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
Page 42 follows:
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
Page 43 follows:
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
Page 44 follows:
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
Page 45 follows:
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).
