Journal Issue: Children and Divorce Volume 4 Number 1 Spring/Summer 1994
Values and Goals
Public values concerning divorce and custody have changed appreciably in recent years. A traditional concern with the assignment of responsibility for marital failure and a view of children as marital property has evolved into a preeminent concern with children's welfare in the context of a no-fault divorce regime. At the same time, divorce, custody, and child support statutes have evolved to reflect changing gender roles—both realized and idealized—in contemporary family life and, more recently, growing concern about the well-being of single mothers and their offspring. As a consequence of these changes, contemporary discussions of divorce and custody, visitation, child support, and other features of postmarital life reflect a variety of implicit goals, priorities, and value assumptions. It is important to think clearly about value preferences in this area not only to clarify the basis for preferring one policy proposal over another, but also to foster coherent public policy concerning divorce and its consequences which is designed to advance clear public purposes.Changing (Not Terminating) Relations Between Parents
In the minds of most people, divorce signifies a "clean break" between two adults who have decided that they can no longer live together. As the final termination to an unhappy marriage, divorce is intended (among other things) to permit former spouses to inaugurate new relationships with other partners and begin new lives apart. But even within this traditional conception of divorce, many things keep former partners in contact with each other. The most important of these are children, who require that their parents coordinate their lives to foster visits with the noncustodial parent (or shared custody with each parent), negotiate child support arrangements that may be modified as family conditions change, and occasionally meet congenially on special occasions (like graduations or weddings). After all, divorcing a spouse does not require divorcing offspring. Moreover, as family conditions become increasingly fluid, events like remarriage, the birth of new offspring with a new partner, changes in employment and income, residential mobility, and the break-up of a remarriage can each compel modifications of visitation, support, or custody arrangements. Thus contemporary divorce surprises a couple with the discovery that, even though they are making a "clean break," they must nevertheless maintain a future relationship.
Should the process of divorce continue to encourage partners to perceive their relationship as ended, or should it instead institute structures for facilitating ongoing interaction between them? Although there are many reasons that adults would prefer to terminate all contact with a former spouse (especially in the context of an unhappy or acrimonious marriage), when children are involved it is difficult to do so, and wise public policy might be usefully devoted to abandoning "clean break" notions and, instead, fostering a new and different postdivorce relationship between former spouses in the interests of their children. The effort to foster a different postdivorce relationship could include, for example, providing access to mediation not just during divorce negotiations but subsequently as clarifications or modifications in these arrangements seem necessary because of changed family circumstances. It might also include the negotiation of parenting plans by which former spouses make explicit agreements concerning each partner's long-term postdivorce commitment to the child's well-being. And it could also mean discouraging former spouses from making private agreements that enable them to terminate contact, such as when fathers pay no child support but make no visitation demands, or when mothers request no child support award to avoid obligations to the father. In these circumstances, a former spouse ensures a "clean break" but at a considerable cost to children—and to the other parent.
To be sure, children may pay a price,1 as well as receive a benefit, when their parents are required to remain in contact over issues that are important to their well-being, and special provisions are necessary when severe postmarital conflict colors these interactions. But public policies that foster the expectation of a continuing relationship with a former partner after divorce might help to ensure that adults realize that they maintain continuing obligations to offspring—and sometimes to each other—despite their desire to part. Such an expectation may change the negotiations surrounding divorce and the behavior of parents following the end of the marriage, especially if it is in the context of divorce procedures that help to establish the framework for such a future relationship. Even if they might desire it, neither partner should expect to purchase autonomy after divorce at the cost of children or of the former spouse.Fairness in the Gendered Acquisition and Division of Marital Resources
Historically, divorce and custody standards have reflected prevailing assumptions concerning gender roles and the nature of family functioning. A traditional assumption that the legitimate offspring of marriage were the father's property evolved, during the past century, into the view that young children's needs dictated custody to mother during their "tender years." In similar fashion, alimony payments to a former wife reflected the traditional assumption that marriage created an enduring support commitment, but this assumption eroded with women's rejection of dependent social roles. More recently, changes in divorce and custody standards have been guided not only by changes in gender roles, but also by efforts to eliminate sexism in domestic policymaking. Today, the most common standard is the gender-neutral "best interests of the child" standard which reflects (among other things) the view that parents should be preferred as custodians not on the basis of gender but rather because of their relationships with children, and gives social recognition to the diverse caregiving roles and responsibilities that mothers and fathers can assume in modern families.
But striving to avoid sexism in divorce standards can be a difficult task because men and women are treated differently and often make different choices in the context of a sexist culture. Contemporary reformulations of marital property and spousal support obligations reflect the broader question of whether divorce standards should provide compensation for gender-based marital roles that jointly contribute to marital well-being but may result in serious postmarital inequities. In the large majority of families, for example, women typically devote more time to the care of offspring while men assume primary economic support responsibility; after divorce, men have their career assets and women have custody of the children. How should the allocation of marital resources at divorce sort through the merging of human capital that marriage entails and avoid serious disadvantages to either partner after divorce? Do only potential economic inequities (such as lost earning capacity) merit compensation or should other potential inequities (such as diminished postdivorce contact with offspring) be considered? How are the benefits balanced against the sacrifices each partner experienced during marriage? To what extent should these determinations be altered by how marital roles were affected by the premarital choices of each partner, or by the fact that their decisions were shaped by broader societal gender roles for which neither partner is responsible? These are indeed difficult questions.
The problem with proposed guidelines for financial arrangements that are intended to compensate former spouses for gender-related inequities arising from marital decisions is that these rules must define which inequities merit compensation and how compensation should be made in a manner that encompasses the range of mutual (and complementary) accommodations that men and women each make to family demands. The fact that each partner both benefits from and sacrifices for their mutual well-being makes this task of awarding compensation through divorce settlements a formidable one if the goal is to accommodate each partner's marital choices and their long-term consequences. Moreover, the assets that marital partners jointly create are both quantifiable (like income and career growth) and nonquantifiable (such as relationships with offspring). While one partner is justifiably concerned with lost earning potential after divorce, the other may be equally worried about maintaining a meaningful parenting role with offspring. Efforts to achieve fairness in the allocation of marital resources must take into account both kinds of assets and, in turn, seek to avoid postmarital inequity in each. Children are, for example, an economic burden but a relational benefit to which each partner contributed during marriage and which each parent should share in postmarital life. The task, therefore, of devising new rules governing the financial allocation of marital resources to avoid potential future gender inequities is very difficult to accomplish, and anyone undertaking this task risks replacing older gender inequities with new ones.2 The answer is not to reduce efforts to ensure fairness in the postdivorce allocation of marital resources, but to recognize that this goal must encompass the variety of tangible and intangible marital assets to which each partner has contributed and of which each deserves a meaningful share.Effectively Intersecting Private and Public Ordering
Current debate over the financial settlements of divorce also reveals concerns about how such settlements are achieved. In the past, custody standards that explicitly awarded children to mothers or fathers were accompanied by judicial judgments of fault for marital failure that guided alimony awards, property distributions, child support provisions, and other considerations. With the advent of no-fault divorce, these meritorian considerations have been largely abandoned and replaced by less explicit criteria related to the child's "best interests" in custody decisions and by equity and need in financial arrangements. Not surprisingly, judges have considerable difficulty determining whether a child's "best interests" mandate custody to mother or father (or both) and deciding on appropriate levels of child support when divorcing spouses remain in conflict about these issues. Therefore, one reason for emphasizing the private ordering of these decisions—that is, offering incentives for the disputants to negotiate their conflict rather than relying on a third party, such as a judge—is that divorcing spouses best know the interests and needs that should predominate in making these decisions. In addition, private ordering of divorce-related decisions through mediation is more efficient (by reducing demands on courts and other public agencies), is more cooperative (because decisions are negotiated rather than disputed in an adversarial forum), and often results in greater satisfaction with the outcome.3
But enthusiasm for private ordering of divorce matters has waned recently for several reasons.4 Many concerns focus on the process of mediation itself. Some critics have noted, for example, that children are absent from private negotiations between parents which affect their interests. Others comment that the training and values of the mediator can significantly affect divorce negotiations and that publicly sponsored mediation efforts may be perfunctory exercises because of limited public resources. Most important, however, is how private ordering can be affected by the relative bargaining power of each spouse. Divorcing spouses may bargain unequally because of their relative financial resources or a relational history of dominance or abuse or because of a willingness to adopt bargaining positions that threaten valued interests of the partner (for example, by asserting a non-serious claim to child custody). As a consequence, the agreements that result from private ordering may be inequitable for a spouse or for offspring. Critics of private ordering have proposed that negotiations over divorce-related issues be constrained by mandatory guidelines that will ensure equity in the resulting settlements, accompanied by strong enforcement procedures to ensure that partners maintain fidelity to these settlements. For example, the Family Support Act of 1988 mandated that states establish guidelines to define the framework within which child support negotiations may occur.5 In this respect, private ordering occurs within publicly defined parameters.
What should be the relative balance of public versus private ordering of divorce matters? Although mandatory, enforceable guidelines for child support awards and other settlements have the appeal of ensuring minimally adequate levels of financial support for custodial parents and offspring, strictly enforced rules have traditionally had several disadvantages for ordering domestic relations. Because these rules are written to apply to general cases, they can be difficult to adapt to the range of family conditions that often emerge from divorce negotiations. Mandatory child support guidelines based on income and number of children, for example, are sometimes inequitable when applied to situations in which one parent has physical custody of offspring, but the other parent assumes exclusive care of offspring during frequent and/or extended visitation periods.
The inflexibility of strict guidelines, combined with strong enforcement procedures, also poses problems for the kinds of informal modifications of caregiving arrangements that often occur during the years following divorce. A longitudinal study of California families after divorce revealed, for example, that children often changed their primary residence within two or three years after the divorce, and parents accommodated these changes with informal modifications of their child support and visitation agreements.6 It is unclear how easily such informal changes could be accommodated within mandatory guidelines combined with a strict enforcement regime. In short, simple rules are often inadequate when applied to complex and changing family conditions, which is why private ordering (and reordering, as necessary) of divorce-related matters is often preferred.
The inclusion of public ordering in the private negotiations of divorce settlements also raises a broader question concerning public responsibility when financial arrangements prove inadequate to the child's well-being. Does the public have an obligation not only to ensure equity in divorce settlements, but also to ensure adequate economic support to the offspring of single mothers when the father's support capabilities prove inadequate? In other words, do public responsibilities accompany public ordering of divorce negotiations? As we shall see, many fathers who are in arrears in their child support obligations are incapable of contributing much more to their children's welfare.6,7 An affirmative regard for public responsibility in such situations suggests that public support guarantees to their children may be necessary.