Our main source for the history of divorce in the U.S. was The Divorce Culture (Barbara Dafoe Whitehead 1996; Vintage). The author, a PhD historian, was co-director of the National Marriage Project at Rutgers University. Her book quotes historian Nancy Cott writing about the number of women suing for divorce in Massachusetts nearly doubling in 1775-1786 compared to the previous decade and that "the overall trend in the early years of the Republic was toward liberalizing divorce provisions." Whitehead writes about the beginning of commercialized "divorce colonies in western states" in the 1860s: "As western legislators and entrepreneurs discovered, short residency requirements could attract divorce-seekers from states that required a year's residency or more before granting divorce. … With legal residency periods lowered to as little as ninety days, remote states like Nevada and South Dakota could attract Easterners... "
Note that these early divorces were prior to our "no-fault" system and required cooperation between the spouses, e.g., with both moving to a "quickie divorce" jurisdiction or one admitting to adultery. Thus any questions of property division or alimony would have been settled by private agreement and the person wanting the divorce would have to offer terms that were acceptable to the person who had wanted to stay married.
Whitehead writes that "public concerns were deepest when it came to divorces involving dependent children. In fact, even the most ardent defenders of divorce consistently pointed to its harmful impact on children. … During a polio epidemic one social-work professor argued that divorce posted a greater threat to children than this dread infectious disease: 'Imagine 300,000 children stricken in one year by infantile paralysis. Yet the chances of these children in divorce being crippled emotionally are far greater than the chance for physical crippling by poliomyelitis.' The view of divorce as a source of disadvantage to children persisted until the mid-1960s."
In a section titled "Vulgar Divorce," Whitehead writes about the divorce rate increasing in the 20th century, rising to 7.7 per 1000 marriages in 1920. Simultaneously alimony awards were increased to cover "'personal recreation,' one sign that courts recognized consumption and amusement as necessities of life for modern women. The redefinition of wants as needs influenced expectations about acceptable levels of support."
We interviewed Karen Straughan, a Canadian gender counter-theorist, who pointed us to the 1848 Declaration of Sentiments from the first American women's rights convention, in Seneca, New York:
"He has so framed the laws of divorce, as to what shall be the proper causes of divorce, in case of separation, to whom the guardianship of the children shall be given; as to be wholly regardless of the happiness of the women - the law, in all cases, going upon a false supposition of the supremacy of a man, and giving all power into his hands."
"Originally fathers got custody because they remained responsible for the child's support," Straughan said. "Early feminists decided this did not serve women's happiness and convinced lawmakers in the United Kingdom to change the default to custody for the mother and financial responsibility to the father. The idea eventually spread across the West and became the 'tender years doctrine'. Women could now get the benefit of the child without the cost and that definitely contributed to women's happiness as well as a 15X increase in divorce rates over a 50-year period."
What kind of financial responsibility did men have in this new era? Whitehead quotes historian Elaine Tyler May: "By 1920 it was no longer clear precisely what constituted adequate support on the part of a husband, and a number of bitter conflicts erupted over the issue." May noted that the husband's failure to provide sufficient money during the marriage was itself the ground for the majority of divorces granted between 1890 and 1929. From The Divorce Culture:
One blue-collar wife's divorce petition argued: "You have had ample time to make a man of yourself in all these six years, if you cared for your wife and baby, instead of driving a wagon for twelve dollars a week [about $15,000 per year today]. You would not take work offered you at twenty-one dollars a week, so it is not because you could not find better." [emphasis in the original]
Whitehead explains that until World War II, divorce was associated with "the newly and boisterously rich." People criticized divorce because it was an "invasion of middle-class family life by marketplace values" and it was "corrupting the virtuous middle class with capitalist values." By contrast, the Nation wrote that middle class people would put effort into "the plodding task of domestic compromise and adjustment."
Edith Wharton's 1913 Custom of the Country portrays Undine Spragg marrying for money and social advantage, ignoring her son, and divorcing twice in hopes of achieving a higher income via marriage to a different man.
Emily Post, the etiquette authority, was divorced from her unfaithful husband in 1906. She later wrote "the epidemic of divorce which has been raging in this country for the past forty years must be rated as a catastrophe along with floods, dust bowls, and tornadoes." There don't seem to have been any better answers back then for children's schedules, nor was the idea of 50/50 parenting novel. Emily Post in 1940: "There is no use pretending that there is any good side from the children's point of view to divorce, excepting in a case where they are protected from a cruel parent or from the influence of a dissolute one… But to the thousands of children who love both parents equally and who can therefore never have more than half a home at a time, the feeling of devastation is quite as great as that caused by enemy bombings of mere buildings abroad." Post wrote that "There could never be any argument with the fact that if there is any chance of maintaining a civil relationship, if not a deeply loving one, it is far better to do so, not only for the couple but most especially for the children."
At some point in the 20th century, states abandoned straightforward and therefore simple and inexpensive-to-litigate rules regarding property division. This process is explained in Family Law in America (Katz 2014; Oxford University Press):
The common law property system is based on evidence of title. In other words, under the common law property system the motto: “He who holds title takes the property” has a ring of truth to it. Under the community property system, found in nine states in the western and southwestern part of the country, the distribution of marital property (accumulated during marriage) upon divorce is theoretically based on the principle that each spouse owns an undivided one-half interest in each community property item. While four of the community property states jurisdictions seem to conform to the fifty–fifty split (assuming there has not been a prenuptial agreement that assigns property differently), the other five incorporate equitable distribution principles (that is, a judge considers the equities of a case), which may result in a different formula than an equal split. Over the past four decades, there has been a major decline in the number of states that adhere to the old common law property system, whether by statute or case law. Now, the prevailing method of assigning marital property upon divorce is called “equitable distribution.” Basically, equitable distribution has changed the nature of the judicial inquiry when assigning property. Instead of asking who holds title, the court considers: which property is marital and which is separate; when and how the disputed property was acquired (while the parties were single or before marriage but while the couple was living together, during the marriage, or after the separation); who has contributed to the enhancement of its value or who has depreciated the property; when should property be valued (e.g., at the time of separation, initial court petition for divorce, or the time of the divorce trial) and what is its value; whether parties themselves or experts should value the property; if the property was acquired by gift or inheritance, should it be considered separate; and finally, if either of the parties enhanced the value of the gifted or inherited property during the marriage by keeping the property in good repair or rehabilitating the property, whether those activities were sufficient to change its nature from separate (if that was the case) to marital. The key to equitable distribution is “contribution,” and the ultimate question is: who should be assigned the property?
… even though judges are governed by statutory provisions, there is still wide discretion in interpreting statutory factors and applying them to a particular set of facts. One commentator has gone so far as to label equitable distribution as a “discretionary” exercise.
The factors that are considered in the assignment of property are not weighted equally. Nor do equitable distribution provisions provide a precise formula. Rather, the statutes merely state that certain factors are to be considered, thus allowing the judge to set his or her own priority of importance
The old system enabled a sophisticated spouse to take advantage of an unsophisticated spouse, e.g., by keeping assets solely rather than jointly titled, though lifetime alimony limited the effectiveness of this tactic (the asset-rich spouse would simply have to pay a larger amount of alimony to the asset-poor spouse). The new system will result in fairer outcomes in certain cases but vastly larger legal expenses in all cases since the question of "who holds title?" can be answered by a clerk but the questions of "who contributed to the increase in value of Item X" and "what is Spouse A's fair share of Item Y" must be answered by a judge after potentially extensive testimony by witnesses and attorney arguments. Anything that is "discretionary" with the judge will necessarily be potentially ruinous in terms of legal fees because there is no way to know what the judge might find persuasive.
The divorce rate doubled between the start and end of World War II, fueled to some extent by the long separations imposed by the war. Masters of the Air: America's Bomber Boys Who Fought the Air War Against Nazi Germany (Miller 2006) describes how each bunkhouse in prisoner-of-war camps had a wall of photos of former wives and girlfriends who had decided to discard their imprisoned mates via a “Dear John” letter. One letter to an American aircrew member quoted in the book read “Dear Harry, I hope you are broad-minded. I just had a baby. He is such a jolly fellow. He is sending you some cigarettes.”
The divorce rate reverted to its previous level in the 1950s and 1960s. Roughly 80 percent of all Americans born between 1933 and 1942 would enjoy a first marriage that lasted at least 10 years, a rate that is comparable today for the subpopulation of college-educated Americans who wait until 25 years of age to get married.
Whitehead says that the big change came in the late 1960s: "Before that time, divorce was contained within a system of marriage and subject to its jurisdiction. After that time, divorce outside the government of marriage and established its own institutional jurisdiction over family relationships. Before the mid-1960s, divorce was viewed as a legal, family, and social event with multiple stakeholders; after that time, divorce became an individual event defined by and responsive to the interests of the individual. … divorce moves from the domain of the society and the family into the inner world of the self."
Whitehead chronicles the rise of the "personal happiness" business of psychotherapy in the 1970s. Instead of talking to friends, family, medical doctors, and clergy about problems, Americans would pay mental health professionals. In the therapist's office patients would learn that "one's first and most important obligation was to oneself," perhaps by reciting the 1969 Gestalt Prayer by Fritz Perls:
I do my thing and you do your thing.
I am not in this world to live up to your expectations,
And you are not in this world to live up to mine.
You are you, and I am I,
and if by chance we find each other, it's beautiful.
If not, it can't be helped.
Whitehead writes that "Just as rising economic expectations had bred material dissatisfaction earlier in the century, so now rising emotional expectations fostered a sense of emotional dissatisfaction and restlessness in marriage. … This was especially true for women, who placed greater emphasis on the relational and affective side of marriage than did men."
Sociologist Jessie Bernard wrote that "To be happy in a relationship which imposes so many impediments on her, as traditional marriage does, a woman must be slightly ill mentally." Whitehead writes that Bernard's writings "reflected the feminist view of the marital state as an institution of patriarchal power and dominance which kept women in a subordinate and inferior status." Bernard wrote that she was influenced by "the message of radical young women" in coming to her conclusions regarding marriage. Statistical surveys found a "high level of reported happiness among married women" but that they were "more likely to be irritated and resentful of their spouses' lack of help in meeting the responsibilities of housework and child care" and women were more likely than men to approve of divorce.
Whitehead calls the new no-fault initiated-by-women divorce era "the rise of expressive divorce": "After the psychological revolution, however, divorce became a subjective experience, governed by the individual's needs, desires, and feelings." (The "individual" here is the plaintiff who initiated the divorce.) Whitehead summarizes self-help books of the 1970s: "Written mainly by divorced therapists or women who had been through therapy during their divorces, this literature locates divorce in the inner life of the individual and depicts the breakup of a marriage almost exclusively as a set of bewildering and disorienting feelings. … [but] the bad feelings of divorce can lead to good things. … As the author of one popular divorce book writes, 'After being in a long-term marriage in which they tended to deny so much of themselves, divorce gives many women their first chance to validate their reality, to explore who they are, to cherish newfound identities, to heal old wounds, and ultimately to take care of themselves.'"
What about for men? Whitehead says that books aimed at guys would point out that they were no longer bound to conform to the "norms of monogamous marriage and responsible fatherhood" but could instead enjoy the freedoms of the sexual revolution (this was prior to the 1981 arrival of HIV/AIDS in the U.S.). She quotes from Winning Your Divorce, A Man's Survival Guide (1994), by Timothy Horgan, an attorney in New York. Horgan talks about likely outcomes rather than dwell on feelings. He starts by describing a typical client, a man who meekly provides for a wife and two children for 10 years of marriage and then, after the wife divorces him, pays 78 percent of his income in alimony and child support. The wife marries the doctor with whom she had been having an affair. "Jack was left to live a diminished life, divorced not only from his wife but also from his children, his neighbors, and the community activities that had meant so much to him." Horgan talks about how the divorce system worked in the 1990s (and still does in many states, according to our interviewees): "the wife almost invariably gets the house and custody of the children … a divorced father [has] little or no voice in how his children are raised… the system [works] on the automatic assumption that the man is the bad guy." He exhorts men to make the wife fight for every inch of ground (and pay an attorney such as himself for that fight!): "Maybe this approach makes you feel that you're being unduly harsh and that you're depriving your children of proper support. The first thing you must understand is that the divorce system is unfair to men. The system is not there to help you and, contrary to feminist rhetoric, there are few protections afforded you. … if you fight the system, you are not fighting your children. … your children did not leave you voluntarily; the system takes them away. Your children do not destroy your standard of living. But the system will destroy you economically if you let it." Horgan reminds men that the family law world is a club: "The consideration your case will receive in court--and the respect of your wife's attorney--often is directly related to your attorney's reputation in the legal community."
Horgan's book shows that the pre-lawsuit planning that our interviewees described was alive and well in the 1990s. For the man who has some warning that a divorce is coming, he advises them to "gradually usurp your wife's role with the children in order to later prove that you are the principal nurturing parent" via encouraging the wife to "go to aerobics class while you stay home with the children or take them on an outing." Horgan reminds his readers that a divorce lawsuit is a war, e.g., "preparation wins battles."
Horgan's book states that the use of the domestic violence system grew dramatically starting in the mid-1980s: "Ten years ago child abuse rarely surfaced as an issue in a custody dispute. Yet one study claims that today fully 30 percent of all custody cases in the United States involve allegations of sexual or physical abuse by the father." Horgan notes that the man "is faced with the task of 'disproving' a life and proving his wife a liar. … There is no easy way to mount a defense against these charges."
Horgan tells men that "child support is probably the most troublesome area of divorce law" and "support enforcement procedures have proved very effective against delinquent parents, but at the expense of due process. A man's right to be heard [following the loss of a job, for example] has been sacrificed to the desire to impose punishment."
His printed-in-1994 book shows that arguments about equal parenting for the sexes are not new: "Because alimony and property awards are no longer gender-based, it is only fitting that every state should enact a law decreeing joint physical custody of the child. This would certainly be in 'the best interests' of the child, because parents would be forced to redirect their energies from fighting to cooperating, from court battles to kitchen-table conferences. The child obtains two equal parents, both available, and both participating in the child's upbringing. … Although women were once treated as mere chattels, that attitude has changed [over 200 years]. … But it is imperative that in our haste to remedy old wrongs we do not deny men their birthright--equality under the law."
Do men have this "birthright" to which Hogan referred in the early 1990s? "Not in the U.S.," said one attorney. "The definition of a 'right' is something that you can go to court to get enforced. By this standard, at least in my state, children do not have a right to spend meaningful time with their fathers and fathers do not have any right to a parental role with children." What about the "fathers' rights" groups that periodically lobby Legislatures? "They are asserting rights that do not exist, that the public does not recognize, and whose recognition is opposed by a multi-billion dollar industry in most states. The only right that is real is the right for a plaintiff mother to get money from a defendant father while simultaneously keeping the children away from the father. You know that it is real right because you can go to court and get a judge to order it."
Statutory and judicial preferences for awarding sole custody plus child support to women led to a growing number of single mothers. The Divorce Culture titles a section "single motherhood as an expressive pursuit." Previously "the hardships of postdivorce life for mothers and their children" had been emphasized and "the notion of a shared plight had its roots in nineteenth-century notions of motherhood that saw the mother-child bond as the most important and durable of all family attachments." Receiving child support payments was a source of conflict, resented by the ex-husband and "too little or too late" from the ex-wife's point of view. A 1956 study of divorced mothers by sociologist William J. Goode opined that "at every developmental phase of childhood, the child needs the father (who is usually the absent parent) as an object of love, security or identification, or even as a figure against whom to rebel safely. This is the case for both boys and girls." Mothers would feel guilty about having brought this calamity down on their children's heads and making their children unhappy.
"With the rise of expressive divorce, this view of divorced motherhood change," says Whitehead. Starting in the late 1970s, popular literature emphasized the opportunities for career and personal growth that came with single motherhood and an overall improvement in life quality.
This view was exemplified by a woman whom one of the authors encountered at a 2014 aviation event in Florida. She had flown down there in a $700,000 Cirrus SR22. "I had always wanted to learn to fly," she said, "but with a full-time job and kids there was just no way to carve out time for lessons. After I got divorced, though, I had every other weekend free and the child support was enough to pay for a factory-new airplane." Who was caring for the two children while she enjoyed the show in Florida? "My ex-husband."
A family court judge: “Child support is the government’s way of seeing how many women will work as whores if you give them a paycheck and a job title of 'single mom'.”
Given that changes in the law allowed a marriage to be dissolved unilaterally and there was no longer a need for an unhappy partner to invest time and energy in marriage therapy, how did the therapy industry adapt to this loss of revenue? Aside from the fees obtained from serving as parenting or custody investigators and expert witnesses in lawsuits, Whitehead says that American therapists shifted from "marriage counseling" on how to improve a marriage to "divorce therapy" on how to "accept responsibility for the failure of the marriage and thereby to achieve a new level of self-understanding." What about Horgan's example, above, where the partner to whom one has been faithful is having an affair with a rich doctor and divorces you to harvest the house, children, and child support? "Counseling established a joint-fault system aimed at persuading each individual to accept responsibility for the breakup. … 'To view oneself as 'innocent victim is thus to engage in fundamental distortion,' the study goes on, 'the consequence of which is a high probability for an equally bad remarriage.' … Many husbands and wives who did not seek or want divorce were stunned to learn from their therapists that they were equally 'at fault' in the dissolution of their marriages."
According to Whitehead, psychiatrists and therapists made money with face-to-face sessions and books reassuring adults who wanted to divorce for personal reasons that they need not feel guilty about any suffering caused to their children. Constance Ahrons, a (divorced) sociology professor at University of Southern California, wrote The Good Divorce (1994) where she blamed negative stereotypes and "old moralities" for any remaining public perception that children were harmed by divorce. The problem was not divorce and the separation of children from fathers but rather public disapproval of divorce. The New York guy unhappy because he pays 78 percent of his income to his adulterous ex-wife? Ahrons proposes a "a wedding ring smashing ceremony invented by a New Mexico entrepreneur specializing in 'Freedom Rings: Jewelry for the Divorced.' … If such rituals were to become more common, Ahrons argues, they could become part of the emotional healing process."
Child psychiatrist Robert Coles, a professor at Harvard, wrote a 1994 paper "On Divorce" for the New Oxford Review:
[during his childhood] Divorce was a rare step, a drastic one, an occasion for a good deal of soul-searching and regret among neighbors, never mind the two adults involved, and never mind any children they might have.
Now divorce is everywhere -- one of two marriages ends in it. Now the intensely felt sense that a marriage is a lifelong commitment no longer dominates most neighborhoods, as was the case in the one where I grew up and learned what to value and why. Now, in fact, my profession of psychoanalytic psychiatry is often summoned to defend particular divorces, even the more general phenomenon of divorce, as a readily available and far from objectionable alternative to what is often called a "bad" marriage, meaning, of course, one in which psychological pain is to be found.
... many, many marriages (the great majority, I suspect, of those headed for divorce) that held together in my parents' generation wouldn't stand a chance these days, when half of all newlyweds are headed for lawyers and the breakups they help negotiate. I have in mind, really, the social and cultural climate in which we live: a world that tells us in countless ways that our individual psychology matters, our "autonomy" matters, our "rights" matter, but is far less interested in emphasizing the obligations and responsibilities that go with living in this world, a world that has knocked down a million constraints, scorned any inhibition in sight, doted on what used to be called the weird, the aberrant, the preposterous, to the point that such words, with their implied moral judgments, have given way to others -- how interesting or how cool. … why should two individuals who are married, and going through a spell of trouble, feel they ought to stay together? They live in a society that celebrates the validity and importance of impulse, of feeling, of desire, a society that promises (through pills, through palaver, through purchases) an end to pain: swallow this, talk about that, buy everything in sight with every credit card thrown your way…
I sat in a courtroom a while back, listening to ordinary men and women convey their reasons for wanting a divorce through lawyers, who were all too glad for the paid chance to be of help as spokesmen. … I realized what a bonanza those courts are for my ilk -- we are the ones who get the patients, who are appointed mediators, who decide when the children should visit which parent: mediation in the name of something called "mental health."
Watching, listening, I wondered who "we" are, all those counselors and therapists, all those court-appointed mediators and supervisors -- what do we believe in, what do we stand for, uphold? We are the "value-free" ones, who in the name of 20th-century relativism summon psychological and sociological words that have become pervasive pieties: "do your own thing," "let it all hang out" -- as Christopher Lasch so tellingly called it, "a culture of narcissism," wherein standards and values are as various as the individuals who may (or may not) choose them. God forbid that someone in that courtroom (the judge, one of the doctors or psychologists, one of the social workers who worked in a nearby clinic, or one of the lawyers feeding off the trough of assembled family disarray) stand up and cry in sorrow and horror -- remind all of us that we all have our ups and downs, with ourselves, with one another, and that marriage is a solemn and sacred step, taken (as the old vow says) for life, "in sickness and in health, 'til death do us part." God forbid that someone point out what divorce can do to people. Even social scientists have had second thoughts about the matter -- Judith Wallerstein's extensive, pioneering work (Surviving the Breakup) has reminded us of the long-term consequences a divorce has for children.
I wonder whether we are well served today by the prevalent notion that the institution of divorce, so highly developed, so readily summoned by us, is a measure of our progress. Many marriages would last and last were all encouraged to regard divorce as a serious, a grave step, indeed -- and a moral tragedy, rather than as evidence, merely, of the psychological hang-ups two individuals happen to have.
Once we healers felt impelled to try at all costs to help marriages work, now all too many of us regard ourselves as there to heed the call of mood and instinct, of changed minds and casually errant hearts. Conscience and its necessary demands become a quaint, obsolete construct, while we negotiate the practicality of the passions -- how to permit them to have their day, their sway -- and let our nation's moral life, its family life, its children pay the costs.
Roughly 20 years after the no-fault revolution began, the system of determining child support was revolutionized. The federal Family Support Act of 1988 requires states to develop and use child support guidelines that would substantially reduce the discretion of judges regarding financial awards to a parent who had been victorious in a custody lawsuit. As covered below, one big change was that child support revenue would be the same whether a child resulted from a 20-year marriage or a one-night encounter.
Child support varies from state to state to the point that a baby with a cash value of $20 million in Wisconsin would generate only about $200,000 in profits across the bridge into Minnesota (child support capped at about $25,000 per year, resulting in $450,000 in revenue of 18 years from which USDA-estimated actual costs of child rearing must be subtracted).
How did children come to be so potentially profitable for a parent who could win custody? Professor of Economics Douglas Allen, the scholarly partner of Margaret Brinig on a series of classic papers, attributes the change to popular books and press reports regarding post-divorce women. "It was a 1985 book, The Divorce Revolution [by Lenore Weitzman, a sociologist], that gave people the idea that women are subjected to poverty after a divorce while men enjoyed an improvement in their standard of living," Professor Allen told us. "It turned out that she had used a biased sample of divorces in Los Angeles and her conclusions were false but they were very influential." Allen's perspective was supported by one of our California interviewees who said that in the late 1980s it became "public policy that California will always be ranked among the top 5 states [in potential profits from child support]."
What does the The Divorce Revolution actually say? Weitzman is a sociologist whose focus was on long-term stay-at-home mothers. "Even women who have been housewives and mothers in marriages of long duration, and who are fifty years old at the time of the divorce, are routinely denied the support they were promised. … [courts] are treating the husband's income [going forward] as 'his' rather than as 'theirs'. … Mothers of young children also experience great hardships as a result of the new rules. Courts award inadequate amounts of child support which leave the primary custodial parent, who is the mother in 90 percent of divorce cases, with the major burden of supporting the children after divorce. The research shows that … divorced women and the minor children in their households experience a 73 percent decline in their standard of living in the first year after divorce. Their former husbands, in contrast, experience a 42 percent rise in their standard of living." Weitzman goes on to say that "The net effect of the present rules for property, alimony, and child support is severe financial hardships for most divorced women and their children. … The major economic result of the divorce law revolution is the systematic impoverishment of divorced women and their children. They have become the new poor."
"A Re-Evaluation of the Economic Consequences of Divorce" by Richard Petersen (American Sociological Review 1996) says that "[the 73 percent decline] is particularly striking when one considers the maximum possible decline is 100 percent. … The Divorce Revolution received considerable attention in academic, legal, and popular publications. … From 1986 to 1993 it was cited in 348 social science articles ... and in more than 250 law review articles … and in at least 24 legal cases in state Appellate and Supreme courts … and was cited once by the U.S. Supreme Court. … the California State Senate Task Force on Family Equity was formed in response to The Divorce Revolution, and some of its recommendations were enacted in 1987 and 1988. … I reanalyze Weitzman's data and demonstrate that the results reported in The Divorce Revolution are in error." Petersen concludes that, had Weitzman properly interpreted her own data, some of which had been inaccurately transcribed from paper records, the numbers should have been a 27-percent decline for the women and a 10-percent improvement for the men. However, even these numbers are probably wrong since "in Weitzman's study, and in [Petersen's] paper, new spouses, cohabitors, and other includes are included in the calculation of economic need, but are not included in the calculation of income." In other words, if a divorced woman had a second marriage with a physician earning $700,000 per year, Weitzman would have counted this Beverly Hills resident as "poor."
That the sociologist couldn't do arithmetic as well as an economist doesn't make the book uninteresting. Weitzman gives her own history of marriage and divorce describing "the married woman's subordination" and noting that "upon marriage the wife became … a legal nonperson." She notes that "Traditional divorce laws also reaffirmed the sex-based division of roles with respect to children: the husband remained responsible for their economic support, the wife for their care. All states, by statute or by case law, gave preference to the wife as the appropriate custodial parent after the divorce, and all states gave the husband the primary responsibility for his children's economic support." Weitzman notes that one cited problem with "fault divorce" was "the lure of substantial property awards encouraged heated charges and countercharges between spouses," since the party found innocent would get more of the couple's assets than the party found guilty.
Weitzman says that along with no-fault came a reduction in the tendency of judges to award permanent alimony. She notes with disapproval that one justification for less alimony is that a woman who "could not support herself" could remarry and then be supported by a man other than her original husband. Weitzman says that this assumption is valid only for young women because "if a [divorced woman] is forty or older, she has only a 28 percent chance of remarriage" and that employment opportunities are limited for older women who have been out of the workforce for decades.
She notes that "Although the legal rules now  give fathers an equal legal right to child custody after divorce, custody is still awarded to the mother in the vast majority of the cases--close to 90 percent--throughout the United States." She notes that this was supported by psychologists of the day, e.g., "Bruno Bettelheim cautioned against the unnaturalness of fathers raising children--even in cooperation with the mother." In 1968, an attorney-psychologist team recommended that states retain a statutory maternal preference on the grounds that women were going to win lawsuits anyway and fathers knowing that they were certain to lose would be more likely to abandon custody without a damaging-to-the-children fight. Weitzman notes (page 223) that the nasty fights about fault that used to occur regarding property division had simply been shifted to nasty fights about fault regarding custody: "allegations of a wife's promiscuity or adultery, which would be considered irrelevant in a divorce action, could be discussed in court if her fitness as the child's custodian was at issue. Similarly, a husband's physical abuse of his children would normally have no bearing on a no-fault divorce. But it could be used as evidence to deny his request for for custody…." (See our Domestic Violence chapter for just how prescient Weitzman turned out to be.)
Weitzman quotes William Goode: "the relationship with children contains one of the most important weapons in the conflict of wills between ex-spouses, both during the divorce conflict and afterwards. This exploitation of the parent/child relationship may, of course, be unconscious, since few parents can admit that they use their children as punitive instruments." She adds "women may find it easier to restrict the husbands' visits, and fathers may find it easier to skip a planned visit than to constantly argue about the plans." What if the combination of being ordered to pay the bills and having an irritating ex-spouse as "primary parent" causes a father to decide to do something else with his weekends? Weitzman quotes "feminists [who] … suggest that courts apply some form of negative sanctions to fathers who consistently fail to visit their children."
How prevalent was shared custody back then? Weitzman reports a rise from 1 percent of Los Angeles County judgments in 1972 to 2 percent in 1977. Weitzman interviewed judges and found that "they were reluctant to 'take little children away from their mothers' and sincerely believed that maternal custody was usually in the child's best interest. In fact, 81 percent of the Los Angeles judges we interviewed said that they thought that there was still presumption in favor of the mother for preschool children…." Weitzman quoted a judge: "I think mothers make better mothers." She interviewed attorneys and found that 98 percent thought that judges acted as though the explicit maternal presumption were still part of the law. Where did the states get the idea of looking for a "primary caretaker"? Weitzman says that it was from a 1981 West Virginia Supreme Court decision "which has gained widespread attention." (See Linda Nielsen's comments in the Citizens and Legislators chapter for what modern-day psychologists think of this.)
Weitzman says that California was a leader in favoring joint custody "with its appealing promise that the children of divorce could 'keep both parents.'" Weitzman says that she favors joint custody only where parents agree on it voluntarily and describes a joint custody presumption as "coercive" because "most children need the security and stability of one home." I.e., if the choice was between losing a parent entirely and having to alternate between households it was better to give up a parent.
Weitzman concludes that "our findings indicate that despite the major changes in the California divorce law over the past fifteen years, there has been little change in the actual distribution of child custody awards." What does she advocate? Sole custody to the mother, both legal and physical: "as joint legal custodians, men not only have more control over their children; they also have more control over the postdivorce lives of their ex-wives" and "a rule that would create a presumption that custody will be awarded to the primary caretaker … would ensure optimal continuity and stability for the child."
What about the cash that comes with custody? Weitzman contrasts California post-no-fault unfavorably with England: "In England it is assumed that a divorced woman with young children should be supported so that she can provide the children with the care and attention they need." Weitzman decries the deadbeat dads that were common prior to 1984 when federal law changed to require "mandatory income withholding and the interception of federal and state tax refund checks." Weitzman points out that a woman with a single child might collect only 25 percent of a man's income and that this was likely to be her only income because she wouldn't work and wouldn't have been married long enough to collect alimony. She tries to understand why judges wouldn't award enough in child support for both the child and the woman to live at least as comfortably as the ex-husband. Weitzman quotes judges as saying that they did not want to de-motivate the father from going to work: "you can't touch the goose that lays the golden egg." Weitzman advocates for larger court-ordered transfers and harsher penalties for men who can't or don't pay. She says that an "essential component of an effective deterrent system appears to be a high probability of jail for continuously delinquent fathers. … those counties [in Michigan] which most often used jail had the highest rates of compliance" and notes with approval that "Michigan, which ultimately jails one out of seven divorced fathers, collects more child support per case than any other state in the country."
Weitzman notes that college-age children of divorce "saw their fathers as more distant, judgmental, and selfish, and often felt psychologically (as well as financially) abandoned by these men who were now pursuing 'new lives.'" Her proposed solution was that California law be amended so that judges could order men to continue to pay child support to the mothers who had won custody and also college tuition, room, and board at least "until children complete their education." (Massachusettts law provides for this.)
The Divorce Revolution is based on 1000 divorce cases from 1968, 1000 from 1972, and 500 from 1977. The 1968 and 1972 cases were from Los Angeles and San Francisco; the 1977 cases were from Los Angeles alone. Weitzman doesn't say who filed these cases, but if Brinig and Allen's classic "These Boots are Made for Walking" paper applies, as well as our own research from Middlesex County, Massachusetts (72 percent of lawsuits filed by women), most of the divorces that she studied were initiated by the wife. This behavior raises some questions unanswered by Weitzman: (1) why do women hire a lawyer to obtain a 73-percent drop in their standard of living? (2) if kids are such an economic drag at prevailing child support rates, why don't mothers hand them over to fathers? (3) if being an every-other-weekend parent and paying the then-prevalent child support rates was such a great deal, why did fathers mount the vigorous defenses to divorce lawsuits that Weitzman describes in her book?
Professor Allen seems to be right about the book's political influence. Child support has become more lucrative. Fathers are regularly jailed in all states for nonpayment of these awards and will also be pursued internationally. Most states continue to subscribe to the winner parent/loser parent philosophy with the mother nominated as the winner parent more than 90 percent of the time. The depth of Weitzman's influence is summarized by Professor Allen: "Family courts treat the noncustodial parent as purely a financial input."
What Weitzman did not predict is the tremendous variation in child support profits from state to state, despite the fact that federal law requires each state to follow a similar procedure in developing child support guidelines. How wide is the variation? Nevada caps child support at $13,000 per year; A plaintiff suing a successful medical specialist in Massachusetts could expect over $100,000 per year, leading a professor of economics in that state to say "The best career advice that I could give to a female freshman would be to drop out and stop paying tuition. Get pregnant with a medical doctor this year. Get pregnant with a business executive two years from now. Get pregnant with a law firm partner two years after that. She'll have three healthy kids and a much higher after-tax income than nearly all of our graduates in economics."
A political science professor's summary of the child support revolution: "There were always gold diggers in the U.S., but it is only since about 1990 that they had an officially published payscale [the child support guidelines]."
"Child support was designed as a welfare system for stay-at-home women," said a lawyer in a winner-take-all state, "with some guy paying instead of the government, but nowadays the typical divorce lawsuit is a man being sued by a career woman whose income is about the same as his. When it is done you have court-ordered payments going between adults whose incomes are similar. It is mostly in my paternity cases [child support lawsuits between never-married adults] where it is someone with a job paying someone without a job."
Are attorney anecdotes about a doctor earning $500,000 per year suing to become the primary parent and extract child support out of a doctor earning $500,000 per year supported by data? The tendency of Americans to marry those with similar levels of education and income was studied in "Marry Your Like: Assortative Mating and Income Inequality" (Greenwood, et al. 2014; NBER). Figure 1 of the paper shows a rise in the tendency of people to marry equal partners from 1960 through about 2000. Figure 4 shows that, the richer the family, the more likely the wife is to work. At the high income levels where couples can afford a full-scale American divorce lawsuit, the proportion of couples with a working wife went from 35 percent in 1960 to 75 percent in 2005. The proportion of household income that the wife brings in went from less than 15 percent to more than 30 percent.
[What are the stakes when those doctors sue each other? Using the default 80/20 time split in California's online child support guideline calculator, over an 18-year period, the primary parent will come out up to $1.6 million richer, after taxes, than the secondary parent. See also the Massachusetts chapter for examples of how the claims of high-income child support plaintiffs are handled.]
Except in the handful of states that have adopted a 50/50 custody presumption or guideline, such as Alaska, Arizona, Delaware, and Nevada, matters are only slightly changed from where they were in 1996 when Dr. Whitehead published The Divorce Culture. As you'll learn from our chapters, no-fault divorce is available in nearly every state, women typically initiate the divorce lawsuit (i.e., are the plaintiffs), and women nearly always win custody of the children. The biggest change since 1996 is that child support has become more lucrative, to the point where it exceeds the median income for a college graduate in many states.
As child support awards were increased alimony awards tended to be decreased in duration if not amount, according to the veteran attorneys whom we interviewed. This decrease in alimony duration, particularly from short-term marriages, was attributed to the retirement of older judges and a belief among younger judges that women are capable of working. The change from alimony to child support can be favorable for custody winners because (a) alimony terminates on remarriage while profits from child support are not impaired by remarrying, and (b) judges tend to get mentally anchored on pre-tax numbers and child support is tax-free.
Domestic violence allegations in divorce cases have grown so common that domestic violence courts function as de facto divorce courts and family courts function as de facto systems for inflicting financial and psychological punishment on accused domestic violence perpetrators. See our Domestic Violence Parallel Track chapter.
As noted in the Introduction, roughly half of America's children today are children of divorce and/or never-married-and-no-longer-together parents. The family law system was set up with the assumption that it would be rare for an American adult or child to be exposed to divorce, custody, or child support litigation (see the Rationale chapter). However, roughly half of Americans will have a significant encounter with the family courts and most of them will be forever changed (see the Children, Mothers, and Fathers chapter): "It is no wonder that the kids don't turn out well; you have compromised human beings raising children of divorce in the U.S.," was one attorney's summary. Americans who grow up in an intact family are also touched by the family law system, which shrinks the U.S. economy compared to a lower-stakes European-style system (see Litigation, Alimony, and Child Support in the U.S. Economy).
Interviewees report that, with men having been completely defeated by statutes and judges, the political battleground in winner-take-all states has shifted to women versus women. Women who work full time and find out that non-working child support plaintiffs earn more than they do are becoming a political force. "Why should my husband and I work 60 hours a week so that a woman who has never worked can relax at home, go to the gym, and take a lot of vacations?" is how a New England "second wife" critiqued the current system. See our Canada chapter for the professor who said it irked her that her partner paid four times as much in child support to his ex-wife as she was paid for full-time employment as a PhD researcher and teacher.
Another political rift is black-white. Legislators and attorneys told us that state divorce laws are typically overseen by legislators who are themselves divorce litigators. The litigators who become legislators or committee members tend to be those who are the most successful, charge the highest fees, and represent the wealthiest people. "The laws are great for rich white female plaintiffs and their rich attorneys," a legislator told us, "but they are of little value to black women, most of whom aren't collecting from a father with substantial resources. The laws have a devastating effect on black men because any period of unemployment following a child support judgment tends to result in imprisonment and black men are more likely to suffer unemployment. They have a devastating effect on black children because fathers who've been defeated in the family courts give up on participating in the child's life."
To laypeople, the current system in most states is rife with absurdity. One hundred percent of a child's college fund will be spent on litigation "in the child's best interest" and come out with the same every-other-weekend-with-dad schedule result as 97 percent of other divorce lawsuits. Someone who had sex with a married dermatologist will collect more in child support than the after-tax earnings of a primary care doctor. A man will be financially rewarded for trading in his 50-year-old wife for two 25-year-olds. For industry professionals, however, the system is working fine and, within a given state, is unlikely to change. One attorney summed it up with "Defendants have to remember that they're the only person involved in the child's life who isn't being paid. The plaintiff will get paid to be a parent. The lawyers are paid to argue. The psychologists and guardian ad litems are paid to talk to the child. The judges, child support enforcement officers, prison guards, and legislators, are all paid. Nobody wants the system to change except for the lawsuit losers."
As noted in our Litigation, Alimony, and Child Support in the U.S. Economy chapter, the total legal fees paid by American consumers to fight with each other over family law matters is about $44 billion. Adding in costs to run courts, imprison defendants who don't pay amounts ordered, etc. and the total is roughly $57 billion.
These fees and costs are a small percentage of the total effect of our society's litigation and winner-take-all approach to family. People adjust their behavior in response to the financial incentives presented by the alimony and child support systems, for example, and the result is a shrinkage of the U.S. economy by roughly 3 percent, comparable to the entire federal budget deficit or to every American taking an extra 1.5 weeks of vacation per year.
Attorneys noted that an increasing proportion of their business is working with plaintiffs and defendants who were never married to each other.
"The Supreme Court made abortion legal with Roe v. Wade in 1973 and Congress made abortion profitable in 1988 with the federal Family Support Act [that required states to develop child support guidelines]," is how one attorney summarized the evolution of law in the last quarter of the 20th century. The new state guidelines made an out-of-wedlock child just as profitable as the child of a marriage. Our interviewees report that it did not take long for people to put these two legal innovations together and thus began the age of women selling abortions to men. "If the child support guidelines make having a baby more profitable than working," a lawyer noted "it only makes sense that 5-10 years of the average person's income is a fair price for having an abortion."
In the event that a child is not aborted for profit, attorneys and government employees will work for 18-23 years to manage the cash flow that results from the child's birth. Some of our interviewees report that they handle just as many paternity and child support cases as divorces.
None of the attorneys interviewed expressed opposition to gay marriage, which was working its way up to the U.S. Supreme Court during the period when we did the bulk of our interviews. "That's inventory," a divorce lawyer was reported to have said (in the Divorce Corp. movie) every time he drove by a wedding. Attorneys generally looked forward to having a larger base of clients and some expressed the opinion that judges hearing gay divorces might ultimately revisit their gender biases when handling divorces between men and women. "If they get used to the idea of awarding shared custody to two moms," one lawyer said, "then they might start thinking that it was okay for a mom and a dad to do 50/50 shared parenting."
What do they make of the public fight over gay marriage? "What would surprise people from 100 years ago the most is not that two people of the same sex wanted to live within a framework of laws that were designed for two people of the opposite sex," said one attorney. "What I think would surprise them is how the benefits of civil marriage cited by gay marriage advocates have nothing to do with marriage per se. The public discussion is about potential tax or Social Security benefits from being married or that it isn't necessary to execute a health care proxy to get control over an unconscious person's health care. But nobody talks about what used to be considered the main benefit of a civil marriage, i.e., that you had a life partner on whom you could rely."
An attorney who'd been practicing for nearly 40 years said "Today's civil marriage is a shadow of its former self. In the old days, if your partner was having an affair you could have him or her arrested on charges of adultery. If your partner decided to repudiate his or her marriage vows, the state would assist you in trying to enforce those vows. He or she could negotiate with you to end the marriage but there was no equivalent to no-fault divorce in which your partner could sue you and be guaranteed of winning the lawsuit. Gays and straights today are fighting over the scraps of marriage."
What about the moral and philosophical dispute regarding gay marriage? "When I read arguments by opponents of gay marriage," said one attorney, "I don't recognize their description of straight marriage as some sort of sanctified institution. With no-fault statutes that kept the old alimony, property division, and child support rules, straight people made a mockery of civil marriage a long time ago. Marriage today is a way for a smart person with a low income to make money from a stupid person with a high income. What difference does it make whether the gold digger and mark are of the same sex?"
Selected Wall Street Journal reader comments on "Supreme Court’s Gay-Marriage Ruling Allows Something Else: Gay Divorce" (August 14, 2015):
As noted in the Summary chapter, no-fault divorce combined with potentially unlimited child support revenue following an unmarried sexual encounter brought an end to the era in which Americans would typically spend their adult lives with one partner and have children within that lifelong partnership. In that era of monogamy, there was a roughly 1:1 ratio between the number of women with children and men with children. "We already have functional polygamy in this country," said one lawyer. "It is tough for me to think of a guy who is worth suing that hasn't had kids with at least two women, albeit involuntarily." (As explained in that chapter, monogamy may have simply been a blip on the radar of human evolution; our DNA suggests that we are descended from only half as many men as women. Over the entire span of human history, most men have been childless.)
Americans born in 1960 were probably the last cohort with significant exposure to traditional values regarding marriage. As this cohort dies out, so too should die the last vestiges of any social stigma attached to being a never-married parent or a divorced parent. At that point, the vast majority of Americans will be entirely free to follow their economic self-interest, e.g., to have a child support-yielding kid with an already-married high-income partner rather than to marry a medium-income partner. Under the family law systems of most states, residents following financial incentives results in what the attorney above characterized as "functional polygamy."