New Article: Spencer Rand, The Real Marriage Penalty: How Welfare Law Discourages Marriage Despite Public Policy Statements to the Contrary – and What Can Be Done About it, 18 UDC/DCSL L Rev. 93 (2015). Abstract below:
On marriage, people lose welfare benefits abruptly. It is devastating to them, diminishing and in some cases overwhelming any economic benefits of marriage. It makes marriage unattainable and a status for the rich alone. It is also a surprising and unintended outcome of policymakers, who since at least Reconstruction and with much fanfare in the 1996 welfare reform touted marriage for the poor as a self-help measure and poverty cure. It is these same government policy makers, however, who make marriage impossible. Low-income people tend to marry each other. Both incomes need to be brought into the home to raise people out of poverty. When people lose welfare on marrying, the family’s combined income is often lower than if they had stayed separated or chose to live together without marrying. They cannot survive. Unable to marry, they are statistically less likely to remain together as long. They lose out on statistically more long-term relationships, long-term spousal government and employee benefits, and legal protections on the dissolution of their relationships from divorce and estate laws.
This article situates marriage promotion laws among poverty programs in the United States and looks at some of the policy reasons people have argued for the marriage as a poverty cure, such as economic, legal, and social gains, and policy reasons against marriage promotion programs, including those who think such policies are racist and disrespectful. Suggesting that marriage promotion may or may not be wrong but that marriage may be helpful to the poor whether encouraging it is appropriate, it catalogues some of the welfare programs that are much harder for married people to obtain. These include many public assistance programs, like SSI and TANF. It also includes some social insurance programs, like some Social Security and Medicare. It describes how many people are financially better off at least in the short-term by living with their partner outside of wedlock, perhaps forfeiting long-term benefits. Most commonly, the penalties stem from deeming income of spouses to each other right away and from expecting a spouse with relatively limited resources to spend those before either spouse gets help, depleting the resources that keep people out of poverty. The paper suggest delaying attributing income and resources to spouses until the family can develop the pragmatic benefits of marriage, raising the amount of income or resources married couples can have before being penalized, and creating tax credits to make marriage economically beneficial.