Journal Issue: Children and Divorce Volume 4 Number 1 Spring/Summer 1994
Other Economic Consequences of Divorce
Divorce requires not only consideration of custody, visitation, and child support concerns, of course, but also property division and, in some instances, negotiations over spousal support (formerly known as alimony). While these economic consequences of divorce are less central to the interests of children than are the former topics, they nevertheless have far-reaching consequences for the quality of life that children and their mothers are likely to experience. Unfortunately, formulating clear public policy on these additional economic concerns is even more difficult than for custody and child support concerns.
One reason for this difficulty is lack of a clear consensual theory to guide public policy concerning spousal support.69 This may be why relatively few divorces have included alimony provisions, both prior to the no-fault revolution and afterward. The concept of spousal support strikes discordant notes in popular perceptions of divorce and its aftermath: the importance of a continuing support obligation by the (typically) better-earning husband versus efforts to ensure a "clean break" between divorcing spouses; the avoidance of dependent roles for women versus recognition of the disadvantages women face in a sexist society; compensation for one spouse's caretaking commitments during marriage versus appreciation that each spouse makes significant, although different, contributions to marital life; acknowledgment of the joint contributions of divorcing partners to the human capital they share during marriage versus the inherent indeterminacy of dividing that capital upon divorce; recognizing the shared construction of marital assets versus the notion that one's career, income, and other human assets are one's own after divorce. Furthermore, current conceptualizations of spousal support accord well with neither contract theory nor partnership concepts and sometimes entail controversial notions of marital property (construed in terms of career assets) that make the development of a coherent theory of spousal support an even more challenging task.2,70
Added to these difficulties is ambiguity concerning what spousal support is meant to accomplish. Is it to compensate a former spouse for marital commitments that later result in career disadvantages? If so, what is the range of marital responsibilities meriting compensation in divorce negotiations? Is it to ensure that children are adequately supported after divorce? If so, what is the theoretical distinction between spousal support and child support obligations? Is it to provide a marital partner with a period of transitional support to develop educational or job skills preparatory to fully independent living? If so, what are the rules determining when, and for how long, such support is justified? Is it to ensure that spouses have a comparable postdivorce standard of living based on their joint contributions to the marital living standard? If so, how is this affected by the length of the marriage and the premarital resources contributed by each partner? Does it derive from the need to accommodate, in financial terms, the merger of human resources that occurred during marriage? If so, how is this justly translated into monetary support? Because these questions submit to no easy or clear answers, it is difficult to derive a coherent theory of spousal support to guide policy reform.
Furthermore, a theory of spousal support is ambiguous because the marital accommodations it is intended to reflect are also influenced by broader societal incentives for which neither partner is really responsible but to which each responds. As earlier noted, the differential domestic and wage-earning roles assumed by men and women during marriage are often responsive to their realistic assessment of relative earning power and other incentives that characterize the culture at large. The roles husbands and wives assume are often constrained by how men and women are treated by society. As a consequence, when it comes to renegotiating marital assets upon divorce, it may be hard to disentangle the relative disadvantages suffered as a result of marital commitments from those suffered as a result of cultural membership. When a woman in a long-term marriage devotes herself exclusively to caretaking, by mutual agreement of husband and wife, it is reasonable to regard spousal support as a means of accommodating her contributions.71 But in the more typical case of marital partners each approaching divorce with career assets, is spousal support really an appropriate means of equalizing differences in postdivorce living standards that derive, in large measure, from gender-based differences in earning power for which neither is really responsible? As Deborah Rhode and Martha Minow have noted, "Not all the gender disparities associated with divorce can, of course, be addressed through changes in divorce law. Particularly when marriages end after a relatively short period or the couple lacks adequate resources, husbands cannot be expected to compensate for all the disadvantages facing their divorced wives. Many of these disadvantages stem from deeper structural inadequacies in employment, welfare, health, pension, and child-care policies, and from the continuing legacy of sex-based stereotypes and socialization patterns."72 Although divorce faces women, as the authors note, with "the full costs of uncompensated family duties and labor market disadvantages," there is no clear theory to explain why or how spousal support should buffer the impact of these challenges in a manner comparable to the protections offered by marriage.
In the end, it seems likely that there will continue to be ambiguity in discussions of spousal support because of the inherently difficult issues—concerning the gendered acquisition and division of marital assets, the independence or mutual dependency of former marital partners in later life, and the relations between a child's economic well-being and that of the mother—that alimony has traditionally represented in popular thought.