‘Common Law’ Explores Impact of Tying Benefits to Marriage

Professor Naomi Cahn Says Traditional Benefit Structures Need Reshaping
Naomi Cahn

Professor Naomi Cahn is an expert in family law, trusts and estates, feminist jurisprudence, reproductive technology, and aging and the law. Contributed photo

February 23, 2021

Being married unlocks numerous financial benefits, but it’s time for those benefits to be uncoupled from an institution that is rapidly declining among lower-income Americans, says Professor Naomi Cahn on the latest episode of “Common Law,” a podcast from the University of Virginia School of Law.

“We need to make these benefits available to individuals rather than to individuals as part of a marital couple,” Cahn says in the episode. “And that becomes increasingly important not just because the workplace is changing [in offering benefits], but also because marriage itself is changing.”

Apart from the college-educated, under half of U.S. women ages 25-40 are married today; in 1950, 78 percent of households consisted of married couples, but college-educated women were less likely than other women to be married. Marriage is increasingly a marker of success for upper-class families, rather than a step to security for all families. About 40% of all children are born outside of marriage, with about half born to cohabiting couples.

Cahn, who serves as director of the Law School’s Family Law Center, recently wrote a paper on the need to rethink how benefits — including more than a thousand in federal laws alone — are tied to marriage. “Uncoupling,” written with University of Minnesota law professor June Carbone, is forthcoming in the Arizona State Law Journal. Cahn is a co-author of casebooks in both family law and trusts and estates, and she has written numerous articles exploring the intersections among family law, trusts and estates, and feminist theory, as well as essays concerning the connections between gender and international law.

“It used to be that the family wage [supporting a whole family] was available to someone without a college education,” Cahn says. “Today, there’s a college diploma premium in terms of working, in terms of earnings and also in terms of access to a great deal of the benefits that would support work-life balance. So the people most likely to have access, for example, to paid leave are the people who are paid the most. And so many working-class couples don’t have access to paid leave. That’s one way that uncoupling might help them — if there is, for example, paid leave for caregiving or for childbirth.”

On the show, Cahn traces how marriage and the workplace evolved over the last few decades, and how trends — including a declining marriage rate and employers offering fewer benefits — are disproportionately harming lower-income Americans, even as the ability to get married has expanded to more people, including same-sex couples, over time.

Cahn adds, “Long live the institution of marriage; it’s just perhaps not ‘long live the institution of marriage’ as the basis for a series of a thousand-plus federal and numerous state benefits.”

Hosted by Dean Risa Goluboff and Vice Dean Leslie Kendrick ’06, the show’s third season is focusing on “Law and Equity.”

While the themes of the first two seasons were temporal — the first focused on “The Future of Law” and the second looked back at “When Law Changed the World” — this season looks across time at a variety of legal issues, asking what equity means and examining how it interacts with law.

“Common Law” is available on Apple Podcasts, Stitcher, YouTube, Spotify and other popular places you can listen to podcasts. The show is produced by Emily Richardson-Lorente.

You can follow the show on the website CommonLawPodcast.com or Twitter at @CommonLawUVA.

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