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Illusive Equality: On Weitzman's Divorce Revolution

Published online by Cambridge University Press:  20 November 2018

Martha L. Fineman
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Type
Review Symposium on Weitzman's Divorce Revolution
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American Bar Foundation Research Journal , Volume 11 , Issue 4 , Fall 1986 , pp. 781 - 790
Copyright
Copyright © American Bar Foundation, 1986 

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References

1 I have discussed this phenomenon within the context of family law reform efforts elsewhere. See Fineman, Implementing Equality: Ideology, Contradiction and Social Change; A Study of Rhetoric and Results in the Regulation of the Consequences of Divorce, 1983 Wis. L. Rev. 789.Google Scholar

2 The partnership metaphor is typically used by liberal feminists within the context of family law reform efforts because of their uncritical acceptance of the necessity of establishing “equality” through sameness of treatment. The use of this metaphor places the focus on the adult “partners” and not on the products of the partnership (children). Because it is derived from a business analogue, conceptualizing issues such as child custody, child support or alimony are particularly difficult within the paradigm because there are no comparable available referents. In this way, Weitzman's use of the metaphor is somewhat more expansive (at 379). However, even in this regard, her treatment of the issue is open to criticism. See infra text at 785. On another level, as discussed infra text at 784, the model, in application, tends to result in 50/50 divisions. A similar pattern is revealed in Weitzman's own policy recommendations. Thus, while she is sensitive to the idea that women in certain circumstances require more than 50% (at 380, where older women's needs are discussed), her policy recommendations for the “transitional generation” woman (at 382) embody the rule equality equation that “equality” equals one half. This point is further developed infra text at 789. To go further, certain recommendations put forth by Weitzman make assumptions that are contraindicated by her own data. Consider, for example, the recommendations for the primary caretaking mother (at 381). These women, according to Weitzman, should be awarded generous support during the early years after divorce with large “balloon payments” following divorce to provide for career training and so on. In addition, generous child-support awards should be made. While all of this may sound extremely good, if we have learned anything about divorce during the past 15 years, it is that there are no efficient and effective means for enforcing long-term ongoing financial obligations after divorce. This discussion is developed further infra text at 000–00 and accompanying notes where Weitzman's treatment of the disposition of the family home is critiqued.Google Scholar

3 See supra note 1.Google Scholar

4 Rae identifies three different types of equalities: “simple,”“segmental,” and “bloc.” D. Rae, Equalities (1981). Simple equality is a comparison between individuals, while segmental equality is individual equality within a subclass. By contrast, bloc equality is a comparison between groups or blocs and thus asks for something very different from simple or individual equality. Id. at 35. Liberal feminist reform efforts tend to adopt a simple or individual model of equality, as discussed more fully in Fineman, supra note 1. As a result, such efforts generally fail to assess seriously the implications of the total failure of women to achieve bloc equality with men in the economis sphere. Moreover, the differences between women present complicated segmental equality questions. See infra text at 789 and note 8.Google Scholar

5 Weitzman apparently sees no way within her theoretical framework to avoid having to ultimately “split” the house. This illustrates a peculiar inconsistency in her policy recommendations. As mentioned supra note 2, in some areas (e.g., at 380), Weitzman accepts the idea that women who arrange their lives within marriage to their detriment in regard to market participation should be compensated. But, she can only see “parenthood” as being similarly “detrimental” to a certain degree or, more correctly, up to a certain point in time-when all the children are 18. Such results can be understood as attending the partnership paradigm. By its concentration on adults, discussed more fully supra note 2, children are ignored. In part, this is because of the reluctance to view children (metaphorically) as ongoing “liabilities” following partnership dissolution. While the “children as liabilities” metaphor creates cognitive dissonance, the failure to develop a theory of family law around the analytical constructs of “need” and “dependency” has resulted in inequities which plague women in their (in)ability to provide for themselves and their children after divorce. Indeed, Weitzman herself illustrates most poignantly how much women have lost in the divorce reform game: “The changes in the rules for dividing property have had a major impact. Before 1970, under the old law, the 'innocent' plaintiff, usually the wife, was typically awarded a significantly larger share of the marital assets. In 1968 wives were awarded more than half (60 percent or more) of the property in both San Francisco and Los Angeles cases. Most of these awards allowed the wife to keep the family home and its furnishings, which often constituted the single most valuable family asset” (at 30).Google Scholar

6 The existence of this dependency does not have to be remedied by individual men; and, moreover, it is not at all clear that an individualized approach to the problem is effective. See particularly Weitz-man's chapter 9 on child support enforcement. Moreover, the enactment of social policy legislation to address the scope of the dependency issue (which is, of course, not limited to the divorce context) would recognize that such circumstances derive from structural conditions and are public issues rather than private problems.Google Scholar

7 It seems naive to believe that legislatures can devise specific rules that are “fair” in all situations. This is, however, the implication of recommending that judicial discretion in an area be limited.Google Scholar

8 The obvious class bias of such a view is apparent when one realizes that housewives are increasingly rare and that such a status is, from a segmental equality perspective (see supra note 3), a more privileged one in the sense of economic stratification. In another way, such a focus tends to obscure the multiple economic contributions that women who work both in and outside of the home make to their marriages. I am not suggesting that the housewife's experience be ignored in formulating legislative policy. Rather, I wish to emphasize that the reformers' focus has tended to be on this particular life experience to the exclusion of others, particularly that of poor women. In this regard, consider Weitz-man's data at 326. There it is indicated that while women in upper income brackets suffer a 42% decline in their former standard of living, their postdivorce median income is 18,000. In comparison with low-income women, while the decline is much less precipitous in that they retain 71% of their former income, their median income is only 9,050.Google Scholar

9 The statistics were reported by the U.S. Labor Department and were carried by national and local papers. See, e.g., Wis. St. J., Mar. 20, 1986, £ 3, at 4.Google Scholar