Erez Aloni

Document Type

Article

Disciplines

Family Law

Abstract

What happens when the state changes the default rules that govern financial obligations between unmarried partners from opt in to opt out? Most states have an opt-in rule: unmarried partners do not take on financial obligations of one another unless they agree to do so with a contract. Nevertheless, advocates argue that an opt-out system puts the burden in the right place: unmarried couples who want to avoid default obligations should bear the burden of making contracts. A scholarly debate over the opt-in/opt-out model has raged for twenty years, but the issue is now coming to a head. Yet no research, until now, examines the actual impact of opt-out rules on affected couples.

This Article offers a new analysis based on an original qualitative study with interviews of thirty unmarried couples in an opt-out jurisdiction. The study reveals that most cohabiting couples do not know that the law considers them spouses. For those who know, either they do not realize that they can opt out, or they face difficulties trying to do so. Moreover, if couples do not opt out, the terms of the default contract the state imposes are not particularly popular—only about half of interviewees would have chosen these terms if they had thought to bargain. Further complicating things, the research shows that sometimes the opt-out law has an expressive effect: it communicates values of conjugality and commitment. Using this data, and relying on contractual theories, this Article contends that the opt-out scheme is choice-decreasing because it makes defaults highly sticky. Yet, contrary to the traditionalist view, an opt-out approach does not undermine the institution of marriage. Instead, this approach aligns with the neoliberal ambition to shift dependency-related responsibilities from the state to the family. Finally, this Article proposes that for opt-out regimes to avoid mimicking the problems of opt-in schemes, defaults must be better known to couples, be better tailored to diverse populations of unmarried couples, and adopt accessible methods of opting out.

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