Volume 2, No. 3 (March, 1992) pp. 41-45
THE ILLUSION OF EQUALITY: THE RHETORIC AND REALITY OF DIVORCE
REFORM by Martha Albertson Fineman. (Chicago: University of
Chicago Press, 1991. Pp. 252. $27.50.)
Reviewed by Gayle Binion, University of California at Santa
Barbara
[Editor's Note: A briefer version of this review is forthcoming
in WOMEN & POLITICS].
In THE ILLUSION OF EQUALITY, Professor Fineman takes issue with
how America handles divorce. In an era in which nearly half of
all marriages will end in divorce, it is not surprising that
concern for how we do it should remain strong in the world of
legal and sociological scholarship. The main point of Profes- sor
Fineman's most recent contribution to this dialogue is that
feminists as well as men's rights advocates, along with legisla-
tors, judges and the "helping professions" have all
gotten it wrong. Although these actors have each gotten it wrong
in different ways, the net effect of the movements' combined
efforts is that women are seriously disadvantaged in the outcome
of the property and child custody arrangements that accompany
divorce. This observation as to the experiences of women in the
divorce process is not surprising, nor is it new. Divorce impact
re- search, such as that done by Lenore Weitzman (1985), has
demon- strated that after a divorce a custodial mother and her
children suffer an enormous decrease in their standard of living,
while divorced fathers experience a very significant increase in
their standard of living. These data are known and cited by
Fineman. What Fineman adds to the debate is the perception that
this sad state of affairs is largely the fault of feminist
activists, such as those who worked to reform Wisconsin divorce
law on the basis of gender neutrality. After a discussion of the
material in- equality experienced by women, and criticism of the
commonly used contemporary model of property division at divorce,
which weighs contribution and need, Fineman concludes that
women's needs are in fact not met. Again, no surprise...But that
this is the fault of the feminist movement is not successfully
demonstrated.
In many points in her book Fineman cites the mistakes of
"feminists" in the divorce reform battles. With the
exception of her description of events leading up to the changes
in her home state's (Wisconsin) divorce law, she offers almost no
citations to inform the reader of the people and theories she
holds respon- sible as "feminists." This reflects a
tendency of many research- ers to lump together undefined persons
as a movement. Perhaps ironically, while she chides
"feminists" for their alleged adoption of joint custody
arrangements, Bartlett and Stack (1986, pp.13-14,40) fault
"feminists" for resisting joint custody. My point here
is that intellectual feminism is, and should be, a very big
umbrella; it is folly to treat it as otherwise.
Equally important is that while Fineman makes a very strong case
for how the status of divorced women could improve signifi-
cantly with property division rules based on need, she does not
demonstrate
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that the economic conditions of divorced women are now worse than
they were under the law of title, (where property ownership at
divorce remained with the spouse, usually the husband, holding
title) or under the more recent commonly used standard of
equitable distribution (under which women rarely received more
than one-third of the marital proper- ty.) While Fineman pays
scant attention to the impact of commu- nity property laws within
this scheme (the context in which Weitzman did her research in
California) she seems to dismiss the principle as also unable to
meet women's needs. But to the extent that her thesis is that
equal division is inherently unfair to women, no matter what the
mechanism that brings it about, her thesis is understandable,
indeed, in a sense unassail- able. The problem she addresses is
that women have lower incomes and less material resources than
men. Divorce, even with equal distribution of existing property,
as she suggests feminists demanded, leaves women materially
disadvantaged vis-a-vis the men from whom they are divorced.
Their futures are nearly always materially more bleak. And, if
women have sole or joint custody of the children, they are even
further disadvantaged in terms of their relative standard of
living. In contrast, under fault standards for divorce, now
largely gone from American family law, women were often able to
bargain for more of the material assets of the marriage than the
various laws of the time might have entitled them. This was
commonly in return for not contesting the husband's desire for a
divorce. What is unclear is whether Fineman believes that that
process was preferable to divorce at will, and the emerging
principles of equal property division.
While I believe that Fineman's thesis that equal impact and,
thus, need, should be the guiding principle of property division
is a very persuasive thesis, there are some major weaknesses in
the manner in which she makes the case. First, in her attack on
the reform movements of the past two decades, she ignores the
fact that law, like most social processes and institutions, is a
dynamic system. She also overlooks the fact that legal and social
change is largely incremental. In her apparent impatience with
the "feminists" of Wisconsin, she has ignored the
advances that have been made at least in principle in developing
a set of criteria for property settlements in which inter alia
the contri- bution of women's non-wage-earning labor is included
in the calculations as is the relative wealth and marketable
skills of each partner. In fact, when one reads the list of
criteria in the statutes and/or common law of the states that
Fineman re- views, one wonders why she is impatient with anyone
but the judges who simply do not apply these criteria in an
appropriate manner to equalize the impact of the property
settlements. In the dynamics of our common law legal system the
role of the judiciary in interpreting and applying the law is
quite often far more important than the content of a statute. The
criteria available to judges in many jurisdictions already would
allow them enormous latitude to "do good." That they do
not do so may well reflect the indifference of our culture to the
status and rightful claims of children and materially dependent
women in our society. That we are virtually the only western
industrial democracy without a national family policy attending
to such needs as
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child care, child bearing leaves or pre-natal medical care for
women, makes the picture of divorce that Fineman paints simply a
part of the cultural landscape. Again, unfortunately, not a
surprise.
But her disappointment with the work of the "feminists"
whom she argues fought wrongly for gender neutrality in family
law as in public policy generally, is similarly problematic
because neutrality was an important first step -- twenty years
ago -- when women were not yet under the mantle of the Equal
Protection Clause. Treating wives like husbands was a big legal
step forward two decades ago and the insistence on it, I would
argue, created the possibility of refinements and further
progress toward material equality down the road. Perhaps in the
grossest terms it might be argued that women needed to be freed
from protectionist dependency in order to eventually argue from
entitlement. The intermediate step of neutrality of treatment
was, perhaps, an essential stage in incremental legal and social
change.
What is troubling in Fineman's critique in this regard, is that
her criticism is of a philosophy that was prominent fifteen to
twenty years ago, suggesting to the reader that this is where the
center of gravity is today in the women's movement. While the
equality of treatment (hang the impact!) approach to gender
equality under law, seen as an anathema to women by Fineman,
still exists, for more than the past decade it has had to compete
with other feminist approaches to law, the most major being the
impact approach to the meaning of equality (Binion, 1991, pp.
208-210). Fineman pays little attention to these developments and
leaves the reader with the impression that to be a mainstream
feminist is necessarily to believe in only gender neutrality.
This presumption does little to advance an otherwise important
thesis about the material state of women, a state which simply
becomes more stark at the time of a divorce.
The last section of Fineman's book is excellent, and by far the
most effective. Therein she analyzes the law of child custody and
the misuse of both social science research and the "helping
professionals" (social workers, psychiatrists, family
therapists, etc.) in support of joint custody arrangements. Where
her disapproval of the feminist movement for gender neu- trality
drives the first part of the book, the focus of anger in the
latter part is on "joint custody" of dependent children
and the unfairness to women that this generally entails. Her
analy- sis of the relevant data on custody arrangements and the
uses to which they have been put, and her arguments against the
imposi- tion of joint custody are extremely cogent and highly
persuasive. While I disagree with her view that the feminist
movement for gender neutrality has itself encouraged the joint
custody phenom- enon, her analysis of the injury to women that
joint custody causes is clear. For those women who have been the
primary or sole care givers for their children, whether or not
they have simultaneously worked outside of the home, the law's
granting of joint custody to their former husbands at the time of
divorce is at best problematic. Fineman suggests that these
arrangements, encouraged by fathers' rights
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professionals" in part because they have a groups, are
championed by the mental health "helping tendency to treat
legal problems as social ones, and in part because as therapists
they have everything materially to gain from promoting
arrangements that prolong familial dysfunction. Fineman is also
especially exer- cised by the underlying rationale for the
appointment of mental health "experts" and/or attorneys
ad litem for children during a divorce. This development rests on
the assumption that parents (read that mothers...) cannot be
expected to protect the inter- ests of their children during a
divorce and that the latter must, therefore, have representation
in court via either legal or therapeutic professionals. She
suggests that this reflects a fundamental lack of respect for the
process of mothering. Her critique merits serious attention
because it demands that we ask whether parenting is not a
constellation of skills and experience that are of value in
taking care of and rearing dependent chil- dren. Simply to defer
to the superficially egalitarian concept of joint custody where
one parent, generally the mother, has far more experience,
investment, and sacrifice associated with the undertaking is to
devalue women's work. While I am, person- ally, uncomfortable
with Fineman's lack of expressed concern about ensuring
mechanisms to protect dependent children from seriously
dysfunctional single parenting arrangements, her attack on the
imposition of joint custody and the entourage that sur- rounds
it, rests on highly laudable principles of equity and justice,
principles that appear to be in short supply for women in the
courtrooms of America.
The picture painted by Fineman of divorce, in terms of both
property settlement and child custody, is indeed a bleak one for
all but a small proportion of the most well-heeled of families.
Women who are accustomed to primacy in child rearing can expect
to be dislodged from this role that has been central to their
adult lives. And those women who do retain custody of their
children can expect to live at a standard of living well below
that which they enjoyed during marriage. While Fineman's recom-
mendations for reform, stressing equity in the impact of the
division of marital property, and the presumption that the
primary care giver receive sole custody of children, may be more
equitable for women in principle, in all but the wealthiest
families marital property, divided at the time of divorce, just
does not stretch far enough to protect either material equality
or security for the future. Larger alimony or child custody
awards, from men's future earnings are no doubt indicated in
many, perhaps most cases, but the problem is that collection of
either is minimal. Fineman's policy recommendations would not, in
themselves, therefore, have significant impact on most divorc-
ing families.
Ultimately, one must ask why Fineman pays no attention to the
negative consequences for women of filling the socially defined
role of dependent homemaking mother and to the social
realignments that are necessary to change this state of affairs.
The economic disadvantages experienced by divorced women are but
one manifestation of the disempowerment that accompanies material
dependence, and the inequities that
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women suffer in the world of paid work as well as in their role
as homemakers. For the long run, it is the institutions in which
we live, and not their dissolution, that most need to undergo
reform.
Sources Cited
Bartlett,Katherine, and Carol Stack. 1986. "Joint Custody,
Feminism and the Dependency Dilemma," BERKELEY WOMEN'S LAW
JOURNAL, 2:9-41.
Binion, Gayle. 1991. "Toward a Feminist Regrounding of
Constitu- tional Law," SOCIAL SCIENCE QUARTERLY, 72:207-220.
Weitzman, Lenore. 1985. THE DIVORCE REVOLUTION: THE UNINTENDED
SOCIAL AND ECONOMIC CONSEQUENCES FOR WOMEN AND CHILDREN. (New
York: Free Press).
Copyright 1992