Who Keeps The Engagement Ring with Naomi Cahn and Julia Mahoney

My guests this week are my UVA Law colleagues, Naomi Cahn and Julia Mahoney. We’re discussing their recent article in The Conversation, “Who Keeps The Wedding Ring After A Breakup?” We also discuss work by Margaret Brinig, Rebecca Tushnet, and Viviana Zelizer. Finally, we demonstrate that I utterly fail to understand engagement ring pricing. 

Naomi Cahn is the Justice Anthony M. Kennedy Distinguished Professor of Law at the University of Virginia and is an expert in family law, trusts and estates, feminist jurisprudence, reproductive technology, and aging and the law. She is the co-director of UVA Law’s Family Law Center. Julia Mahoney is the John S. Battle Professor of Law at the University of Virginia, where she teaches courses in property and constitutional law, as well as a seminar, “Feminism and the Free Market.” Her scholarship includes works on altruism and the provision of biomedical technologies.

Naomi Cahn and Julia D. Mahoney, Who keeps the engagement ring after a breakup? 2 law professors explain why you might want a prenup for your diamond, The Conversation, March 22, 2023

Julia Mahoney Bio, University of Virginia

Naomi Cahn Bio, University of Virginia

Course description, Feminism and the Free Market

Margaret F. Brinig, Rings and Promises, 6 J.L. Econ & Org. 203 (1990). 

Tushnet, Rebecca. "Rules of engagement." Yale LJ 107 (1997): 2583.

Viviana A. Zelizer, The Purchase of Intimacy, Princeton University Press (2007)

Transcript

[00:00] Julia Mahoney: We met in the kitchen, in the lounge, at the law school, and we began talking.

[00:07] Kim Krawiec: It's literally a water cooler conversation.

[00:10] Naomi Cahn: Literally, yes. A coffee room water cooler conversation.

[00:16] Kim Krawiec: I hope dean's everywhere listening to this and seeing the value of having nice spaces for faculty to gather. Hey. 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 Kravick.

[00:39] Kim Krawiec: My guests this week are my UVA law colleagues, naomi Khan and Julia Mahoney. We're discussing their recent article in the conversation. Who keeps the wedding ring after a breakup? We also discuss work by Margaret Brennick, Rebecca Tushnet and Viviana Zellazer. Finally, we demonstrate that I utterly fail to understand engagement ring pricing. Naomi Khan is the Justice Anthony M. Kennedy Distinguished Professor of Law at the University of Virginia and is an expert in family law, trust and estates, feminist jurisprudence, reproductive technology and agent in the law. She is the co director of UVA Law's Family Law Center. Julia Mahoney is the John S. Battle professor of Law at the University of Virginia, where she teaches courses in property and constitutional law as well as a seminar Feminism and the Free Market. Her scholarship includes works on altruism and the provision of biomedical technologies.

[01:42] Kim Krawiec: Welcome, guys. Thank you so much for doing this. I'm so excited to talk to you about this.

[01:46] Julia Mahoney: Thank you. Thank you for having us.

[01:48] Naomi Cahn: It's great to be here.

[01:50] Kim Krawiec: Great. Well, so we are talking today about a piece that you both recently published in The Conversation who Keeps the Engagement Ring After a Breakup? And I found it fascinating, by the way. We'll talk perhaps about some of the prior work that's been done on this. But yours is a much more recent assessment of the state of the law, and it surprised me in ways that we'll talk about, I guess, to start with, tell me about this piece, how it came about and how your collaboration on it came about. This is the first piece you guys have written together, is that right? Yeah, that's what I thought. Okay, so how did this come about?

[02:25] Julia Mahoney: We met in the kitchen, in the lounge, at the law school, and we began talking.

[02:32] Kim Krawiec: It's literally a water cooler conversation.

[02:35] Naomi Cahn: Literally, yes.

[02:37] Julia Mahoney: A coffee room water cooler conversation.

[02:41] Kim Krawiec: I hope deans everywhere are listening to this and seeing the value of having nice spaces for faculty to gather.

[02:48] Julia Mahoney: Yes.

[02:49] Naomi Cahn: One of my former colleagues actually wrote an article about the importance of coffee rooms for collegiality, et cetera, et cetera. So we are living proof of that.

[02:59] Kim Krawiec: So what prompted it? Did something specifically in the news, or how did it come up? Like, I'd like some espresso, and, hey, what about wedding? What about engagement rings?

[03:11] Julia Mahoney: I think I asked Naomi a question because I was preparing to discuss gifts in property, and engagement rings are on a very short list of conditional gifts. Most conditional gifts that we see in the law are conditional upon death. And engagement rings had been this possible exception. And at the time that I began talking about it to Naomi I was under the impression that the law had changed, not perhaps entirely, but largely. And that as we pursued this project, we were going to have a fairly simple narrative that the law of who gets the engagement ring after the engagement is over had gone from a regime of variety that is, states being, frankly, all over the map and complexity to one of, roughly speaking, uniformity and simplicity. Because I had seen the statements. And the restatement of property, I think also restatement of gifts or donut transfers that upon the end of the engagement, regardless of fault the ring goes back to the donor. And perhaps if the donee cannot produce the ring, the donee will be on the hook for damages. But as we pursued the project, we found a far more complex and, to me, fascinating story. Yeah.

[04:41] Kim Krawiec: That really surprised me because my assumption was the same as yours, that there really was a no fault approach. Just for listeners who maybe are not familiar with the sort of history here. Can one of you talk about what the old rule was and then what we all three assumed was the universal new rule and why it might have changed? You talk about this a little bit in the paper.

[05:07] Naomi Cahn: Well, I can start by saying that diamond engagement rings were apparently relatively rare. I mean, we now think of them as ubiquitous. And the article starts out with the first engagement of Jennifer Lopez and Ben Affleck. But very fancy engagement rings like the ones we talk about in this piece are relatively new, and they only became kind of what we now think of them about 100 years ago. Now we can date them back. Earlier, there were some I mean, if you think of royalty getting married, there were very formal exchanges of gifts at that point. But the sophisticated advertising campaign for engagement rings only started kind of right before World War II.

[06:04] Julia Mahoney: Yeah.

[06:04] Kim Krawiec: De Beers decided they needed more money, right?

[06:07] Julia Mahoney: Yes.

[06:08] Kim Krawiec: They really created this trend, is my understanding.

[06:12] Julia Mahoney: Yes. And here we are right with the engagement.

[06:17] Kim Krawiec: For listeners who cannot see the video, julia is holding up her engagement ring. Naomi, you were walking us through a little bit of the history. The engagement rings didn't become commonplace until, say, after World War II or start becoming commonplace after that time. And what was the rule then about returning engagement rings? Initially, Julia, when she started, mentioned that there had been what she perceived as a shift, a change in the law. What was the change from julia, do.

[06:50] Naomi Cahn: You want to go ahead?

[06:50] Julia Mahoney: Yes, there was a perceived change. I mean, more than a perceived change. There was a change in many states from a regime that was fault based to one that was simple. So this idea that it is now more likely to be true that when an engagement ends, the doni must return the ring, that is absolutely flat out true in many states, including Pennsylvania, which handed down an iconic case on this issue around 1999. However, what's often represented as a strong movement leading to near unanimity on this issue as of 2023, that turns out to be wrong. Yes, there was a change overall in the law. And it is true that by and large, it is more likely to be the case that the Dhoni must return the ring. But not all states have joined in this trend. That was the part that was a mild surprise to me. And very importantly, when we look at the population of the United States, what we see is that a number of states that are very high population texas, California, for example have not joined in the trend. And so in those states there will be fault will often come into play.

[08:21] Kim Krawiec: Yeah, that's what surprised me when I read your paper. I was like you. I thought that there was pretty much a universal rule just to clarify the fault based system. How did that work? Was it really just a matter? I mean, my sense is that it's just a matter of who breaks off the engagement. It did not actually entail courts saying sure, she broke it off, but it's because he was a CAD.

[08:46] Julia Mahoney: There are some cases along those lines. Are there's a rich and fascinating literature in this piece? Naomi and I built on a lot of scholarship, in particular, an article by Rebecca Tushnet called Rules of Engagement and an article by Margaret Brinnick and that had both pointed out that the rise of engagement rings that we've been discussing coincided with the end of courts being eager to entertain or willing to entertain breach of promise suits. So there was these breach of promise suits when a marriage did not take place and a woman who believed often with caused that her value on the marriage market had been decreased by the fact that she had been engaged to someone and the community would see her as if not shop worn goods, at least as somewhat less desirable could get a recovery. Now, those began to fall out of favor and states passed so called heart bomb laws, many states anyway, that brought an end to the causes of action for breach of promise to marry. And at about the same time it was pointed out by Margaret Brinnick and others, we began to see the rise of engagement rings, of expensive engagement rings. And at that time the rule was not that the jilted bride or the woman who ended up not being married for whatever reason, when she was very much hoping to would be able, by and large to keep the ring. So the association was drawn. Perhaps these expensive engagement rings were functioning as a sort of substitute for the now defunct possibility of being able to bring a successful breach of promise to Mary Sue.

[10:39] Kim Krawiec: I am going to put in the show notes links to the Rebecca Tushnet article and the Peg Brenneg article and also to Viviana Zellazer's the purchase of intimacy, which I imagine we'll talk about at some point today. She has a chapter on coupling that I know we're all three familiar with and that is fascinating account of some of these cases.

[11:02] Naomi Cahn: Elaborate on that, because, as you'll see in the Margaret the Peg Brinig article, keeping the Diamond Ring actually served as compensation for what this article calls the woman's loss in market value because there was a perception that she had been engaged. That although she was supposed to remain chaste until her marriage, once she was engaged, that might not have happened. And so being able to keep the diamond ring was some compensation for this is this is part of what the Margaret Brinnig article suggests might have been part of the reason for being able to keep the gift of the engagement ring.

[11:46] Kim Krawiec: Yeah, and Viviana suggests the same thing in her chapter as well, which was that the perception that greater intimacy was allowed during the engagement period than had been before meant that there might have been some tarnishing to the woman's reputation and that this was considered some sort of compensation for it. So against that, you can you talk a little bit about Montana, Texas? I think you mentioned California as well. Some of the states that then don't follow the no fault. I mean, against that background, the movement to a no fault standard seems quite reasonable and salutary in some ways from a feminist perspective, that we're no longer sort of treating women as having been damaged by potential intimacy. It's more complicated than that, perhaps, in ways that we'll talk about. But can you talk a little bit about the cases or standards in some of these jurisdictions that are not following the no fault approach?

[12:51] Naomi Cahn: I was just going to talk about California. I was also going to say we're talking about engagement rings and it could be any also, it's not just the receipt of an engagement ring. There might be other gifts that are exchanged.

[13:09] Kim Krawiec: This is an important point. Is the rule the same then, for all gifts that are exchanged in contemplation of marriage? Or is there a separate room for a rule for engagement rings? That's different.

[13:19] Naomi Cahn: It's going to depend on the state and we can also talk later. What do you do about wedding gifts? But there is the California law, which was enacted in the late 30s in 1939, actually is written in a gender neutral fashion, or at least it is today. And it says where either party to a marriage makes a gift of money or property. So it's not just engagement rings, but to the other on the basis that they're assuming that the marriage is going to occur, it's if the recipient refuses to get married or if there is an agreement that they won't get married, then the person who gives the gift can recover the gift. So essentially what the California law is saying is that if the person who receives it says, I still want to get married to you and it's the other person who calls it off, then the person gets to keep the gift. So it's not a question of no fault if the other party is at fault. If the person who gives the ring is at fault, the person who receives it gets to keep it. So that's the California rule. And that's actually a lot of these other states have rules in which courts have made decisions considering particular facts and circumstances. In California, there is an actual statute.

[14:47] Julia Mahoney: Yes. Montana is especially interesting because the court justifies its refusal to join the simple rule. The ring goes back if the engagement ends. With feminist analysis, the court points out that the expenses of a wedding are disproportionately borne by the female at least. And so justifies this refusal to tell women, give back the ring if the engagement doesn't take place, by stating that women deserve to be compensated. And I think as a realistic perspective right. From a realistic perspective, time off the marriage market, that is, time engaged tends to be more costly for women than for men.

[15:33] Kim Krawiec: Good point. Did the court, when they were talking about the greater expenses borne by women, were they mostly or solely referring to the out of pocket expenses that the bride's family historically has paid for? Or did they also use the time off the market analysis that you just invoked? Julia?

[15:52] Julia Mahoney: My recollection is that they focused on the out of pocket.

[15:55] Kim Krawiec: Right, right. That seemed like too sophisticated an economic analysis for most state courts. One question I had is we know that this was historically the case that the bride's family was expected to pay for most of the wedding expenses. Do we know empirically if that is still the case? My sense from poking around on the Internet is that it is still mostly the case, although less so than it was. But do you guys know?

[16:20] Naomi Cahn: Well, I will say the Montana case, which is from 2002, says women often quote this is quote women often still assume the bulk of pre wedding costs and here's what is listed, such as non returnable wedding gowns, moving costs or non refundable deposits for caterers entertainment or reception. So that's an end quote. Let me also say that both Julia another reason for this article is that both Julia and I have children who have been married within, I think just within the past year. And so this was of interest to.

[16:56] Kim Krawiec: I had forgotten that. Yes, of course. So no wonder you guys were very focused on this issue.

[17:02] Julia Mahoney: Yes. The wedding industrial complex is a thing and the bride's family, I believe, by and large, is more heavily burnt.

[17:12] Kim Krawiec: Okay, good.

[17:14] Naomi Cahn: Yes, there are cases we know of people who are more likely to split the costs. Sometimes it's the couples themselves who pay for it themselves. But there's still a strong tradition that it is the bride's family, and we're talking about heterosexual marriages here. It's the bride's family who pays for large portions of the wedding. The groom's family does. The rehearsal dinner I was just recently at, there were two grooms at a wedding I attended last month, and they actually paid for most of the wedding themselves. So traditions are changing, but very slowly.

[18:00] Kim Krawiec: Yeah. And I also again, I don't know how reliable this is, but I was just trying to look for any data I could find on trends in the splitting of wedding expenses. And apparently same sex couples are more likely to pay more of their expenses themselves than male female couples. The difference wasn't huge that it cited. At least the study that I found this morning suggested that as well as older couples and people on their second marriage would all be more likely to pay more of the expenses themselves as opposed to having the family pay.

[18:37] Naomi Cahn: I was going to say then there's common law marriage where you don't necessarily even need any kind of ceremony. And of course, we should know many people don't incur major costs. Apparently in the Montana case, there were major costs that were incurred and that justified the particular outcome.

[18:56] Kim Krawiec: That's what I was going to ask you about. The reasoning in the Montana case. Was this a per se rule that the court was laying down or a presumption that could be rebutted or was it going to be on a case by case basis?

[19:09] Julia Mahoney: It's a general rule and it's phrased as declining. The court is declining to extend the doctrinal framework of conditional gifts beyond gifts and contemplation of death.

[19:22] Kim Krawiec: Got it. And so in presumably a court in Montana that followed the same reasoning, even if the parties came in and said, sure, that's the normal rule, that the bride's family pays for more. But that didn't happen here. The rule of the bride being able to keep the ring would still hold again if they're following this reasoning. Okay, great.

[19:43] Naomi Cahn: Following this reasoning right now, of course, it was more than 20 years ago, so you can always bring a new case challenging it. And there was one judge, justice, I guess, who concurred and dissented. They might revisit it, but it was a pretty clear statement, as Julia said, unless it's in contemplation of death, which this clearly is not, then it's not a conditional gift.

[20:15] Kim Krawiec: Yeah, I guess we've talked a little bit about sort of what the rule is. We've talked about the doctrine and how it developed. I'm interested in the normative aspects of this and what do we think the rule should be? And troubling as it is, to have sort of the old style, at least the rationale behind the old rule was troubling that women had been damaged and needed to be compensated for being damaged goods. There is something, if it is true, right, and I'm going to take it as true for now that brides are more likely to be out money because of wedding expenses that are not compensated. I guess we should talk about why that rule is different. What is the rule that makes sense both from an economic perspective and also in terms of what it tells us about marriage and sort of women's place in society.

[21:04] Julia Mahoney: Well, one initial question to ask is is there a benefit to a uniform rule? There's a lot of discussion about whether or not property and other common law subjects should be uniform, except for extraordinary or very significant reasons. As you know, we do have in many aspects of property contract and tort national rules, de facto national rules, even though the doctrine is a matter of state law. And no question there are benefits to uniformity. So one thing to think about, I think, in this area is are there benefits when it comes to engagement rings to uniformity? Going beyond that, though, there are also some benefits to, I think, allowing states to, well, function as laboratories. I think this is a tough area. We might not like the fact that women are seen as more, quote damaged or have a greater fall in their, quote, market value. But looking at the reality of heterosexual relationships, so long as males tend to go younger more often than females do in seeking mates, time off the marriage market is going to hit women harder.

[22:23] Kim Krawiec: Yeah. And just to clarify for listeners, maybe it's obvious, but I think that Julia, the type of damage that you're talking about is quite different than what was hypothesized under the sort of old rule, right, where it was that because the woman might have lost her virginity or be perceived to have lost it, that she was damaged goods. You're actually talking about the case where a long engagement, presumably, I mean, if it's six months, maybe less of an issue, but people are engaged for five years and then let's say the groom breaks it off and now an older woman has sort of been off the marriage market for some amount of time. That's the type of cost and damage that you're referring to, right?

[23:05] Julia Mahoney: Yes. But even a six month engagement, when you think about 235 year olds who are engaged for six months, who are interested in having not everyone is, of course, but are interested in having biological children. For a 35 year old male, that's not nothing, but I would suggest far less serious than for a 35 year old female. I mean, I don't make the rules when it comes to fertility. I don't make the rules when it comes to social practices. I only just do my best to describe them in my scholarship and to my students.

[23:41] Kim Krawiec: So you don't hate the Montana and Texas and California approach, it sounds like.

[23:45] Julia Mahoney: No, not at mean. I think there's a lot to be said for them. I have been thinking a lot about the benefits of uniformity in property law in general and in this area in particular. But even if we go for a uniform rule, of course, maybe what's in the restatements the simple rule of the engagement ring goes back if the engagement is broken. Maybe that's yeah, maybe an approach more like Texas, Montana, even California, maybe that approach would make more sense. But I don't have strong dug in views on that.

[24:23] Kim Krawiec: Naomi, what about you?

[24:24] Naomi Cahn: I was going to say if we write a follow up article, we'll work through some of these issues, I should say Julia teaches family law. I'm sorry, julia teaches property law, among other things and I teach family law, among other things. And what's interesting is in each of them there are a lot of family law sort of prides itself, right. It's very different from state to state as to what happens. And so it is interesting, as Julia says, to think about a uniform, as I find it interesting that the age of marriage, certainly for both same sex and for heterosexual partners, is increasing. And according to the Knot, which is one of those wedding websites that hosts registries and you can do all kinds of other things including send out invitations from it, the average age of marriage for men and women is essentially 30 for women, 32 for men. So we are talking about people getting married at older ages. I think it's hard to say. I think I probably disagree a little bit with Julia in terms of who should keep the ring, thinking of situations. I mean, I'm not sure that we should be thinking about compensating somebody for not being able to have children. Certainly for people who can afford the kinds of engagement rings that are worth fighting about. I know a lot of reproductive endocrinologists. There's lots of advice that says, okay, once you hit your early 30s, start freezing your eggs. Now that's a whole other set of issues to talk about and it's expensive, right? Increasing number of employers for whatever reason are funding the freezing of eggs. But again, we're talking about a certain socioeconomic group that can afford very expensive engagement rings and that can also afford to freeze their eggs. Where you're talking about, I mean, the old rule was naomi, I'm going to.

[26:43] Kim Krawiec: Push back a little bit on that. I mean, not people of lesser means might very well find it worthwhile to litigate over a $1,000.

[26:52] Naomi Cahn: That's what I'm saying. In a situation where the old rule was it's supposed to be three months of a man's salary, regardless of whether your salary is $1,500 a month or $30,000 a month, it's probably going to be worth it to litigate now, the amount of time and money you spend in litigating is also a cost to be considered. And so having a rule, having uniform rule, might actually make sense in that situation.

[27:20] Kim Krawiec: I was just pushing back against the notion that everybody who is interested in Litigating over an engagement ring can afford fertility services. I don't think they can.

[27:29] Naomi Cahn: No, I was certainly agreeing with you on that.

[27:32] Kim Krawiec: Okay, got it.

[27:33] Naomi Cahn: No, I was making the point that for people who are fighting about very expensive engagement rings, they presumably can afford it. But in most jobs, you're not going to get your fertility services paid for and you're not going to be fighting over half a million dollar engagement rings. And so, yes, that's right. On the other hand, if you look at who was most likely to get married, it used to be at one point, college educated women were the least likely group to be married. Now they are more likely to be married than any other group. And so, as marriage itself is becoming more of a classed institution and to.

[28:11] Julia Mahoney: Be clear, there are big benefits to simple uniform rules. Huge. At the same time, it fascinated me that what was billed by many as a kind of very clear, very discernible trend away from complexity and non uniformity toward uniformity and simplicity. It just isn't what's been happening. That made me think again, are there benefits to complexity? Are there benefits where courts engage in a fair bit of fact finding in some of these cases about whose fault it is? I mean, at first glance, that seems to be the sort of fact finding expedition that courts are not well suited for. And yet we are seeing it in certain circumstances. Right? And we're seeing states come to different conclusions. I mean, perhaps there's more benefit in complexity and variety than I had thought when I started this project. I said, I'm working through issues and I would like very much to do a follow up project after we've thought about these more. So we'll have to see well, and.

[29:17] Kim Krawiec: I would distinguish between among complexity, uniformity, and clarity. To me, the need for uniformity strikes me as not being obvious. Certainly, given how much variation we have with respect to other things dealing with marriage and family across states, I'm not sure why this would be one that would need uniformity, but that's different than saying that rules should be understandable to the parties involved. So you guys teach this in family law and property? I teach it in contracts, where, of course, we just care about people being able to organize themselves. X ante.

[29:56] Julia Mahoney: Right.

[29:56] Kim Krawiec: I would argue that there is definitely a benefit to clarity, but not necessarily to uniformity. And there may be a benefit to complexity if courts are informationally able to come to the right answers, which they may not be in this setting. I mean, that's, I think, an argument that's often been made against having courts involved in these types of cases.

[30:20] Julia Mahoney: Yes. I have a question for you, Kim. As a contract scholar, engagement rates, there are these fascinating issues about the remedies. Ordinary remedy for breach of contract is, of course, damages. And yet here we have the sought remedy. Virtually always give the ring back. So why are courts not saying either pay off or give the ring back?

[30:48] Kim Krawiec: They're saying give it back, give it back. You can imagine in some instances if it's a family heirloom or something, right. That would make some sense. There would be some sentimental value. If I'm the returner, I think I would prefer to return the ring rather than pay damages. Somebody tell me. I don't know anything about the price of engagement rings, but I assume they are like cars and the value immediately goes down as soon as you walk off the property with it.

[31:18] Julia Mahoney: Value. They are value stores in the way that a pre owned car is.

[31:22] Kim Krawiec: Oh, OK. There goes that theory. Theory wrong, Kim. Think about it.

[31:29] Naomi Cahn: If you buy a ring, the ring retains its value. There's going to be sentimental value that is attached to it, but the actual value of the ring doesn't change because it's been bought and given to someone. Right. Presumably, if you bought it at your local jewelry store and they have a four week return policy, it's not going to change in value during those four weeks.

[31:52] Kim Krawiec: Okay, this surprises me. I just assumed that they marked them up significantly and that the resale value would be less. Never mind then, if that's wrong.

[32:01] Naomi Cahn: I have to say I've never looked at the second hand market for engagement rings. But if you think about if someone has given a very expensive engagement ring and gets it back, would they use it again the next time they want to get engaged? There's always that potential use, in which case it has not changed in value. It's still an indication. But I do want to go back to uniformity. I think when people are buying engagement rings and giving and receiving engagement rings, knowing what it means might really be very helpful. There's a lot of lack of knowledge about just the value of an engagement ring and who would get to keep it if the engagement is called off. So there is something to be said for uniformity and for letting people know what that uniform rule actually means.

[32:54] Kim Krawiec: Could be. I mean, we could also just have people be better advised about all aspects of embarking on a marriage. Probably right. In some ways.

[33:03] Julia Mahoney: This is the least of the issues.

[33:04] Kim Krawiec: That they really should be hammering out in advance of taking this step.

[33:10] Naomi Cahn: Well, we do advocate prenups. I mean, if you're going to be doing a prenup or we do advocate thinking about a prenup, this is something that could be addressed in a prenup and you might want to do the prenup before you give. The engagement, right? Who knows? And again, we are talking about people who there are prenups on the web, and so you don't have to hire an attorney to do it. But again, we're talking about people who generally are thinking about prenups in terms of protecting assets. So again, we're talking about fairly sophisticated so having a general rule that everybody would know about regardless of whether they enter a prenup. Lots of benefits. You don't look like I've persuaded you.

[33:52] Kim Krawiec: Great though. These are the best articles, right? When co authors don't come into a knot of the same mind, it forces you to think about all of the possibilities and alternatives and sort of narrow your scope. Sometimes I actually think that it's great when co authors don't completely agree on every single issue, especially when they're starting out. I mean, presumably you'll come to agreement on the items on the paper during the course of writing, but I'm sympathetic.

[34:19] Julia Mahoney: To prenups, especially when there are significant assets and it's a second, third and marriage that seems to me that the case is quite clear. It can promote family stability for expectations to be set out. With prenups, there's always this question of what there's so many questions about what level of information we expect. It is striking to me that there is, so far as I can tell, no one who advocates simply taking the basic commercial contract framework and applying it to marriage. There are always these exceptions in terms of requiring disclosure or requiring each party to be represented by council, or to be told you have the opportunity to be represented by council. Doesn't happen when you go to buy a car, although you could of course have the opportunity, et cetera, et cetera, in one area that you work in tim securities regulation. There are of course, a lot of disclosure obligations and also non disclosure obligations. Of course, it's not true that in all commercial contracts things are simple. They're not. So with prenups, it's not that I think they're necessarily a bad idea, it's that I think that it inevitably gets very complicated, particularly around issues relating to disclosure and remedies.

[35:44] Naomi Cahn: Let me say on prenups again, as is true with engagement rings, every state has its own laws. And as I teach in family law in some states, for example, in contracts, hopefully I'm right when I say this, Kim, that if you have a contract that is shown to be unconscionable, which is, of course, a really high standard, but if you meet that standard, it will be deemed to be invalid. I'm assuming that's still true. I used to teach contract in some states you need not just unconscionability, but you also need to show that there was a lack of disclosure. So it's an unconscionability plus standard in some states. In other states, julia is absolutely right. There needs to be disclosure. There needs to be a chance for an attorney. You look at the contract you look at the prenup as of the time that it is being enforced. But again, even on prenups, there's lots and lots of variation and in some jurisdictions, it's even tougher to get a prenup invalidated than a regular contract.

[36:43] Julia Mahoney: Yes. So it's fascinating to me. I teach a seminar entitled Feminism and the Free Market and cover prenups and postnups, and students are fascinated and fascinated in part because they don't get a simple story. It's not a uniformity story. And we read cases and there have been efforts, of course, at uniformity, but the Uniform Commissioner of State, the standard freeing up law, has been adopted in what, only a handful of states. Is that right?

[37:18] Naomi Cahn: Well, it's been adopted. There are now two Uniform Premarital Agreement Acts, and the first one was adopted in about half the states. But yeah, it wasn't even adopted. I mean, they changed it. So there's no uniformity even in the states that have adopted the so called Uniform Act.

[37:33] Kim Krawiec: Yeah.

[37:34] Julia Mahoney: So contrast this with the Uniform Commercial Code, a version of which was a fairly non controversial not that everyone agreed on everything, but it got hammered out and then a version has been adopted in every state, I believe. We have not seen anything like that.

[37:53] Kim Krawiec: Yeah.

[37:53] Naomi Cahn: There is one aspect of uniformity which is tax consequences of gifts, which we can talk about.

[38:01] Julia Mahoney: Yes.

[38:02] Kim Krawiec: Julia, you are someone who, like me, has thought quite a lot about expectations of altruism within relationships, including intimate relationships, and in particular about the differing expectations for women as compared to men when it comes to altruism. Does the story of the engagement ring default rules and the rationales behind it tell us anything about that?

[38:36] Julia Mahoney: Well, one way to get at this, I think, is to point out that intimate relationships frequently have both a transcendental and transactional element. And there does seem to be some discomfort with the notion that women will use their power in order to get money or get financial value for things that are uniquely valuable to them. And this ties in, I think, to a lot of your work, Kim, on OVA donation, which, as you have pointed out, is called donation, even though those who provide their OVA are compensated. And you have written a great deal about how women who were providing OVA were expected, even though they were being compensated, not to work hard to get the maximum price that they could. So when you were discussing how to many eyes, anyway, the feminist approach to engagement rings is that engagement rings will be conditional gifts to be returned, not just money paid, but to actually be returned if the marriage doesn't take place. I guess my reaction is not so fast. There are a couple many different ways to look at this from a feminist perspective, and one of them is, yes, we should have the simple rule that the ring goes back when the engagement is broken, regardless of fault because that is the modern approach. We want to get away from the idea that a woman who has engaged in any kind of premarital intimacy is now damaged goods. And the best way to do that is to make it clear that we are not in a world where engagement rings are functioning as a de facto substitute for the loss of these breach of promise actions. But I say OOH. Not so fast. Women do have a value on the marriage market, no question about it. Again, this isn't a world that I make, it's the world that I see and I'm now describing to you. And if it is indeed true, as I believe it is, that women are more vulnerable when they make a commitment to be engaged, a commitment to accept a proposal of marriage. To enter into an engagement is a commitment not to be entertaining rival offers. Right? And so women do suffer greater losses if that engagement doesn't go through. Is it so terrible that a woman will get some sort of compensation which no one is claiming is in any way going to make her whole?

[41:22] Kim Krawiec: I like this point, Julia, because until our conversation today, which caused me to go back and look at Rebecca Tushnet's article, actually, which I had read hers and Peg's before, it's just been a while, but I had also just sort of thought, oh, the conditional gift approach is much cleaner, much better. It doesn't suggest that women are damaged goods. That seemed like the obvious feminist approach. But as you say, having thought about it now, it is more complicated than that. Right. One of the things that Rebecca pointed out in her article was how much the discussion around the need for a change to a no fault system was this fear of the temptress, right? The fear of women luring men into through their sexuality, luring men into giving up money, and that this was a response to that. Not only that, but that was a big part of the dialogue around the legal changes and those who were advocating for them. And when I think about that, then I'm sort of with you. I want to think harder then about what the correct answer is from a feminist perspective, bearing in mind the realities of this ever changing marriage market. Naomi, what about you? Are you going to distance yourself from Julia's analogy here or not?

[42:53] Naomi Cahn: I'm going to say that the real world is different from my ideal world. And so in the ideal world, I think I would distance myself, just as with my co author June Carbone, we've written about how in an ideal world, alimony is something that is given to the lower earning spouse and that's still, traditionally the woman, in an ideal world, spouses would earn equal amounts. Reality of today's world is women still earn less than men. Women are still more likely to be the ones in a marriage where there are children to be the ones who will stay at home and take care of the children. And so that's the reality. In terms of engagements, I guess there's an alternative reality, which is you give each other non expensive tokens that you are engaged to one another, so you buy engagement rings for each other. I guess the traditional gift is a watch for the man, but instead.

[44:13] Kim Krawiec: You.

[44:13] Naomi Cahn: Could each buy relatively inexpensive rings, and then you each get to walk off with the relatively inexpensive rings, and it's all the same value. And so there are alternatives to our current system that indicate you are in that happy period of being engaged, you're about to get married, but that also don't cause all of the legal and emotional issues that we're talking about with respect to who gets to keep an engagement. Right? So perhaps a feminist way of thinking about this is kind of changing the subject on broadening the pie and making it so that there's an exchange of equal gifts and not incredibly expensive equal gifts, ones that each would be comfortable giving the other. They're not conditional upon marriage, and it doesn't matter why the marriage is broken.

[45:10] Kim Krawiec: I'm sympathetic, but that's much harder, right? That would require changing norms broadly, as opposed to recognizing what the norms currently are. Norms and expectations and economic realities. There are lots and lots of instances where the message that the law is sending may not be what we want because it conforms to the reality we have instead of the idealized world we wish we had. And this may very well be one of those instances.

[45:42] Julia Mahoney: There's also, to some extent, a class element here, and I think this is an enormously difficult set of issues for feminism. One topic issue that comes up a great deal in my Feminism and the Free Market Seminar is the extent to which mainstream late 20th century and early 21st century feminism has promoted the interests of professional class women, sometimes arguably at the expense of other women. And I am very cautious about any hint that in order to bring about change, individual women will end up suffering that somehow for a greater good. And if we think, of course, we all would like to see changes in society at the same time, it does seem to me that to, in effect, take away a little bit of financial security for women whose engagements have been broken. That might be a cost that's this awfully high. At the very least. I would suggest that we think very hard about what the distributional consequences are going to be of rule changes, and I think that that is sometimes lost in feminist discussion.

[46:56] Naomi Cahn: We should also look at the actual cost of rings when we're talking about this. And according to Brides magazine, the average amount that a couple spent on an engagement ring in 2020 was quote, 37 56. And I can send you the link to this article so you can post it. And that actually is about half of where it was in 2018. I don't know what the most recent statistics are.

[47:26] Kim Krawiec: So it's gone down. Is that Naomi? Oh, that's not unexpected. I didn't expect that.

[47:32] Naomi Cahn: This is Brides magazine. All right, which should be a good source. But also when we're talking about the amount of money that is at stake for someone earning minimum wage. First of all, yes, this is an enormous amount of money, but if you're thinking about it's, for people who earn above the minimum wage, certainly for people and again, there is a class element to who is most likely to get married. We're talking about under $4,000. And even if they just split it, even if they each get $2,000 of it, we should be thinking about the actual expenses of what we're talking about. There might be the costs of the wedding, but that too, of course, is going to vary. If you're going to be catering it yourself, if you're having family members cater it, hopefully it's called off before everybody's bought the food.

[48:37] Kim Krawiec: So this is a question that I have for you guys. It is my understanding that part of what some people see as a problem or disconnect between the no fault rule with the ring and the rule that the wedding expenses just sort of lie where they are, is that correct? That for the most part, wedding expenses will to the extent that the deposits and the like are non refundable, the court will leave those where they're found, and that is frequently going to be with the bride and her family. Is that correct? Naomi Shaking her Head yes, that is.

[49:18] Naomi Cahn: Often know we're talking in generalities here. One hopes that the person who calls it if it's a joint decision, one hopes that they will then agree to share the I mean, one again, we're talking about this ideal world, right? One hopes that they'll agree to share these expenses if the person who has already put down a deposit. And again, the class issues that we keep coming back to. But if you've put down an expensive deposit on a place and you are the person who has called it off, I think it's going to depend perhaps on why you've called it off. If there's been, for example, abuse, then there are certainly good reasons to call it off. But we can talk for many more hours about how to apportion blame and how to allocate costs in that situation.

[50:18] Kim Krawiec: It's just interesting that the rule appears to be different. I mean, you can imagine adopting a similar approach to both, right? Either you have a no fault rule for both or you have some sort of fault rule for both. But is there some reason, some policy reason for treating them differently other than I mean, leaving aside the history of the engagement ring being a way of compensating the woman and sort of substituting for a dowry and all that stuff. Just like looking at it if we were to start from scratch today.

[50:49] Julia Mahoney: No. And we do see occasional cases where there's post break of engagement litigation and someone wants to be compensated in part for the loss of the deposits and so forth. But no, I can't think of reasons that you would not want to compensate in general. But one thing that we, I think, could talk about for hours and hours is the competence of courts to make these determinations about fault and the end of engagements. Because in a number of the cases that we read courts were engaging in that the Montana court, as we mentioned, was articulating a blanket rule of we're not going to extend the framework of conditional gifts outside the context of gifts conditioned upon death. But there are other cases out there where courts are engaging in fairly fine grained analysis of who was at fault for the end of the engagement and courts recognizing that it's more complicated than simply who broke off the engagement. But this may not be something that the courts are likely to be good at, and even if they are, it might not be a good use of scarce judicial resources.

[52:04] Naomi Cahn: Hence the move towards no fault divorce. Right. Given the movement towards no fault divorce, which started with the law in California 1969 that went into effect in 1970, given that, should there be the same for this? On the other hand, courts in a number of states courts will at divorce still look at fault when it comes to questions of property distribution or spousal support. So there are still some courts in some states will still need to be engaged in this. That doesn't get to the question that, Julia, you raised of. Is that good? Is that appropriate? And how do you determine fault in these situations outside of, egregious, say, economic misconduct or some kind of physical abuse or some kind of intimate partner violence that may take the form of physical abuse and takes many other forms as well.

[53:01] Kim Krawiec: Naomi last question, which I think is for you, although Julia can, of course weigh in as well, which is we have so far been talking about everything leading up to a wedding, a wedding that never transpires. But that's sort of a weird way to look at it in some ways, right? I mean, in many instances, there is, in fact, a wedding and then the marriage doesn't last. It may last a short time or a long time. What happens after the wedding in terms of either all of these gifts that we've been talking about, engagement ring, take your pick.

[53:37] Naomi Cahn: Well, this is actually something I think, that all three of us think about. It certainly comes up in property law for Julia. It comes up in family law for me, as well as in trusts and estates. But when a gift is given, it is given to the recipient. And in about 40 states upon divorce, a gift given to an individual remains that person's separate property. And so in those states at least, an engagement ring will often be considered to be a gift given to the individual spouse who received it and that person can walk away with it. Wedding rings, however different presumptions wedding rings are presumed to be marital and to be split. So if one person gets a very expensive diamond encrusted wedding band and the other one gets a far less expensive wedding band, then those may both be considered to be marital property that can be distributed. Now, I'll also say that as Julie and I, as we all know, in about ten states ranging from Connecticut to Indiana and another set of states as well, all property, regardless of whether it was a gift or not, might be divided at divorce. And in those states, an engagement ring would not necessarily be considered to be the property of the recipient. But apart from those states, in the vast majority of states, including Virginia, the ring will be presumed to be a gift to the recipient's spouse, but not the wedding rings. That's interesting, but not necessarily the wedding rings. I mean, there can be intent. You can write a prenup in which you specify what will happen to each of these, but we're talking here about default rules that will take place if people haven't arranged out of them or if there is an intent. For example, if I'm given an engagement ring or a wedding ring and the donor says, all right, I am giving this to you, but if we break up or I am giving this to you out of joint funds and so it's considered to be joint property if we're married. If we're not married, there can be a showing of intent as well.

[56:14] Kim Krawiec: Interesting.

[56:15] Naomi Cahn: William, do you want to add it's.

[56:17] Julia Mahoney: Fascinating and it makes sense to me. The engagement ring is the property of the recipient because the condition has been fulfilled. Right, condition has been fulfilled. So now it is the recipients, free and clear.

[56:31] Kim Krawiec: Certainly under the conditional gift model that makes sense.

[56:36] Julia Mahoney: Model. That seems to me an acceptance. Exactly. Conditional gift model, which interests me greatly. But I'm fascinated by these kitchen sink states where all the property, whenever and wherever acquired is up for distribution. As a practical matter, the courts are not giving whopping property settlements to someone who say is married for a very short time, to a person of massive assets, length of marriage and all sorts of considerations are taken into account. Is that accurate?

[57:12] Naomi Cahn: That is accurate. That's right. And I'll also say that the rule is different upon death with respect to if someone's cut out of a will, then everything can come in and possibly be subject to the elective share. So there's differences at divorce and death.

[57:28] Kim Krawiec: So when you guys say there's this kitchen sink approach or kitchen sink states. What you mean by that is that all of the property is considered to be joint property to be distributed regardless of when it was acquired or by whom, even if it was before the marriage. Is that right?

[57:50] Julia Mahoney: So all up for equitable distribution and equitable distribution is not equal distribution.

[57:55] Kim Krawiec: It's not equal distribution. Okay, got it. And then there are other states that have a rule that it's only the joint assets that were acquired during the marriage that are subject to division or no. Is that right?

[58:12] Julia Mahoney: With carve outs? Yeah, with carve outs for gifts.

[58:18] Naomi Cahn: Let me just read you the Connecticut statute. A court at the time of divorce, a court may assign to either spouse all or any part of the estate of the other spouse.

[58:30] Julia Mahoney: All right, I'm adding that to my property materials for when I cover marital property this coming spring. I will send you the site. Thank you. So you see an example of a kitchen.

[58:43] Naomi Cahn: And then there's also community property states have the same rule as the majority of states with respect to there's a pot of what's deemed to be marital or community property versus separate property. So the real division in states at divorce is not between community property and non community property. At divorce, the distinction is between the marital community property states versus these hot pot kitchen sink states.

[59:14] Kim Krawiec: So you guys are going to keep writing about this? This is the first salvo.

[59:19] Julia Mahoney: I hope so. I think there's a lot to be said about this, and broadly speaking, I think there's great to be said about women altruism and property.

[59:27] Kim Krawiec: Agreed? Agreed. All right, I am looking forward to seeing the next installment then. Thank you both for doing this. This was a lot of fun.

[59:36] Julia Mahoney: So thank you.

[59:37] Naomi Cahn: Thanks for the inspiring conversation.