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 the Social Science Research Network.

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.

"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," said Abrams, the Albert Clark Tate Jr. Professor of Law.

"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," Abrams said.

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, Abrams said. But they deal 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 that 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," she said.

"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.

"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.

REPORTERS: U.Va. Law professor Kerry Abrams can be reached at kerryabrams@virginia.edu and 434-924-7361 A Q&A with Abrams on marriage fraud is here.