Journal Issue: Children and Divorce Volume 4 Number 1 Spring/Summer 1994
The Limitations of Existing Divorce Policy
Existing divorce law largely reflects the reforms adopted in the wake of recognizing no-fault grounds for divorce. Much of the controversy that attends modern divorce centers on two issues: (1) is the movement from fault to no-fault responsible for the inadequate provision for women and children in modern divorce law, and (2) do the existing grounds for such provisions provide an adequate basis for future decisions?The Adoption of No-Fault Grounds for Divorce
Historically, the primary societal provision for child rearing has been the insistence that child rearing occur within lifelong unions in which husbands and wives were assigned highly differentiated roles, and the wife's position was legally and practically dependent on the husband's. Traditional marriages emphasized the husband's role as head of household and his obligation to provide support.46 Wives were expected to subordinate their own opportunities to the needs of their families. Family law enforced the exchange by making divorce difficult and potentially expensive for the responsible party. The permanence of marriage provided a measure of security but at the expense of the parties' independence and freedom to manage their own lives.
Reformers justified no-fault initiatives as a way to remove the hypocrisy and deceit inherent in a system that made divorce available only if one party and only one party were at fault.47 Yet, no-fault did more than simply eliminate abandonment, adultery, and extreme cruelty as prerequisites for divorce; it dismantled the traditional provisions for child rearing without agreement on a new system to take its place. Traditional marriage involved an exchange of promises to remain married "until death do us part." Breach of those promises, that is, fault, influenced custody and, in many jurisdictions, it determined alimony and property divisions. "Innocent" wives were to be awarded support in accordance with the standard of living enjoyed during the marriage and their husband's ability to pay; "guilty" wives could find themselves ineligible for alimony altogether. While support awards in practice were rarely generous for the "innocent" spouse48 and not always draconian for the "guilty," the law largely succeeded in its principal objective: reinforcing societal sanctions against divorce.
In most jurisdictions, with the passage of no-fault legislation, marriage became, for all intents and purposes, terminable at will. While the no-fault principle in its narrowest sense required only that the absence of desertion, adultery, or extreme cruelty not bar a divorce both parties wanted, a majority of the no-fault states went further and barred consideration of fault altogether. If one party wanted a divorce, the other could not prevent it, and the financial and custody decisions that followed would be made independently of the events that precipitated the breakup.49 Thus, no-fault necessarily eliminated the fault system's principal justification for postdivorce adjustments: the guilty spouse's continuing responsibility for the well-being of the family left behind. At the same time, the fact that the new system was implemented during a period of changing gender roles also reduced the importance of the major practical concern compelling postdivorce support: the dependence of women. The traditional system, which emphasized the exchange of the husband's support for the wife's domestic services, viewed women as specially suited for the care of young children and largely incapable of self-support. With the increasing work force participation of married middle-class mothers50 and women's growing insistence that they were self-sufficient equals, the very concept of "support" or "special roles" seemed archaic.
Under the Uniform Marriage and Divorce Act (UMDA) of 1970, the primary objective became a "clean break." Following divorce, there would be no continuing obligation from one spouse to another. The only surviving relationship would be with the children. To the extent one spouse needed assistance, an adjustment in the property division, rather than a support award, was preferred because the property division could be finalized with the divorce. Support in any form was justified by "need," and need was defined in terms of a dependent spouse's ability to become self-sufficient, not in terms of ability to provide for the children or to enjoy a standard of living comparable to that of the other spouse.51 Given these limited objectives, courts that provided alimony at all favored "transitional" or "rehabilitative" awards, that is, support payments for relatively short periods designed to give dependent spouses time to find a job or to acquire additional education or training.52 Women who had been full-time homemakers over the course of a marriage spanning a quarter century were expected to become self-sufficient within a few years. Moreover, even this limited provision for support was conditioned on the husband's ability to pay.53 The new law contained no recognition that husband's and wife's financial positions at divorce might reflect the gendered division of family responsibilities during the marriage, with one party taking from the marriage the financial benefit of those arrangements while the other bore the corresponding loss.54
In determining custody, Fineman describes a transformation from a system of "old, tested, gendered rules that permitted predictable, inexpensive decisions" explicitly favoring women to a complex legal determination "in which a man who pursues a custody case55 has a better than equal chance of gaining custody."56 The changes resulted from two factors. First, the traditional rules, which recognized an explicit presumption favoring mothers in determining the custody of children "of tender years," were eliminated in favor of gender-neutral standards.57 Second, with the refusal to consider fault came a refusal to consider any aspect of the parties' relationship. Many states, for example, enacted statutes favoring joint physical and legal custody without regard for whether the parents could cooperate sufficiently to make it work in practice;58 in other states, courts consider the "best interests of the child" prospectively only. In such determinations, the father's greater financial resources, even if they are the product of his lack of involvement with the children during the marriage, might outweigh the mother's greater contact and emotional commitment.59
While mothers still overwhelmingly retained physical custody under the new rules, they did so in part because few fathers sought custody.60 In a study of two counties in California, for example, researchers found that the courts awarded joint legal custody in 79% of all divorces even though mothers retained sole physical custody in two-thirds of those cases.61 Fathers thus acquired greater decision-making power without a corresponding increase in responsibility; mothers continued to assume the primary caretaking role with less security and recognition.
The combination of the changes in the grounds for divorce, support, and custody amounted to a wholesale withdrawal of legal recognition and financial support for the child-rearing role. Weitzman chronicled the results in California62 and concludes: "Just one year after legal divorce, men experience a 42% improvement in their postdivorce standard of living, while women experience a 73% decline."63 Although Weitzman's data were drawn only from select counties in California, the overall picture she presents has been borne out so consistently in different parts of the country that the major part of her findings have become paradigmatic.64
So long as divorcing women do not enjoy the employment prospects of their former mates and they bear the disproportionate responsibility for child rearing both during and after marriage, and there is no substantial postdivorce economic adjustment, a precipitous decline in the living standards of divorced women and the children in their custody is inevitable.
The controversy surrounding Weitzman's work centers on two issues: the size of the disparity she finds, and the suggestion that no-fault is responsible, neither of which is central to the feminist implications of her work.
Duncan and Hoffman,65 without contesting the drop in per capita income that Weitzman reports or the failure of divorce awards to address such earning disparities, dispute her conclusion that women experience a 73% drop in their standards of living. Weitzman arrived at the 73% figure by taking the per capita income figures and applying them to a needs standard calculated in accordance with the Bureau of Labor Standards Lower Standard Budget for an urban family adjusted for family size and composition.66 Attempting to perform the same calculations, Duncan and Hoffman find Weitzman's figure of 73% "suspiciously large"; they recalculate the drop in living standards at 33%. In addition, as Weitzman herself notes, both Weitzman's and Duncan and Hoffman's calculations overstate the increase in men's standards of living to the extent that they lose out on or need to purchase substitutes for the services their wives performed without pay, but understate the drop in women's income to the extent that there is less than full compliance with support orders, a common occurrence in the families studied.67 As Duncan and Hoffman acknowledge, however, these methodological issues go to the magnitude of the decline women and children experience, not to the existence of serious gender-based inequities.68
The second issue, of somewhat greater concern to feminists, is the suggestion that no-fault is responsible for the dire economic circumstances women and children face at divorce. Singer uses Weitzman's own data to emphasize that the financial awards made under fault-based divorce never lived up to the law's promise to protect the standard of living enjoyed during the marriage,69 and Jacob concludes that, because of shortcomings in Weitzman's research design, her "evidence falls far short of conclusively demonstrating that changes in no-fault, property and custody law are responsible for the economic plight of divorced women."70 Garrison's data demonstrate that, at least in New York, changes in the underlying rules governing divorce allocations had a much more significant impact on divorce awards than the adoption of no-fault grounds for the divorce itself.71
Even if the empirical data were less equivocal, however, there would be little feminist support for a return to fault. Weitzman herself does not advocate reintroducing fault principles,72 and Kay emphasizes the importance of taking out of divorce the "blackmail" that prompted no-fault reforms in the first place.73 Singer, invoking a liberal feminist perspective, emphasizes the ways in which the fault system constituted a "double-edged sword" that reinforced the value of a woman's domestic activities in ways that restrict "women's options outside the home and risk hurting women in the long run by suggesting that the causes and cures for inequality lie solely in the domestic sphere."74 Fineman, while otherwise rejecting much of the liberal feminist concern that family law reform will hurt women's position in the workplace, rejects altogether the emphasis on the traditional family that is central to the fault system.75 Given the myriad difficulties with the fault system, the larger issue is not whether no-fault grounds for divorce are an improvement over fault grounds, but whether the property, support, and custody provisions adopted in the wake of no-fault reform provide an adequate basis for the future.76The Adequacy of Existing Divorce Doctrine
The true divorce revolution concerns not the generosity of divorce awards, but the permanence of marriage. Fault principles, which arose during an era in which marital bonds were treated as sacred obligations that no "man" could put asunder, were never intended to treat marital dissolution as anything other than a rare—and tragic—exception to the general order. When popular acceptance of divorce increased and the pent-up demand skyrocketed, liberalized divorce became inevitable.77 No-fault swept the 50 states within 16 years of the original California legislation, and whatever the debate about causation, there is no question about the correlation.78 Within 10 years after the adoption of California's trailblazing legislation, the divorce rate had doubled.79 One of every two marriages now ends in divorce. Between 50% and 60% of the children born in the early 1980s are likely to experience the breakup of their parents' marriage by age 18.80 Whereas in 1960 nine of every ten families had a husband and a wife, by the year 2000 only three of four will.81 Rhode and Minow estimate that "70% of all single-parent families are headed by divorced or separated women and half of all female headed households are poor."82 Under the fault system, marriage, not divorce awards, served as the principal source of provision for children. Marriage is no longer so dependable.
In this context, the critical issue becomes not whether no-fault is better or worse than the fault system it replaced, but whether current law adequately provides for child rearing in an era of divorce. On this score, Weitzman's critics do not dispute her finding that divorce is economically disastrous for many women and the children in their custody. The simple explanation for Weitzman's findings is that the law does not recognize a continuing obligation from one spouse to the other following divorce and that it does not meaningfully enforce the obligation it does recognize—the one to the children.
Weitzman documents the elements that prevent the existing system from responding more adequately.83 First, the expectation that divorce would represent a clean break with no continuing obligation from one spouse to another was realistic only to the extent that the property settlement constituted an appropriate resolution of the couple's combined affairs. Few marriages end with significant accumulations of property, and, in those marriages with some property, it consists overwhelmingly of the family home. Therefore, even if all available property were awarded to the custodial parent, it is unlikely to be enough to meet the family's postdivorce needs, and there is little evidence that any state has ever attempted to use the property division in that way. Under no-fault, California mandates a fifty-fifty division of community property.84 In other states, despite clear statutory authority to use the property division to redress need, Reynolds's work demonstrates that divisions in which a custodial mother receives more than 50%, that is, more than the share to which she is entitled without taking need into account, are rare.85 Accordingly, a clean break with no surviving financial obligation following the divorce would necessarily impose substantial hardship—and constitute a clear denial of the costs of child rearing—in all but the wealthiest families.
Second, existing law provides no coherent legal basis for thinking about spousal support, and the courts do not fully implement the legal bases that exist. The provisions in the UMDA that limit spousal support to cases in which a spouse is incapable of self-support or employment outside the home are minimal at best. Long-term homemakers who earn a fraction of their former husband's salaries are, in the language of the UMDA, "able to support [themselves] through appropriate employment," and the custodial mothers of small children limited to low-paying jobs with flexible hours do not have children "whose conditions or circumstances make it appropriate that the custodian not be required to seek employment outside the home."86
Although a growing number of states also recognize lost earning potential as a basis for spousal support, few fully implement such provisions where they exist, and the recent appellate decisions reversing the failure to award support to long-term homemakers have done little to address the circumstances of mothers who bear responsibility for young children.87 Weitzman's California study and the similar studies carried out in other states demonstrate that spousal support for any period is rare. Weitzman found alimony awarded at all in only 17% of the divorces she examined; 88 Maccoby and Mnookin claim that the current California rate in the two relatively wealthy counties they studied is closer to 30%, but put the national total at only 8.1%.89
Third, although the law recognizes a clear continuing obligation to children, fathers bear relatively little of the postdivorce responsibility for child rearing, child support awards do not begin to make up the differences, and compliance is poor at the levels awarded. Unlike the provisions for spousal support, child support guidelines permit consideration of the "financial resources of the custodial parent" and often of the impact of custody on the custodial parent's employment prospects.90 Nonetheless, child support awards have never accounted for more than a small fraction of child care costs because (1) they tend to focus on immediate expenses, excluding the larger impact of children on the custodial family;91 (2) they end at age 18 and therefore exclude higher education altogether;92 (3) they have often been set in accordance with vague standards that permit the courts to decide what is "reasonable and just";93 (4) with relatively lower-earning fathers, courts tend to consider the hardship an award would impose without balancing it against the hardship lack of an award would impose on the custodial family;94 (5) with higher-earning fathers, the courts tend to limit awards to the children's immediate expenses without considering the different standards of living that result;95 (6) particularly with custody awards that involve a degree of joint physical custody, the courts may reduce the support award because of the greater sharing of caretaking responsibility without fully considering the impact on the lower-earning spouse;96 and (7) in balancing the two parents' contributions, courts often give undue weight to financial contributions while caretaking efforts remain largely invisible.97 Compounding the paucity of the awards has been a wholesale lack of compliance. The most frequently cited figures come from a 1981 study that found no payment in 25% of all cases and partial payment in another 25%.98 While more recent studies show some improvement, overall compliance remains poor and declines over time.99
The level of child support has been so egregiously low that Congress has amended federal child support laws five times since 1980.100 State law now requires employers to withhold child support payments from delinquent parents, and starting in 1994, from all parents, whether delinquent or not.101 The 1984 legislation required states to adopt discretionary guidelines, and the 1988 legislation made the guidelines mandatory. While feminists have hailed the new laws, particularly the emphasis on mandatory guidelines and automatic withholding, it is much too early to assess their effectiveness. It remains to be seen whether the new laws will be enforced with appropriate rigor for those able to pay without draconian consequences for the poor,102 whether they will adequately balance financial and nonfinancial contributions, particularly for noncustodial mothers,103 and whether they will fully redress what Okin terms the "effect of judges' tendency to regard the husband's postdivorce income as first and foremost his."104
Finally, the structure of the new laws leaves women with relatively little leverage in negotiating the settlements that account for the overwhelming majority of divorce awards. The fact that court-ordered spousal and child support awards are relatively low and difficult to obtain places the primary burden on the party who wishes to secure a transfer of assets. Under such a system, those most in need face the greatest difficulty in garnering the resources to retain the legal representation necessary to secure an adequate hearing and, thus, may be the most pressured to accept an adverse settlement.105 Moreover, game theory predicts that the party with the greater concern for the children will be more willing to trade his or her own well-being to secure custody or other concessions for the benefit of the children, placing women at a further disadvantage.106 Interview studies demonstrate that many men threaten to ask for custody as a ploy in negotiations to reduce the amount of child support.107 Others seek joint physical custody in an effort to substitute greater parenting for reduced financial obligation.108 The impact of this type of strategic bargaining is difficult to test empirically although virtually all theorists, whether conservative economists or family law feminists, emphasize its importance.106,109 Maccoby and Mnookin, in one of the few divorce studies not to rely exclusively on court records, tried to measure the impact and found that mothers who obtained sole physical custody in high-conflict cases did not appear to receive less support at a statistically significant level. At the same time, for the smaller group of mothers whose divorce decrees provided for joint physical custody but mother residence (a group of cases settled on average later in the bargaining process), a higher degree of legal conflict appeared to be associated with lower child support awards.110 Maccoby and Mnookin could not explain these results, but they credited, among other things, the use of support schedules and community property rules which, in California, are far less flexible than elsewhere.111 Given the low level of support available generally and uncertainty in the resolution of an issue so much more critical, on average, to women than to men, women have no more reason to expect favorable outcomes from the great majority of cases that settle than they do from litigation.112
Taking these factors together, Weitzman presents a compelling account of the ways in which women and the children in their custody are disadvantaged in the aftermath of divorce. In entering marriage, fathers, but not mothers, are free to devote the central part of their energies to enhancing their careers, and at divorce, they retain the full advantage from that investment. Mothers devote far more of their energies to the family during marriage, bear the disproportionate share of the child-rearing costs afterward, and receive little recognition or support for their sacrifices. Divorce awards, when they occur at all, reflect reluctance to impose a substantial hardship on former husbands far more than the needs or contributions of former wives and children. Under such a system, Weitzman's findings of economic hardship are not only unequivocal, but axiomatic.