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Abstract

As this Article shows, the conventional historical narrative of the divorce revolution is not so much incorrect as incomplete. Histories of the divorce revolution have focused disproportionately on the introduction of no-fault rules and have correctly concluded that women's groups did not play a central role in the introduction of such laws. However, work on divorce law has not adequately addressed the history of marital-property reform or engaged with scholarship on the struggle for the Equal Rights Amendment to the federal Constitution. Putting these two bodies of work in dialogue with one another, the Article provides the first comprehensive history of the role of women, both feminists and antifeminists, in revolutionizing the law of marital property in the United States. Moreover, as the Article will demonstrate, women's groups became involved and influential in the divorce debate because of, not in spite of, the ERA. In the early 1970s, women's groups like the National Organization for Women (NOW) did not focus on family law issues, be it in the context of the ERA or otherwise. However, between 1970 and 1975, anti-feminist organizations like STOP ERA and the Happiness of Women campaigned against the Amendment by highlighting its effects on divorce reform. By the late 1970s, NOW responded by campaigning for "pro-homemaker" divorce reforms: measures such as those calling for equal or equitable distribution of marital property and laws recognizing the contributions of homemakers in the division of marital property. These reforms themselves represent a revolution in divorce law. Equitable property division, rare in 1970. became the norm in all but ten states by the mid-1980s. Whereas no states had property-division rules recognizing the contributions of homemakers in 1968, 22 states had adopted such a policy by 1983. The Article also offers new perspective on the flaws in current marital-property rules. Since discussion in the 1970s focused so heavily on the value homemakers contributed to marriage, the laws produced in that period did not adequately address the human capital brought to a marriage by the wage-earning husband. The history of marital-property reform makes apparent the need for statutes and judicial decisions that define marital property more expansively. The problem with current rules is not, as scholars have argued, that divorce reforms failed to consider women's needs. Instead, as we shall see, the problem was that women involved in divorce reform did not fully consider how those needs could best be addressed.

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