposal allows for the qualitative claim that an individual has a right to enter into and maintain a marriage between economic equals. Massey’s view was that the state should enable, not frustrate such a right. For this and other reasons, this essay develops a comparative and analytic foundation for Massey’s community property option proposal.
Jo Carrillo, Liberty and Community in Marriage: Expanding on Massey’s Proposal for a Community Property Option in New Hampshire, 15 U.N.H. L. Rev. 289 (2017), available at http://scholars.unh.edu/unh_lr/vol15/iss2/9