Disasters of the No-Fault Divorce : Author Cites Unforeseen Hardships on Women, Children

“We ate macaroni and cheese five nights a week. . . . I think that’s all we had for months,” one divorced mother reported to sociologist Lenore J. Weitzman. Said another: “I applied for welfare. . . . I never dreamed that I, a middle-class housewife, would ever be in a position like that.”

In the first year after divorce, men’s standard of living rises 42% while that of women and their children drops 73%. When Weitzman, an associate professor of sociology at Stanford University, quotes those statistics she says people just can’t take them in. They “hear” her as saying that both incomes decrease, or they reverse the numbers.

No-fault divorce laws, which since 1970 have been adopted in some form by every state except South Dakota, have brought an unforeseen hardship to divorced women and their children, says Weitzman, whose interest is in the sociology of family law. Her 10-year study of no-fault has convinced her that while it may indeed have reduced the acrimony and sham of the divorce process, it has also “created economic disaster for most women.”

Deprived of Protections

Treating women “equally,” especially mothers of young children and older homemakers, has deprived them of protections the old law gave them, she says. “They’re expected to be equally capable of supporting themselves, but especially if they have been full-time homemakers, they are not equal.” Moreover, since half of all new marriages are expected to end in divorce, the new law is “a powerful influence in redefining marriage,” she says. “It is undermining sharing, and undermining the role of wife and mother.”

Ironically, Weitzman--who did her undergraduate work at Cornell University, received her Ph.D. from Columbia University, and held a postdoctorate fellowship at Yale Law School--came west in 1971 to teach at the University of California, Santa Cruz, because California had just instituted the country’s first no-fault divorce law. “I thought it was the family law of the future,” she says. “To me, the law had a halo around it.”

In “The Divorce Revolution: The Unexpected Social and Economic Consequences for Women and Children in America” (The Free Press, a division of MacMillan Inc., $19.95), she gives full marks for good intentions to reformers who pushed no-fault divorce. But she says that in their preoccupation with eliminating the shortcomings of the old system, they missed seeing--indeed, did not have the data to see--the larger implications of the new law. What is needed, Weitzman believes, is not a return to the bad old days, but changes in the law that take into account inequalities in the larger world, and inequalities that marriage itself creates.

Focus Has Shifted

“These no-fault divorce laws have shifted the focus of the legal process from moral questions of fault and responsibility to economic issues of ability to pay and financial need,” Weitzman points out. No longer are the battles over who did what to whom; rather they are over the value of a couple’s property, and over what she can earn, he pay.

Women lose out all along the line, Weitzman believes. In California, marital property is supposed to be divided 50-50, which certainly sounds fair. But what this means in cases where there are children involved (and in nine out of 10, women have the responsibility for child care) is that “the man gets half and the wife and an average of two kids share half. So actually, he usually gets two-thirds and each of them get 10%,” she says.

Since 60% of divorcing couples have less than $20,000 in combined net assets, most couples are forced to sell the family home in order to make an equal division. “I see a major impact on the children,” Weitzman says. “They are losing the family home, and having to change neighborhood, school and friends” just at a time when their lives are already disrupted. Older women with marriages of long duration are also forced to move away from neighborhoods where they may have lived all their adult lives.

Another inequity is that “new forms of property are omitted from the pool of family assets to be divided,” she says. “The tendency has been to think of property as fixed assets, but the nature of property is changing, for me.” For most families, she says, the most valuable assets are usually the husband’s career assets--his pension, health insurance, education, entitlements, earning capacity. Yet some or all of these are generally excluded in dividing property.

Income is also not divided equally. Usually, the courts do not require the husband to share his salary with his ex-wife; close to 85% of women get no alimony at all, and those who do typically get short-term, transitional awards. Even when the marriage has been of long duration, more than half the wives are not awarded support. “I get a lot of people who say, ‘Look at Joanna Carson,’ but that is so rare,” Weitzman says. “Most don’t get anything.”

Child Support Inadequate

Nor is money awarded for child support adequate. “It doesn’t cover even half the cost of raising a child; it doesn’t even cover day care” for the mother of young children who has to go out to work, Weitzman says. This is especially significant since 60% of children in this country today will spend a part of their childhood in a single-parent home.

In any event, more than half of fathers do not comply with court orders of child support, and men who make between $30,000 and $50,000 a year are just as likely not to pay as though who make under $20,000. “People have thought of this as a welfare problem, not understanding how easy it is for middle-class men to evade making payments,” Weitzman says. She is hopeful that recent child-support enforcement legislation will begin to change that.

What all this means is “the systematic impoverishment of women and children,” she explains, pointing out that two out of three poor adults in the country are women. “People have not linked feminization of poverty to divorce and separation,” she says, “but only 18% are unwed mothers.”

Solutions have to include “what’s fair for property division, alimony and child support, and also take into account the hardship cases--the mothers of young children, and older, long-married women.”

In the past, divorcing women were usually awarded the family home, especially if they had minor children. Weitzman does not suggest going back to that practice, but she does believe that sale of the homes could often be delayed, either for a few years or until the youngest child is 18, and that it should not be used as a bargaining chip. (“Sex neutral” custody laws sometimes result in women relinquishing their claim to property or money if they are threatened with a custody fight.)

In the case of older women where the only assets are the home and possibly the husband’s pension, she suggests that the wife should be allowed to keep the house or, if it is sold, get enough to move to a smaller but comparable one in the same neighborhood.

Equalize Standard of Living

Weitzman would like to see “support awards that equalize the standard of living of the husband and wife.” For women who have the care and support of small children, she suggests balloon payments in the early years of a divorce. “Support awards at the beginning--even one year makes a difference, and three or four years would be better”--would give a woman time to establish herself in the job market, she says. Now, a woman often is expected to enter the labor market “as is,” even if she has few skills and outdated experience, and with no time for retraining. For example one judge, denying temporary support to a woman who had not taught for 20 years and did not have California teaching credentials, said “If she was once a teacher, she can always get a job teaching.”

Then child support has to be improved, and be better enforced. “Kids are angry when they see the vast discrepancy in the standard of living between (their parents’) households,” Weitzman comments. She “has trouble” with the fact that, in California, child support ends at age 18. “High on my list is extending support for children who are full-time students beyond 18. The state of Washington already does that,” she says.

Current law is particularly hard on older homemakers, who never dreamed that they would suddenly “have the rules changed on them at the end of the game” and who certainly can never catch up in the labor market, Weitzman says. “When I first started discovering these cases that are so patently unfair, I thought them the exception. I didn’t pay attention to them at first,” she acknowledges. “The job market is tough for those women. So many talked about rejection after rejection.”

Fruitless Search

One woman said of her fruitless search for employment, “I steel myself every morning.” Another didn’t know her health insurance ended with the divorce. Others reported that prospective employers said they didn’t want to hire them “because it would spoil their pension or health plan.”

Weitzman recalls one mother of six, about 53, who had been married to a corporate executive. “She was a country club wife,” Weitzman says. “She gave great dinner parties, played a good game of tennis. He decided to take early retirement, and then announced he wanted a divorce.”

The family home was sold, and Weitzman says that while “he had a new house and a new woman, she moved into a tiny apartment in Los Angeles with the two kids who were still at home. She got a job as a paralegal, at the minimum wage, in the office of the lawyer who handled her divorce.”

She told Weitzman that she was still proud of being a homemaker and mother, and didn’t regret it, but thought it wrong that she should be punished for her former traditional life style. “An interesting finding,” Weitzman says, “is that a lot of these women felt it was unfair, yet they were proud of coping, of surviving. There is a combination of suffering and strength. It’s kind of a puzzle to me.”

As for the women in the middle group, 40 years old, say, Weitzman acknowledges that “it is hard to imagine their husbands supporting them for the rest of their lives. But it is unfair to expect them to do it all by themselves, too.” Even in two-career families, she says, the husband’s has usually come first; most women give priority to their family roles.

To those who say that calculating the value of career assets would be impossible, she replies: “Accountants and lawyers can do it. They have been doing it in personal injury and worker’s compensation cases for years. There are problems in the legal system, but not in the concept.

“It is a question of convincing people that it is proper, which it is.”

Where both husband and wife work, she advocates “taking both careers, putting them in the pot, and negotiating a division.”

Some lawyers and judges use equal treatment as a kind of backlash to women’s demands for equality, she found. She would like to see “the judiciary educated on how much a pair of sneakers, or school supplies cost, and also about the long-term consequences of what they’ve done.” Lawyers as well, “just don’t see what happens to people. I don’t know what you do about them,” she says. They are overly concerned with their own reputations, with encouraging clients to be “realistic” in their expectations, avoiding malpractice, or with being advocates, she suggests.

First Case

She recalls one feminist lawyer who said that in her first divorce case she represented the man, and managed to get the support award down. Afterwards the wife was upset, and crying, and the lawyer decided “I will never do that again.” Says Weitzman, “I wish I could make more lawyers say that.”

When the rules for divorce were changed, the rules for marriage also changed, she points out. If the husband gets to keep most of the family’s income and property, then, she says, we are saying that his contributions to the marriage are worth more.

While acknowledging that there are other factors at work and there are shifting attitudes toward marriage, she says: “The work women do at home and in rearing children is valuable and should be recognized and rewarded, just as men’s work is. The message of the divorce law now is that it doesn’t matter, that your only safe investment is yourself.

“We can change that.”