Brito, Tonya L.

English

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BRITO - FMT.DOC 09/06/01 2:51 PM151SPOUSAL SUPPORT TAKES ON THE MOMMY TRACK: WHY THE ALIPROPOSAL IS GOOD FOR WORKING MOTHERSTONYA L. BRITO*I.  INTRODUCTIONBuried within the nearly two hundred pages of the American Law Insti-tute’s chapter on compensatory spousal support payments is important infor-mation for working mothers: Section 5.06 provides a recovery for a workingspouse who has been the primary caretaker of a child of the marriage.  Manymothers cut back on their work schedules or make career sacrifices in order todevote time to child rearing.  Women who balance the work-family conflict inthis manner often find that they are on the “mommy track,” a slower career pathproviding fewer opportunities for advancement and salary growth.1  Eventhough fathers and children may benefit from these arrangements while a fam-ily is intact, it is women who have borne the entire cost of these decisions at di-vorce because the law has primarily treated the wife’s career sacrifices as a“gift.”At divorce, many mothers and their children face a significant drop in theirstandard of living.  Even working mothers experience financial loss at divorce.Although such women have remained in the labor force, they often experience areduction to their earning capacity as a result of their greater investment in childrearing during marriage.  But upon divorce, their employment status typicallydisqualifies them from receiving a need-based spousal support award.  Conse-quently, any reduction to earning capacity has gone uncompensated.Under the ALI draft, which reconceptualizes alimony as compensatorypayments for losses arising from the marriage and its failure, a workingmother’s career loss would provide a ground for spousal support.  According tothe reporters, this proposal is premised on two principles: first, that caretaking isCopyright © 2001 by Tonya L. Brito.* Assistant Professor of Law, University of Wisconsin.  An earlier version of this commentarywas presented at Divorce Reform 2000, a conference jointly sponsored by the Institute for LegalStudies, University of Wisconsin Law School, and Marquette University Law School, on October 28,2000, and I thank Linda Balisle and Leonard Loeb, great lawyers, who did a fine job commenting onmy presentation.  Thanks also to Margo Melli, for sharing her time to help guide my formulation ofthe issues in this Commentary, and to Renee Haddad, for her invaluable research assistance.  Specialthanks to Jeff Brown for equally sharing our parenting responsibilities and always supporting mycareer aspirations.1. Felice Schwartz first proposed the “mommy track” as an alternative career path for womenwho seek to balance family responsibilities and work demands rather than putting their careers first.See Felice N. Schwartz, Management Women and the New Facts of Life, HARV. BUS. REV., Jan.-Feb. 1989,at 65.  Schwartz’s proposal was controversial and set off a debate that continues today.BRITO - FMT.DOC 09/06/01  2:51 PM152 DUKE JOURNAL OF GENDER LAW & POLICY Volume 8:151 2001the responsibility of both parents and, second, that the spouse who assumes agreater portion of caretaking during marriage should not bear the full cost ofany resultant career damage.  Adoption of Section 5.06 would have a broad im-pact on divorce law because most married mothers today work outside thehome and most marriages end in divorce.  The proposal also has implicationsbeyond the compensation of women for their contributions during marriage.  Itchallenges cultural and social norms in the United States that overlook the sig-nificant family responsibilities of workers and devalue child rearing.  It reflectsthe view that caretaking is a joint parental responsibility and that the primarycaretaker of children provides a social good worthy of compensation.  In so do-ing, the proposal runs counter to societal assumptions that elevate market workover family work.II.  THE ALI’S TREATMENT OF THE PRIMARY CARETAKER SPOUSECurrent rules governing alimony and spousal support are largely incoher-ent and lack a sustaining rationale.  They have been the subjects of much schol-arly criticism.  The drafters of the Principles of the Law of Family Dissolution havesought to bring certainty and fairness to this area of the law by transformingalimony from a need-based into an entitlement-based regime and dramaticallyreducing judicial discretion through imposition of guidelines for determiningspousal support payments.  The ALI drafters identify several ways a spousemay become entitled to compensatory payments.2  Spousal support is permittedfor: 1) the loss in marital living standard in a marriage of significant duration;3 2)for the loss in earning capacity incurred by the primary caretaker of children;4 3)for the loss in earning capacity resulting from the care of a sick, elderly or dis-abled third parties (to whom the spouse(s) owe a moral obligation);5 4) to reim-burse a spouse for contributions to the other spouse’s education or training inshort-term marriages;6 and 5) to restore a spouse to their premarital living stan-dard.7  The reporters thus have attempted to formulate those instances when it isappropriate to compensate spouses for financial losses arising from divorce.The relevant question is whether the divorcing spouse is entitled to post-divorcesupport under one of the categories listed above rather than whether the spousecan demonstrate economic need to justify an award of alimony.This Commentary focuses on Section 5.06 of the ALI draft, the most crea-tive and innovative portion of the proposed law.  Section 5.06 compensates aspouse whose earning capacity at divorce is less than it would have been had heor she not been the primary caretaker of the couple’s children during the mar-riage.  The caretaking spouse qualifies if certain criteria are satisfied.  First,marital children must have lived in the claimant’s household for the minimumperiod provided by the rule.  Second, the claimant’s earning capacity at divorce2. See PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION: ANALYSIS AND RECOMMENDATIONS ch. 5(Proposed Final Draft Part I, 1997) [hereinafter ALI PRINCIPLES 1997].3. Id. § 5.05.4. Id. § 5.06.5. Id. § 5.12.6. Id. § 5.15.7. Id. § 5.16.BRITO - FMT.DOC 09/06/01  2:51 PMTHE ALI AND WORKING MOTHERS 153must be substantially less than that of the other spouse.  When these criteria aremet, the rule presumes that the claimant provided a disproportionate share ofthe childcare during the marriage.  The other spouse may rebut this presump-tion by presenting evidence that the claimant did not in fact provide a dispro-portionate share during marriage of the care of the marital children.  The otherspouse may not, however, rebut the presumption that childcare responsibilitiesadversely impacted the claimant’s earning capacity.  The ALI drafters point tothe difficulty of making individualized determinations of career damage as ajustification for prohibiting a rebuttal of this inference.The value of a spousal support award available under Section 5.06 is de-termined by reference to a standard formula.  The amount of the award wouldbe calculated by multiplying the difference between the post-divorce incomes ofthe spouses by a “childcare durational factor.”  The ALI drafters leave it to theimplementing jurisdiction to specify what the childcare durational factor will be,but point out that it should increase with the duration of the time period duringwhich the claimant was the primary caretaker.  Under section 5.06, the durationof an award is determined by multiplying the childcare period by a specifiedfactor established by the state legislature.8  The ALI drafters assume that as thechildcare period increases, so does the impact on the primary caretaker’s earn-ing capacity.  The net effect of the proposal is to create a uniform statewide rulethat would yield more consistency and reliability in determining spousal sup-port awards.III.  THE ECONOMIC DEPENDENCE OF WORKING MOTHERS AND THEIRVULNERABILITY AT DIVORCEAlimony has never been a sure thing.  Yet, the former wives most likely toget a post-divorce award have been women who fit the patriarchal homemakermodel.  The alimony cases have a familiar ring to them—the wife selflessly de-voted decades of her life to her husband and children and she is left at divorcewith grown-up children, minimal job skills and a paltry earning capacity.  Herspouse, on the other hand, has heavily invested in his career and can walk awayfrom the marriage with his enhanced earning capacity intact.  These wives de-serve and get awards and the cases providing generous awards to homemakersin long-term marriages commonly stress their sacrifice in financial independ-ence arising from focusing on homemaking tasks.  The law here is well-settledand uncontroversial.The traditional rule of alimony—providing need-based awards after dis-solution of a long-term marriage in which one spouse was a homemaker—doesnot fit most divorcing couples today.  Work and family patterns have changeddramatically over the past thirty years.  While the traditional family model per-sists in society, only ten percent of married couples adopt the Ozzie and Harrietpattern over the long term.  The vast majority of married couples do not dividetheir labor according to the strict gender-based male breadwinner/female8. ALI PRINCIPLES 1997, supra note 2, § 5.07.BRITO - FMT.DOC 09/06/01  2:51 PM154 DUKE JOURNAL OF GENDER LAW & POLICY Volume 8:151 2001homemaker model.  Indeed, most married couples with children are dual-careercouples.9Part of the growing concern over balancing work and family responsibili-ties is fueled by the growth of dual-earner couples with children.  Over the pasttwenty-five years, there has been a dramatic increase in the number of marriedmothers who are in the labor force.  Today two-thirds of all married motherswork outside the home.  Yet, studies show that it is mothers and not fathers whoperform most of the caretaking and housework.10  Because few traditional full-time jobs provide the autonomy and flexibility to allow workers to balance workand family effectively, many mothers turn to alternatives such as flextime, jobsharing, self-employment, part-year positions and temporary work.  Mothersalso manage the work-family conflict by taking breaks from market work or re-ducing the number of hours they work.  For example, within married couples,over 40 percent of mothers with children under the age of three are not in thelabor force and about a third of those that do work outside the home are en-gaged in part-time employment.11  Part-time employment among fathers, on theother hand, is very rare.12  The caretaking provided on the homefront by work-ing mothers has an adverse impact on their earning capacity, whether thewoman temporarily withdraws from the labor force, works part-time or worksfull-time.  Career disruptions such as these place many mothers on the lowerwage “mommy track”13 and contributes to the wage gap between workingmothers and all others in the labor force.  The ALI draft recounts similar studiesshowing that “their disproportionate responsibility for care of children is by farthe most important single factor explaining the difference in the earnings of menand women, swamping all other possible factors including discrimination byemployers”.14The wage differential between fathers and mothers transforms upon di-vorce into an even more dramatic disparity between their post-divorce incomes.Researchers consistently have documented a sharp fall in mothers’ economicposition and a rise in fathers’ after divorce.15  Modern day alimony rules (re-9. DEPARTMENT OF LABOR, EMPLOYMENT CHARACTERISTICS OF FAMILIES IN 1999, LABOR FORCESTATISTICS FROM THE CURRENT POPULATION SURVEY tbl.1 (2000), available at http://stats.bls.gov/news.release/famee.nr0.htm (“In 1999, both parents were employed in 64.1% of married-couplefamilies with children under 18, while the father, but not the mother, was employed in 29.1% ofthese families.”).10. See ARLIE HOCHSCHILD, THE SECOND SHIFT: WORKING PARENTS AND THE REVOLUTION ATHOME 22-32 (1989)(coining phrase ‘Second Shift Mom’ for proposition that, in two-job marriages,wives continue to do bulk of household work and chores).11. DEPARTMENT OF LABOR, supra note 9, at tbl. 6, available at http://stats.bls.gov/news.release/famee.t06.htm (showing employment status of mothers with own children under 3 years old by sin-gle year of age of youngest child, and marital status, using 1998-99 annual averages).12. Id. at tbl. 5 (showing that 96.8% of working fathers with children under six years of age areengaged in full-time employment).13. For example, part-time workers “average fifty-eight cents on each dollar earned by full-timeworkers per hour worked . . . and frequently are cut off from career advancement.”  Joan Williams,Afterword: Exploring the Economic Meanings of Gender, 49 AM. U. L. REV. 987, 992-93 (2000).14. ALI PRINCIPLES 1997, supra note 2, § 5.06 cmt. d, reporter’s note at 336 (citing VICTOR FUCHS,WOMEN’S QUEST FOR ECONOMIC EQUALITY (1988)).15. Although researchers have reached differing conclusions about the degree of the disparity,their studies consistently show that there is a significant gender gap in the financial consequences ofBRITO - FMT.DOC 09/06/01  2:51 PMTHE ALI AND WORKING MOTHERS 155flecting the social reality that most women are in the labor force) have adaptedto provide payments designed to “rehabilitate” ex-wives to economic self-sufficiency rather than to address the economic marginalization of workingmothers.  Temporary maintenance awards have become the norm in family law.These awards are designed to provide transitional support for women who lackthe skills or work experience needed to pursue market work. Like alimony,maintenance awards have generally been need-based.Need-based alimony rules have not provided working moms with a reli-able source of post-divorce support.  The ALI draft points out that need-basedstandards overlook income disparities between divorcing spouses and provideexamples of court decisions rejecting claims for alimony by spouses who are ca-pable of self-support.  The Louise v. Louise16 case, cited in the draft, provides aclear example.  After twenty-three years of marriage, the couple divorced.  Al-though they were both schoolteachers, the husband earned considerably morethan the wife because she had taken a ten-year break from teaching to raise theirchildren.  At the time of their divorce, the husband earned $40,000 and the wifeearned $28,000.  The court acknowledged that the wife suffered a loss to herearning capacity because of her temporary withdrawal from the labor force.  Itstated that the spouses’ “salaries would have been approximately the same” ifthe wife had pursued her career throughout the marriage as the husband had.17Despite the wife’s career damage, the court reversed a trial court maintenanceaward finding that maintenance was unwarranted because the wife could get onquite well on her income.IV.  CONCLUSIONThe ALI’s proposal on compensatory spousal payments promises the eq-uitable reallocation of financial loss at divorce, but it actually does much morethan that.  Section 5.06 recasts caretaking of children and financial support of thefamily as the joint responsibilities of the husband and wife.  It recognizes thatalthough spouses have a joint responsibility for each of these duties, many mar-ried couples divide the duties in a traditional way even today—with the wifefulfilling most of the care of their children while the husband fulfils most of theirjoint responsibility for the family’s financial support.  The drafters are carefulnot to prefer one family form over another, but instead recognize that a parentwho assumes the responsibilities of primary caretaker of the children often lim-its her market labor during this period, and this limitation typically results in aresidual loss of earning capacity that continues beyond the caretaking period.divorce.  See, e.g., Richard R. Peterson, A Re-Evaluation of the Economic Consequences of Divorce, 61 AM.SOC. REV. 528 (1996) (finding a twenty-seven percent decline in wives’ post-divorce standard of liv-ing, and a ten percent increase in husbands’ living standards); Saul D. Hoffman & Greg J. Duncan,What Are the Economic Consequences of Divorce?, 25 DEMOGRAPHY 641 (1988) (at divorce, wives experi-enced a thirty-three percent decline in their living standard).  See also, Joan Williams, Gender Wars:Selfless Woman in the Republic of Choice, 66 N.Y.U. L. REV. 1559, 1603-04 n. 252 (1991) (“The CensusBureau followed 20,000 households for 32 months and reported a 37% income drop for motherswhich, when adjusted for the drop in family size, reflects a 26% loss overall.”).16. 549 N.Y.S.2d 238 (App. Div. 1989).17. Id. at 239.BRITO - FMT.DOC 09/06/01  2:51 PM156 DUKE JOURNAL OF GENDER LAW & POLICY Volume 8:151 2001The proposal ensures that at divorce, the primary caretaker will not bear the en-tire cost of this division of labor.The spousal support provisions of the ALI draft can have tremendous sig-nificance for the working mothers who stand to benefit economically from theproposal.  They would reduce the extent to which primary caretaker parents,still predominately women, have been required by alimony law to bear a dis-proportionate amount of the marriage-caused economic hardships at divorce.However, beyond these individual benefits, the proposal has the capacity to ex-ert important social effects as well.  The ALI proposal implicitly recognizes thatchild rearing has long been women’s work, and as such is devalued in Americansociety.  The ALI drafters contend that both parents have a “special responsibil-ity” and a “legal obligation” to provide care for their children and that parentsought to share any financial loss to earning capacity that caretaking creates.18The ALI drafters take on the work/family conflict in the form of the mommytrack and their spousal support provisions serve as a challenge to the marginali-zation of caregiving.18. ALI PRINCIPLES 1997, supra note 2, § 5.06 cmt. c, reporter’s note at 332.

Spousal Support Takes on the Mommy Track: Why the ALI Proposal Is Good for Working Mothers

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Spousal Support Takes on the Mommy Track: Why the ALI Proposal Is Good for Working Mothers

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