Economic Equality After Divorce

...Future earning power, as a crucial asset of a marriage, must be fairly distributed in the event of divorce...

...It should certainly last as long as children are dependent and until the previously dependent spouse is educated or trained to support her- or himself...

...Few husbands substantially alter their wage working hours after the birth of a child, whereas wives' employment or education is in the vast majority of cases greatly affected...

...In part, women's increased participation in the paid labor force has encouraged the assumption that they can adequately provide for themselves and their families...

...For now, however, reforming the terms of divorce and insisting on their enforcement are good places to begin...

...If so, is there a causal connection between no-fault divorce and any deterioration that has occurred...

...Where one spouse has significantly helped the other to achieve such qualifications, in the expectation that the resulting income would be shared by the family as a whole, it seems only reasonable for courts to insist that, in the event of divorce, the contributing spouse be adequately compensated...

...Weitzman reports the responses of forty-four California judges to the following hypothetical case: A nurse, married at eighteen, and her doctor husband are divorcing, eleven years later...

...384 • DISSENT Women and Rights Regardless of the disagreements about the extent and causes of divergent standards of living after divorce, there is little doubt that, on average, men fare significantly better than do both women and the almost 90 percent of children who are, usually by mutual consent, in the mothers' custody...

...Career assets should be perceived as marital assets only, it seems, when the non-training partner can show that his or her potential for work advancement has been sacrificed in contributing to that training...

...It is far more harmful, though, in the event of divorce, for the spouse who has had (usually) his earning power at worst unaffected and in most cases enhanced by the marriage to be allowed to walk away with this enhanced capacity...

...One problem with the focus on degrees and professional qualifications is that it can benefit only a minority of ex-wives and children—and not necessarily those most badly affected economically by divorce...

...As well as providing support while he trains for a more prestigious career, as in the above case, a wife often contributes even more directly to her husband's work...

...More than half of divorced men fail to meet the (inadequate) payments asked of them...

...Automatic withholding from paychecks has helped to some extent, but levels of nonpayment are still intolerably high...

...Might further reform of the divorce laws alleviate the problem of maternal and child impoverishment in the United States...

...Anyone who has ever paid for child care of reasonable quality in order to earn an income (at the very least, $5,000 per child per year in a regulated setting) will immediately perceive this oversight in the study...

...In some states, until recently, they could be divorced on the grounds of desertion if they did not...

...The situation has become even worse in the last two decades...

...That depends on the length as well as the practices of the marriage...

...However, later studies, both in other states—Vermont and Connecticut, for example— and of national samples, have also found large disparities in economic well-being between men and women after divorce...

...This belief is illfounded in most cases, and especially when a couple has had children...

...Because of the typical division of labor in the family, the husband has usually developed his earning capacity to a far greater extent than the wife...

...As the authors of several chapters in Stephen Sugarman's new volume, Divorce Reform at the Crossroads (New Haven: Yale University Press, 1990), make clear, it was not feminists who initiated or fought for no-fault divorce...

...As Deborah Rhode and Martha Minow point out: "In part, the absence of women's concerns from the debate reflected the absence of women...

...Even for many who are not poor by official standards, the sudden drop in standard of living that often follows separation or divorce is extremely disruptive...

...Some argue that a social insurance scheme akin to Social Security should be available to supplement income after divorce when the parties are not making enough to provide adequately for both postdivorce households...

...Even within a marriage, though, this does not dictate that the nurturing spouse must be economically dependent on the wageearning spouse...

...Moreover, in Weitzman's sample of divorces, the average assets were worth what the husband earned in ten months...

...One study* assumes that a household consisting of one parent and two small children will require less income to achieve a given standard of living than a household with two parents and two small children...

...This is partly due to a sex-segregated labor market that discriminates against women, but it is also directly tied to the typical marital division of responsibilities...

...Child custody, child and spouse abuse, and surrogate motherhood are the issues most likely to capture the attention of the media...

...It will come about only if and when we insist that workplaces take into account real-life concerns, such as parenting and the care of elderly parents...

...that she focuses too much on the minority of divorces in which there is a home owned and in which spousal support is awarded...

...This action might also eventually result in the reallocation of responsibilities within marriage...

...It is said they spearheaded the no-fault "revolution" and argued for the equal, gender-blind treatment of divorce that has allegedly caused the problems...

...About this moral issue of what is a fair distribution of income after marital breakup, there is also disagreement...

...These latter disagreements are both about the likely effectiveness of changes in the laws themselves or in the ways they are applied, and also about what is fair in the economic outcomes of divorce...

...Treating divorcing women just the same as men, they claim, is not a solution...

...Surely not...

...Ex-wives with few recognized skills and little experience of wage work are unrealistically expected to be able to support themselves and their children within a few years...

...rather, it is a large part of the problem...

...Part is about solutions...

...To what extent can changes in divorce law help to alleviate the economic distress experienced by so many women and children after divorce...

...Marriage involves a commitment to the collective well-being, and given our gendered patterns of socialization, it is hardly surprising that many couples still choose to divide up the earning and nurturing responsibilities of a family unevenly...

...It is often claimed that they therefore need not receive spousal support, regardless of the division of labor within a marriage...

...Most students of the problem agree that changes in family law alone cannot completely solve it...

...And since in 90 percent of divorces, children live with their mothers, one can see why, as Weitzman puts it, "for most women and children, divorce means precipitous downward mobility—both economically and socially...

...This problem has raised controversy among feminists, as well as between feminists and nonfeminists...

...As the doctor and nurse case demonstrates, many of those who exert considerable power over the outcome of divorce think that each ex-spouse should become selfsufficient as soon as possible, leaving the other unencumbered by long-term financial responsibilities...

...Most displaced homemakers aged 386 • DISSENT Women and Rights forty-five or more have very little chance of earning more than a small fraction of what their ex-spouses can earn...

...Others, arguing for equal treatment, claim that such laws reaffirm the very roles and assumptions that have caused so many problems for women in the first place...

...Some of Weitzman's critics seem far removed from the actualities of contemporary family life...

...The feminization of poverty has proceeded at such a pace that, if present trends continue, all of those below the poverty line in the year 2000 will be women and children...

...Given the division of labor in most marriages, this would be unjust...

...Saul D. Hoffman and Greg Duncan, "What Are the Economic Consequences of Divorce...

...So it is ironic that the worsened situation of women after divorce should now be blamed on feminists...

...No-fault divorce, rather, was promoted primarily by law reformers who wanted to eradicate the fraud and hypocrisy often present in fault-based divorce and by advocates for men who considered themselves abused by unfair awards of alimony...

...Demography 25:4, November 1988...

...How this should best be done is likely to depend on the circumstances...

...The (rare) male homemaker or the highly involved father who scales back his work because of nurturing responsibilities SUMMER • 1991 • 383 Women and Rights deserves the same fair treatment as the women who, far more often, undertake these roles...

...What is the problem—the laws themselves, the ways they are applied in the courts, or the larger socioeconomic inequality of women and those who depend on them...

...and that the disparity in standards of living she finds is not borne out by her own data and is far greater than that found in other studies...

...In the case of long-term marriages, it should continue permanently...

...The differences in economic impact of divorce upon men, women, and children have also become increasingly visible...

...Partly in acknowledgement of the ways in which wives contribute to the career advancement of their husbands, the courts in some states have recently begun to treat professional degrees and qualifications as marital property...

...Weitzman's most striking finding is that, in the year after divorce, the standard of living of the ex-wife's household (adjusted for need) falls by 73 percent, whereas that of the ex-husband rises by 42 percent...

...This is seldom publicly acknowledged, except sometimes in the prefaces of books...

...Arrangements after divorce should aim to equalize the standards of living of both postdivorce households...

...Where this is inappropriate or not desired, it seems fair that such past contribution be taken into account in determining spousal support...

...It would scarcely be fair for a wife who had trained as a teacher after raising her children, and had meanwhile continued to assume most of the household responsibilities, to owe her higher-earning husband for her training, should they divorce...

...The great majority maintained that it would be unfair to thus encumber him, since she was capable of supporting herself...

...Later I will argue that, on this issue, equal treatment is not a problem...

...They also argue that because, in many states, the shift to no-fault coincides with other changes in divorce laws—those having to do with the distribution of property and alimony—it is almost impossible to isolate the effects of no-fault...

...What is happening to women and children after divorce is clearly unfair...

...But these are not the only troubling issues...

...The 1984 Child Support Amendments and 1988 Family Support Act require the states to enforce spousal and child support laws more stringently...

...And one of the biggest remaining problems is that of enforcement...

...Family homes are often ordered sold upon divorce, so that there can be an immediate division of the couple's assets...

...Only 31 percent said they would require such support...

...Some claim that in order for divorce settlements to be fair, and to save divorcing women and their children from poverty, women need special treatment, not just equal rights...

...But such charges distort history...

...The judges were asked whether they thought it was fair to require her former husband to support her while she did so...

...Critics have charged that Weitzman overgeneralizes from California, an atypical state...

...But what would be fair, and how might it be achieved...

...She supported them for ten of these years, while he finished college and his medical training...

...This will come about only if and when we radically revalue the presently unpaid domestic contributions of women...

...By the late 1980s half of all single parents in the United States lived below the poverty line, and 70 percent of these poor families were headed by divorced or separated women...

...The legal and policy changes I have suggested here can all be achieved within the equal rights framework...

...Few husbands are willing to move so SUMMER • 1991 • 385 Women and Rights that their wives can pursue new work opportunities, whereas wives do this routinely...

...Not only wives but children too are subjected to undue physical and economic dislocation, at the very time they are likely to be psychologically vulnerable...

...This is a clear case of the simultaneous assumption and neglect of "women's work" that is prevalent in many branches of scholarship...

...What is needed are laws that protect those of either sex who have forgone economic advancement because they have been wholly or primarily responsible for the unpaid work of their families...

...The education of family court judges will have to play a major role...

...Part of the controversy about the economic aftermath of divorce concerns facts and causes...

...I have recently argued in Justice, Gender, and the Family (New York: Basic Books, 1990), that such dependence should be minimized by legally mandated sharing of the earner's paycheck...

...But divorce settlements all too seldom take account of this central disparity...

...What explains this approval of such blatant injustice...

...But, in making this assumption, the study pays no attention to how the children are cared for while the income is earned...

...Sometimes the blame is laid on feminists and their drive for equal rights...

...Weitzman argues that, with no-fault divorce, women lost the considerable bargaining power they often had either as the "innocent" or the more reluctant party in fault-based divorces...

...Divorce, because it disrupts the lives of women and children, can have shock effects lasting for the rest of their lives...

...How long should such equalization continue...

...The larger issue, cutting across class lines, concerns not just professional training but future earning potential and employment benefits in general...

...And, except in Wisconsin, states have failed to address the problem of family support when the earnings of both ex-spouses are inadequate to keep the two resulting households out of poverty...

...Women's greater domestic contribution has been estimated to account for 70 percent of the earnings differential between husbands and wives...

...Neither did they claim that it would improve women's postdivorce situations...

...Some commentators have expressed concern that treating education and training as marital assets may hurt many divorcing women who have completed their education or retrained after raising children, and will then be perceived as being indebted to their husbands...

...In some cases, what will most benefit the relatively untrained spouse is to be supported through an equivalent training...

...While placing considerably more demands on some divorcing men than is now customary, such arrangements seem eminently fair...

...Having lost their power to prevent or delay an unwanted divorce by holding out for economic equity, they are now less frequently being awarded the family home and are unlikely to be awarded more than short-term alimony, if any...

...But is this fair...

...Has the economic situation of women and children substantially deteriorated since the enactment of no-fault divorce, now at least an option in all fifty states...

...They do not require special rights for women, even though in the vast majority of cases women would be those who benefit from them...

...The most recent research suggests that even when wives are full-time wage workers or students, they continue to perform most of the family's housekeeping and nurturing tasks...

...There can be no good reason that one should suffer vastly more economically than the other from the breakup of a relationship whose uneven division of labor was mutually agreed on...

...And what is often the family's most valuable asset—the man's future earning Thanks to Jean Cohen and Deborah Rhode for helpful comments on an earlier draft of this article...

...Women's difficulties after divorce can be greatly alleviated without laws that are genderspecific or protective of women only...

...They have few material assets and no children, but at the time of the divorce the doctor is earning a substantial income...

...Change must begin with the recognition that future earning power is the principal asset of most marriages...

...It is probably true that the economic effects of divorce cannot be wholly alleviated without a complete solution to women's generally disadvantaged position in the economy...

...The nurse now wants to go to medical school...

...Fewer than 50 percent of divorcing couples have any tangible assets at all, once debt is taken into account...

...power—is entirely ignored when the "family property" is divided up...

...Weitzman's findings are far less surprising than is the fact that people have been so surprised by them...

...Those surprised by or skeptical of Weitzman's findings would do well not to "forget" women's unpaid work, and to keep in mind the extent to which the traditional division of labor still prevails in most marriages...

...Sometimes she works without pay for his business or practice, or contributes to his commercial networks or his scholarly or creative achievements...

...Given this, the solution aimed at by much divorce reform so far—a "clean break" as soon as possible after division of the family's tangible assets— is simply inconsistent with fairness...

...Few husbands, but many wives, choose occupations or jobs on the basis of location or flexibility of hours, in order to accommodate the needs of children...

...And they confirm that under no-fault regimes these disparities have at least somewhat increased...

...Despite the considerable increases in women's wage labor, fewer than 30 percent of wives work full-time outside the home, and the average wife who works for pay (full- or part-time) earns 42 percent as much as the average full-time working husband...

...Because of women's special capacities and their customary role as mothers, such critics of current law argue, alimony for women is justified—as is maternal preference in custody disputes...

...Laws written in these terms would be fair in two senses: they would protect from economic vulnerability those who now actually need such protection (almost all women), and they would not discriminate against or leave unprotected those men who do now or wish to break with the prevalent sex roles...

...From now on, those who wish to avoid or at least minimize such possible future responsibilities can do so by practicing a division of labor within marriage in which each shares equally in wage work and nurturing work...

...The law should be sex blind...

...Harvard sociologist Lenore Weitzman, in her influential book The Divorce Revolution (New York: The Free Press, 1985), answered "yes" to the first three questions and "all three" to the last one...

...q SUMMER • 1991 • 387 Judy JandalIMPACT VISUALS 388 • DISSENT...

...For the twoparent family, unlike the one-parent, has the option of allowing one parent to stay home with the children "for free" while the other goes out to paid work, or of having each work different shifts or part-time, thereby saving considerable child-care expenses...