Deliberately opting out of US default rules

Some Muslims are proactively interested in ways to legitimately opt out of United States legal norms that potentially conflict with their Islamic preferences. For example, in community property states some Muslims are concerned that a community property distribution of half a wife’s property to her husband in­fringes on the Muslim woman’s right to full and exclusive ownership of her property.⁵⁸ Others believe that community property distributions should not be given to Muslim women in addition to their mahr, which they hold already to fulfil the need sought to be resolved by community property statutes.

But community property is not absolutely mandatory, even in community property states. One can opt out of community property by executing a valid pre-nuptial agreement to that effect, but few couples have the knowledge or foresight to arrange this.⁵⁹ A complicating concern is the possibility that the mahr agreement will be insufficient or not ultimately enforced, and therefore opting out of community property distribution will leave a Muslim woman with neither 5∕zα∕7'α-based nor secular-based adequate support. Ironically, there are historically established financial compensation norms in Islamic law aimed at responding to the same problem to which community property laws are addressed. Azizah al- Hibri (2000: 57) points out in this respect that under classical Islamic law, wives who perform household chores are entitled to financial compensation from their husbands for this work or, where the woman is accustomed to it in her social circles, to have paid help to do it for them because such work is not a religious obligation. While some Muslim countries today are seeking to revive this principle in practical terms in financial distributions upon divorce,⁶⁰ the doctrine remains unknown among most lay Muslims, in the United States and worldwide. Of course, enforceability of this Islamic doctrine in the United States is dependent upon voluntary compliance by ex-spouses, as it is unlikely to be applied by United States courts without some compelling reason to do so.