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Reworking the Past, Imagining the Future: On Jacob's Silent Revolution
Published online by Cambridge University Press: 27 December 2018
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1 9A ULa 1471987. For a description of the nature and status of uniform acts generally, see note 25 infra.Google Scholar
2 For perspectives on the relationship between law on the books and the practice of law, see, e.g., Mnookin, R. & Kornhauser, L., “Bargaining in the Shadow of the Law: The Case of Divorce,” 88 Yale L.J. 950 (1979), and Melli, M., Erlanger, H., &. Chambliss, E., “The Process of Negotiation: An Exploratory Investigation in the Context of No-Fault Divorce,” 40 Rutgers L Rev. 1133 (1988).Google Scholar
3 Jacob, , “Faulting No-Fault,” 1986 ABF Res. J. 773;id.,”Another Look at No-Fault Divorce and the Post-Divorce Finances of Women,” 23 Law & Soc'y Rev. 95(1989).Google Scholar
4 See, e.g., Lenore Weitzman's The Divorce Revolution (1985) (“Weitzman, Divorce Revolution”.) Later in this essay I shall compare Silent Revolution and The Divorce Revolution.Google Scholar
5 For lawyers, who are steeped in the intellectual tradition of legal realism and in the quotidian experience of practice, the written text of legislation is but a small part of the content of the living law. Not infrequently, the legal text is little more than a curiosity whose primary interest is its dissonance with legal experience. It is how the text functions in a social context that creates the lawyer's reality.Google Scholar
6 Writing of New York reforms, Jacob states that “the procedural character of their proposal was an essential ruse to avoid debate on more fundamental issues about the character of family life under liberalized divorce rules” (at 34) and describes them as “using the cover provided by procedural reform” (at 35) (emphasis added). In describing the New York reformers' mandatory counseling provision, Jacob asserts that its “real significance” (to whom?) was to assuage conservatives rather than to save marriages (at 41). Writing of the California reformers, Jacob reports that the “governor's commission was careful to veil its proposals in as conservative a guise as possible” (at 54) (emphasis added). In the last chapter, however, Jacob acknowledges that he has no evidence of “conscious maneuver; rather, it seems that the advocates of divorce law reform intuitively took advantage of opportunities which they recognized but which they had not fully conceptualized” (at 168).Google Scholar
Jacob presents the mandatory conciliation requirement of the 1966 New York reform as a sop for conservative opposition rather than a deeply cherished brainchild of its foremost promoters, Henry Foster and Howard Hilton Spellman (at 39, 41). (It could, of course, be both for different persons at different stages of the legislative process. Yet Jacob does not clearly distinguish the motives of the various actors. It is not clear, for example, at 39, why Foster supported conciliation, and the textual context suggests political concerns.) The evidence suggests the latter. Foster was highly idealistic, beyond reproach, and had long advocated conciliation efforts. Spellman was so enamored of his idea that he agreed to head the first Manhattan Conciliation Bureau (at 42). Jacob may suspect deceptiveness because their expectations seem unrealistic to us now and because the conciliation bureau was in fact a failure. But this is a historic perspective. Hope was high then, and there were data and theory on which to buoy one's hopes (at 39, 40). Jacob gives similarly short and cynical shrift to Herma Kay's California proposal for a family court, suggesting that it was a ploy to cloak the radical nature of the primary no-fault proposal (at 54, 55). From Kay's perspective, however, no-fault was merely a useful tool to enable a new therapeutically trained judiciary to wisely and humanely administer family law. “The commission gave the Family Court its highest priority. It viewed the elimination of fault from the substantive law as a change needed to further the work of the Family Court, not the other way around.” H. Kay, “Equality and Difference: A Perspective on No-Fault Divorce and Its Aftermath,” 56 U. Cin. L Rev. 1 (1987).Google Scholar
7 See text at notes 27–29 infra.Google Scholar
8 Laws of New York 1966, ch. 254, £ 15, effective 1 Sept. 1967, codified at N.Y. Dom. Rel. L. £ 170(6) (McKinney's 1988).Google Scholar
9 The 1966 law provided for a two-year waiting period. Laws of New York 1966, ch. 254, £ 15. Since 1972, the waiting period has been one year. N.Y. Dom. Rel. L. £ 170(6).Google Scholar
10 Sherrer v. Sherrer, 334 U.S. 343, 68 S. Ct. 1087, 92 L. Ed. 1429 (1948).Google Scholar
11 Rosensteil v. Rosensteil, 16 N.Y. 2d 64, 262 N.Y.S. 2d 86, 209 N.E. 2d 709 (1965), cert. denied 384 U.S. 971, 86 S. Ct. 1861, 16 L. Ed. 2d 682 (1966).Google Scholar
Although New York's highest court, the Court of Appeals, did not consider the validity of such foreign divorces until 1965, when it approved them, the practice had by that time been judicially accepted for at least 25 years. Id., 16 N.Y. 2d 81. New York requirements were satisfied when one spouse appeared in person and the other appeared through a local attorney or otherwise voluntarily submitted to the jurisdiction of the divorcing court. Id, 16 N.Y. 2d 72, 74.Google Scholar
12 New York law “says” that a marriage may be terminated because of one party's legally cognizable fault unless both parties agree to terminate the marriage, in which case no allegation of marital fault is necessary. In the moral discourse in which the exponents of legal revolution couch no-fault divorce, this makes little sense as a matter of moral principle.Google Scholar
13 Cal. Stats. 1969, c. 1608, £ 8, codified at Cal. Civ. Code £ 4508(a), 4507 (West 1988).Google Scholar
14 Freed, D. and Walker, T. count 23 such states in “Family Law in the Fifty States: An Overview, ” 23 Fam. L.Q. 495, 515–16 (1990).Google Scholar
15 Divorce Reform Act, 1969, Laws 1969, ch. 55, art. 2.Google Scholar
16 When California became a state, it constitutionalized the basic principles of community property law that prevailed during the period of Spanish and Mexican control. See generally G. Blumberg, Community Property in California 96–103 (1987). These principles are now codified at Cal. Civ. Code £ 5100, 5132. Property earned by either spouse during marriage is owned in common by them; and “[t]he respective interests of the husband and the wife in community property … are present, existing and equal interests.” Cal. Civ. Code £ 5105.Google Scholar
17 In traditional fault-based divorce, fault may be either a ground or a defense. Thus, if a husband claims a divorce based on his wife's adultery, she may assert the husband's adultery as a defense to his claim. If both prevail with their proof, neither is entitled to a divorce. This is the doctrine of recrimination. It speedily moves the parties to the bargaining table. See generally H. Clark, The Law of Domestic Relations in the United States 527–28 (2d ed. 1988).Google Scholar
18 39 Cal. 2d 858, 250 P. 2d 598 (1952). De Burgh is an outstanding example of judicial activism. Although elsewhere the doctrine of recrimination was a creation of case law and hence always subject to judicial revision, in California the legislature had codified the doctrine in the California Civil Code, which provided that “[d]ivorces must be denied upon … a showing by the defendant … against the plaintiff, in bar of the plaintiff's cause of divorce.”Id. at 863. Despite this mandatory direction, the California Supreme Court held that the bar was discretionary and should not operate if there were no prospect of reconciliation. Id. at 872. A few other states had already weakened the doctrine of recrimination. Id. at 869.Google Scholar
19 Indeed, this seems to have been one of the California Supreme Court's goals in De Burgh: “[A] strict recrimination rule … exerts a corrupting influence on the negotiations that precede the entry of such a default. The spouse who more desperately seeks an end to a hopeless union is penalized by the ability of the other spouse to prevent a divorce through the assertion of a recriminatory defense.”Id. at 869.Google Scholar
At a time when men were predominantly divorce initiators in fact, the court's repudiation of the recrimination bar was likely to have a disparate impact on women's bargaining strength. The court further held that when a divorce was granted to both parties, the community property had to be equally divided. Id. at 874. Thus, although Weitzman has observed that California no-fault law eroded the wife's bargaining power (The Divorce Revolution at 27–28), De Burgh initiated that process 14 years earlier. After De Burgh only a faultless wife might, for negotiation purposes, successfully resist a husband's desire for divorce. The facts of De Burgh are illustrative. From the start of their marriage, Daisy repeatedly suffered Albert's drunkenness, physical abuse, and adulterous boasts. Reproachless until several days before their separation, Daisy then “cruelly” accused Albert of dishonesty and homosexuality. Id. at 861, 862. Few wives could be expected to be more forebearing than Daisy.Google Scholar
20 Jacob's failure to ascribe content and meaning to the term “no-fault” reaches critical proportions in his concluding chapter on the “vagaries of diffusion.” Jacob reports that, in 1985, 15 states were “irretrievable breakdown” states while 35 had some form of no-fault provision coexisting with other fault provisions (at 80). Of the 35, he notes that some jurisdictions adopted no-fault grounds, either separation for a specified time or incompatibility, long before the New York and California enactments (at 81).Google Scholar
Rather than understanding “no-fault” as an umbrella covering a variety of divorce grounds that do not require a showing of marital fault, Jacob seems to attribute some transcendent independent significance and power to the term. He writes, for example, “If no-fault was on the minds of the drafters of that legislation, they carefully disguised their intentions; no-fault was simply not part of the political vocabulary in New York when those changes [1966 addition of contract-conversion and new fault grounds] were contemplated” (at 81). But, one wonders, was “no-fault” even part of the linguistic vocabulary? Why would no-fault be a more apt label than the more descriptive “contract conversion?” It is any more than a functional description? Does Jacob believe that the label fundamentally changed the way that we think about divorce and perhaps even marriage? If so, this requires some discussion, some explanation.Google Scholar
Jacob then makes the extraordinary assertion that those many states having one of the variety of nonfault grounds that was not initially and prominently labeled no-fault “became no-fault states not through the action of their legislature and not even through a decision by their supreme court” but on the basis of a 1974 listing in the Family Law Quarterly, the journal of the ABA Family Law Section, because the listing is “authoritative” (at 81).Google Scholar
No-fault, which has proven a convenient descriptive term, is not a legislative term. The Family Law Quarterly's annual survey of U.S. divorce law, a general, sketchy classification of the various state laws on a variety of divorce-related issues is not authoritative in any legal sense and simply uses “no-fault” to indicate that a state has at least one ground for divorce that does not require a showing of fault.Google Scholar
Jacob then notes that the listing “aroused no visible objection” (at 81) (why ever would it?) and accuses the unnamed authors of the survey of “a bold attempt to legislate by scholarly fiat in a law journal” (at 82). This analysis is bizarre. Jacob first attributes legislative authority to a source that neither has nor claims to have any such authority and then chastises the source for misusing this fictive authority.Google Scholar
The survey classification presumably irritates Jacob because to him “no-fault” means more than “other than fault.” Yet nowhere does he explain the metasignificance of the term nor does he explain why he consistently implies that irretrievable breakdown is the only true no-fault and that other nonfault provisions are illegitimate pretenders to the category. The most that I could infer from his discussion was that for him the drafters' initial failure to label these various nonfault grounds “no-fault” forever determined their essential character. The impetus for this odd analysis may lie in Jacob's theoretical construct. He uses the survey discussion to lay the groundwork for the concluding theme of the chapter: innovation and diffusion (at 82). Yet what he seems to describe is a process of convergence, with states adopting various forms of nonfault divorce. To talk about innovation rather than convergence, Jacob must establish a leader in the field, which he does by awarding the prize of “innovator” to those who first affixed the label “no-fault,” in other words, to the irretrievable breakdown ground of California and the UMDA.Google Scholar
21 “The husband shall have the entire management and control of the common property, with the like absolute power of disposition as of his own separate estate.” Act of April 17, 1850, ch. 103, £ 9. This basic principle remained intact until 1975, when it was replaced by a facially sex-neutral rule of equal management. Act of Oct. 1, 1973, ch. 987, eff. Jan. 1, 1975, now codified at Cal. Civ. Code £ 5125(a) (West 1990).Google Scholar
22 This seems a farfetched and highly questionable reason to champion divorce reform. It is one thing to dignify the burial of unsatisfactory marriages; it is quite another to promote liberal divorce in order that married persons may have an opportunity to try out different form of family organization.Google Scholar
Enabling alternative family forms comes not through the reform of divorce law but rather through the reform of marriage law. Domestic partnership laws would enable non-traditional family groups to create the legal ties that benefit traditional family members.Google Scholar
23 This history is fully documented by Kay, 56 U. Cin. L. Rev. at 34–44 (cited in note 6), and her “An Appraisal of California's No-Fault Divorce Law,” 75 Calif. L. Rev. 291, 299–301 (1987).Google Scholar
24 Id. See also Kay, H., “A Family Court: The California Proposal,” 56 Calif. L Rev. 1205 (1968).CrossRefGoogle Scholar
25 9A ULA 147 (1987). The National Conference of Commissioners on Uniform State Laws, founded in 1892 to promote uniformity in state law, is made up of lawyers, judges, legislators, and law professors. The conference reviews drafts prepared by a committee of subject matter specialists and decides whether to promulgate a draft as a Uniform Act. States may adopt an act in whole or in part.Google Scholar
26 Id. at 69. Jacob's organization of the promulgation of the UMDA is problematic. Although the act was intended as comprehensive divorce regulation, in this chapter Jacob examines only the formulation of the act's no-fault divorce ground. Thus although discussion of role changes might have been appropriate with respect to other provisions of the act, particularly the support and property division sections which Jacob takes up in the second half of the book, it is inappropos so long as Jacob restricts his consideration to no-fault divorce alone. In fact, sex roles were an implicit and explicit issue for the UMDA drafters, as I describe in the text accompanying notes 37–47 infra.Google Scholar
27 Jacob's subject-by-subject organization of the book makes it difficult for the reader to grasp or contemplate the UMDA in its entirety. As I discuss later, the UMDA both explicitly and implicitly addresses sex roles in its property division and spousal support sections. But here, Jacob is considering only the no-fault divorce provision.Google Scholar
28 See text infra at notes 40–47.Google Scholar
29 See text supra at notes 9–13.Google Scholar
30 Steven Sugarman at Boalt Hall has an excellent and ambitious set of materials. Isabel Marcus at SUNY/Buffalo and Paul Martin at Cornell also teach courses about American social security law. Published teaching materials are, so far as I know, nonexistent.Google Scholar
31 It may be the highly developed state of welfare law in northern and western Europe that commands scholarly attention rather than the reverse, i.e., that scholarly attention has fueled the development of social welfare law. But it is noteworthy that, e.g., Swedish family law professors are active participants in public policy formulation on family life and well-being. Moreover, it cannot be said that there is now nothing for American legal academics to engage. We pay scant attention to what we already have, e.g., the Social Security Act.Google Scholar
32 Compare, e.g., D. Rhode & M. Minow, “Reforming the Questions, Questioning the Reforms: Feminist Perspectives on Divorce Law,” with H. Krause, “Child Support Reassessed: Limits of Private Responsibility and the Public Interest,” in S. Sugarman & H. Kay, eds., Divorce Reform at the Crossroads (1990) (Krause,” Child Support Reassessed”).Google Scholar
33 9A ULA 147 (1987). The Uniform Marriage and Divorce Act has been adopted in substantial portion in eight jurisdictions. As its title indicates, the act was designed as an omnibus law to regulate marriage as well as divorce. See generally Prefatory Note, Uniform Marriage and Divorce Act, 9A ULA 147, 148–49 (1987).Google Scholar
34 It is never clear what Jacob means by “feminists.” It is not clear, for example, why he does not count as a feminist UMDA co-reporter Herma Kay. She is, inter alia, the author of the family law component of the first sex discrimination law casebook in the United States and, I believe, the world. K. Davidson, R. Ginsburg, & H. Kay, Sex-based Discrimination (1974).Google Scholar
35 Robert Levy, a co-reporter of the act, pressed for textual retention of the maternal presumption. UMDA £ 4.6–4.7 (First Tentative Draft, Second Working Draft 1969). His well-reasoned but extreme proposal for resolution of child custody disputes at divorce was first presented in R. Levy, “Uniform Marriage and Divorce Legislation: A Preliminary Analysis” 224–25 (unpublished monograph 1969). It is reprinted in C. Foote, R. Levy, & F. Sander, Cases and Materials on Family Law 911 (3d ed. 1985).Google Scholar
The text of the final version of the act adopts the sex-neutral Rossi position: “The court shall determine custody in accordance with the best interest of the child.” UMDA £ 402, 9A ULA 561 (1987). Nevertheless, the Comment that follows the legislation asserts that the best interests language is consistent with preserving the familiar case law presumptions, including the maternal presumption. In other words, “best interests” encompasses the traditional sex-based presumptions. 9A ULA 561 (1987). In light of the history of the drafting of this provision, it seems fair to conclude that section 402 reflects a not fully resolved dispute between Rossi and Levy. Rossi prevailed in the text, but Levy attempted to get in the last word in the interpretive Comment following the legislative text.Google Scholar
Recast slightly because explicitly sex-based standards are constitutionally problematic, this debate continues today between feminists, occupying Levy's position, who would advocate a determinate standard likely to favor women, such as “primary caretaker,” and those who would, like Rossi, promote paternal assumption of child care responsibilities. See sources cited in notes 38–39.Google Scholar
36 The spousal support provision, section £ 308, 9A ULA 347–48, is discussed in the text and notes. infra at 137–38.Google Scholar
37 See generally Fuchs, V., Women's Quest for Economic Equality (1988) (“Fuchs, Women's Quest”).Google Scholar
38 See, e.g., Polikoff, N., “Why Are Mothers Losing: A Brief Analysis of Criteria Used in Child Custody Determinations,” 7 Women's Rights L. Rep. 235 (1982). See also Weitz-man, The Divorce Revolution 243 (cited in note 4), and Neely, R., “The Primary Caretaker Parent Rule: Child Custody and the Dynamics of Greed,” 3 Yale L. & Pol'y Rev. 168 (1984).Google Scholar
39 See, e.g., Bartlett, K. & Stack, C., “Joint Custody, Feminism and the Dependency Dilemma,” 2 Berkeley Women's LJ. 9 (1986).Google Scholar
40 Originally a doctrine for unusual circumstances, equitable distribution is now routine and is applied to previously unrecognized forms of wealth, such as vested and unvested pensions, business and professional goodwill, and stock options. See G. Blumberg, “New Models of Marriage and Divorce,” in Contemporary Marriage 349, 356–58 (K. Davis ed. 1985); id., “Marital Property Treatment of Pensions, Disability Pay, Workers' Compensation, and Other Wage Substitutes: An Insurance, or Replacement, Analysis,”33 UCLA L Rev. 1250, 1251 n.4 (1986); id.,” Intangible Marital Property” in Valuation and Distribution of Marital Property (1984, 1987).Google Scholar
41 Uniform Marriage and Divorce Act £ 307, 9A ULA 238 (1987). Jacob's discussion of the UMDA property division section may be misleading because he describes Levy's proposals and then neglects to explain that they were not adopted in their entirety. Although the final version of the UMDA does require that the court take into account the contribution of a spouse as a homemaker, this is a considerably weakened version of Levy's proposal admiringly described by Jacob: that the wife's homemaking contribution be counted as equal to her husband's wages (at 118). Jacob does not seem to realize that California community property, which he compares unfavorably to the UMDA, does precisely this, at least for a traditional earner-homemaker couple.Google Scholar
42 This was, in fact, the essence of the commission's proposal, which was rejected by the legislature in favor of an absolute 50–50 rule. See text at notes 22–23 and 59–60.Google Scholar
43 1969 Cal. Stat., ch. 1608, £ 8, codified at Cal. Civ. Code £ 4800 (West 1990).Google Scholar
44 Id. £ 4800(b)(1): “Notwithstanding [the equal division requirement]…. [w]here economic circumstances warrant, the court may award any asset to one party on such conditions as it deems proper to effect a substantially equal division of the property.” For case law interpretation of this provision, see Marriage of Connolly, 23 Cal. 2d 590, 591 P. 2d 911, 153 Cal. Rptr. 423 (1979); compare Marriage of Brigden, 80 Cal. App. 3d 380, 1245 Cal. Rptr. 726 (1978). See generally G. Blumberg, Community Property in California 531–46 (1987).Google Scholar
45 See generally Prager, S., “Sharing Principles,” 25 UCLA L. Rev. 1 (1977).Google Scholar
46 1 Cal. Assem. J. (1970 Reg. Sess.) 876–87.Google Scholar
47 See discussion in Marriage of Duke, 101 Cal. App. 3d 152, 155–156, 161 Cal. Rptr. 444 (1980), and Marriage of Boseman, 31 Cal. App. 3d 372, 107 Cal. Rptr. 232 (1973). For current family home legislation, see 1988 Cal. Stat., ch. 729, codified at Cal. Civ. Code £ 4700.10 (West 1990).Google Scholar
48 For example, in giving a history of equitable distribution, Jacob illustratively quotes a facially ambiguous early Kansas statute (at 114), dubs it “true equitable distribution” and honors it with the approbation “quasi-community property,” which label is in fact a legal term of art used to classify property owned by current community property state domiciliaries but acquired when they were previously domiciled in noncommunity property states.Google Scholar
49 At 115, Jacob relies on a law review comment written in 1981 by a UCLA law student, Elizabeth Cheadle, “The Development of Sharing Principles in Common Law Marital Property States,”28 UCLA L. Rev. 1269 (1981). She was surprised to discover that noncommunity property states also had marital property law, and she celebrated this discovery in a law review comment. Her naive and parochial California perspective should not, however, be imputed to the general American legal community.Google Scholar
50 Jacob later notes that only three community property states require equal, as opposed to equitable, distribution (at 122), but does not seem to recognize the norm-setting implication.Google Scholar
51 See Blumberg, , 33 UCLA L Rev. 1250, 1251 n. 4 (cited in note 40).Google Scholar
52 Although the act and commentary do not explicitly address this point, the act itself expresses this connection and the Preface emphasizes that the act “is promulgated as one interlocking and interdependent piece of legislation.” 9A ULA 149 (1987).Google Scholar
53 Jacob seems to resist this linkage when he asserts that most states did not coextensively adopt no-fault grounds and marital property principles but cites only Iowa (at 121). Even if Jacob is correct, his assertion is misleading because most states already had a community property or equitable distribution law before they adopted a no-fault ground. In the mid-1960s, when work began on the UMDA, slightly more than a third of the then 42 common law states either did not authorize property awards on divorce or restricted such awards to specific types or forms of property. Kay, 56 U. Cin. L. Rev. at 8 (cited in note 6).Google Scholar
On the other hand, the linkage that Jacob may be rejecting is a linkage between no-fault divorce and no-fault property division (at 121). The point I am making is larger: The adoption of unilateral no-fault divorce requires both the universal adoption and doctrinal expansion of marital property principles.Google Scholar
54 Preface and Commentary to The Uniform Marriage and Divorce Act, 9A ULA 194, 348 (1987).Google Scholar
55 1969 Cal. Stat., ch. 1608, £ 8, codified at Cal. Civ. Code £ 4801 (West 1990).Google Scholar
56 The prior statute allowed support “for his or her life, or for such shorter period as the court may deem just, having regard for the circumstances of the respective parties.”In re Marriage of Morrison, 20 Cal. 3d 437, 448, 143 Cal. Rptr. 139, 573 P. 2d 41 (1978).Google Scholar
57 Id. at 453. See also In re Marriage of Rosan, 24 Cal. App. 3d 885, 887, 101 Cal. Rptr. 295 (1972), strongly rejecting any “notion that enactment of the Family Law Act constituted some sort of mandate by the Legislature to the courts to relieve husbands of any long, continuing obligation for spousal support.”.Google Scholar
58 Other legal scholars have made similar observations. Nadine Taub, reviewing Weitzman's The Divorce Revolution, commented: “A closer look suggests that much of the problem is due to the manner in which California judges chose to enforce the law…. It appears that judicial attitudes, rather than legal provisions themselves, are the immediate culprits.”13 Signs 578, 581 (Spring 1988).CrossRefGoogle Scholar
Kay observed that the judges “administered the new laws without adequate regard to the different life situations and economic circumstances of divorced women and divorced men.” She charitably attributes this to the fact that the judges were “left to their own devices without the special training and experience that a unified Family Court system would have provided.”Kay, 56 U. Cin. L Rev. 1, 66.Google Scholar
59 See Krauskopf, J., “Rehabilitative Alimony: Uses and Abuses of Limited Duration Alimony,” 21 Fam. L.Q. 573 (1988).Google Scholar
60 See text and note infra at notes 93–94.Google Scholar
61 See sources cited in note 23 supra.Google Scholar
62 Family law has, in a number of areas, explicitly conformed to a constitutional norm developed in the 1970s: Absent unusual and compelling justification, sex-based legal classifications or distinctions are impermissible under the Fourteenth Amendment equal protection clause. Constitutional considerations impelled the 1970s movement from male management to sex-neutral management in the community property states. Sex-based alimony statutes were explicitly disapproved by the Supreme Court in Orr v. Orr, 440 U.S. 268 (1979). Similarly, the maternal presumption yielded, at least ostensibly, to sex-neutral principles.Google Scholar
63 Jacob conflates these two issues and hence overstates the nature and degree of change that he is studying when he asserts that “the historical preference for maternal custody gave way in one state after another to joint custody arrangements” (at 143). In California, a state that Jacob studies, the maternal preference was abolished in 1972 and the joint custody provision was adopted in 1979. Jacob's assertion is also misleading in that the shift was to acceptance and, in some cases, preference for joint custody, not to the predominance of joint custody arrangements. Although historically the maternal preference was in fact coextensive with the prevalence of de facto maternal custody, the same has not proven true of joint custody. Mothers largely remain the physical custodians of their children.Google Scholar
64 Although Jacob notes that “women's groups like the Women Lawyers' Association of Los Angeles” took this position, he concludes that “[established feminist groups played little role in the debate” (at 141). Since the Women Lawyers' Association is established, I infer that Jacob does not count it as feminist. See also note 79 infra.Google Scholar
65 1979 Cal. Stat., ch. 915 £ 2, now codified, as amended, at Cal. Civ. Code £ 4600.5 (West 1990).Google Scholar
66 1988 Cal. Stat., ch. 1442, £ 1, codified at Cal. Civ. Code £ 4600(d) (West 1990).Google Scholar
67 1988 Cal. Stat., ch. 4907, £ 1, codified at Cal. Civ. Code £ 4801 (West 1990).Google Scholar
68 Krauskopf, 21 Fam. L.Q. 573, cites representative cases and commentary.Google Scholar
69 See, e.g., Marriage of Frasier, 33 Wash. App. 445, 655 P. 2d 718 (1982), applying a provision based upon the Uniform Marriage and Divorce Act. See generally, J. Wexler, “Rethinking Modification of Child Custody Decrees,” 94 Yale L.J. 757 (1985).CrossRefGoogle Scholar
70 In re Marriage of Bimbaum, 211 Cal. App. 3d 1508 (1989).Google Scholar
71 Supra note 35.Google Scholar
72 See generally Garfinkel, I. & Melli, M., “The Use of Normative Standards in Family Law Decisions: Developing Mathematical Standards for Child Support,” 24 Fam. L.Q. 157 (1990).Google Scholar
73 Krause, “Child Support Reassessed” at 169–76 (cited in note 32). Support guidelines are also now federally required. Id.Google Scholar
74 The Divorce Revolution at 110–42 (cited in note 4). Career assets is the broader term and would include all work-related sources of wealth developed during the course of a career, such as pensions, seniority, and stock options, as well as such strictly human capital assets that inhere in the worker, such as education, training, and experience.Google Scholar
75 See Blumberg, G., “Marital Property Treatment of Pensions, Disability Pay, Workers' Compensation, and Other Wage Substitutes,” 33 UCLA L. Rev. 1250, 1259–64 (1986).Google Scholar
76 G. Blumberg, “Intangible Assets: Recognition and Valuation” in 2 Valuation and Distribution of Marital Property 23–1 (McCahey, ed. 1984, rev. 1987).Google Scholar
77 See, e.g., Ellman, I., “The Theory of Alimony,” 77 Calif. L Rev. 1 (1989).Google Scholar
78 The overlap in marital property and alimony is often noted, sometimes querulously as in Silent Revolution (at 114), because it impedes taxonomic ordering, but the positive implication is generally not recognized. If this discussion strikes you as fanciful, consider the following facts. Jill, a 32-year-old school teacher, and Harold, a 34-year-old internist who has just entered private practice, are about to be divorced after their childless, 10-year marriage. How do you feel about Jill's proposal that Harold pay her substantial monthly “income equalization” alimony until she either remarries or dies? Consider that Jill and Harold have been married throughout Harold's professional training, that Jill has been the primary source of family economic and emotional support during most of this period and has lost or deferred economic investments she might have made in herself. Jill now explains that she views Harold's professional credentials as a jointly acquired asset and would like to value those credentials in terms of the income that they would produce beyond what Harold would have earned without them; then she would like to receive an award of some portion of that value. Does the articulated rationale for redistribution matter? (It certainly does to my family law students. Although they may be an unrepresentative lot, their thinking is probably quite close to that of judges.).Google Scholar
79 I wrote an amicus brief and argued In re Marriage of Sullivan, 37 Cal. 3d 762, 691 P.2d 1020, 209 Cal. Rptr. 354 (1984), the California Supreme Court professional education case, for the Women Lawyers' Association of Los Angeles, a group considered “not feminist” by Jacob (at 141). See note 64 supra. Although a professional association, it chose to represent the interests of the nonprofessional wife, not those of the professional husband.Google Scholar
80 See, e.g., Kay, 75 Calif. L. Rev. at 311 (cited in note 23).Google Scholar
81 The conceptual disarray of the California professional goodwill cases is illustrative. See cases collected in G. Blumberg, Community Property in California 328–57 (1987).Google Scholar
82 Melli, M., “Constructing a Social Problem: The Post-Divorce Plight of Women and Children,” 1986 ABF Res. J. 759.Google Scholar
83 See, e.g., A. Kahn & S. Kamerman, Privatization and the Welfare State (1989); id, Mothers Alone (1988); id., Child Support: From Debt Collection to Social Policy (1988); id., Child Care, Family Benefits, and Working Parents (1981).Google Scholar
84 See particularly M. K. Brown, ed., Remaking the Welfare State: Retrenchment and Social Policy in America and Europe (1988).Google Scholar
85 See particularly his Women's Quest for Economic Equality (1988).Google Scholar
86 Arendell, T., “Women and the Economics of Divorce in the Contemporary United States,” 13 Signs 121 (1987).Google Scholar
87 Id.Google Scholar
88 See generally “Review Symposium on Weitzman's Divorce Revolution,” 1986 ABF Res. J. 759.Google Scholar
89 See, e.g., Ellman, 77 Calif. L. Rev. 1 (cited in note 77).Google Scholar
90 Fuchs, Women's Quest 50, 52 (cited in note 37).Google Scholar
91 Arendell, 13 Signs at 126.Google Scholar
92 I draw my description from Garfinkel, I. & Melli, M., “Maintenance Through the Tax System: The Proposed Wisconsin Child Support Assurance Program,” 1 Austl. J. Fam. L. 152 (1987), id., Child Support: Weaknesses of an Old and Features of a Proposed New System (1982).Google Scholar
93 See Krauskopf, 21 Fam. LQ. 573 (cited in note 59).Google Scholar
94 See, e.g., 1987 Cal. Stat., ch. 1086, S 2, amending Cal. Civ. Code S 4801(d) (West 1990); 1988 Cal. Stat., ch. 407, S 1, codified at Cal. Civ. Code S 4800 (West 1990); Minn. Stat. S 518.552, subd. 3, amended by Laws 1985, ch. 266; N. Y. Laws 1986, ch. 884, £ 4, amending N.Y. Dom. Rel. Law S 236, part B(6)(a), (c) (McKinney 1986). For discussion of these provisions, see G. Blumberg, “The Relationship Between Property Distribution and Spousal and Child Support,” in 2 Valuation and Distribution of Marital Property 41–8 to 41–13 1990).Google Scholar