The New Republic

...As I read Belkin’s article, I shook my head sadly as I applied current divorce statistics—including the rise in no-fault divorce and the virtual disappearance of alimony from most divorce settlements—to her interview sample,” Granju wrote... I have some familiarity with the law of spousal support in Canada. And while I think your small essay acute and acutely interesting, I am taken aback by by what I cite. The first question coming to my mind is whether the word "settlements" refers to negotiated resolutiions or whethe it's a loose, and inaccurate, way of describing adjudicated results, or both. With respect to who you seem to focus on, well educated, sophisticated women, who presumably are sophisticated consumers of legal services, why, if settlements means settlements, would any such person or her competent matrimonial lawyer ever agree to foregoing just spousal support--meaning of a quantum and a duration commensurate with the length of the parrties' marriage, income, means and other relevant circumstances? For example, under Canadian Spousal Support Guidlelines, spousal support--if it gets awarded-- presumptively goes on at least until all kids have finished high school. In my experience, it is my impression that most American states' matrimonial regimes are relatively progresssive. If my impression is correct, it is then hard for me to imagine, if settlements means or includes adjudications, judges not awarding wives due spousal support for as long as necessary as is just in the parties' circumstances. I'd be interested in your comments back, if you care to respond.

- basman

January 12, 2011 at 1:10am

I can't speak to all the legal issues but I do see the wreckage of women's lives when partners are lost. Many wind up in poverty. It must be especially difficult for older women who'd have problems finding work in the best of times, let alone during recessions. If the children are already out of the nest, the women obviously won't get child support but still have to confront their futures without enough to live on let alone thrive on. The fall from grace can be particularly hard on people who've had homes and the illusion of security. And, one of the negative aspects of feminism is the fact that with putative equality, judges aren't as likely to award alimony, even if the husband is considerably better off than his discarded wife. Many mothers give up their lives to raise families then find themselves out in the cold - of course childless women are also vulnerable, even if working nonstop we still don't earn the same amount as men and of course lots of us aren't in highly paying professions to begin with - many of us really couldn't survive without our partners - again, the issue become exponentially more difficult as we age. We don't really have answers for this problem, extended families don't care for each other and society pushes older people aside, especially women.

- Sophia

January 12, 2011 at 2:12am

Having practices family law for about 30 years, I have sympathy for Franklin's article, but I also realize that there is almost no alternative to the present no-fault system. Divorce not only prejudices the stay-at-home mother, but the father who sees a large percentage of his income go to child support and suffers prejudice from his employer when his wages are garnished. Substantial awards of alimony make re-marriage difficult (women do no like to marry men who have large financial obligations to another; women are reluctant to remarry and lose support). But perhaps the worst problem is unmarried couples who live together for years and have children. Typically, neither party is entitled to maintenance (though they are entitled to child support) and property division is based on record ownership rather than equitable distribution of marital assets. Yet alimony and similar potential obligations give domestic partners a strong incentive not to "tie the knot," particularly if they have already been married and have obligations stemming from that marriage.

- JohnEMack

January 12, 2011 at 7:53am

Here's an idea that you may find astounding: Be cautious when choosing a spouse, once married, delay having children until you both are very confident that things are working out, once children are born make every effort to divide the responsibilities for child care and home making so that Mom doesn't have to do it all (and if that means that Dad has to cut back on golf or time with the boys, too bad), if both spouses are working find good help and save every dollar possible (which means perhaps avoiding keep up with the neighbors, driving a five year old Ford instead of an Audi or Lexus, staying out of overpriced trendy restaurants, and camping out on vacation instead of staying at posh resorts), make every effort to develop strong extended family relationships (which should include friends as well as relations), and at all times after children are born make every effort to avoid divorce which I believe has become much too easy for relatively trivial reasons. Marriage with children must involve serious, long term commitment and effort, including an effort by both to help their spouses navigate the rough spots with understanding and compassion (remembering that there was some reason you got married in the first place). My impression -- hopefully mistaken --- is that too many of the modern well educated, upper middle class women that the author describes seem to want it all at times of their choosing while making few if any significant economic or personal sacrifices.

- PeteBeck

January 12, 2011 at 8:04am

Pete - up until the last para I was with you. Your first paragraph is sound advice for a prudent household, and it applies with equal force to any relationship where there is risk of economic dependence of any sort as between the partners, whether or not children are involved. But unlike you, I would not necessarily suggest that when things go wrong, it is somehow related to the women having wanted it all. The men are moral agents, as well, and knowing that on average, they end up better off after divorce than stay-at-home moms, they have every incentive not to heed your advice - and to take advantage of the current situation as much as they can, while it lasts. JohnE: frankly, I don't see why a man's remarriage prospects after divorce should, from an economic or social policy perspective, have anything to do with post-divorce settlements. I would want women after divorce to be compensated for their contributions to the household and to be reimbursed for their loss of earning potential, and also for them not to become wards of the state; if that means that a divorced man becomes less marketable, then so be it.

- icarusr

January 12, 2011 at 8:57am

Here's the most ridiculous part of the American rules of marriage and divorce: If a man marries an equal (in education, job prospects, etc.), they have children, they choose for her sacrifice her job prospects and income in order for her to stay home and be primarily responsible for the children, with his income the familly lives well but no better than the standard of living she could have provided for herself if she had not married and become a stay-at-home mother, and they later divorce, it is highly unlikely that she will receive any alimony (child support, but not alimony). On the other hand, if a man marries beneath his status (in education, job prospects, etc.), they have children, not having very good job prospects herself, she stays home and is primarily responsible for the children, with his income the family lives well and far above the standard of living she could have provided for herself if she had not married, and they later divorce, it is an almost certainty that she will receive alimony (at the very least so-called rehabilitative alimony and in many cases permanent alimony), intended at least in part to continue something near the standard of living to which she had become accustomed during marriage. Not to be too glib about this (yes, I will be glib), wouldn't it make more sense for (1) the husband in the first case to pay the now former wife for all that income she sacrificed in order to satisfy both spouses' choice for her to be a stay-at-home mother, and (2) the wife in the second case to re-pay the husband for those years he provided her with a standard of living that she could never have provided for herself.

- rayward

January 12, 2011 at 9:21am

Try to imagine a nurse or school teacher writing this article. This article ignores the fact that women have had to work and raise children simultaneously forever. It is only in the last 60 years that we saw the rise of stay at home mom's.

- cdtruss

January 12, 2011 at 10:33am

I think PeteBeck nails it. I also kind of find it ironic that as I read the article on the sidebar they have a a picture of a black girl and a another of a black girl in Africa, and it puts it far more into perspective. Poverty? You don't know real poverty. Security? Try living in a war zone. “Now I lie awake at 3 a.m.,” she writes, “terrified that as a result I am permanently financially screwed.” Get a grip. Downsize, then downsize some more. I have not owned a car for 13 years. And I have seen the lifestyle extras of these type of women. We are not talking about just a house, but a very nice house in a plush suburb, and they were more than happy to show off all the niceties in their homes, some of which is equal to a typical Haitians yearly salary. I have lived, successfully and happily, on a fraction of what these women lived on. And I have raised a family with 3 children and a wife who stays at home (and is continuing her education). Maybe the article should have been called, "smart women, clueless women." By the way, our house is in my wife's name, and I damn well make sure she gets an equal amount in our savings for retirement. This damn navel gazing by entitled, college educated women, I simply can not muster up that much sympathy for them, especially when I am in daily contact with poor, rural campesiño women who know far more hardship yet who do not seem to think their plight is the plight of the world. (though I think it is) and it is funny how I seldom read articles about these women.

- blackton

January 12, 2011 at 10:33am

Blackton, your class envy and sexism are showing. You have a crappy life, so everyone else should, too. Especially uppity, educated women.

- heppner52

January 12, 2011 at 10:46am

PeteBeck - the first part of your post is patronizing (thanks for the advice, we hadn't thought of that stuff!) but OK. It's worth noting the obvious, I guess. But the last paragraph of your post is one of the most exhausting, silly stereotypes demonizing educated women out there. "Your impression" of "modern" women is they "they" "want it all" with "no" sacrifices? My impression of anyone using the term "modern women" and what "they" may or may not want is that the next part of the paragraph is simplisic sexist drivel. Every marriage is a Universe with its own ecosystem. Each dies for its own ineffable reasons involving both parties. There are no one set of reasons a marriage fails.

- WandreyCer

January 12, 2011 at 11:31am

"You have a crappy life, so everyone else should, too. Especially uppity, educated women." Er, no. I have a good life and a well-paying job, but I choose to drive a second-hand car (nice one) and live in a modest apartment (my mortgage now is just about the same as my pre-tax income). I have never been to an all-inclusinve Aruba resort and while I spend as I wish and do not need to worry about my pension, I try to be prudent in managing savings. If you choose to have the big house and the plush couches and the three cars in the garage and the children in private school and big fancy vacations, man or woman, educated or otherwise, don't expect too much sympathy when/if things go wrong. Above all, prudence dictates that as moral agents, we cost the consequences of all of our economic and life choices, and it seems to me that for too long, the average American household has not been doing that.

- icarusr

January 12, 2011 at 11:42am

Wand - on Pete's first para, you are too hard on him. He is right to mention what might appear to be the obvious, only because it was manifestly not so obvious to the millions to lived on second and third mortgages and who financed excessive lifestyles on the back of 19% interest credit card debt. The lessons of prudence are never too old or mundate to repeat. Agree, evidently, with your assessment of the last para. And Happy New Year!

- icarusr

January 12, 2011 at 11:44am

heppner52, how clueless are you? Yes, I am sexist because I am doing my utmost to ensure if I were to die my wife could continue to support our family. And what class envy? I lived an upper class lifestyle in NJ for years and got bored of it all. In fact, I have exactly the opposite of a crappy life, I consider myself extremely blessed. Beautiful wife, successful marriage, I have not been seriously sick a day in my life, 3 healthy and well adjusted children, a nearby tropical beach, enough to eat, a place to sleep, and a rewarding and meaningful job. I do not waste my money air conditioning rooms I seldom go into, watering a huge lawn that is only for show, have the "need" to spend more money on my bathroom fixtures than a house costs in Mexico. Again, what bothers me about this article is that it is focused on the travails of the upper class housewife. You have too many of these articles about women whining how they can't break that glass ceiling without taking the time to look at the fact that they are standing on the backs of poor women who are toiling in hard jobs at meager pay. so heppner, go back to hotair.com or redstate.com, where the poor don't exist except as useful foils of derision.

- blackton

January 12, 2011 at 12:28pm

...Here's the most ridiculous part of the American rules of marriage and divorce: If a man marries an equal (in education, job prospects, etc.), they have children, they choose for her sacrifice her job prospects and income in order for her to stay home and be primarily responsible for the children, with his income the familly lives well but no better than the standard of living she could have provided for herself if she had not married and become a stay-at-home mother, and they later divorce, it is highly unlikely that she will receive any alimony (child support, but not alimony)... It's hard for me to imagine that this is the case under American law. In Canada a woman who has sacrficied her lucrative potential (or any other) career to be at home with children will certainly get spousal support. And she'll get it until a court determines she no longer needs it, and, I said before, duration presumptively lasts till the kids are out of high school. She certainly has an obligation to get back to working when she is reasonably able to and at that point the quantum of her suppport will be adjusted downwards as she earns income. Should she earn sufficient income, such that she earns as much or more than her husband, then she'll cease getting non compensatory spousal support. But if by stayng home she has contibuted to her spouse's income earning and his potentilal for it, she mayget compensatory supprt along the lines icrausr spoke about. Please cite a cse or two supporting your proposition as to American law cited by me at the beginning of this post. I'd me most interested and obliged.

- basman

January 12, 2011 at 12:34pm

Now as to policies, I have long advocated for an expansion of the EITC, S-Chip, hell I am in favor of Single payer along the lines of the Health insurance system in Taiwan. I strongly support unions and would love to see card check. And I have no problem with any kind of equitable division of property in a divorce, only a callous jackass of a man would want to see the mother of his children out on the street. But outside of this, and my job actually working with the rural poor, there is not much I can do. If I were to tell people, no, you don't need a $20,000 chandelier hanging in the foyer, that maybe you should first fund your Roth IRA and put other money in your kids college fund apparently I am suffused with class envy and am sexist to boot. Oh, and it is somehow also my fault that women who quit their job to stay at home get divorced. It is not enough I support laws that treat them fairly. No, I must also obsess about them.

- blackton

January 12, 2011 at 12:44pm

Icarus - you're right. Sorry Pete, you were right. Americans feel too entitled to stuff and it needs to be pointed out that there are consequences to those values. As far as the second paragraph? I was touchy and bitchy, but it irked me alot.

- WandreyCer

January 12, 2011 at 12:48pm

Johnemack So we have both worked roughly equally as long in the same area. I have a few years on you—3. I want to make it clear that no fault applies to the grounds for divorce. It applies to nothing else. It simply means that one can get divorced without needing to prove fault in the other. In Canada (where divorce law itself is federal with concurrent jurisdiction for support and custody awith the provinces and with property being a provincial matter), that’s gotten to by the ground of one year separation and the divorce can be begun before the year is up. No fault has essentially nothing to do with custody, support rights or property division. Only in aberrant cases—gross repudiation of marriage—does conduct in virtue of itself go to some disentitlement and that is such a burdensome test that it's rarely pleaded let alone proved. I’m also astonished to learn that where you are co-habiting unmarried parties are not entitled support for themselves. In Ontario, 3 years of cohabitation makes a party entitled to support as if married and there is no time limit for "spousal support" if a child is born of that unmarried relationship. What jurisdiction do you practice in that has such draconian law? Also while in Ontario unmarried couples don’t share under the statutory property division regime, there is at least a robust lcommon law of equitable restitution which can be joined to mother matrimonial claims and there’s now some talk of parity in property division coming down the pike for unmarried couples. These differences are interesting.

- basman

January 12, 2011 at 12:53pm

To put it in terms of an economist, the opportunity cost of marriage has little or no bearing on alimony. Instead, it's based on need and ability to pay, with the standard of living during the marriage as the barometer. My broader point is that divorce and alimony rules are based on an antiquated version of marriage and roles within the marriage. The spouse who makes the personal sacrifice of her career nevertheless has the potential to eventually get back on the career track and approach the standard of living she enjoyed during the marriage; the spouse who makes no personal sacrifice of her career (because she has none) does not and cannot. As for the former husband (usually) who is saddled with a large alimony obligation to a former spouse who has no career and income potential, what's implied is that he recieved his full "reward" during the marriage. While societal attitudes about marriage and roles within the marriage are evolving rapidly, the law isn't keeping pace.

- rayward

January 12, 2011 at 1:13pm

Wandry, Thanks for pulling back a bit on the criticism, although I should note that I showed my comments and some of the follow up to my wife of 43+ years (we've been together for nearly 46 years) and she thought that I overstated things a bit. I won't waste everyone's time with a line by line discussion of what I said and how to some extent it may have been misunderstood (which is my fault, I will acknowledge). But I must draw attention to one point you made: " Every marriage is a Universe with its own ecosystem. Each dies for its own ineffable reasons involving both parties." My simple answer is that a marriage with children involves more than two parties. End of comment.

- PeteBeck

January 12, 2011 at 1:19pm

My comments and those of most others have little or nothing to do with the point being made by Ms. Franklin. Her complaint has more to do with the condition of the economy and the expectations (based on experience) about the future. For those of her generation, it was expected that the economy and opportunities would grow forever, so dropping out for a while to have a family would entail little risk. For us older folks, who came of age during a time of a very unsettled economy (up and down being the norm), dropping out during an up period entailed very significant and known risk. Everybody is susceptible to the belief that tomorrow will be just like today. But the younger generations were more likely to believe it because, well, their tomorrows were just like their todays.

- rayward

January 12, 2011 at 1:30pm

Rayward: ...…To put it in terms of an economist, the opportunity cost of marriage has little or no bearing on alimony. Instead, it's based on need and ability to pay, with the standard of living during the marriage as the barometer. My broader point is that divorce and alimony rules are based on an antiquated version of marriage and roles within the marriage. The spouse who makes the personal sacrifice of her career nevertheless has the potential to eventually get back on the career track and approach the standard of living she enjoyed during the marriage; the spouse who makes no personal sacrifice of her career (because she has none) does not and cannot. As for the former husband (usually) who is saddled with a large alimony obligation to a former spouse who has no career and income potential, what's implied is that he recieved his full "reward" during the marriage. While societal attitudes about marriage and roles within the marriage are evolving rapidly, the law isn't keeping pace… ________________ We are talking past each other. You made a point about what the (some?) American rules of spousal support say. I told you I found that surprising but was interested to be referred to a case or two that said what you said the law was. In return, you make no specific reference to the law by way of cases or legislation but put forth broader economic and social observations. I’m not sure, even stipulating to your further generalization about the marriage rules as correct, that it’s all so antiquated as opposed to being sensible. Using the model of Canadian support law, the spouse who makes a sacrifice of, let’s say, her—it could be his—career may or may not be able to return to it depending on the circumstances. The law will recognize and deal with both realities and award or not award or qualify spousal support in the circumstances. What’s antiquated about that? For the uneducated, untrained spouse with no career as such to look, he or she will get due support based on income and need as broadly understood for a period of time commensurate with the length of the marriage and with an obligation on him or her to find such work as he or she reasonably can and if a party shirks that obligation, they can have income imputed to them. The longer the marriage--to state the obvious--the lengthier will be the duration of support as a reflection of the years during which the parties were a multi faceted partnership. That is a profound reflection of the modern meaning of marriage, as I see it. I can’t the see the antiquatedness of this. Perhaps you’d care to specify the social attitudes toward marriage and marriage roles the law isn’t keeping pace with and how it’s not?

- basman

January 12, 2011 at 1:46pm

You're right Pete, absolutely. Sorry for my bitchiness (my husband's astute take on my response when I ran this by him).

- WandreyCer

January 12, 2011 at 1:50pm

p.s. Perhaps off the point (I'm struggling to understand) you're making, any jurisdiction allowing for gay marriage and civil unions will accord the parties the same legal rights as tradtional heterosexual couples. And the law is evolving complicated domestic relations rules in the instance of surrogate births and comparable technologically enabled possibiities. Also doesn't sound antiquated to me. As a general proposition, I'd say that the family law with which I'm familiar does a passable job of keeping up, or not lagging too far behind, evolving social realities.

- basman

January 12, 2011 at 1:57pm

Changing perspective: A beautiful poem about marriage by William Carlos Williams: Marriage So different, this man And this woman: A stream flowing In a field.

- basman

January 12, 2011 at 2:01pm

JohneMack: I recently wrote an opinion about a challenging set of facts concerning spousal support. I had just gotten some legal materials which surveyed the previous year's jurisprudence and was able to incorporate some of that survey into what I wrote. I can, only if you have any interest, produce a generalized, sanitized, no names' copy of it for you to read. It has the virtue, because of the legal materials I had at hand, of raising and discussing some of the broad trends and bigger issues in spousal support law in Ontario and to some extent in Canada too. Just say the word. Of course, I'm sure, you have thousands of things you'd rather be doing or reading.

- basman

January 12, 2011 at 4:03pm

Guys, respectfully - we are not talking about women getting smaller cars. We are talking about women not being able to afford rent. Sheese.

- Sophia

January 12, 2011 at 4:11pm

My fourth post, since I don't seem to be getting through. Family law with respect to alimony punishes the highly educated, motivated, and career track woman who marries, has a family, chooses to stay home and raise the children, and divorces, but rewards (everything else being equal) the lowly educated, unmotivated, no-career track woman who marries, has a family, stays home (not out of choice because she has none) and raises the children, and divorces. Is it not the former we want to encourage to have children? And yet familty law places little or no value on her opportunity cost for making the "family choice", but then rewards the spouse who had no opportunity cost by giving her alimony for that very reason. Seems like the perfect recipe for turning all of the former women into Ayn Rand acolytes.

- rayward

January 12, 2011 at 4:43pm

Rayward you are getting through in the sense that I understand what you are saying. I just don’t agree with it. Mere repetition doesn’t help you. My struggle is to try and make meaningful sense of what you are saying. Your depiction of who is “rewarded” and who is “punished” seems both astride the law I know and circular. How is the highly educated woman you cite “punished”: because she doesn’t get as much non compensatory support as someone with lesser career possibilities. As I keep repeating: very generally, the educated woman with career potential under the family law that I know will get such non compensatoy support as she needs--broadly understood-- until she gets herself going and no longer has need. Plus under the law that I know she will get compensatory support by way of either, or both, periodic and lump sum support if a court concludes that she has contributed to her husband's career at some loss to herself. Compensatory support is meant to reflect, and compensate for, what a payee spouse gave up of her own career in order to help the paying spouse advance in his. That’s the law I know. As I keep asking you, where is there American law that says otherwise? As to circularity, given that law, where is there punishment in what I have described. The circularity, I think, consists of starting with an idiosyncratic and loaded notion of punishment—getting less non compensatory support because one has the means of earning enough for him or herself—and making that premise your conclusion. A less educated person with lesser career possibility, who cannot earn enough to constitute herself approximating the way the parties lived, may get more non compensatory support for a longer time. Plus as is clear, someone who has not economically sacrficed to help her spouse--the uneducated spouse will not have the career potential to give up, presumably--will not be entitled to compensatory support, So where is the reward? Same circularity I’d say. Show me, I ask again, the law or the jurisprudence that bears out your view of what the spousal support law does. I'll be happy to stand corrected.

- basman

January 12, 2011 at 5:53pm

This isn't my post; it's Ms. Franklin's. Her post; her topic; her position. My comments are to her post and her position, which, obviously from my comments, I agree with.

- rayward

January 12, 2011 at 7:30pm

Trois choses Rayward: 1, J'abandonne. 2. Pommes et raifort. 3. Dire quoi?

- basman

January 12, 2011 at 10:27pm