I have spent more than 20 years mediating divorce proceedings and I have represented both men and women. Although we’ve seen women gain better access to financial stability over the years, I wonder if the way we handle alimony is still a bit out of date.
Maybe this is a little too close to home. After all, along with my career, I am what I affectionately refer to as my family front rag. I take care of the coordination, planning, planning and anticipation. This doesn’t mean that my husband isn’t loving or helpful, but for better or for worse, I’ve taken on almost all of the family’s worries.
And I know that I am not alone I see way too many customers, mostly women, taking on this burden as well. Add to this a higher income and the road to divorce becomes even more complex. For example, I had this one client who, although clearly sad that their marriage had failed, agreed with her decision to file for divorce. Then I told her that she was likely to have to pay child support in addition to child support, her shoulders immediately sagged and her eyes filled with tears.
When I heard her story, I felt her pain. She had chosen to stay home when the children were young but returned to work when she was school-age. She was soon offered a business sale opportunity, where she quadrupled her income. She felt empowered.
However, their marriage did not go exactly the same way. She was starting to get annoyed that even now that she was working and making twice as much money as her husband, she was still in charge of all of the family planning: children’s timetables, shopping, doctor’s appointments, and filling out forms, anticipate everyone’s needs.
When she stepped in my door, she knew she would be responsible for child support, but she just couldn’t bother paying child support (or spouse’s allowance). Why should she have to pay to support him? Her husband had a good job. Until recently, he was the main breadwinner in the family.
The entire concept of maintenance goes back more than 3,000 years to Hammurabi’s “eye for an eye” code. It was mostly viewed as something ordered to a husband to pay his estranged wife, partly as his duty as most women did not have the means to support themselves financially, partly to make up for bad behavior (think philandering, gambling (Alcohol abuse, domestic violence) violence.) But it was rarely given because women did not have the financial resources or support system to demand it. So they stayed married. There was no self-actualization or personal reinvention.
Then came the 1960s and gender equality when child support became more uniform. And in some cases men paid mightily. That seemed fair at the time, as most women took on the roles of parenting and household chores in lieu of paid work. For most women, the men they married were their only source of economic support. As a result, in many states child support was only available to women.
Then came the second wave of feminism (thanks, Betty and Gloria) as women returned to work and earned higher salaries. And in 1979 the US Supreme Court in Orr v Orr ruled that child support based on gender was unconstitutional. At first glance, that seems fair too. Because equality should technically give women equal access to money.
In fact, the gender pay gap is narrower today, from women who made 33 cents less than their male counterparts in the 1980s to 11 cents in 2017, according to the latest data from the Pew Research Center. Despite this positive progress, financial inequality and gender power imbalances persist.
Less than 5 percent of Fortune 500 companies are women. Congress also consists of about 20 percent of women. While women’s entrepreneurship is at an all-time high, according to the Small Business Administration, only 18 percent of their loans have gone to female-owned companies. Furthermore, even today, 50 years after the start of the Aquarian Age, women are more likely to find work in the poorly paid service sector.
How does that affect maintenance today, if at all? There is a small but growing group of women who have increased our own wealth. Yet what do we need as women to get there? We have broken the mold, created our own wealth, and continue to be the CEO of the non-paying organization we call home. Every time I stand in for a working woman who works overtime at home to keep it all together, I can’t help but think something is wrong. A look at the financial picture alone may not tell the whole story. Women typically still do the majority of household chores today. I’m not suggesting that in many cases men have stopped doing it, but most of the “home work” is still mostly the woman’s job in the house.
In determining maintenance today, the courts usually take into account the marital lifestyle of the family and analyze the balance between needs and solvency. However, what is seldom included in this analysis is who bears the weight for most household issues, organizations, and responsibilities. Salary analysis ignores the value of administration (ie, concern for) key aspects of the household (such as children’s schedules). In addition, it certainly does not take into account the extra energy and strength that a woman needs to achieve an economically favorable position outside the home.
Maintenance should compensate for an unbalanced playing field. While gendered application doesn’t seem entirely fair, it’s also not realistic to pretend that men tend to live with the same restrictions and obligations as women. So is it fair to look at men who have not faced internal inequalities in the same way as women when it comes to maintenance?
It is clearly complicated to keep men under the same simple lens as women. Perhaps livelihood should also include taking into account the added burden of hurdles women have had to face in returning from gaps in their résumés or simply being born women. Perhaps we can also take a deeper look at the depth of engagement, the level of worry, and the time it takes to plan and carry out family duties and activities. While we all agree that everything should be the same between the sexes, it is not yet so.
Gabrielle Hartley is an attorney, mediator, speaker, consultant at yourelegantdivorce.com, and the author of Better Apart: The Radically Positive Way to Separate. She is known for a unique, non-toxic approach to divorce that keeps 99 percent of her cases out of the courtroom and around the negotiating table as she effectively supports her clients in creating healthy, uplifting lives for them after the divorce. She lives in Northampton, Massachusetts with her husband and three sons.
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