The Law of Intimate Obligations with Emily Stolzenberg

My guest today is Emily Stolzenberg, an Associate Professor of Law and Reuschlein Emerging Scholar at Villanova University’s Charles Widger School of Law. Her research focuses on conflicts between individual autonomy and legal obligation in the fields of family law and property. She joins us today to discuss her forthcoming article, Toward a Private Law of Intimates’ Obligations, which will be published in the Iowa Law Review. This episode is co-hosted by UVA Law students Catherine Hu and Reide Petty.

Show Notes

About Emily Stolzenberg

About Kim Krawiec

About Catherine Hu

About Reide Petty

Transcript

[00:00] Emily Stolzenberg: And I've argued in a prior paper called Properties of Intimacy that we really can't pull out the fact of intimacy from resources. And so that's response number one. And second, I'd push back on the idea that we want things to be done gratuitously in relationships. And so, as I argue in the paper, I don't think altruism or selfless giving or giving without expectation of return is the proper way to think about interactions between intimates. Right. So because people are interacting over time. Right. They might expect that next time, today's giver is going to be tomorrow's recipient, and that over the long run, they're going to achieve some kind of rough reciprocity. Hey.

[00:45] Kim Krawiec: Hey, everybody. Welcome to the Taboo Trades podcast, a show about stuff we aren't supposed to sell, but do anyway. I'm your host, Kim Kravik. My guest today is Emily Stolzenberg, an associate professor of law at Villanova University. Her research focuses on conflicts between individual autonomy and legal obligation in the fields of family law and property. She joins us today to discuss her forthcoming article, Toward a Private Law of Intimates Obligations, which will be published in the Iowa Law Review. Hey, guys. Thanks for joining me today.

[01:32] Reide Petty: Thank you for having us.

[01:34] Catherine Hu: Yeah, thank you for having us.

[01:35] Kim Krawiec: So why don't we start by just having you two introduce yourselves to the audience?

[01:41] Reide Petty: Hi, I'm Reid Petty. I'm from Smithfield, Virginia, and I'm a third year at UVA Law.

[01:46] Catherine Hu: Hi, I'm Katherine Hu. I'm a third year at UVA Law, and I'm originally from the New York City area.

[01:52] Kim Krawiec: Great. And so now both of you volunteered to be co hosts specifically for this episode. Why don't you tell us a little bit about what it was about this topic or this paper that made you want to dig a little bit deeper into the details of this one?

[02:10] Reide Petty: Sure. I've been interested in family law and the law of private obligations between intimates for a while. We discussed some of these issues in Family Law with Professor Naomi Khan and Greg Strauss. Shout out to them. So I had that foundation.

[02:27] Kim Krawiec: Both of them have been on the podcast, by the way. I have to make a plug. They've both been on.

[02:32] Reide Petty: Oh, good for them. I hope they hear it. And beyond the academic, I actually got married a couple weeks ago after living with my partner for a while.

[02:40] Kim Krawiec: Congratulations.

[02:41] Reide Petty: I didn't know that the law of intimate obligations felt very appropriate for the moment.

[02:46] Catherine Hu: I was particularly interested in Emily's work because I spent a couple of years working in psychology Research before law school. And so I was just very intrigued by this intersection between law and interpersonal relations.

[03:00] Kim Krawiec: You guys have questions for Emily today? Your classmates have questions. Time permitting, I may have some questions. So what is it that you guys are hoping to learn a little bit more about from her today or want her to talk about today?

[03:16] Reide Petty: Personally, I'm really interested to hear whether Emily has a theory regarding how far the law should go in ordering personal relationships. And I think that will be teased out through some of my classmates.

[03:28] Catherine Hu: Great questions and I agree with Reid. I'm excited to dive deeper into Emily's proposed legal framework for ordering intimates relations. Just learning more about how she envisions the implementation.

[03:39] Kim Krawiec: Yeah, that was a theme that recurred throughout our questions. And I'm sure that we'll get her to talk some more today. Right. Which is sort of what are the limits of this, if any, what types of relationships really does it apply to? Or is that something that would be open ended in her proposal? Anything else from either one of you?

[03:59] Reide Petty: No, not from me.

[04:00] Catherine Hu: Not from me either. We're excited to kick things off.

[04:03] Kim Krawiec: I am too. Okay, let's join the group. Hey, Emily, thanks for joining us today.

[04:13] Emily Stolzenberg: Thank you so much for having me.

[04:15] Kim Krawiec: Well, why don't we start by just getting you to introduce yourself to our listeners?

[04:22] Emily Stolzenberg: Sure. I'm an associate professor of law at the Villanova University Charles Wooder School of Law and I write at the intersection of property and family law.

[04:32] Kim Krawiec: I am going to have a more full bio for you linked in the show notes. And also we're here today to talk about your forthcoming piece in the Iowa Law Review, Toward a Private Law of Intimates Obligations. Is that available anywhere? If it is, I'll put a link in the show notes. And if not, then listeners can just stay tuned and be on the lookout for that.

[04:57] Emily Stolzenberg: Stay tuned. I anticipate posting it on SSRN in the next month or so.

[05:02] Kim Krawiec: Okay, great. Maybe we should then before I turn it over to your questioners for the day, just invite you to talk a little bit about the background of the piece and sort of what inspired it and all of that type of thing.

[05:15] Emily Stolzenberg: Sure. So I've been thinking about the question of unmarried partners financial obligations since I was working as a family law associate in D.C. and I helped to litigate a couple of these property disputes between former cohabitants. And so I've written several papers on the topic. And it's a really complex question because cohabiting couples differ enormously from one another. So some are in really long term relationships. And they are intertwined. They're pooling finances, they might be raising joint children, they might be doing everything that we think of married couples as doing. And then some cohabitants are in sort of less stable, more contingent relationships, there's less financial sharing. And so sociologically, right, the couples we're trying to regulate are different. And then the state of the law is also complex and constantly shifting. But as a general matter, it's safe to say that in almost every US Jurisdiction, because cohabitants aren't married, their property disputes have to be brought as private law claims. And in particular, they get brought as contract and as unjust enrichment claims. And the scholarly consensus is that former unmarried partners generally lose on these suits, even in cases where we see them having become as economically interdependent as married couples. And so we might think, right, that those are the cases in which it's appropriate to have some kind of an economic remedy when the relationship ends. And the law just really doesn't provide that. So there's a rich scholarly literature, mostly by family law scholars and feminists, explaining how contract and unjust enrichment law just don't work that well for unmarried partners. But some of this work also seeks to explain why that's the case. And some of that work was the inspiration for this paper. And so that argument goes something like these cohabitant cases are being shaped by marriage based rules, and those marriage based rules are in turn inflected by gendered norms. And in particular, the private law doctrines that are being applied in cohabitant cases are reflecting 19th century, what's called separate spheres ideology. So the idea was that we needed to distinguish sharply between the sphere of the market when contract relations are appropriate, and then the sphere of the family where they're not. And so this explanation goes that the law is averse to private lock claims between unmarried partners because it's historically been averse to contracts between spouses. And then that aversion is coming from a perceived misfit between market based interactions and intimate interactions. And so my project is complementing and building on this literature, and I'm trying to highlight what I think are the conceptual and doctrinal gaps that developed as the law diverged in this way, in line with separate spheres ideology, with having family law being tasked with governing the family and contract law being tasked with governing market based interactions. And so the concept that I'm proposing to bridge the gap is what I call cooperation. So I think judges are right to say that intimates, exchanges don't look like market exchanges, but I think they're wrong to therefore conclude that intimates are giving to one another without expecting anything in return. And so I say instead we should think of intimates as cooperating. And cooperation goes to both the motivation behind the intimates conduct and the kind of conduct we're likely to see them displaying. And so in terms of motivation, it's not this ideal type of sheer self interestedness. Right. They might be interacting with someone potentially to benefit the other person, not just to benefit themselves or to benefit the community of the relationship. And I also think of cooperation as being present in something like an ecosystem. A close, closely connected and reciprocal interactions that draw in through the entire history and context of a given relationship. And so from that it's often difficult to isolate a single exchange, let alone what we might think of as bargain for exchange, which is what contract law is really looking for. And so if we think of cohabitants as potentially cooperating, then we can develop doctrine or a series of doctrines to try to assess to what extent they did in fact cooperate and to make sure that one party isn't walking away from a relationship with all of the upside or being left with all of the downside of the cooperation. And I don't think that this kind of complex and complexly motivated interaction is occurring only between cohabitants. Right. I think it's not just cohabitants, it's not just people houses, but it's also occurring in other contexts. So between family members, maybe between friends, maybe between close associates, and also between other parties and relations of trust. And so I think the concept of cooperation is useful in other private law fields beyond family law and contracts.

[10:29] Kim Krawiec: Great, thank you. So before I turn it over to the others, I wanted to get you to just elaborate a little bit on the contrast that you're drawing between what I gather you're characterizing as the more typical contract law disputes and these disputes. And I guess one thing that occurred to me both in your description now and in the paper is the focus. So I don't doubt for a minute that intimate cohabiting relationships are different from your standard sort of contract dispute in ways that that may make it a poor fit. But at the same time, the description of contract law and, and the types of relationships that it as not involving cooperation and as involving a single exchange or a discrete exchange strikes me as being not a complete view of contract. And I guess I wondered why you go there with it and where sort of more relational contracting, which is a big Part of contract law. Right. And contract relationships, where that fits and why that's not a sort of bigger part of your comparison.

[11:42] Emily Stolzenberg: Okay, so great. So that's not a bigger part of my comparison because I think that when we see the cohabitant cases, the judges are not applying a broader view of contract law. So they are applying a really formalistic vision of what contract law should be. So it's almost as though contract law as applied to families is that 19th century, really formalistic contract law. And so there are family law scholars who have argued. Right. The contract law actually has the tools to be able to mediate these disputes. It's just the judges aren't applying them. And so it may be that we have sort of contract doctrine out there that we can then bring in here, but as it's being applied in the family context. Right. What we're seeing is a conceptual gap. And maybe we need this idea of cooperation for judges or for other lawmakers to look to other areas of contract law that have developed to deal with vulnerability and to then import those into the family context.

[12:58] Kim Krawiec: I completely agree with that. And I think that the cases that you use as examples in your paper actually illustrate that point really beautifully. I will say that's when you said contract law or private law doesn't have the tools. I forget the exact wording of it. Right. That made me think that it's lacking as a doctrinal matter, which I think I. I'm not persuaded by. But if what you're saying instead is that it's not lacking in all the tools, it is lacking in court's willingness to apply those tools, then we're on. We're on the same page. I'm sure more of this will come out in the questions as we go forward. So I'm going to turn it over to Reid and Catherine, who are your hosts for today, and they're going to run the show from here.

[13:42] Reide Petty: Hi, Emily. First off, thank you so much for being here today. It's great to have you starting. Broadly, our course focuses on taboo trades, and we've discussed how attaching a monetary value to an action is sometimes said to corrupt or cheapen that action. What would you say to the critique raised by some courts, perhaps grounded in this separate spheres ideology, that enforcing contractual and equitable remedies between intimates would do the same to intimate relations, making those in a relationship start thinking in more mercenary or instrumental terms regarding things that we want as a society to be done gratuitously.

[14:21] Emily Stolzenberg: So first, I'd agree with you right, that this kind of anti commodification critique really does rely on the same kind of separate spheres logic that as I described in the paper, feminists have long pushed back against. Right. So we're imagining that some actions can be monetized and thus may be governed by the market. And some actions shouldn't be monetized. And thus those belong in the realm of altruism and we assign that to the family. And so I, I'd also say that the idea that we can sever economics from relationships is a myth. So sociologist Viviana Zelitzer challenges this view in her book the Purchase of Intimacy. And legal scholar Joel Hasday's argued that one of the primary ways that the law is constituting intimate relationships as intimate is the way that it chooses to regulate how resources are being exchanged within them. And I've argued in a prior paper called Properties of Intimacy that we really can't pull out the fact of intimacy from resources. And so that's response number one. And second, I'd push back on the idea that we want things to be done gratuitously in relationships. And so as I argue in the paper, I don't think altruism or selfless giving or giving without expectation of return is the proper way to think about interactions between intimates. Right? So because people are interacting over time, right. They might expect that next time today's giver is going to be tomorrow's recipient and that over the long run they're going to achieve some kind of rough reciprocity. And so that's why I propose thinking of intimates interactions in terms of cooperation. So that would be response number two. But neither of those responses is actually really engaging with the heart of the critique. And I agree with you that there is probably something corrosive about if people in a close relationship start to thinking of their interactions in really mercenary or instrumental terms. And so I'd say finally that the current status quo actually provides incentives for them to do just that. And so the only intimate partners who might enjoy legal protection for their economic interests in a non marital relationship are the ones who sit down to negotiate an explicit agreement about their rights. And in some jurisdictions they also have to reduce it to writing. But the vast majority of unmarried partners don't actually do that because it requires thinking of their relationships in terms of trading things of economic value. And that's inimical to the trust that we need at the heart of an intimate relationship. But under the status quo, right, the people who are doing what you suggest, who are giving within a relationship and who are trusting that over time. And in the end there's going to be rough reciprocity, might actually find out under the current state of the law that they're left with all of the financial losses and sharing none of the financial gains from the relationship. And so I would say we might actually end up with better relationships if we had the right kind of ex post remedies rather than just staking legal protection on ex anti contracting or electing a certain kind of status, as we're doing now.

[17:46] Kim Krawiec: So Emily, if I understand you correctly, you would say, look, not only does my proposal provide the hope of a more fair outcome, but it provides the hope of being less corrosive of the values that we think are important in intimate relationships because it doesn't force everybody into a kind of tit for tat explicit contracting framework.

[18:10] Emily Stolzenberg: I think that's right. I think it develops a framework that allows parties to go ahead and trust one another and engage in this sort of informal exchange of resources.

[18:24] Catherine Hu: Great, thanks.

[18:25] Reide Petty: Thank you, Emily. I really appreciate the thoroughness of that answer. Next up, we have a few questions regarding how to define intimate relationships. And to start that off, I'll kick it over to Katherine.

[18:37] Catherine Hu: Hi Emily, thanks so much for being here with us today. You compare intimates relations to the relationship between business partners and to the relationship of married couples in arguing that they ought to receive similar protection. But in both of those examples, there's a clear legal framework, a series of events, an active commitment that signals the commencement of the relationship. And so there's clear and explicit assent to the legal obligations that come with the arrangement. Do you envision there being some process of documenting explicit assent to legal obligations in non marital post relationships? And if so, what do you think that should look like?

[19:14] Emily Stolzenberg: Okay, so I think first the comparison to business partners and to married couples is mostly an analogy. So those are situations in which the law is providing default protection to people involved in relationships of extensive cooperation and deep inter economic interdependence. And so the analogy is to the being functionally intertwined. And so yes, I think that unmarried partners should also enjoy some level of default protections if they are cooperating to the extent that they are economically intertwined. But I don't think that the level of protection should necessarily be the marriage like level of protection, because I agree with you that having that moment of clear and explicit assent to take on legal obligations is really important. And so when we have clear and explicit assent, then we should impose the obligations that the parties are assenting to so if parties get married, that gives us a justification to impose marital obligations. If unmarried partners write a written contract, right, that gives us reason to enforce their contract. And maybe there are ways that we can develop other ways to elicit assent to some kind of obligation. So many scholars have suggested that the state should argue, stated, excuse me, should offer statuses that have some level of property sharing but short of marriage. And then we could have something like Colorado's designated beneficiaries regime, where people are given this list of legal rights and obligations and they could indicate which ones they want to assign to someone else. If you want something a little bit less formal, right. If you have cohabitants who are signing a lease together to move in, maybe you can include some kinds of questions on a form lease. But if we don't have that moment of clear, clear and explicit assent obligation, then I don't think that's the end of the story. But I think we need to be asking a different set of questions. And that sort of question should sound less in contract in the sense that we're focused on the party's intent to take on obligations. And rather I think it should be a little bit more like the inquiries that we undertake when we're thinking about liability and tort or inequity, when we're thinking about redressing harm, or we're encouraging and protecting trust, or we're trying to prevent exploitation. And then, right, the kinds of recoveries that might attach to those questions are going to look very different because the basis is different. And so part of the goal of this project is to argue that legal scholars and legislatures and judges should be thinking about what achievement, achieving those kinds of goals for unmarried partners looks like. And so again, it may not be marital distribution, right, in the sense of equitable distribution of marital property on divorce. It could instead be something that we haven't thought of at all. So for example, Marvin is the famous California case that really establishes that private law remedies should be available for cohabitants. So Michelle Marvin wins her case at the California Supreme Court and then it goes back to the trial court and she's awarded a post relationship rehabilitative payment. And then that payment is overturned on appeal because the court says that this isn't rooted in a recognized underlying obligation in law or equity. But maybe that kind of payment is a good idea for somebody leaving an economic partnership that is a non marital relationship. And so we should be trying to give that kind of payment some kind of a basis in law or inequity thank you.

[23:09] Catherine Hu: Now I'm going to kick it over to Rachel, who's going to ask a follow up question.

[23:14] Emily Stolzenberg: Hi, Emily. So I wanted to follow up on Katherine's question and ask where should legal recognition for cooperation begin and end? I was curious about what kinds of evidence courts should require to establish cooperative relationships, which, from my understanding, are much less likely to be formally documented or contracted than marital relationships typically are. Yes. So I think of cooperation more as a paradigm of human behavior that helps us to design doctrine rather than a doctrine in and of itself. So it's not that I'm suggesting that courts adopt something called a cooperative relationship style status, that if the cohabitants fit into it, then we're going to assign certain property rights. So this is not like what Washington State does with its committed intimate relationships doctrine. And it's not like what Alaska does with its domestic partnership regime. Really, it's a question the court should ask as they're adjudicating really any private law dispute. So these litigants standing before the court seeking relief, what kind of relationship do they have with one another? And that cooperation could look different and call for different doctrinal responses and different kinds of contexts. So going back to the cohabitant context, what kinds of cooperation would merit court intervention when a relationship is ending? And so there are some things we might think about. So I think actual cohabitation might actually be really important because sharing a residence with somebody encourages entanglement. Right. As a matter of daily life, you are constantly exchanging things of value. And there are courts actually going different ways on this question. So we have a California federal court decision that says that the Marvin case is limited to true cohabitation. And so in that case, which was the Smith v. Carr case, it was a three year dating relationship. And during that time, the parties cohabited intermittently for a total of 10 months. And the court said that's not enough. Right. That's not enough to trigger Marvin remedies. And then we have a New Jersey State Supreme Court case that says the cohabitation is a factor for courts to consider, but it's not a requirement. And so I think if we're looking for bright line rules to make our doctor more administrable, then maybe having an actual cohabitation requirement is helpful. We might also want to look for evidence of intertwined finances or joint investments, including, I would say, taking on debt to support the household, because not all cohabitants are wealthy. And when we're talking about distribution of property we're talking not just about assets but also about liabilities. Having a common child could be an important factor because kids change everything, right? All of a sudden there's no feasible way for both parents to be working part full time in the market, right? Somebody's gotta be available to take care of the child. And so that can really create economic entanglement. If we again want bright line rules, then we might wanna have some kind of minimum relationship duration. We can even look to social science, right? There are lots and lots of scholars who are studying the empirics of cohabitant relationships. If they tell us that at three year mark most cohabitations have ended either because the parties break up or because they transitioned to marriage, right, Then maybe we want to require at least three years of living together. And so there's a whole list of factors. So, for example, the ALI's restatement or excuse me, Principles of Family Dissolution has a list of factors that help to determine whether a couple is what the ALI causes domestic partners. And so, right, some of those factors that go to what are the functions of this couple, how are they cooperating might be useful as well. So that's how we identify the kinds of cooperation we're concerned with. But then there's the question, right? What should the courts do having identified cooperation? And so again, I don't think that it's necessarily legal recognition like this is a status to which we attach a whole panoply of rights and obligations, because that's just too much for the degree of cooperation that we see in most cohabitant relationships. And so I've suggested in other work that you could divide a smaller corpus of property, right? So actually identify the assets which we see some kind of contribution to or cooperation around. And maybe the division isn't necessarily the 50, 50 either presumption or tendency that we see in the context of married couples. And again, right, this is not just property, right. It could also be distribution of debts that were required to support daily life during the relationship. And so I think, right, we. We could have a different set of doctrines to do different things, depending on, right. What kind of cooperation we're seeing. Thank you so much.

[28:41] Reide Petty: With a slight shift in focus, we have Rachel Greenbaum with a question on the problems in existing law.

[28:49] Emily Stolzenberg: Hi, Emily, thanks for being here with us today. I was wondering if you could elaborate on how contract law's assumption of interacting at arm's length leads courts to often reject claims from unmarried partners. Specifically, how do their complex interactions get misclassified as altruism in practice. And what is the unfair legal consequence of that misclassification? Okay, so this is where we see that the contract law getting applied to intimate partners, both spouses and unmarried partners, is really formalistic. And so the sort of background facts where we tend to see these claims brought are relationships where one member of the couple is primarily contributing domestic services. So somebody's cooking, someone's keeping house, someone's caring for children, and the other is earning the property and titling the property in, right? The property owner's name. And when the relationship ends, right? If we've just followed title, then the person who's contributed domestic services isn't going to be entitled to anything. And so the homemaker brings a claim for a piece of this property, and the claim is either there was a contract, express or implied, that I was going to provide these services and you were going to share your wealth with me, or potentially asking for restitution for services provided. And the court is looking for a bargain, right? So they're looking for bargain for exchange. And the court sees that that exchange, right. Money for services, and says one of two things. So it's those services are gifts, right? They were given freely, gratuitously. There is no expectation of return, right? And legal gifts, right. Once they're transferred, there's nothing for the law to do, right? If there's no contract, there's no means for intervention, or courts will say, and here Albertina Antonini has done a lot of work analyzing these cases, courts will say that these services inhere in the relationship, and so you can't use them for the basis of consideration. So even if you made a bargain about this, we won't enforce your bargain. And that really depends both on the idea of bargain for exchange. And it goes back to that separate spheres ideology, where we are expecting certain kinds of exchanges within the family to be undertaken without expectation of return. And the result is that the person who's contributed the services has no legal claim to any of the property owner's property.

[31:41] Catherine Hu: Thank you. Next, we have some questions related to the spectrum of cooperation that you describe in your paper. First, we have a question from Gabe.

[31:50] Reide Petty: Hi, thank you so much for being here with us. So many readers might think of your proposal in the context of unmarried couples, but in part three, you mentioned that cooperation exists on the spectrum. How far could it extend to roommates, family members, or close friends who share resources of labor? And where do you think that the line should be drawn? How do we distinguish between genuine cooperation and ordinary friendship?

[32:14] Emily Stolzenberg: So again, I'll say that I think of cooperation as a lens, as a way of thinking about how people interact and why, and to then apply that when we're approached in disputes about shared resources or about joint projects. And so when we're thinking about how does this apply out of the cohabitant context, we have to think about what are those shared resources or those joint projects. So in the context of roommates, right. What's the nature of the dispute? Is it a dispute about jointly purchased furniture? Is it a dispute about paying your share of the rent or did they start a business together? And then when we're talking about family members, right. Is it a dispute about a family business? Do we have an adult child living at home and the parents for some reason need that child to move out and the child doesn't want to? Or do we have someone who's serving as a guardian for an incapacitated family member or as a trustee for a family trust? And I think sort of the legal intervention might be different in each of these cases, even though what we're talking about is disputes between people who are intimate and cooperating. And then in terms of whether we think the law should attach legal consequences to friendship, I'd refer you to Ethan lieb's book Friend vs Friend, where he makes the case that the law should, should in fact do that. And so again, then we could talk about whether he draws the line where I would draw the line. But I think he's thought much more about friends. And my focus has really been on what does this mean for the cohabitant context. Great.

[34:03] Catherine Hu: Now I'm going to kick it over to Cindy.

[34:05] Emily Stolzenberg: Hi Emily, thank you so much for joining us today. I wanted to follow up on Gabe's question and other forms of cooperation. So for or if a state adopted an equitable distribution model for cohabitants like those in Washington or Alaska, which rely on a marriage like relationship defined by cohabitation and sharing, what criteria should judges use to evaluate property claims by living apart together couples, or in other words, couples who for various reasons choose to live separately. So again, I don't think that the Washington and Alaska models can or should be the sole solution for cohabitants because again, many cohabitant couples aren't going to satisfy the criteria for a marriage like relationship, but they might still need to have their resources entangled or, sorry, disentangled. And so the version of equitable distribution that I'm suggesting in the paper is different from the kind instantiated in divorce Distribution regimes, it's much narrower. But to answer your broader question, how should we think about property claims between people who are in an intimate relationship, separate residences. I wouldn't be so quick to assign property sharing obligations there, because I think by virtue of living apart, these couples are taking serious steps to keep their property separate and segregated. And I think when we have evidence of that intent, we should respect it unless somebody is going to be harmed or. Or left vulnerable because of it. And so, again, right. The question is what that court should ask as they're adjudicating and really adjudicating any private law dispute, what kinds of relationship do the litigants seeking relief have to one another? And so, for example, another way in which the cooperation lens might be implicated in disputes between living apart together couples is. Right. You could imagine that they live apart, but they invest in some property together, and as they're doing that, they are signing a contract that's going to govern their. Their investment. Or. And so then we might ask, right, as they're engaging on this round of business dealings, do they have a confidential relationship? And so a confidential relationship would require them to exercise. So some courts have called it the highest degree of good faith, candor and sincerity in their dealings. And so it may be that a court called on to settle a dispute between them. Right. May apply a higher level of scrutiny to their business dealings than it would in the case where there's not a confidential relationship. So note, spouses may or may not be in a confidential relationship. Not all jurisdictions imply a confidential relationship based solely on the. On the fact of marriage. It comes up as an issue when people are entering into premarital contracts. And I would say we should also potentially think of this as an issue when people who are intimate but not married or contemplating married marriage are also entering into.

[37:49] Kim Krawiec: It comes up in insider trading cases as well, Emily, which you may or may not know.

[37:54] Emily Stolzenberg: So wonderful. Again. Right. We have a private law doctrine. Right. That is functioning in a particular way to achieve a certain valuable end. And we should be able to import this, you know, maybe with a few tweaks as necessary. Right. To the context of more intimate parts partners.

[38:12] Kim Krawiec: Yeah. What's striking to me about these cases, the ones both the ones that you go through and the ones that Albertina goes through, is that to me, they not only do they not match the cooperation type of framework. Right. That you're bringing to bear, but even if we like even just a standard economic analysis, it doesn't match that either. Like, Becker wouldn't view relationships and marriages the way that these courts apparently do. And I. So I'm continually just sort of shocked and appalled at some of the cases.

[38:47] Emily Stolzenberg: So that this is why feminists and family law scholars have been trying to unravel these cases and trying to suggest better approaches since the Marvin case.

[39:01] Reide Petty: You know, that's, that's really interesting to hear. And it just goes to show how much is underlied by our conception of intimate relations outside of marriage. Next up, we have a couple questions on the potential impacts of your proposals. And to start that off, we have. Denise.

[39:18] Emily Stolzenberg: Hi, thank you so much for being here. In your paper and throughout our discussion today, you've suggested that introducing mandatory default rules to govern the dissolution of a married partner should exist. So my question is kind of could changing how we divide assets after non marital breakups actually reduce protections for individuals in relationships? And by that I mean, you know, I'm thinking about how dating is meant to be sort of a trial run before marriage for many people, allowing couples to share aspects of their life while still remaining legally protected. But then could extending marital style rights to those non married couples erase those kind of protected phases? And would this not create a new kind of unfairness for at least one of the parties? So I agree with you that extending marriage like rights is inappropriate for many, if not most cohabbing couples. And I also agree that dating can be and should be a trial run, but I want to distinguish dating from living together. So I think things get messy when people, people aren't just dating, but they're living together for long periods of time because that's more likely to create the kind of economic interdependence that I'm worried about. And so I mentioned earlier, right. This disagreement between jurisdictions about whether we should require actual cohabitation in that case. Right. Not to have a status that we're going to attach mandatory obligations to, but even to be able to, to just bring private law claims. So remember that California says no, you need to have true cohabitation, and said that 10 months over a three year period is not sufficient. And New Jersey said this is a factor, but not a requirement. We'll consider this on a case by case basis. And so I think that even the current state of the law does give people space to date and to make a trial run before the law is going to attach obligations. And even. Right. The Washington committed intimate relationships regime does require cohabitation as a factor. And so I would say date all you want, but I'm going to put on my practical family law Professor Hat and say you should think very carefully before you move in with someone.

[41:45] Reide Petty: That seems like good advice all around. Next up, let's kick it over to Buddy. Hi Emily, My question is a little bit more macro regarding your discussion of private law's like oversimplification regarding the conceptions of human behavior. I think it was on page 38. It made sense to me that this totally limits the abilities of courts to properly adjudicate these unique cases across all areas of the law. But as a general concept, doesn't private law being simple, do more good for the efficiency and accuracy of the system than say, an overly complex and confusing framework that would lead to a bunch of different decisions amongst different courts for similar looking cases? And I was wondering if you feel that that trade off is worth it.

[42:32] Emily Stolzenberg: So I think having doctrine that's complex and hard to apply predictably is a real concern. But I think that the doctrinal frameworks I'm calling for would have a smaller total impact than you might imagine. So I'll say that first. So I think that a simplified conception of human behavior could work fine for a body of contract law focused on market transactions. Although. Right. As we've been pointing out today, the version of contract law that I am critiquing in the context of family law is not actually the version of contract law that gets applied in what we would think of as market based disputes. But in any case, if you're talking about market based transactions, then you want to have simple legal rules that are going to enable efficient and accurate adjudication of disputes because that's going to help the market system function. It's going to allow the parties to plan and to order their affairs accordingly. And so I'm not arguing against an arm's length model of human behavior per se. Right. I'm arguing against its application to intimate interactions because there it's not an empirically accurate, nor is it a normatively attractive model. So I think we need a different and more complex model for intimate disputes over property. And I think once we start talking about intimate disputes over property in particular spouses disputes or unmarried partners disputes, then different decisions between different courts becomes much less of a concern. In part because we don't have those market effects in the same way, and also because the party's being regulated. Most of them aren't ordering their life according to the law. They aren't really thinking about the law. Most of them, right. They're going along trusting that their partner is going to treat them fairly. They, they don't sit down and execute contracts. And so I think that the trade off is, I think, a little less than you suggest. And then I also think that making the trade off is worth it because it's potentially a lot of people to whom are not providing remedies. So about 20 million US adults are currently living with a non marital partner. And looking at 2020 data of household composition, about 30, 13% of couples living in households together were unmarried couples. And I think it's important to provide remedies to these people. Right. Because these relationships are really important to the people in them. Right. So they are part of those people's pursuit of the good life. And they have also important economic consequences for the members of the couple and for society as a whole. And. Right. The problems that we see in not providing remedies also implicate important goals of private law. Right. So private law is concerned with preventing harm, with remedying harm. Private law is concerned with protecting parties and relations of trust. And it wants to facilitate cooperation. Right. That's what contract law is meant to do. We want to be able to promote individually and socially productive ends. And so I think the systemic costs of having more complex doctrine in this area are outweighed by the legitimacy costs of not having appropriate doctrine so that we can structure these really important interpersonal relationships as relations of justice.

[46:11] Reide Petty: Thanks, Emily. Changing gears a bit, we have a few questions on the role of marriage in society. Kendyl will start us off there.

[46:21] Emily Stolzenberg: Hi, Emily.

[46:22] Catherine Hu: In recent years, there's been a growing trend towards traditional wives, sometimes affectionately known as tradwives, and a declining national birth rate and an increase in unmarried partnerships. I would imagine that in the current political climate, these trends may encourage the judiciary and the legislator to be even more protective of the status quo and.

[46:39] Emily Stolzenberg: More hostile to the private law of intimates obligations.

[46:42] Kim Krawiec: Is this actually the case?

[46:43] Catherine Hu: And are these trends impacting your advocacy.

[46:46] Kim Krawiec: And scholarship at all?

[46:48] Emily Stolzenberg: Okay, so here I'm stepping a bit in prognostication territory. So I imagine that it's possible in the current political climate that lawmakers could be more hostile to unmarried couples claims. So for example, in Illinois, which is one of the few states, right. That refuses to recognize cohabitant claims unless they are independent of the relationship. We had a decision in 2016, Blumenthal vs Brewer, that reaffirms that holding. We have a recent holding that cohabitant claims are still against public policy. On the other hand, Ohio used to be maybe the only US jurisdiction that prohibited all enforcement of spouses post nuptial agreements. So These are agreements entered into between already married spouses. And so Ohio was hostile to marital contracting, but it actually backed off that position. And the legislature passed a law in December of 2022 to permit spouses post nuptial agreements. And so in terms of movement on the ground, I don't know. And then we have the Uniform Cohabitants Economic Remedies act, which was promulgated by the Uniform law Commission in 2021. And the idea here was to give cohabitants access to contract remedies and equitable remedies for claims arising from contributions to the relationship. And that was introduced in the New Mexico legislature in 2025. So there has been some recent movement, but I would guess that in the year 2025, this is probably not the main focus of state legislatures. On the other hand, judges decide the cases that are before them. And so if unmarried couples continue to bring cases, judges will continue to have to confront them. And judges can be influenced by scholarship. So the dissenting justices in Blumenthal cited the Restatement third of restitution and unjust enrichment, which provides for claims for former domestic partners. And so my approach to this problem is that I'm thinking about this in terms of long run, what can we accomplish? It's a long term project of law development, and it takes efforts beyond just mine. And so even if now is not the moment where we may have lawmakers being receptive to this scholarship, I think it's still very important to engage in the enterprise.

[49:36] Kim Krawiec: Emily, can you clarify for listeners and quite frankly for me, the Illinois position, what does it mean for an agreement to be separate from the relationship? Can you give an example of what might qualify?

[49:51] Emily Stolzenberg: Okay, so as a matter of course, I think it's very difficult for courts to draw that line. But when the majority in the Blumenthal case described this line, they referred to a prior state precedent in which one partner purchased vehicles, but titled in the other partner's name because that partner would get a lower insurance rate. And then at the end of the relationship, it was an unjust enrichment claim. And the court said, okay, that financial transaction, we can sever that from the relationship, that's independent from the relationship. And so you can have restitution, we'll give you your vehicles back. But in the Blumenthal case, there was investment from a joint account, and that investment account was used to purchase a share of the doctor's medical practice. And the court said, no, that's not independent of the relationship. And the court there looked to the purpose of the investment to provide for family security. And they said that's not independent from the relationship. You couldn't have the intent to provide from family security were you not in this intimate relationship. And so it's not clear why we draw the line. Do we draw the line because we can trace the vehicles, or do we draw the line because titling in somebody's name to get a better insurance rate doesn't look like behavior that we think is common in an intimate relationship?

[51:23] Kim Krawiec: These cases are bizarre.

[51:25] Emily Stolzenberg: It's very frustrating.

[51:27] Kim Krawiec: Yeah, agree.

[51:28] Emily Stolzenberg: So family law scholars generally criticize the Blumenthal.

[51:31] Kim Krawiec: Okay, thank you.

[51:33] Catherine Hu: Yeah, thank you for explaining that, Emily. Now we have a question from Mason.

[51:38] Kim Krawiec: Hi there.

[51:38] Reide Petty: So I think that some, if not most people would say that the government, and by extension the law in the United States is actively invested in promoting marriage over non marriage and intimate arrangements. Accepting this paradigm, or at least thinking through it, what interest then would the government have in making things easier for these unmarried couples in these intimate, non married relationships?

[52:01] Emily Stolzenberg: So the government certainly has an interest in marriage, but I would argue that it also has an interest in non marital relationships. So I said there are many, many people who are living their lives in a non marital relationship. So it's providing companionship, emotional sustenance for the citizens. And I think a government should care about the emotional well being of its citizens. And even if you don't accept that premise, the government has an interest in preventing harm, in protecting vulnerable parties and relations of trust, preventing and remedying exploitation. Right. This is the stuff of private law. And finally, I'd say that if you want to promote marriage, not regulating or punishing non marital couples for not having gotten married isn't a great way to achieve marriage promotion. Because if you say unmarried couples are not going to be entitled to property rights against one another, you are enhancing the bargaining position of the economically stronger party and giving that party an incentive to avoid marriage. And so even if you want to promote marriage, this is not really the way to do it.

[53:22] Reide Petty: Thank you. Next up, we have Sari with a practical question.

[53:27] Emily Stolzenberg: Hi, Emily. I'm interested in how the law of voluntary obligations plays out in practice. So in your research, did you find that these laws disproportionately impact individuals along gender, race or socioeconomic lines? And should your arguments spur action to modify the doctrinal structure? Who do you see as the primary beneficiaries? So part of the reason that regulating cohabitants is so difficult is because cohabiting couples differ along so many lines. So if you want to Consider one aspect of gender difference. The number of same sex couples who are cohabiting versus opposite sex couples cohabiting. So again, this is 2020 data. Over 40% of same sex couples who are living together are cohabiting but not married, versus about 12.5% of opposite sex couples. And along socioeconomic lines, the reasons for cohabitation are different. And then we see that reflected in financial behavior during the cohabitation and the ways that cohabitations end. And so for more affluent couples, cohabitation is much more of a precursor to merit. Right? So it's that dating, it's let's try it out. And so the cohabitation might end by the couple gets married versus if you have a less affluent couple, it's more likely to be entered into for contingent reasons. Right. Somebody needs a place to live and their romantic partner has space in their apartment and so they move in for financial reasons. So it's more based on, on convenience than an intent and test drive the relationship. And we also might see similar patterns across racial lines insofar as we see race correlating to wealth. We used to see more gender differentiated roles within cohabitant relationships. So if you look at the old cases of the Marvin era, they looked like that traditional male paycheck earner, female housekeeper split, that's less common now. We see much more diversity in who's earning what and the financial and non financial contributions being made. And so how should we respond to all of that? And that's why I think cooperation is really helpful because it lets us abstract up a level from who are we helping, who are we hindering to say, what kind of behavior should we be concerned with fairly dealing with at the end of a relationship? And so the goal is to design a doctrinal regime that can sort through all of this complexity and identify which couples might make merit access to legal remedies when a relationship ends. And again, it depends on what the legal remedy is. If we have property sharing, should we have some kind of distribution of that property, notwithstanding whose name is on the title? If we have certain kinds of economic harm incurred that we think the law should be remedying. Somebody has left a job in order to provide care and maybe they need that transitional payment to help them get their feet back under them. After a relationship, it's looking more at the function of who did what versus who's being helped or harmed. But the variety really, really makes it challenging.

[57:14] Catherine Hu: Thank you, Emily. And last but not least, we have a question from Bradley.

[57:19] Reide Petty: Hi there. So I was wondering if in your research for your article, you came across any models of the law of intimates in other jurisdictions. So particularly I'm thinking internationally, maybe that you think adequately address the issues that you were writing about here in your piece. So I guess the immediate one that comes to mind is the French Civil Union. But I guess I'm wondering if you came across any research broadly on this.

[57:45] Emily Stolzenberg: Yeah, so we're always looking for more models of what could potentially work. And so the French Civil Union or the pacs is a good example of a status that gives you some property rights, but rights short of marriage. And so that's really helpful if you have people who want to formalize a relationship but don't want to take on the full range of marital obligations. But the problem is that it requires choice. And so in France there's been a good amount of uptake for the PACs, but I'm not sure that we would get the same response in the United States. Right. So I think we actually have a society that is very marriage focused and people, I think, given the choice, would want to get married. And maybe they're hesitant to marry because the economics aren't right. They feel too precarious too to be able to get married. So marriage has come to be seen as a capstone. And so the worry is, right, you have people cohabiting, they're not ready to elect a status, and then what do we do? So we don't have that ex ante moment of assent where people are telling us how they want to be obligated, but what do we do when they break up? And so I think even if you adopt remedies like the pacs, you're still going to need those ex post remedies to disentangle people who are economically intertwined. And so there are some Canadian provinces that have conscriptive regimes. So if you've lived together for a certain period of time and conducted yourself in a certain way, then the province will impose marriage like responsibilities and rights on that couple. And I don't think that's the right approach either because I think it's too much obligation. So marital rights and responsibilities, there are lots of them. They're serious and significant and far reaching. And unless somebody is as economically intertwined as what we think of as our ideal married couple, that's just not appropriate. And so I think, right. Those international approaches maybe aren't fully responsive to the problem that I'm worried about. So one thing that I do like is that some Canadian provinces, when they are naming cohabiting partners as domestic partners and giving them responsibilities. The responsibility is a support responsibility, something like alimony or spousal maintenance. It's not property division. And maybe that's a remedy that we should think about here with the caveat that we would need to appropriately tailor it to a relationship that's not marriage.

[01:00:41] Catherine Hu: Great.

[01:00:42] Kim Krawiec: Well, thank you, Emily. That was our final question. Do you have any last thought you want to leave our listeners with in the last two minutes?

[01:00:51] Emily Stolzenberg: I think that this is a serious problem that people should be giving more attention to and the more creative legal minds we have thinking about what kind of doctrine would be appropriate to govern the wide variety of non marital partners who are out there, I think the better. Great.

[01:01:10] Kim Krawiec: And Reid, Katherine, any last minute thoughts from you?

[01:01:14] Reide Petty: Not from me. Just thank you to Emily for stopping by.

[01:01:17] Emily Stolzenberg: Thank you so much for having me. This was really fun.

[01:01:21] Catherine Hu: None from me either. Thank you so much, Emily.

[01:01:23] Kim Krawiec: It was good to see you, Emily. Thanks for doing this.

[01:01:26] Emily Stolzenberg: Thank you. This is so fun.