A Valentine's Day Spoiler: Abrams Examines Legal Implications of Marriage Fraud

Kerry Abrams

Professor Kerry Abrams's new article explores the topic of marriage fraud, as well as possible implications for how certain benefits are tied to marriage.

February 9, 2012

While love and marriage might go together like a horse and carriage in most Valentine's Day fantasies, marriage fraud and the legal system don't fit together quite as neatly. That's one conclusion University of Virginia law professor Kerry Abrams makes in her forthcoming California Law Review article "Marriage Fraud," now available on SSRN.

In her article, Abrams examines what marriage means by focusing on what courts say it isn't. Abrams, who teaches courses in immigration law, family law and feminist legal theory, found an array of doctrines that handle marriage fraud in a variety of ways. But her research also suggests we should reconsider how we tie some benefits to marriage.

How did you become interested in writing about this topic?

I study both family law and immigration law, and I noticed that each area had its own doctrine of marriage fraud. I realized that the idea of fraud in marriage is a really a way of defining marriage in the negative. It's a way of classifying a marriage as a sham, even if all of the formal requirements of marriage have been observed, because there's some key element that's missing. Many scholars and activists have been arguing lately about what marriage is — some say it's a lifetime commitment to one person, some say it's a union between a man and a woman, some say it's a financial arrangement. I thought that if I could identify what marriage isn't,it might tell us something about what marriage is.

What is marriage fraud?

In family law, marriage fraud is lying to the person you are marrying about your willingness to have children or sex with them, and the remedy is an annulment — it's as if the marriage never existed. In other areas of law, it's marrying to get a particular benefit — a tax break, immigration status, health insurance, social security benefits, military benefits, even a gym membership.

What did your research regarding marriage fraud reveal?

Many areas of law have had to deal with the fact that if you attach substantial benefits to marriage, some people will marry to get the benefits. But they've dealt with the problem in very different ways. For example, some courts have said that as long as a couple "intends to establish a life together," it doesn't matter if they're getting married so that one of them can get a green card or military housing. Courts will say things like, "This husband mowed the lawn, laid carpet and cleaned the house, so we don't really care whether he loves his wife or not — he's acting married, and that's good enough." There's a wide spectrum of tests courts apply, from the purely formal (Is this couple legally married? If so, we don't care why) to functional (Are these people acting married?) to combination tests that require a formal marriage plus evidence that the couple is acting married or evidence that they were really in love when they married.

You state in your article that the marriage fraud doctrines of family law, tax law, social security law, welfare law, immigration law and pension law reveals "an astonishing array of legal doctrines." What are the implications of these legal inconsistencies?

I argue in the article that the different doctrines reflect different levels of anxiety about the instrumental use of marriage. For example, in health care fraud cases, insurance companies don't usually care about whether a couple is acting married. If they are legally married, then that's enough to get the benefit; the cases that are brought are usually about people who weren't legally married but pretended to be. This makes sense, because health insurance is largely a prospective benefit — you know you might need it, but you don't know when — and you have to stay married to keep getting it through your spouse. In contrast, in immigration law the courts care tremendously about the mental state of an immigrant when he or she marries a U.S. citizen. There's a tangible benefit that's immediately available based on marriage to a citizen — a green card — and once someone has it, they can just walk away from the marriage and keep the benefit.

Why does marriage fraud matter to the public, and to officials? Who is the victim of marriage fraud?

I spent quite a bit of time in the article speculating about this issue. At first glance, it seems like it's a purely financial harm — people getting benefits they don't deserve. But then we have to ask, why do married people deserve more than other people? In most cases, marriage seems to be serving as a proxy for something else, such as a long-term dependency relationship. There are also expressive harms: If marrying purely to get a benefit becomes common, then the idea that marriage is an important commitment to another person could become diluted over time.

What are the costs associated with policing marriage?

Implementing some of the more functional tests can be really expensive. Having a judge or investigator take the time to evaluate detailed evidence of a couple's intentions toward each other is difficult, time-consuming and highly subjective. It can also create a heightened standard for the couples seeking benefits, changing the rules of marriage. For example, although many married people choose to live together, open joint bank accounts, or have children, they are not legally required to in order to be married. But in order to get benefits based on marriage, they often are required or encouraged to do these things.

Based on your findings, how do you recommend that marriage doctrines be reconfigured?

I don't think it's always a bad idea to tie benefits to marriage, but I think we should be re-evaluating why we've done so in particular instances and whether it's a good idea to continue doing it in the future. When many public entitlement programs were first enacted in the 1940s and even earlier, women were ineligible for most jobs that paid a living wage, which meant that a woman who lost her husband prematurely would be destitute without marriage-based entitlements. That's just not true anymore, at least not in a large number of instances. Instead, people are made financially vulnerable because of their involvement in child care or elder care at the expense of paid work, but those vulnerabilities aren't necessarily tied to marriage.

How does this article fit into your overall scholarship?

Fraud has been lurking in the shadows in my work for years, but this is the first time I've addressed it head-on. I wrote an article a few years ago on how immigration law functions as a form of family law for immigrants and their relatives, and I discussed the immigration marriage fraud doctrines briefly there. I've also written several articles about how various groups of immigrant women — Chinese women who came here in the late 19th century, Japanese women who immigrated in the early 20th century, and Eastern and Southern European women who immigrated in the 1920s — were categorized either as proper wives or as undesirable laborers or prostitutes. In those waves of immigration, courts used notions of what a "real" marriage looked like in order to make decisions about whether to admit or exclude an immigrant. Often, a "real" marriage was a love match, and a "sham" marriage was an arranged marriage. But in the cultures that these immigrants were coming from, arranged marriage was the norm.

What are you working on next?

I spent the summer researching the history of married women's citizenship. Until fairly recently, many states limited a married woman's ability to enter into contracts, sue, be sued, vote, serve on juries, or manage their own property. Their state citizenship, often determined by their domicile, mattered, because they might be able to do these things in one state but not in another. But there were also laws in some states maintaining that a married woman's domicile followed her husband's, and federal laws making her national citizenship follow her husband's. So it wasn't where a married woman herself lived that determined whether she could enter into contracts, vote, etc., but where her husband was domiciled (and in many cases, no one knew where the husband was). I'm mapping out the law in various jurisdictions and showing how new rules developed to get around the problems that the uncertainty of women's rights presented, both to the women themselves and to people who wanted to do business with them.

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