Article by Karen E. Boxx
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.
About the Author
Karen E. Boxx. Professor of Law, University of Washington. I acknowledge my community properly mentors, Professor Harry M. Cross and Professor Thomas R. Andrews, and thank Todd Maybrown for his editorial skills. Thanks also to the ACTEC Foundation for continuing to support trust and estate scholarship.
Citation
97 Tul. L. Rev. 657