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69 Temp. L. Rev. 1413 (1996)
Theory Versus Reality: The Partnership Model of Marriage in Family and Income Tax Law

handle is hein.journals/temple69 and id is 1423 raw text is: THEORY VERSUS REALITY: THE PARTNERSHIP MODEL OF MARRIAGE IN FAMILY AND INCOME TAX LAW Marjorie E. Kornhauser* Current legal theory in both family and tax law accepts the belief that a marriage is like a partnership. The formality and power of theory, however, can make us forget that despite their interactive nature, theory and reality differ. The partnership model of law blurs the distinction between aspiration and attainment; it elevates metaphor to reality. We may want our marriages to be partnerships; we may believe that they are partnerships, but in reality most marriages are not partnerships. At best a marriage is only like a part- nership; it does not become one in all aspects. Theory emphasizes the simi- larities but ignores the differences, and we ignore those differences at our peril. The dissonance between theory and reality does more than create psychic discomfort; it can create real physical hardship. As many commenta- tors have noted, the switch in domestic law to the partnership model of mar- riage precipitated a slide into poverty for many divorcing women and their children. In the tax area the marital partnership is the premise behind the joint tax return which has created extra tax burdens or marriage penalties1 for many two-earner married couples. The partnership model of marriage in both these legal areas ignores two crucial differences between theory and reality. First, the theory says that the partnership is an equal one, that both spouses contribute to and share in the benefits equally. The reality, more often than not, is that the spouses are unequal both in what they contribute to and receive from the marriage. Sec- ond, the partnership model assumes, as does most economic theory, a unity of interest between the marital partners which cannot exist in a reality con- structed of individuals and a society that values their individuality. © 1995 Marjorie E. Kornhauser. * Professor of Law, Tulane Law School. I would like to thank Lynne Henderson, Ed Mc- Caffery, and Joan Williams for their thoughtful comments. An earlier draft of this Article was presented at the 1995 Lewis and Clark Conference on Taxation and the Family. 1. A marriage penalty exists in a progressive rate structure because the income of the sec- ond spouse is stacked upon that of the first spouse. Assume an income tax in which the first $30,000 of income is taxed at 20% and the next $30,000 is taxed at 30%. Consider two couples: each person earns $30,000, but couple A is married and couple B is not. Since couple A files a joint return, they have total income of $60,000. This results in a tax liability of $15,000 (20% on the first $30,000 and 30% on the next $30,000). Each person in couple B, however, is taxed separately so that their total tax liability is only $12,000 (20% times $30,000 plus 20% times $30,000). 1413

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