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Hostage Situations

Jill

Over at The Daily Beast, Beverly Willett writes about New York’s new no-fault divorce laws, using her own divorce to illustrate her point that no-fault laws are bad for families, marriages and society. She sees marriage as a permanent, life-long commitment; when her husband had an affair and tried to divorce her, she fought it. She was able to fight the divorce because of New York’s archaic divorce laws — laws which were changed last month to put the state more in line with the rest of the country. Under New York’s old fault-based divorce laws, a partner filing for divorce had to demonstrate infidelity, cruelty, etc in order to obtain a divorce. Those laws turned divorces into lengthy processes which were often economically and emotionally costly. They required one partner to be a wrong-doer in order to dissolve the marriage; they gave the partner who wanted to maintain the marriage more power than the partner who wanted to leave it.

Marriages are tricky things, and no-fault divorce is certainly not without its draw-backs. There are many situations, like Willett’s, where the man leaving the relationship against his wife’s wishes also controls the purse strings. Willett quit her job to stay home with the couples’ children; her husband leaving the marriage presented significant financial difficulties for her. Women’s work in the home is under-valued in divorce proceedings, and women are often financially harmed after a divorce because courts do not fully recognize the work done at home as “real” work.

As an aside, too, this is why many feminists cringe when we hear marriage promoted as a good way for women to obtain financial security, or when books and articles are published about how smart girls should marry rich, or when we hear conservatives say that being a stay-at-home mom is The Most Important Job In The World For Every Single Woman — being a mother is an incredibly important job, and it is work, but it’s not socially recognized that way. Truly valuing motherhood would require actually valuing it when it comes time to divide dollars — but the people who promote motherhood as a woman’s one and only true calling are the same ones who are quick to turn on mothers who find themselves suddenly single. Those women are selfish gold-diggers if they think they are entitled to half of the marital assets; they didn’t contribute to the marriage; etc etc. If a woman marries and stays at home because she trusts that that’s the best way to a stable life, she may be in for a very nasty surprise if her husband decides he eventually wants out. Marriage, with or without no-fault divorce, is not a guarantee of stability or safety; far from it.

Anyway. The plight of women who are financially insecure when their husbands leave them is very real, and it is a feminist issue.

But the answer is not to handcuff people in marriage.

Fault-based divorce laws work both ways, and women who suffer emotional abuse were often not able to secure divorces because of fault-based laws. Divorces are not unilaterally requested by men, and men are not the only people who want to leave marriages. While I really do feel for women who are being left by their partners, that isn’t a good enough justification for a system of marriage that requires people prove some sort of cruelty or unfaithfulness before they can leave the union.

It’s also a question of what we value about marriage and how we define it. If marriage is supposed to be an economic relationship, and if the primary purpose is to produce more productive workers for society, then it makes sense to create a series of constraints on a marital union. It makes sense to make marriage between men and women only, and to divide up marital tasks by gender — the man goes out and works for money, and the woman stays home to birth and raise children who will in turn either work for money or stay home and birth and raise their own children. The woman’s body exists in service of her husband, sexually and otherwise; that is her contribution to the relationship, to meet his financial one. It makes sense, in that scenario, to not have a concept of marital rape. Because the obligations and contributions are so unbalanced, it makes sense to require some sort of Really Bad Thing to be alleged before you can dissolve that union.

But if marriage is something else — if it’s about the union of two people who share an emotional bond — then the purely economic model doesn’t make sense. Marriage today is surely still about economics, in part. But it’s also about tying an economic relationship to an emotional one; it’s about promoting happiness and stability; it’s about giving two people shared access and rights to what they create together — children, a home, finances, a satisfying sex life. In that shared-access model, one partner does not (or should not) have a right to the other partner’s body and to their unpaid labor; sex is a shared joy and not a unilateral obligation; and work (either inside or outside of the home) is a shared requirement, divided up as the couple sees fit.

That, of course, is an idealized version of reality. As we all know, work is not simply divided up evenly, and the distribution of housework to paid work is pretty skewed, gender-wise. But marriage today is heading in a much more egalitarian and much less purely economic direction. That’s part of the reason why anti-marriage-equality arguments are failing: The idea that women do X and men to Y and so marriage between two women is impossible just doesn’t sound as convincing as it might have 50 or even 20 years ago.

It makes sense that divorce laws would catch up with that evolution. If marriage is love-based and egalitarian, then it shouldn’t double as handcuffs; it should be an arrangement that both partners consent to being in. When one partner wants to withdraw that consent, they should have the right to do so. Of course, the right to withdraw from the relationship does not mean the right to take all of the marital assets with you, and unpaid work and marital contributions should be valued much more highly when dividing up assets. But the argument that one partner should not be able to withdraw from the relationship without the other partner’s consent is troubling, particularly from a feminist perspective. One partner may want to stay married for the sake of the children, or because they believe that marriage should be a life-long pledge, or for whatever other reasons. But I don’t think those desires should outweigh another individual’s desire not to be bound in marriage any longer; those desires are not compelling enough to force someone to remain legally and financially tied to a person they no longer wish to be with.

Divorce proceedings are often seriously flawed, and that’s an issue that feminists should absolutely spend more time addressing. But making couples hostage to a marriage through fault-based divorce laws is not the answer.

22 thoughts on Hostage Situations

  1. But there are some women who have been conditioned to see marriage only as a kind of financial exchange, even though I think emotional bonds ought to be the metric by which marriage stability and health is determined.

    The key to me is being self-reflective enough to ask oneself, before marriage, “Why am I doing this? What do I attempt to gain from this union?” If priorities are skewed or not based in logic, then often marriages eventually end up in divorce. I think there are plenty of red flags present in situations where marriage would be a huge mistake, but people overlook them for selfish, or at least illogical reasons: sometimes for material gain, sometimes for stubbornness, sometimes for spite, sometimes out of fear.

  2. There are some men AND women AND persons of all genders who have been conditioned to see marriage as a financial exchange – it isn’t just women. Or do you think the, “I expect dinner to be on the table when I get home from work,” is an expectation that comes from seeing marriage as a union between two people who share an emotional bond?

  3. Amen. I think the linked story is a perfect example of why no-fault divorce laws are necessary. She spent five years in an effort to “keep her family together,” which is certainly admirable, but I’m sure ended up taking a far greater emotional toll on everyone. Further, those were five years’ worth of resources she could have used toward her children, since she said money was a concern. She also could have used those five years’ worth of lawyer fees to instead fight for custody and higher alimony, assuming New York does alimony. (If not, that is one reason that I could plausibly see her fighting harder, but I still think five years is a long time.)

    I want to emphasize though that I agree with the point of this post entirely. People should not be trapped in marriages they do not wish to be in. I would also assume the burden of proof for spousal abuse/neglect would have to be fairly high under fault laws? We should be fighting for truly equitable distribution, period.

  4. Your blog post came at an interesting time for me, as I was just thinking about how my divorce (and people’s reactions to it) was my biggest feminist “click” moment.

    My state also has no-fault divorces, and I thank goodness for that. Even as it was, my ex’s recalcitrance and desire to stay married drew out the process for a year — fairly long when you don’t have kids. During that year, I felt frustrated and trapped. I was moving forward, in a new job, my own apartment, trying to make my new life, but I felt this weight, the lack of closure, the knowledge that I would have to talk to and engage with that man again, constantly around my neck. I can’t imagine doing that to someone for twenty years and claiming it was morally right!

    Marriage is a relationship between two people. I find Beverly Willett’s idea that she could maintain that — that her “way of family life” could be preserved without the other adult’s consent. Not only is that ludicrous — you can’t force someone to be happy by keeping a legal box checked — but it strikes me as grossly anti-feminist. The law she wants to keep comes from a time when women were trapped in marriages against their will, forced to continue propping up and prettifying a “way of family life” no matter what the husband did to undercut it.

    A book I read when I was getting divorced said that power imbalances which led to one partner doing all the emotional work of a marriage were the most common cause of divorce in the author’s (extensive) counseling experience, and that the majority of those doing that emotional work, making a life someone else envisioned with their own sweat, were wives. Everything I read seemed to indicate more women than men instigate divorce, and the statistics linked on wikipedia bear this out. Apparently when Beverly Willett belatedly tried to portray her opposition to no-fault divorce as a stand for all womankind, she didn’t look that up.

    I’m very glad that my state had no-fault divorce, because I didn’t know how to name my experience then. It took me years to realize that when your husband systematically destroys your self-esteem, makes you terrified of his anger, and requires that you seek his permission for almost everything, that’s emotional abuse. At the time that I left, I couldn’t break free from the idea that my low self-esteem and depression came from me, from the ways (I’d been convinced I was) broken and incomplete. If I’d been asked to name an actionable wrong he’d done me at the time, I wouldn’t have had the name. And believe me, he knew just what to say to paint himself the innocent victim.

  6. I thought this was very interesting. The problems I see are:

    (1) On demand divorce turns marriage into a real option. Because actual rather than contingent assets/liabilities are considered by the courts it means people can choose to cash out at the most profitable time. While overall the courts try for a ‘fair’ division base on what’s in front of them; the divorcing party can choose a moment that’s best for them. I’m not sure that’s entirely fair, and that allowing one party to delay isn’t reasonable.

    (2) The idea that marriage shouldn’t be economic sits very uneasily alongside the post’s promoting of how women’s work in the home should be valued in divorce. I get the sense that modern law is rightly going much more towards dividing assets according to need going forward – rather than as payment for past behavior. Assuming the same assets and income prospects; I can’t see why a woman who has raised a family should be treated differently in a divorce from an woman who has spent her time sunbathing, or one who has had a failed career. The idea that you should sum up assets and divide by ‘contributions’ seems to be an economic model, rather than about the union of two people who share an emotional bond. (I’ll be honest and say I also suspect this is de-facto fault based too: feminists think husbands are at fault for not engaging in childrearing, they just can’t explicitly say that so have to get that result by different reasoning).

    (3) Yeah. I don’t like no fault divorce. NY has ruled (Howard S. v. Lillian S.) that having an affair and then lying about the paternity of the child for several years isn’t fault. It just seems crazy to me. It’s like the reverse of the real option idea I discused in (1). I can’t see why you should benefit from prolonging a marriage by decieving someone. I can see why she should be entitled to assets up to the point where the deception began, but I can’t she why she should benefit from after that point. It prolongs a flawed marriage – we should encourage people in bad marriages to divorce.

    1. Just to clarify, I’m not saying that marriage shouldn’t be economic at all. I’m just saying that it should not be — and is not — a purely, or even mostly, economic relationship. Economics certainly factor in.

  7. Having been a family-law attorney in a pure no fault state (the only option for why you want a divorce is “irreconcilable differences”) and now in New York since before this new law looked like it was going to happen, I am thrilled to be able to tell my clients that they can get a no-fault divorce. Maybe some women will be hurt financially (which can be fixed by changing other sections of the NY domestic relations law), but for poor victims of domestic violence like the women I work with, this is wonderful.

  8. james: (I’ll be honest and say I also suspect this is de-facto fault based too: feminists think husbands are at fault for not engaging in childrearing, they just can’t explicitly say that so have to get that result by different reasoning).  

    I’m confused. What do you mean by “at fault?” The only issue with childrearing I see in feminist circles is that the numbers show women do far more work in that sector than men do. But that’s not a reason for divorce; it is, however, a reason for a woman to get assets from her husband because she put time and energy into raising the child, which directly influenced both of their incomes (generally his for the better and hers for the worse). This does not make either party at fault, it just means that if you’re going to divide assets, you should do so factoring in what each party contributed towards those assets (which isn’t always easily measured in terms who put what in the bank).

  9. If marriage is supposed to be an economic relationship, and if the primary purpose is to produce more productive workers for society, then it…..makes sense to make marriage between men and women only, and to divide up marital tasks by gender — the man goes out and works for money, and the woman stays home to birth and raise children who will in turn either work for money or stay home and birth and raise their own children.

    That doesn’t follow. Same sex partnerships can raise children, and don’t have the option of dividing marital tasks by gender (neither do single parents like myself—we do it all, all day everyday). Two-income families have it easier than they would if they became one-income families; money does make a difference (better housing, better food, less stress, etc.). Just sayin’….even if a person agreed with the premise (which I don’t, and know you don’t either, Jill), it still doesn’t follow that sexist parenting practices are the “best practices” to implement.

    With that out of the way, it seems to me that the lesson Beverly Willett should have taken away from this experience is that it would have been a better decision for her to not have been a stay-at-home mother. You get screwed by that decision if your partner leaves you. And rather than directing her anger towards her former partner (for not treating her equitably in the divorce settlement), she prefers to blame others…as if keeping her ex-husband in a hostage situation would have been enough to force their relationship to be a good one, rather than a bad one (yeah, I’m making the assumption that people don’t choose divorce if the relationship is a good one. I don’t know anything about their relationship, but think it’s a safe assumption that it wasn’t good).

    There’s also a lot of side-eye toward the “other woman” in the equation; Willett implies that her former husband was lured away from her by another woman (why else is it necessary to mention the other woman’s former marriages, if not to cast her with a big, fat, scarlet “A”?).

    1. That doesn’t follow. Same sex partnerships can raise children, and don’t have the option of dividing marital tasks by gender (neither do single parents like myself—we do it all, all day everyday). Two-income families have it easier than they would if they became one-income families; money does make a difference (better housing, better food, less stress, etc.). Just sayin’….even if a person agreed with the premise (which I don’t, and know you don’t either, Jill), it still doesn’t follow that sexist parenting practices are the “best practices” to implement.

      I think it does, though, in a purely capitalist model where the entire purpose of marriage is to keep a capitalist economy humming along. Must same-sex marriage be outlawed in that model? No. But there’s a much stronger justification for it. A purely economic model has to divide up productivity in the most efficient way across society, and also has to uphold the existing power structure; that requires citizens who are hard-working but not particularly individualistic or engaged. Keeping people tightly knit into social roles makes them much easier to control; ensuring that women’s bodies work in support of that apparatus, and do not exist for women alone, maintains that power structure and creates more workers to keep it going.

      Of course, as you say, I am a proponent of marriage equality and of squashing gender roles. I am also a proponent of squashing an economic-based model of marriage for these exact reasons, among others.

  10. One solution would be for the state to require that a couple specify the distribution of assets and income prior to the state recognizing the marriage. Basically, to obtain a marriage license, each couple would be required to determine how marital property would be split, custody, visitation etc. The parties would be bound by these decisions if there was a divorce. Similar to intestate succession, you could have a state default for these items, but could use a simple 4-5 page form for each couple to complete, requiring them to make these decisions ex-ante. Prior to the marriage is when leverage between a couple would be most equal.

    It also has the benefit of making a couple think through these complicated issues prior to making such a commitment.

  11. Beatrix, with the recent change in New York law, every state is a no-fault divorce state– almost exactly forty years after California became the first state to enact no-fault divorce.

  12. I think it does, though, in a purely capitalist model where the entire purpose of marriage is to keep a capitalist economy humming along.

    Jill, this response is a perfect illustration of why people who don’t fit the white, “middle-class” (translation: wealthy), heterocentric norm get so aggravated with mainstream feminism. It negates our lived experiences.

    If the purpose of marriage is to keep the capitalist economy humming along, then two-income families without the so-called gender roles would be hailed as the standard to which everyone should strive. Those are the families who have enough income to support the spending a capitalist economy requires, and the flexibility necessary to weather the storms capitalist economies necessarily create.

    Capitalist economies do not have the income distribution necessary to make “male breadwinner, female homemaker” scenarios possible for anyone but a fraction of the elite. It isn’t economically tenable for most people. It certainly wouldn’t be/isn’t tenable for capitalism as a whole, as that scenario means “no disposable income” for most people. And frankly, there isn’t anything inherent in women working outside of the home for pay that is challenging to the capitalist structure.

    What am I missing?

    1. La Lubu, I think we’re talking past each other. I’m criticizing the conservative, idealized two-partner economic marriage system. I agree with everything you just said — I think the economic/capitalist model of marriage is really really REALLY fucked up, and it alienates people, and it doesn’t represent peoples’ actual experiences, and it’s never really fully existed in the first place. Like the egalitarian model, it’s an ideal; but it’s not my ideal, and I think it’s a very bad ideal.

      To be clear, I’m not necessarily criticizing capitalism itself. I am criticizing a marital ideal that was structured to work in a very narrow capitalist economy, to fit a particular conservative ideal of what the family should look like, and how the family structure should service the economy and established power structures.

  13. I used to live in New York, and their lack of no-fault divorce laws are problematic in other ways. I’ve had a lawyer tell me that he’s seen cases where couples essentially committed perjury, in glaringly obvious ways, or obviously staged public arguments and abusive behaviour, in order to create some sort of “fault”. And that’s why I support no-fault divorce laws – if a couple can get divorced on civil terms and agree on 90% of the big issues, that will save the court system considerable amounts of time and money.

    However, to the point of what I wanted to say: I have SUCH a problem with the idea that women think marriage = financial security. I come from a religious background, and most of the religious people were middle-class, or if not that at least richer than my family. I’d see girls be taught to be “homemakers” their entire lives, and get married as young as 19. Even with girls whose parents would’ve supported other ambitions, friends of mine would show no other interest, and they would move straight from their parents’ homes to their husbands’ homes.

    A friend of mine (from a similar background) and I have had many discussions as to this phenomenon. We feel that the problem is that these girls is that they always adhere to strict gender roles, assuming that if they get married their husband will fulfill all the male gender roles, leaving them with no reason to learn how to balance a checkbook or change the oil in their car. They never stop to think what might happen if their perfect husband becomes abusive or leaves them, or if he might be killed or seriously injured so that he can’t fix everything that’s broken around the house. It’s scary, and I’m glad that neither my friend, our sisters, or I have fallen for this kind of thinking.

  14. it would have been a better decision for her to not have been a stay-at-home mother
    True, you are at a financial disadvantage by being a stay at home mom. But some women wouldn’t earn enough at their jobs to cover the cost of childcare. Childcare is very expensive in some places, and the pricing structure is usually the younger the child/baby, the higher the cost. A woman with a newborn will have to earn a significant amount of money to cover the cost of care for a newborn and still have money left over.

    I personally don’t think marriage should be a purely economic decision, but…. I think it should play a role. (I also think that cultural/religious factors come into play for marriage reasons). The work that a woman* does at home is valuable and necessary and studies have shown that men with a stay at home wife earn more than men* with a working wife because he can devote more time and energy into his career. That’s an economic advantage for him. \ It takes more than money to raise a family, it also takes time for cooking and cleaning and shopping and driving the kids places and scheduling appointments and staying up when the kids are sick, etc.
    *I realize I used husband and wife, but I don’t see why this wouldn’t also apply to same sex couples.

  15. Miss S —

    I am not comfortable with the idea that the a woman should subtract the cost of childcare from HER salary in order to determine whether working outside the home makes economic sense. Why calculate that way, as opposed to subracting the amount from both salaries? Why not factor in the fact that, by working, she (and the couple) also benefit financially by keeping her work skills and CV current — resulting in possibly greater future earning capaciy, or at least preventing loss to her future earning capacity?

    For example, suppose husband and wife make $30K each and child care is $20K. Now, they might very well say that they only come out $10K ahead if they both work and it is worthwhile to give up that $10K so that one of them (almost always the wife) can stay home full-time with the child.

    OR they can subtract half the cost of child care ($10K) from each of their salaries, so that each spouse is thought of as taking home $20K after childcare. Her paid work is valued as much as his in the home. AND by continuing to work at her $30K job, she is laying a foundation to perhaps make more in the future, or to at least maintain that earning capacity. This protects her.

    Obviously, these decisions are complicated and a number of factors are considered. But simply subtracting childcare from wife’s salary devalues the wife’s paid employment compared to the husband’s.

  16. The work that a woman* does at home is valuable and necessary and studies have shown that men with a stay at home wife earn more than men* with a working wife because he can devote more time and energy into his career.

    Not necessarily. Only men who earn a high income can really have a stay-at-home wife; everyone else does shift-work or uses daycare. The men in my Local aren’t “devoting more time and energy” into their careers than I (a single mother) am—they choose working women to begin with as wives, because they don’t earn enough to support a not-working-for-pay-spouse (which in my experience, is a greater expense than supporting a child). Just saying.

    That’s why that discrepancy exists. It’s self-selected.

  17. Another Laurie- I don’t mean to imply that it’s only the woman who should pay for childcare. It’s the responsibility of both partners. I wasn’t clear, but I was referring to situations where the woman makes significantly less than the man. If I make $12,000/yr, my partner makes $30,000 and childcare for our newborn costs $15,000/yr, my salary doesn’t cover that cost. We would be losing $3,000/yr for me to work. If I stay home our family earns 30,000 as opposed to 27,000. Working has non- financial benefits, such as making connections and not having gaps on your resume. However, I can see why someone with a newborn baby would choose to stay home instead of paying to have a job that they may not even like. What if I only earn $8,000 or less?

    This doesn’t apply to all couples, but it does happen. I just wanted to remind everyone that childcare cost does play a role sometimes.

  18. As a quick note, I was visiting family in New York around the time that the law was being passed.

    I stumbled across an article on it, which had a handy list of the (at the time) current reasons for divorce, one of which included:

    “withholding sex for a year.”

  19. I can remember when no-fault divorce was introduced in the UK and it seems strange to hear all the old arguments again. There’s one that seems to have been missed though. That is the effect of ‘proving’ one partner is at fault. Once that’s done the settlement will tend to punish the ‘guilty’ party. I don’t know how extreme that gets in New York but it has the potential with leaving one party with nothing or even onerous obligations. Given that failed marriages are rarely entirely one persons fault it makes more sense to regard marriage breakdown as a problem to be solved.

    I’d also like to point out that this ‘division of assets’ is very much a middle and upper class view of divorce. For the majority of couples the real issue is how to afford two homes especially if there are children to support.

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