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Journal Issue: Children and Divorce Volume 4 Number 1 Spring/Summer 1994

A Feminist Perspective on Divorce
June R. Carbone


  1. See, in particular, Bartlett, K.T. Feminist legal methods. Harvard Law Review (1990) 103:829-88. Despite this broad definition of feminism, many women would reject the feminist label. Much of the rejection is based on the political and symbolic role of feminism over the past two decades. First, feminism is often identified with professional women and their concerns, sometimes to the exclusion of other women. Second, feminism emerged when the primary feminist struggle was to secure greater acceptance in the workplace and is often perceived as denigrating the domestic roles women have traditionally performed and the women who continue to perform them. Third, because feminists have sought to identify the ways in which the existing system subordinates women's interests, their focus has raised fears that feminists are antimen and, therefore, antifamily. Finally, there is the word itself. "Feminism," unlike the term "women's movement," sounds radical, ideological, and inflexible, like "communism" or "fascism." For a fuller account of the reaction, see Faludi, S. Backlash: The undeclared war against American women. New York: Crown Publishers, 1991.

    Feminism, however, has never been limited to its more radical, elite, or even more egalitarian elements. Indeed, much of the feminist writing of the 1980s and 1990s has sought to address women's experiences more broadly, recognizing the diversity of these experiences and paying greater attention to the distinctive roles women play. See, for example, Harris, A.P. Race and essentialism in feminist legal theory. Stanford Law Review (1990) 42:581–616; see also Matsuda, M. When the first quail calls: Multiple consciousness as jurisprudential method. Women's Rights Law Reporter (1989) 11:7–10. Feminists, for example, have been in the forefront of those celebrating the special contributions mothers make and denouncing the straitjacket which the ideology of equality imposes on women. As a movement with any intellectual coherence, feminism, which embraces a wide variety of political positions, can be defined only in terms of its insistence on addressing women's distinctive perspectives and concerns. For a discussion of these developments, see Dailey, A.C. Book review: Feminism's return to liberalism. Yale Law Journal (1993) 102:1265–86. See also Villmoare, A.H. Women, differences, and rights as practices: An interpretative essay and a proposal. Law and Society Review (1991) 25:385–410.
  2. A thorough feminist critique might well start with questioning the exclusive focus of this volume on divorce. The importance of divorce in modern American society stems from reliance on the nuclear family as the primary mechanism for ensuring the financial well-being of children. There are many feminist critiques of the traditional family and of the work force structure that makes access to a man's higher earning capacity central to the financial well-being of women and children, but they are beyond the scope of this article. For a review of the relationship between family and workplace, see Williams, J. Woman and property. In A property anthology. R.H. Chused, ed. Cincinnati, OH: Anderson, 1993. For a critique of the traditional family, see Eisenstein, H. The public/domestic dichotomy and the universal oppression of women. In Contemporary feminist thought. Boston: G.K. Hall, 1983. See also Eisenstein, H. The state, the patriarchal family, and working mothers. In Families, politics and public policy: A feminist dialogue on women and the state. I. Diamond, ed. New York: Longman, 1983.

    Moreover, the emphasis on divorce necessarily focuses on those families with enough money to fight over. See, for example, Weitzman, L.J. The divorce revolution: The unexpected social and economic consequences for women in America. New York: Free Press, 1985. In poor families, financial awards are less important, and custody is less likely to be an issue than in wealthier families (see p. 233). Accordingly, divorce law, cases, and disputes, and the corresponding feminist critiques, tend overwhelmingly to focus on the concerns of the middle class. A broader discussion would necessarily examine provision for the family outside the divorce system. See, for example, Erie, S.P., Rein, M., and Wiget, B. Women and the Reagan revolution: Thermidor for the social welfare economy. In Families, politics, and public policy: A feminist dialogue on women and the state. I. Diamond, ed. New York: Longman, 1983.
  3. One of the divisions among feminists is disagreement over the importance of children. Some feminists, particularly "cultural feminists," or "feminists of difference" (see discussion below), believe that one of the important differences between men and women is that women care about children more than men do, are more willing to sacrifice their own interests for those of their children, and are at a disadvantage in negotiations with men as a result. These feminists believe that increasing the importance society attaches to children will benefit women and that emphasizing the importance of children should be a central part of feminist strategy. Other feminists, particularly "liberal feminists" or "sameness feminists," have attacked the identification of women's interests with children's interests and insisted that women's interests be considered in their own right. For a discussion of the differences between the two groups, see generally Williams, J. Deconstructing gender. Michigan Law Review (1989) 87:797–845. For a discussion of how these differences affect divorce and other social policy issues, see Joffee, C. Why the United States has no child care policy. In Families, politics and public policy: A feminist dialogue on women and the state. I. Diamond, ed. New York: Longman, 1983. Carbone, J., and Brinig, M.B. Rethinking marriage: Feminist ideology, economic change, and divorce reform. Tulane Law Review (1991) 65:953–1010. Fuchs, V. Women's quest for economic equality. Cambridge, MA: Harvard University Press, 1988, pp. 67–72.
  4. Fineman, M.A. The illusion of equality: Rhetoric and the reality of divorce reform. Chicago: University of Chicago Press, 1991, p. 176. For documentation of the wage gap and its causes, and the impact on children, see discussion below in notes nos. 15–26, 118, and the accompanying article text.
  5. Mason, M.A. The equality trap. New York: Simon and Schuster, 1988.
  6. The higher incidence of divorce and the inadequacy of divorce awards is part of a more general shift away from the traditional family (a two-parent household consisting of a breadwinner and a caretaker) as the exclusive societal mechanism for child rearing. For a discussion of the combined impact of these changes on children, see below. For a discussion of the conflicts women experience in an era of both greater employment opportunities and lesser recognition of the domestic roles they continue to perform, see note no. 5, Mason, for a feminist account and, for an economic account, Parkman, A. No-fault divorce: What went wrong? Boulder, CO: Westview Press, 1992. For a comparison of the feminist and the economic perspectives, see note no. 3, Carbone and Brinig; see also Carbone, J. Equality and difference: Reclaiming motherhood as a central focus of family law. Law and Social Inquiry (1992) 17:437–90.
  7. The terminology is Robin West's. See West, R. Jurisprudence and gender. Chicago Law Review (1988) 55:1–72.
  8. See, in particular, Kay, H.H. Equality and difference: A perspective on no-fault divorce and its aftermath. Cincinnati Law Review (1987) 56:1–90, and Bartlett, K.T., and Stack, C.B. Joint custody, feminism and the dependency dilemma. Berkeley Women's Law Journal (1986) 2:9–41, and the discussion of their work below, in notes nos. 122–125, 147, and the accompanying article text.
  9. See, for example, notes nos. 3 and 4. Cultural feminists agree with those who favor traditional family values in their emphasis on the importance of motherhood and child rearing. They disagree in that they believe women should be able to devote themselves to children without becoming dependent on or subordinate to men in doing so.
  10. See, for example, Czapanskiy, K. Volunteers and draftees: The struggle for parental equality. U.C.L.A. Law Review (1991) 38:1415–81. In addition, there is a radical feminist perspective that rejects both accounts. Catharine MacKinnon argues that there is no reason to believe that women's existing preferences reflect women's true preferences, that is, the preferences women would choose in a society free from patriarchal oppression. See MacKinnon, C. Feminism, Marxism, method and the state: Toward feminist jurisprudence. Signs (1983) 8:635–58. See also Littleton, C. Restructuring sexual equality. California Law Review (1987) 75:1279–337, and Lerna, G. The creation of patriarchy. New York and Oxford: Oxford University Press, 1986, p. 229. Radical feminists, however, tend to concentrate their critique on marriage and the traditional family rather than on divorce. For example, see note no. 2, Eisenstein.
  11. The labor force participation of women generally increased from 35% to 51% in the period from 1960 to 1986; for mothers of young children, the percentage rose from 20% to 50%. See note no. 3, Fuchs, p. 13. Working-class mothers have never had the luxury of staying out of the labor force. See Chafe, W. Women and equality: Changing patterns in American culture. New York: Oxford University Press, 1977, p. 23.
  12. Bergmann, B. The economic emergence of women. New York: Basic Books, 1986, p. 263. Robinson reports a generational change, however, finding that, between 1965 and 1985, women's time spent on housework declined from 27 to 20 hours a week while the time spent by men increased from 5 to 10 hours a week. Robinson, J.P. Who's doing the housework? American Demographics (December 1988) 10:24. Hochschild's findings, however, are closer to Bergmann's. Hochschild, A., with A. Machung. The second shift: Working parents and the revolution at home. New York: Viking, 1989.
  13. See note no. 3, Fuchs, p. 78.
  14. For a review of the sociological and economic literature attempting to explain the failure of men to assume greater responsibility for housework, see England, P., and Farkas, G. Households, employment and gender. New York: Aldine, 1986, pp. 94–99.
  15. See note no. 5, Mason, pp. 123–24. Mason observes that the wage gap remained relatively constant, with women earning about 60 cents for every dollar earned by men, for more than half of a century. For a comprehensive examination of the differences between men and women's earnings, see Goldin, C. Understanding the gender gap: An economic history of American women. New York and Oxford: Oxford University Press, 1990. See note no. 3, Fuchs, p. 49. By the late 1980s, however, the wage gap finally began to narrow. See also Okin, S.M. Justice, gender and the family. New York: Basic Books, 1989, p. 144. Susan Moller Okin notes that, in 1987, women who worked year-round at full-time jobs earned 71% of the amount earned by full-time working men and that the increase to 71% was as much the result of a drop in men's income as of a gain in women's. For comparison, see also Younger, J. Light thoughts and night thoughts on the American family. Minnesota Law Review (1992) 75:891–915. By 1991, the hourly gap, as opposed to Okin's earnings gap, had narrowed to 78%. See, again, Goldin, p. 73. Economists attribute some of the change to an increase in women's human capital.
  16. See note no. 3, Fuchs, p. 56. Economists differ significantly in the importance they attribute to discrimination at least in part because they disagree on how to define and measure it. Victor Fuchs explains that some economists attempt to measure the extent to which the wage gap is the result of differences in human capital (typically about half of the gender differential) and then assume that the rest is the result of discrimination. He finds these studies flawed, partly because the characteristics controlled for, such as experience, may themselves reflect discrimination and partly because these studies fail to account for other gender-based differences such as those in mortality. See note no. 14, England and Farkas, pp. 159–63. England and Farkas note that statistical measures of discrimination are difficult because "we seldom have data containing information on the qualifications of applicants and employees, their preferences for job placement and promotion, and the resulting occupational distribution" and because of the feedback problems that Fuchs emphasizes. They rely, therefore, on studies of managerial attitudes that reveal consistent prejudices favoring male applicants over female applicants for higher-paying jobs to demonstrate the existence of discrimination, although the studies on which they rely fail to indicate the degree to which such discrimination has changed over time.

    Fuchs and England and Farkas agree with other economists, however, that a major factor in the wage gap is the tracking of women into lower-paying jobs. Economists attribute between 6% and 39% of the wage gap to such occupational segregation, depending on the methodology and number of positions used. For a review of these studies, see Hewlett, S.A. A lesser life: The myth of women's liberation in America. New York: Warner Books, 1986, p. 430. Hewlett sets the overall figure at about 15%. Economists argue that discrimination excluding women from higher-paying "male" jobs "crowds" women into the lower-paying occupations open to them, depressing wages further as supply increases. See note no. 14, England and Farkas, pp. 166–72. England and Farkas observe, though, that this thesis does not correspond sufficiently well with empirical data to provide a full explanation, and they argue that other factors, including employer discrimination against positions identified with women and the interaction of discrimination with family responsibilities, are necessary to provide a complete picture. For a comprehensive review of these issues, see note no. 15, Goldin.
  17. In what England and Farkas, note no. 14, termed in 1986, "the most exhaustive analysis to date," Corcoran and Duncan attributed 44% of the earnings gap between white men and women to experience, that is, years out of the labor force since completing school, years of work experience prior to one's current job, years with present employer, the proportion of working years that were full time, absences due to illness of oneself or others, limits placed on hours or location, and the like. Corcoran, M., and Duncan, G.J. Work history, labor force attachment, and earning differences between the sexes. Journal of Human Resources (1979) 14:3–20. The relationship between the earnings of African-American men and women is more complex, given the interaction of race and gender. For a summary of the statistics showing the gap between African-American men and women to be narrower than that between white men and women, see Bruch, C.S., and Wikler, N.J. Economic consequences. Juvenile and Family Court Journal (Fall 1985) 36:5–26.
  18. See note no. 16, Hewlett, p. 74. Conservative economists attribute a higher percentage of the wage gap to differences in human capital and family responsibilities; liberal economists attribute a higher percentage to discrimination.
  19. See note no. 3, Fuchs, pp. 60-64. Fuchs emphasizes that "[w]omen's homemaking responsibilities reduce their earnings, and, in a feedback loop, the lower earnings induce behavior that further depresses women's labor market opportunities." See also note no. 14, England and Farkas, for an explanation of the feedback effects that they find pervasive between the employment and household aspects of sexism. For a discussion of the differences among economists on the relative importance of discrimination, see Bergmann, B. Feminism and economics. Academe (September/October 1983) 69:22–25.
  20. Blau, F.D., and Ferber, M.A. The economics of women, men and work. Englewood Cliffs, NJ: Prentice-Hall, 1986.
  21. "The expectation of a domestic division of labour between men and women encourages a sex-stereotyping in education and the labour market which puts all women, whether or not they ever become mothers, at a disadvantage relative to men." Joshi, H., and Newell, M.L. Family responsibilities and pay differentials: Evidence for men and women born in 1946. Discussion Paper No. 157. London: Center for Economic Policy Research, March 1986.
  22. Polachek, S.W. Women in the economy: Perspectives on gender inequality. Paper presented at the U.S. Commission on Civil Rights Conference on Comparable Worth. June 6–7, 1984. See also Polachek, S.W. Occupational segregation and the gender wage gap. Population and Research Review (1987) 6:47–67. Other studies attribute between 25% and 44% of the wage gap to work tenure. See, for example, note no. 17, Corcoran and Duncan (44%), and Rytina, N.F. Tenure as a factor in the male-female earnings gap. Monthly Labor Review (April 1982) 105:32–34 (25%).
  23. Blau, F.D., and Kahn, L.M. The gender earnings gap: Learning from international comparisons. AEA Papers and Proceedings (1992) 82:533-38.
  24. See note no. 3, Fuchs, pp. 59–60.
  25. See note no. 16, Hewlett, pp. 83–84. The author also notes that the number and spacing of children affect the wage differential as well.
  26. See note no. 3, Fuchs, pp. 58–60.
  27. Maccoby, E.E., and Mnookin, R.H. Dividing the child: Social and legal dilemmas of custody. Cambridge, MA: Harvard University Press, 1992, p. 59. Some 53% of the divorcing women, however, had not worked full time during the marriage, 31% had not worked outside the home at all, and the others had been employed less than 30 hours a week.
  28. See note no. 3, Fuchs, p. 52.
  29. See note no. 16, Hewlett, p. 82. See also Bianchi, S.M., and Spain, D. American women in transition. New York: Russell Sage Foundation, 1986, p. 202. Bianchi and Spain observe that the 26% of all wives who work full time earn 63% as much as the average full-time working husband while the average wife who works for pay earns only 42% as much as the average husband.
  30. Becker, M. Maternal feelings: Myth, taboo, and child custody. Review of Law and Women's Studies (1992) 1:133–224. Becker terms maternal feelings, "myth and taboo." The myth is that all women find their greatest emotional fulfillment in children, especially infants, while all fathers are emotionally distant from their children, especially infants. The taboo is one "against realistically exploring either the intense pleasures or the difficulties and the pains of women's relationships with their children" (see p. 136).
  31. See note no. 4, Fineman. Becker cites Martha Fineman as one of the first family law scholars to acknowledge the different positions of mothers and fathers. See Sanger, C. M is for the many things. Review of Law and Women's Studies (1992) 1:15–67 for a review of the literature on motherhood. Outside family law, there has been greater discussion of these issues. See, in particular, Chodorow, N.J. What is the relation between psychoanalytic feminism and the psychoanalytic psychology of women? In Theoretical perspectives on sexual difference. D.L. Rhode, ed. New Haven, CT: Yale University Press, 1990.
  32. Genevie, L., and Margolies, E. The motherhood report: How women feel about being mothers. New York: Macmillan, 1987.
  33. See note no. 32, Genevie and Margolies, p. 84.
  34. See note no. 32, Genevie and Margolies, p. 319.
  35. Ehrensaft, D. Parenting together: Men and women sharing the care of their children. New York: Free Press, 1987, p. 114.
  36. In the first study, the researchers interviewed only mothers; in the second, a nonrandom sample of mothers and fathers. Both studies relied on self-reports, and both are inevitably influenced by cultural reinforcement of existing gender stereotypes. Moreover, the studies focus on perceptions of mothers' emotional involvement and identification with their children; they do not establish that all mothers experience the same involvement, that fathers are incapable of similar feelings, or that these emotional connections necessarily make for better parenting.
  37. See generally note no. 31, Sanger; Rich, A. Of woman born: Motherhood as experience and institution. New York: W.W. Norton, 1986; French, M. Her mother's daughter. New York: Ballantine, 1987; Swigart, J. The myth of the bad mother: The emotional realities of mothering. New York: Doubleday, 1991.
  38. For a systematic review of the data suggesting that women have a greater demand for children than men, see note no. 3, Fuchs, pp. 67–73. Fuchs concludes that the "evidence concerning a gender difference with respect to children is not air-tight, but its appearance in so many different contexts makes this explanation more credible than any other that has been proposed."
  39. There is not necessarily a "feminist" position as to whether gender differences in nurturing exist just as there is no necessary feminist position on the existence of earning disparities between divorcing spouses. Rather, there is a feminist critique of the studies employing economic or other social science methodologies to the extent those studies exclude women's perspectives or otherwise reflect systematic bias. See, for example, note no. 4, Fineman, pp. 127–43.
  40. See, in particular, note no. 10, MacKinnon.
  41. See Williams, J. Domesticity as the dangerous supplement of liberalism. Journal of Women's History (1991) 2:69–88. Williams, for example, says of Carol Gilligan's work on gender differences in moral reasoning that "Gilligan identified, not differences in women's actual behavior, as she assumed, but instead women's 'voice' in a much more literal sense: she gave a status report on female gender ideology in the late twentieth century." (Emphasis in original.) Williams's critique would apply with similar force to the studies on which Becker relies.
  42. See note no. 4, Fineman, p. 8.
  43. See note no, 3, Fuchs, p. 68. The author observes: "Suppose women were better than men at producing and caring for children but had no particular desire to do so, while it was the men who wanted the children and cared more about their welfare. We would probably still see the same division of labor we see now, but men would have to pay dearly for women's services. The present hierarchy of power would be reversed."
  44. See note no. 3, Fuchs, p. 8.
  45. See note no. 4, Fineman, p. 174.
  46. See note no. 8, Kay, p. 78.
  47. See note no. 8, Kay, p. 62.
  48. Whatever the law, alimony awards of any kind never occurred in more than a small percentage of all divorces, and "guilt" barred alimony only in some, not all jurisdictions. See, in particular, Singer, J. Divorce reform and gender justice. North Carolina Law Review (1989) 67:1103–21; Melli, M. Constructing a social problem: The post-divorce plight of women and children. American Bar Foundation Research Journal (1986) :759–72.
  49. State law varies considerably, however, in the degree to which fault considerations can still be taken into account. See note no. 8, Kay, pp. 68–77.
  50. See note no. 11, Chafe. Working-class mothers had never had the luxury of staying out of the labor force.
  51. The 1970 Uniform Marriage and Divorce Act (UMDA), for example, authorized a court to award maintenance only if the spouse seeking the award "(1) lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs, and (2) is unable to support himself through appropriate employment or is the custodian of a child whose conditions or circumstances make it appropriate that the custodian not be required to seek employment outside the home." UMDA Sec. 308(a)(l), (2) (1970). This language was retained in the 1973 version. The UMDA did allow, however, the custodial parent's resources to be considered in determining child support. See UMDA Sec. 309 (2) (1970).
  52. See note no. 2, Weitzman, pp. 164, 167; Krauskopf, J. Limited duration alimony: Uses and abuses of limited duration alimony. Family Law Quarterly (1988) 21:573-89; Garrison, M. The economics of divorce: Changing rules, changing results. In Divorce reform at the crossroads. S.D. Sugarman and H.H. Kay, eds. New Haven, CT: Yale University Press, 1990, documents the decline in permanent alimony awards but disputes a connection with no-fault. But see note no. 8, Kay, p. 58, which argues that appellate courts reversed many trial court awards as inadequate.
  53. See note no. 2, Weitzman, pp. 189–90.
  54. The two clearest examples are the ones most often cited in the divorce literature: the spouse who puts the other through school only to find the marriage ending upon graduation (that is, just as the return on the investment is about to be realized) and the spouse who sacrifices her own earning capacity to raise the children so that the other spouse is free to pursue his career. In both instances, the married couple undertook investments in which, so long as the marriage lasted, they both expected to share the costs and the benefits. In both instances, the divorce separated the costs from the benefits, assigning the gain to one party and the loss to other. For a more systematic discussion of these issues, see note no. 3, Carbone and Brinig, pp. 998–1000.
  55. See note no. 4, Fineman, p. 221. Fineman does not distinguish between physical and legal custody in this passage, and the studies she cites refer to both forms of custody.
  56. See note no. 4, Fineman, pp. 79, 80, 90. The author cites two studies: note no. 2, Weitzman, pp. 231–35, and Polikoff, N. Why mothers are losing: A brief analysis of criteria used in child custody determinations. Women's Rights Law Reporter (1982) 7:235–43. Weitzman's figures show that, in 1977 in Los Angeles, 63% of the small number of fathers who requested either physical or legal custody received it, a figure that includes both contested and uncontested cases. Polikoff cites Weitzman and four other studies of court records. Three of the studies show men winning about half the time; the other, 38% of the time. See also note no. 30, Becker, pp. 182–83, 192–201. Becker further reports two studies, one in a North Carolina county under a best interests standard and her own study of West Virginia appellate cases applying a primary caretaker standard, in which fathers received sole physical custody in more than 60% of litigated cases at the trial level. Becker and Polikoff also review individual cases to demonstrate the bias toward women in the decisions. See also note no. 27, Maccoby and Mnookin, p. 273. The authors suggest selection bias to the extent that only the fathers with the strongest claims pursue them through the conclusion of litigation. Maccoby and Mnookin find that, where custodial conflicts are resolved after a court-appointed evaluation, through negotiations on the courthouse steps or through adjudication, there is a fifty-fifty division between mothers and fathers.

    See note no. 4, Fineman, p. 174. In the end, Fineman's point is not so much that mothers are losing custody, but that the legal system trivializes mothers' emotional connections with their children by failing to grant express legal recognition of the importance of those connections and increases the likelihood of biased decision making in the process.
  57. The express maternal presumption common earlier in the century has disappeared and is widely believed to be unconstitutional. Virtually all states decide custody in accordance with a "best interests of the child standard." Thirty-seven states authorize joint legal and physical custody awards, with a few states requiring the agreement of both parents and a few states recognizing a rebuttable presumption that joint custody is in the child's best interests. One state, West Virginia, has adopted a primary caretaker standard in which sole legal and physical custody is awarded to the parent who assumed the greater responsibility for the child's care during the marriage. See Bruch, C.S. And how are the children? Internal Journal of Law and the Family (1988) 2:106–26.
  58. See note no. 27, Maccoby and Mnookin, pp. 273–74. "Our most disturbing finding . . . concerns the frequency with which joint physical custody decrees are being used by highconflict families to resolve disputes." See also note no. 57, Bruch, pp. 109, 122 for a review of the studies assessing joint custody.
  59. See note no. 30, Becker, p. 178, at notes nos. 173 and 174; see also note no. 4, Fineman, p. 132, and note no. 57, Bruch, p. 113.
  60. See note no. 5, Mason, p. 87.
  61. See note no. 27, Maccoby and Mnookin, pp. 107–108.
  62. See note no. 2, Weitzman.
  63. See note no. 2, Weitzman, p. 339 (emphasis in original deleted).
  64. See, for example, Arendell, T. Mothers and divorce: Legal, economic and social dilemmas. Berkeley: University of California Press, 1986 (90% of the women in the small sample studied found themselves at or near the poverty line; four years later, only 9 of 60 had been able to halt the economic fall prompted by divorce, p. 37); Duncan, G., and Hoffman, S. What are the economic consequences of divorce? Demography (1988) 25:641–45 (reporting 30% drop for women); Wallerstein, J.S., and Kelly, J.B. Surviving the breakup: How children and parents cope with divorce. New York: Basic Books, 1980 (three quarters of the divorced women studied in an affluent county experienced a significant decline in their standard of living); Wishik, H.R. Economics of divorce: An exploratory study. Family Law Quarterly (1986) 20:79 (120% gain for men; 25% drop for children, 33% drop for women, assuming all support paid); McLindon, J. Separate but unequal: The economic disaster of divorce for women and children. Family Law Quarterly (1987) 21:351–409; Bell, R.B. Alimony and the financially dependent spouse in Montgomery County, Maryland. Family Law Quarterly (1988) 22:225–84; Rowe, B.R., and Morrow, A.M. The economic consequences of divorce in Oregon after ten or more years of marriage. Willamette Law Review (1988) 24:463–84; see note no. 52, Garrison.
  65. See note no. 64, Duncan and Hoffman.
  66. See note no. 2, Weitzman, pp. 337–38.
  67. See note no. 2, Weitzman, pp. 324, 341.
  68. Krauskopf observes: "Even those who criticize Weitzman's figures differ on amount, not on significant disparity in standard of living between ex-husbands and ex-wives." Krauskopf, J. Theories of property division/spousal support: Searching for solutions to the mystery. Family Law Quarterly (1989) 23:253–78.
  69. See note no. 48, Singer, pp. 1106–10.
  70. Jacob, H. Faulting no-fault. American Foundation Research Journal (1986) 1986:773–80. Kay similarly argues that the broad social and cultural changes that preceded and produced no-fault legislation may be more responsible than no-fault itself for the events Weitzman describes. See note no. 8, Kay, p. 67.
  71. See note no. 2, Weitzman, pp. 90–101. In arguing that no-fault reforms are responsible for the plight of divorced women and children, there are three principal arguments. The primary one is that no-fault eliminated the bargaining power of an innocent spouse whose consent was necessary for the divorce. See note no. 2, Weitzman, pp. 26–28. Elizabeth Peters compared financial awards in states that recognized no-fault grounds with the awards in states that did not and found a modest but statistically significant correlation between no-fault grounds and lesser financial awards. Peters, E. Marriage and divorce: Informational constraints and private contracting. American Economic Review (1986) 76:437–54. Jacob, however, using different data, found no correlation. Jacob, H. Another look at no-fault divorce and the post-divorce finances of women. Law and Society Review (1989) 23:95–115.

    The second argument, which I have explored at length in this article, is that, contemporaneously with the change to no-fault grounds, legislatures changed the substantive bases for divorce awards. Garrison's empirical findings lend support to this hypothesis.

    The third argument is that divorce awards have been lower under no-fault because of judicial misapplication of the new rules. See, in particular, note no. 8, Kay, p. 77; note no. 2, Weitzman, pp. 358–61.
  72. See note no. 2, Weitzman, pp. 366, 382–83.
  73. See note no. 8, Kay, p. 62.
  74. See note no. 48, Singer, p. 1113.
  75. See note no. 4, Fineman, pp. 11–12.
  76. Fault is relevant to this issue in only one limited respect. Fault-based divorce treated marriage as a contract in which the parties promised to remain married for life and in which the "remedies" imposed at divorce could reflect breach of that promise. Recognition of no-fault grounds for divorce did not eliminate those remedies, but barring consideration of fault for any purpose did. Without identification of the party responsible for the divorce, there could be no recognition of the benefits of the parties expected from the continuation of the marriage. See note no. 3, Carbone and Brinig, p. 958.
  77. For a review of the economic and empirical literature on the relationship between the divorce rate and the adoption of no-fault, see note no. 6, Parkman, pp. 71-79. Parkman argues that "[i]t appears that no-fault divorce was a response to rather than a cause of the forces that caused an increase in the divorce rate" and that, following adoption of nofault, there was an increase in the divorce rate for a short period which reflected, at least in part, pent-up demand. For a review of the historical and sociological forces underlying no-fault, see note no. 8, Ray, pp. 66-67.
  78. See note no. 6, Parkman, pp. 71-79.
  79. See note no. 6, Parkman, pp. 72-73.
  80. See note no. 15, Okin, p. 160. Okin also notes that divorce rates are dramatically higher for African Americans. In 1983, there were 126 divorced white women for every 1,000 married women; for black women, the ratio was 297 to 1,000. In 1985, 28% of ever-married white women and 49% of ever-married black women were separated, divorced, or widowed.
  81. Krause, H.D. Child support reassessed: Limits of private responsibility and the public interest. In Divorce reform at the crossroads. S.D. Sugarman and H.H. Ray, eds. New Haven, CT: Yale University Press, 1990, p. 177.
  82. Rhode, D.L., and Minow, M. Reforming the questions, questioning the reforms: Feminist perspectives on divorce law. In Divorce reform at the crossroads. S.D. Sugarman and H.H. Ray, eds. New Haven, CT: Yale University Press, 1990. See note no. 15, Okin, p. 160. Okin also notes: "Contrary to popular prejudice, female-maintained families with children consist in only a fairly small percentage of cases of never-married women raising children alone. They are in the vast majority of cases the result of separation or divorce." From 1980 to 1990, however, census data show that, of the children living in single-parent families, the percentage living with a divorced or separated parent fell from 73% to 62% while the percentage living with a never-married parent increased from 14.6% to 30.6%. U.S. Bureau of the Census. Households, families, and children: A 30-year perspective. Current Population Reports, Series P-23, No. 181. Washington, DC: U.S. Government Printing Office, 1992, p. 39. See note no. 113 below. The increase in births to never-married parents is likely to accelerate the declining importance of marriage but without any necessary implications for the well-being of divorced mothers and their children.
  83. See note no. 2, Weitzman.
  84. See note no. 8, Ray, pp. 42–43.
  85. Reynolds, S. The relationship of property division and alimony: The division of property to address need. Fordham Law Review (1988) 56:827–916.
  86. See note no. 51, UMDA Sec. 308(a)(1),(2) (1970).
  87. Estin provides a systematic examination of the lack of support in existing legal provisions for family caregivers. She argues that recognition of lost earning capacity is most commonly invoked to justify support for older women divorced after a long marriage and is rarely awarded to younger women capable of self-support. Estin, A. Maintenance, alimony, and the rehabilitation of family care. North Carolina Law Review (1993) 71:721–803.
  88. See note no. 2, Weitzman, pp. 32–36.
  89. See note no. 27, Maccoby and Mnookin, pp. 129–30. The authors note that the level of the California awards is slightly lower than the U.S. average and that compliance is also lower. They suggest that, in other states, only fathers with relatively high incomes are ordered to pay spousal support and that these men have greater ability and propensity to pay.
  90. See note no. 8, Ray, p. 49.
  91. See note no. 2, Weitzman, pp. 270–74. Maccoby and Mnookin report that child support payments constitute no more than a fraction of mothers' postdivorce family income. See note no. 27, Maccoby and Mnookin, p. 130.
  92. See note no. 2, Weitzman, pp. 278–81.
  93. Hunter, N.D. Women and child support. In Families, politics and public policy: A feminist dialogue on women and the state. I. Diamond, ed. New York: Longman, 1983, p. 207.
  94. See note no. 15, Okin, p. 165. It is also rare for combined spousal and child support payments to exceed a third of a man's income. See note no. 6, Parkman, p. 82.
  95. See note no. 93, Hunter, p. 206.
  96. See note no. 93, Hunter, p. 208. See also note no. 57, Bruch, p. 115. Bruch, however, notes some improvement on this issue. See also note no. 27, Maccoby and Mnookin, p. 155, indicating a negative correlation between joint physical custody and child support in highconflict cases.
  97. See note no. 10, Czapanskiy.
  98. See note no. 15, Okin, p. 165.
  99. See note no. 27, Maccoby and Mnookin, pp. 250–51. Maccoby and Mnookin's more recent study in two California counties found that more than half (57%) of the fathers fully complied, 23% paid nothing, and 19% made partial payments. On average, fathers paid between two-thirds and three-fourths of the child support awarded, and compliance diminished over time.
  100. Title I of the Family Support Act of 1988—The quest for effective national child support enforcement continues. Journal of Family Law (1990-91) 29:149-70.
  101. See note no. 81, Krause, p. 170.
  102. See note no. 81, Krause. Krause argues that child support enforcement laws have now gone about as far as they can without imposing unfair hardships on men, and he joins David Chambers in maintaining that such laws are already being enforced in counterproductive and unduly harsh ways on teenage fathers, particularly those from poor and minority backgrounds. See also, in particular, note no. 93, Hunter, pp. 207–14. Many feminists who otherwise favor strict child support enforcement are concerned about the possible disproportionate effect on poorer men and believe that the only possible satisfactory solution is a greater assumption of public responsibility. See also note no. 27, Maccoby and Mnookin, p. 265. Maccoby and Mnookin conclude: "In sum, not only could most fathers in our sample afford to pay the full amount of support awarded; they could afford to pay more."
  103. While feminists generally applaud the principle that all parents are responsible for their children, they are concerned about the lack of recognition of nonfinancial contributions. Noncustodial mothers often contribute more in nonmonetary ways than noncustodial fathers, and the insistence that all parents contribute some child support whatever their income may work a particular hardship on a noncustodial mother who earns much less than the custodial father and yet contributes more than the average noncustodial father to the child's upbringing. See generally note no. 10, Czapanskiy.
  104. See note no. 15, Okin, p. 165.
  105. See note no. 27, Maccoby and Mnookin, pp. 109–12. The authors found that legal representation had a strong impact on custody outcomes.
  106. See note no. 3, Fuchs, pp. 67–73. See note no. 6, Parkman, pp. 81–82. Game theory is defined as "a theoretical approach to interactive decision making, used in economics to analyze situations where prices and quantities are the outcome of bargaining by individual participants, rather than the automatic result of a competitive market." See also note no. 3, Fuchs, p. 71.
  107. See note no. 2, Weitzman, p. 310. Weitzman puts the figure at one-third. See also note no. 5, Mason, p. 83, and note no. 64, Arendell, pp. 23–24. See also note no. 27, Maccoby and Mnookin, p. 102. Maccoby and Mnookin found that 20% of the fathers in their study who told the researchers that they wanted maternal custody in fact requested joint physical custody or paternal custody.
  108. See note no. 93, Hunter, p. 208.
  109. See note no. 2, Weitzman, p. 310; and Mnookin, R.H., and Kornhauser, L. Bargaining in the shadow of the law: The case of divorce. Yale Law Journal (1979) 88:950–97.
  110. See note no. 27, Maccoby and Mnookin, p. 158. In the group of mothers who obtained sole physical custody, high conflict was a negative factor in predicting support awards, but the results were not statistically significant.
  111. See note no. 27, Maccoby and Mnookin, p. 157. The authors also note the possibility that the custody threats, on average, were not that credible. One wonders if the difference between the two populations—mothers who received sole custody as opposed to mothers who received joint physical custody but mother residence—may not have been that the fathers in the latter sample had more credible threats. See p. 151, Table 7.6, indicating that 40% of the cases settled after evaluation resulted in joint physical custody compared with 25% of the cases settled after mediation and 19% of the cases settled earlier.
  112. Mandatory mediation also complicates women's prospects, although the effect is not the product of mediation per se, but of the interaction of mediation with women's weaker economic position and the existence of laws favoring joint custody and limiting economic support. See Grille, T. The mediation alternative: Process dangers for women. Yale Law Journal (1991) 100:1545–610.
  113. The other part of this picture is an increase in births to never-married mothers. See note no. 2, Weitzman. While such an increase has no particular implications for divorce policy, any comprehensive child care policy needs to address the issue directly. Most feminists posit that it is not single-parent families per se that are the problem, but the inability of single mothers, given the gendered nature of market employment, to provide adequately for their families. Joan Williams, who provides a liberal feminist critique of Carol Gilligan's work, and Martha Fineman, who presents a cultural feminist defense of femaleheaded families, agree on this point. See notes nos. 2 and 4. See also note no. 3, Williams.
  114. See note no. 3, Fuchs, pp. 96–104.
  115. For higher-earning women, the increase is a small but sharp one: from 3% to 6.4% for college-educated women and from 3% to 8.3% for professional women in the period from 1982 to the present. Ingrassia, M. Daughters of Murphy Brown. Newsweek, August 2, 1993, p. 58, citing U.S. Bureau of the Census figures released in July 1993. According to these figures, 62.5% of all American children were considered middle class in 1989 compared with 74.6% in 1969. During the same time period, the percentage of low-income children rose from 19.4% to 29.1% and the percentage of high-income children grew slightly, from 6.0% to 8.4%. See note no. 82, U.S. Bureau of the Census, pp. 23–181.
  116. 116. See note no. 3, Fuchs, p. 89; note no. 15, Okin, p. 160; note no. 2, Weitzman, pp. 178–82.
  117. See note no. 3, Fuchs, p. 107.
  118. See note no. 3, Fuchs, pp. 104–10.
  119. Fineman, M. Implementing equality: Ideology, contradiction and social change. Wisconsin Law Review (1983):789–886.
  120. See note no. 4, Fineman, p. 175.
  121. See note no. 2, Weitzman, pp. 365–66.
  122. See note no. 8, Kay, p. 79.
  123. See note no. 8, Ray, p. 80, at note no. 388. Ray defines episodic analysis as "an analysis that accords legal significance to biological reproductive sex differences only during the specific episodes when those differences are being used for reproductive purposes."
  124. See note no. 8, Ray, pp. 80–81, 85.
  125. See note no. 8, Kay, p. 85.
  126. See note no. 10, Czapanskiy, p. 1416.
  127. See note no. 3, Williams.
  128. O'Connell, M.E. Alimony after no-fault: A practice in search of a theory. New England Law Review (1988) 23:437-513.
  129. See, for example, note no. 81, Krause, pp. 166-90.
  130. Glendon, M.A. The transformation of family law. Chicago: University of Chicago Press, 1989, p. 237. See also Glendon, M.A. Abortion and divorce in western law. Cambridge, MA: Harvard University Press, 1987.
  131. See note no. 82, Rhode and Minow, p. 194.
  132. See note no. 2, Weitzman, p. 388 (emphasis in original deleted).
  133. See note no. 15, Okin, pp. 165, 183 (emphasis in original deleted).
  134. See note no. 119, Fineman, p. 878, and Kay, H.H. An appraisal of California's no-fault divorce law. California Law Review (1987) 75:291–319.
  135. See note no. 48, Singer, p. 1120. Singer undertook the article, in part, as an effort to set out a justification for Weitzman's income-sharing suggestions, suggestions that also rest on the principle of recognizing the spouse's equal contributions to the marriage.
  136. Rutherford, J. Duty in divorce: Shared income as a path to equality. Fordham Law Review (1990) 58:539–92.
  137. See note no. 15, Okin, p. 138. Glendon and Fineman, without directly commenting on income sharing, have suggested that the first principle at divorce ought to be adequate provision for children and that any division between the adults ought to follow the provision for children even if that imposes a greater hardship on the noncustodial parent than on the custodial one. Glendon, M.A. Family law reform in the 1980's. Louisiana Law Review (1984) 44:1553–73. See note no. 4, Fineman, p. 177. For that reason, Fineman is critical of an exclusive reliance on an equal division that reflects marital contributions and prefers an emphasis, like that of Okin and Rutherford, on the custodial family's continuing needs.
  138. Ellman, I. The theory of alimony. California Law Review (1989) 77:1–81.
  139. See note no. 137, Glendon, p. 1560.
  140. See note no. 48, Singer, pp. 1113–18.
  141. See note no. 136, Rutherford, p. 589.
  142. See note no. 4, Fineman, p. 11; see note no. 137, Glendon, p. 1560. It is for this reason as well that feminists reject the assertion of fathers' rights groups that mothers' benefits from custody should be balanced against fathers' financial advantages. Divorce divisions are not two-way affairs; the children's interests are independent from the parents', not identical with the mother's. A mother's strong preference for or benefit from a particular custody arrangement should not justify the child's impoverishment.
  143. See note no. 48, Singer, pp. 1117–18.
  144. See note no. 68, Krauskopf; see note no. 6, Parkman.
  145. See note no. 128, O'Connell, p, 503.
  146. See note no. 48, Singer, p. 1116.
  147. See note no. 8, Bartlett and Stack, pp. 28, 32–33.
  148. See note no. 31, Chodorow, p. 142.
  149. See note no. 31, Chodorow, p. 167.
  150. See note no. 30, Becker, pp. 195–97. Becker notes an unusually high rate of reversal on appeal in these cases but emphasizes the often prohibitively high cost of appeal.
  151. See note no. 4, Fineman, p. 181.
  152. See note no. 4, Fineman, pp. 91–92.
  153. See note no. 4, Fineman, pp. 183v84.
  154. Scott, E.S. Pluralism, parental preference, and child custody. California Law Review (1992) 80:615–72.
  155. See note no. 8, Bartlett and Stack, pp. 37–39.
  156. See note no, 8, Bartlett and Stack, pp. 20–21.
  157. Cahn, N.R. Civil images of battered women: The impact of domestic violence on child custody decisions. Vanderbilt Law Review (1991) 44:1041–97.
  158. See note no. 4, Fineman, pp. 6, 94, 180.
  159. See note no. 8, Bartlett and Stack, pp. 35–37. The authors, however, favor imposition of joint custody even when "both parents do not at the outset agree to such an arrangement" and support additional research and experimentation to promote increased use of joint custody in relatively difficult cases. As evidence of the successful use of joint custody in acrimonious divorces, the authors cite McKinnon, R., and Wallerstein, J. Joint custody and the preschool child. Behavioral Sciences and the Law (1986) 4:169–83; Greif, J.B. Fathers, children and joint custody. American Journal of Orthopsychiatry (1979) 49:311,318; Roman, M., and Haddad, W. The disposable parent: The case for joint custody. New York: Holt, Rinehart and Winston, 1978; Wolley, P. Shared custody. Family Advocate (Summer 1978) 1:6,7,33; and note no. 64, Wallerstein and Kelly, pp. 130-31, 218.
  160. See note no. 10, Czapanskiy, p. 1468.