The Marriage Buyout

The Troubled Trajectory of U. S. Alimony Law

Cynthia Lee Starnes

• Editorial: NYU Press
• Año: 2014
• ISBN:
  9780814725320
• Categoría: Droit
• Categoría: Droit de la famille

From divorce court to popular culture, alimonyis a dirty word. Unpopular and rarely ordered, the awards are frequentlyinconsistent and unpredictable. The institution itself is often viewed as anhistorical relic that harkens back to a gendered past in which women lacked theeconomic independence to free themselves from economic support by their spouses.In short, critics of alimony claim it has no place in contemporary visions ofmarriage as a partnership of equals. But as Cynthia Lee Starnes argues in TheMarriage Buyout, alimony is often the only practical tool for ensuring that divorce does not treattoday’s primary caregivers as if they were suckers. Her solution is toradically reconceptualize alimony as a marriage buyout.

Starnes’s buyouts draw on a partnership model of marriage that reinforcescommunal norms of marriage, providing a gender-neutral alternative to alimonythat assumes equality in spousal contribution, responsibility, and right. Herquantification formulae support new default rules that make buyouts morecertain and predictable than their current alimony counterparts. Looking beyondalimony, Starnes outlines a new vision of marriages with children, describing aco-parenting partnership between committed couples, and the conceptual basisfor income sharing between divorced parents of minor children. Ultimately,under a partnership model, the focus of alimony is on gain rather than loss andequality rather than power: a spouse with disparately low earnings isn’t asucker or a victim dependent on a fixed alimony payment, but rather an equalstakeholder in marriage who is entitled at divorce to share any gains themarriage produced.

PART I

Alimony Reflections

Once upon a time,
there was a woman who discovered
she had turned into the wrong person.

—Anne Tyler, Back When We Were Grownups (New York:
Knopf, 2001), 3

Stacy and Tracy were lovers. They graduated from college, found full-time teaching jobs at a local high school, and in a small ceremony attended by happy friends and family, committed to each other as life partners. The world looked bright. A year passed, the couple gave birth to a daughter, and like many young couples, Tracy and Stacy assumed they would equally share their daughter’s care. This they did during the first summer of her life. But in the fall, when Stacy and Tracy returned to full-time teaching, life proved more complicated than they supposed it would be. Household tasks multiplied with their daughter’s birth, and while the couple initially shared these chores, it was Tracy who took time off from work when the child’s sneezes and coughs, rashes, and ear infections precluded day care. A year passed and more. The couple bore a son, Stacy acquired a master’s degree and a nice salary increase, and Tracy quit her teaching job, planning to return when their son entered kindergarten. Four years later, Tracy did return to teaching, but took a part-time position. Life went on. Tracy continued to assume the majority of child care and household responsibilities, though no one much noticed. Stacy took an administrative position with the school district, the family enjoyed a rising standard of living, the children graduated high school, and then something incredible, something unforeseen by either party more than twenty years ago, happened. Stacy fell in love with a young colleague and determined to leave Tracy.

Stacy’s decision puts Tracy in a hell of a spot. Like many contemporary couples, Stacy and Tracy have no significant assets. They are underwater on their home mortgage, and consume most of their income as it comes in. Given her age and the bleak employment market, Tracy despairs of finding a full-time teaching job or ever recovering her many years of lost seniority. Tracy, it seems, has become someone she never imagined she would be. Has she turned into the wrong person—the family sucker who stupidly invested in family labor rather than a career, and so must bear the consequences of her own folly? Or must Stacy share the costs of the family’s division of labor? What is the “right” answer, the answer that best comports with principles of social justice, with feminism and egalitarianism, with norms of public responsibility, with respect for individualism, private ordering, and the integrity of a promise? The law’s answer to these questions will be life-altering for Tracy and for Stacy, and will send an important message to other committed couples—to a broad audience of same-sex and opposite-sex partners, to couples who are married or cohabiting; childful or childless; older or younger; richer or poorer; of majority or minority race and ethnicity; highly or barely educated; traditional, egalitarian, or postmodern; to couples who keep their promises and to those who break them, sooner or later. At bottom, the answer to the question of Tracy’s and Stacy’s responsibility to each other depends on the meaning of intimate commitment, for that is where their story began.

In the United States, marriage is still the most common signal of intimate commitment. While not every committed couple is married, and not every married couple is committed, marriage is a cultural symbol of commitment to a life partner that is readily visible to outsiders and so serves as a useful starting point for an inquiry into the consequences of intimate promises. If Stacy and Tracy formalized their commitment through marriage, the question of Tracy’s economic fate becomes, at least in the conventional script, an inquiry into the legitimacy of alimony.

But Stacy and Tracy are not real; as far as I know, I made them up. If alimony is an issue worth thinking about, if alimony matters, it is because the story of Stacy and Tracy generally describes a mass of real people.

1

Who Cares about Alimony?

In most households, someone is cleaning the toilet. Hardly anyone likes this job. And then there is the vacuuming, the laundering, the grocery shopping, the cooking, the bill paying, the dusting, the bed making. If the family includes children, these tasks multiply and new ones are added: the feeding, the bathing, the managing of child care on sick days and snow days and regular school days that don’t match job hours, the homework supervising, the transporting to soccer and dance and medical appointments, the bedtime storytelling. Not all unpleasant tasks to be sure, but responsibilities that demand time and energy, often driving primary caregivers into part-time employment, employment gaps, and paid work that is flexible enough to accommodate family work. Meanwhile, the caregiver’s labor frees her spouse to participate in the paid economy as an “ideal worker” unshackled by primary home responsibilities.¹ Teamwork thus allows the couple to enjoy together a home with children and a family wage.

It’s a common story and a convenient one—at least so long as the partners’ commitment endures. But if affection fades, divorce may unmask the reality that teamwork has disparately impacted the spouses’ earning capacity. Over time, investments in family labor tend to reduce earning capacity for a primary caregiver, while investments in paid labor tend to increase earning capacity for a primary breadwinner. A clean break at divorce thus means the primary caregiver will bear most of the long-term costs of family roles while the primary wage-earner will enjoy most of the benefits in the form of enhanced earning capacity. When marital property is scant, as it usually is, alimony is the only judicial tool for addressing this inequity. This is the nutshell version of why alimony matters.

To be sure, alimony will not always be an exclusive or appropriate answer to a caregiver’s lost earning capacity. If a divorcing couple has significant assets, a sizable property award can considerably ease a caregiver’s financial straits, though some high-asset spouses have fought for and won large alimony awards in addition to property.² If, on the other hand, a potential payor has little income, an alimony award large enough to do much good might thrust that spouse into poverty, an outcome few would support. But both the very high-asset cases and the very low-income cases lie at the extremes of the spectrum. For the great pool of middle-class couples who divorce with little property but with a steady income stream, alimony is the only available tool for addressing disparate earning capacity related to marital roles. For these many couples, like Stacy and Tracy, alimony matters very much indeed.

The case for alimony begins with a look at the work of primary caregivers in most contemporary families.

A. Kinder, Küche, Kirche

The American home is not an equal opportunity employer.³ While alimony is gender-neutral, and should be,⁴ family roles have long made women the primary alimony candidates and alimony recipients. Between 2001 and 2006, only 3.6 percent of all alimony awards went to men;⁵ in 2011, this figure was 8 percent.⁶ The history of alimony is thus part of a larger story of gender roles within the family, a story with roots in the ideology of separate spheres, the notion that women are better suited for the private sphere of home and hearth and men for the public sphere of the marketplace. As Justice Bradley explained in 1872, a married woman has no right to practice law since “the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman.… [T]he domestic sphere … properly belongs to the domain and functions of womanhood.”⁷

Such candid expressions of separate-spheres ideology sound peculiar to most modern ears. Yet the ideology persists in more subtle forms, casting women as natural nurturers—warm, selfless, sensitive, relationship-focused, better purveyors of family care—and men as tough, competitive, and ambitious, natural breadwinners for whom nurturing is awkward and even unmanly.⁸ Most significantly, separate-spheres ideology underscores a gender script that continues to describe the division of labor in most contemporary marriages. Married women, even if they are full-time wage-earners, continue to assume primary caregiving responsibilities in the home.

This gender script becomes more vivid when we return to a time when it was more openly expressed. In the 1950s, for example, the view that women belonged in the home was trumpeted in startlingly frank fashion. A woman’s “central function,” observed one sociologist of the day, “remains that of creating a life style for herself and for the home in which she is life creator and life sustainer.”⁹ As the anthropologist Margaret Mead explained, a female has two choices: either she proclaims herself “a woman, and therefore less an achieving individual, or an achieving individual and therefore less a woman.”¹⁰

The popular press of the day proclaimed the homemaker a

wondrous creature [who] marries younger than ever, bears more babies
and looks and acts far more feminine than the “emancipated” girl of the
1920’s or even ’30’s. Steelworker’s wife and Junior Leaguer alike do their
own housework.… Today, if she makes an old-fashioned choice
and lovingly tends a garden and a bumper crop of children, she rates louder
hosannas than ever before.¹¹

Such housewives were applauded as “feminine, women with truly feminine attitudes, admired by men for their miraculous, God-given, sensationally unique ability to wear skirts, with all the implications of that fact.”¹²

The marketplace duplicated this view of the proper role of women, exhibiting an “almost universal opposition to employment of middle-class married women.”¹³ Most married women did not work outside their homes, and those who did worked “as a way of filling a hope chest or buying a new home freezer [while] gracefully conced[ing] the top jobs to men.”¹⁴ Such women took jobs not “out of a desire to compete with men but rather to help the family—a traditional role.”¹⁵ Not surprisingly, the majority of wage-earning women were segregated in low-paying jobs. In 1950, female wages were 53 percent of male wages.¹⁶

As Stephanie Coontz points out, however, not all married women of the 1950s were happy Ozzie and Harriet housewives.¹⁷ The reality of housewives’ experience was more complex; in many cases, it was homemaking that frustrated women. But women who by force of spirit resisted the cultural norm and pursued a career rather than a home freezer were cast by the media as “neurotic, unfeminine, unhappy women.”¹⁸ As one popular magazine explained, “Few women would want to thumb their noses at husbands, children and community and go off on their own. Those who do may be talented individuals, but they rarely are successful women.”¹⁹ As a New York Times editorial opined, while some housewives “admit to being deeply frustrated at times by the lack of privacy, the physical burden, the routine of family life, the confinement of it, … none would give up her home and family if she had the choice to make again.”²⁰

Women today clearly enjoy more choices than their 1950s counterparts. But separate-spheres ideology has proven curiously tenacious. Consider Anne-Marie Slaughter’s 2012 article in the Atlantic, “Why Women Still Can’t Have It All.” After a two-year stint in Washington, D.C., with the State Department, Slaughter decided to go home to her two teenage sons, her husband, and her tenured position at Princeton. Recognizing that she was stepping “onto treacherous ground, mined with stereotypes,” Slaughter explained her decision:

Men are still socialized to believe that their primary family obligation
is to be the breadwinner; women, to believe that their primary family
obligation is to be the caregiver.… But it may be more than that: … a
maternal imperative felt so deeply that the “choice” is reflexive.²¹

And then there was Lisa Belkin’s 2003 New York Times article, “The Opt-Out Revolution.” Interviewing a book club of female Princeton grads, Belkin recounted the views of two stay-at-home moms.²² “This is what I was meant to do,” said one mom. “I mean this is what I was meant to do at this time. I know that’s very un-p.c., but I like life’s rhythms when I’m nurturing a child.” Said another stay-at-home mom, “I think some of us are swinging to a place where we enjoy, and can admit we enjoy, the stereotypical role of female/mother/caregiver.… I think we were born with those feelings.”

Consider too the words of Katy McLaughlin in her 2012 article in the Wall Street Journal, “New Dreams, When the Old Ones Don’t Fit.”²³ The mother of two sons, McLaughlin confessed,

When I was a young feminist, I would have been appalled by the notion
of erasing my own passions and subsuming them into a husband and
kids.… [But] the day our eldest was born, I lost the ambitious spirit
that once propelled me on artistic exploits around the globe. My world
became our home, our future and every hair on our child’s head.

Separate-spheres ideology is powerful indeed. And its draw is not limited to professional women, who can presumably hire someone else to clean their toilets. For reasons that may seem mysterious, family labor—both housework and child care—is still largely a female role even though most married women today also work outside their homes. In Arlie Hochschild’s famous words, married women typically work two shifts—one in the marketplace and another in the home, where they perform the lion’s share of family labor.²⁴ Although Hochschild’s supporting data were from the 1980s, her observations still describe a majority of contemporary families. In 2012, the Bureau of Labor Statistics reported that on an average day in 2011, 18.9 percent of men did housework—such as cleaning, doing laundry, or scrubbing toilets—compared with 47.8 percent of women.²⁵ That same year, 40.1 percent of men engaged in food preparation or cleanup, compared with 66 percent of women. In another study of married mothers and fathers, Bianchi, Robinson, and Milkie found that married mothers spent 19.4 hours a week in primary housework activities in 2000, compared with 9.7 hours in primary housework for married fathers.²⁶

In an interesting study from the Panel Study of Income Dynamics (PSID) conducted at the University of Michigan, rese...