the economic consequences of divorce

THE ECONOMIC CONSEQUENCES OF DIVORCE

Marsha Garrison

This article objectively reviews the effects of divorce on the financial well-being of families. Women and children suffer disparities in income, but the differences are not as great as publicized in other studies and diminish with remarriage. The absence of marriage, not the presence of divorce, is the major cause ofpoverty for women.

Divorce law today is under attack. Among its critics, many claim that modern divorce law is a primary cause of poverty among divorced women and their children. As one prominent critic has put it,

The net effect of the present rules for property, alimony, and child support is severe financial hardship for most divorced women and their children. . . . They have become the new poor. , . . The result is that we are sentencing a significant portion of the next generation of American children to periods of financial hardship. (Weitzman, 1985, p. xiv)

This is a powerful indictment, based on two separate charges against divorce law: first, that divorce law is unfair because it disproportionately imposes the economic hardship occasioned by divorce on women and children, and, second, that these unfair results imposed by divorce law are an important cause of poverty. Divorce law is thus, the critics urge, a major source of the so-called feminization of poverty that is widely viewed as a major social problem.

These charges are serious and urgent. More than a million American families experience divorce each year (U.S. Bureau of the Census, 1992b, Table 127). If divorce law, systematically and unequally, does impose the hardship of divorce upon the women and children in these families, if the consequence of such inequality is widespread impoverishment, we cannot afford to ignore it.

The first question, of course, is the accuracy of the charges. Evidence on both the claim of unfairness and that of the relationship between divorce and

Author's Note: This article ir denvedfrom a presentation made at the annual meeting of the Association of Family and Conciliation Courts in New Orleans in May 1993. The author's research described in the article was supported by the Alfred P: Sloan Foundation. Additional research assistance was provided by the Brooklyn Law School Faculty Research Fund.

FAMILY AND CONCILIATION COUES REVIEW, Vd. 32 No. 1, January 1994 10.26 Q 1994 Sage Publications, Inc.

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Garrison / ECONOMIC CONSEQUENCES OF DIVORCE 11

poverty is now available from a variety of sources. What follows is a review of that evidence and its implications for divorce reform.

DIVORCE ENTITLEMENTS AND TYPICAL OUTCOMES

PROPERTY DMSION

At first glance, the available data on property division suggest that divorce law’s critics are simply wrong. Despite claims that women are typically awarded less than half the marital property at divorce (Cohen & Hillman, 1985; Weitzman, 1985,pp. 104-107), inthevastmajorityofstates thatrequire equitable rather than equal division of marital assets, the available evidence suggests otherwise. Researchers to date have uniformly found that, on average, divorced wives receive at least half of the net family assets (Garrison, 1991, Table 20). Although these findings would suggest that divorced wives are doing well, the percentages are misleading for several reasons.

First, the vast majority of divorcing couples have very little to divide. This fact was first reported in the 1950s (Goode, 1956, p. 217) and has been r e a f f i e d by a substantial number of later researchers (Garrison, 199 1, Table 9; Weitzman, 1992, pp. 94-95). In most states, the median net value of marital assets does not appear to exceed $25,000. It is thus not surprising that more than two thirds of divorced women polled by the Census Bureau report that they received no property settlement whatsoever (U .S . Bureau of the Census, 1991a, p. 2).

Second, the divorcing couple’s limited net worth is typically concentrated in the €amily home, household goods, and the family car, nonliquid assets that are difficult to use for current consumption (Garrison, 1991, pp. 664-666, also Table 5). Current distribution patterns exacerbate this liquidity problem for the wife. In the typical property division, her share tends to be concentrated in household furnishings and the marital home, which is probably subject to a significant mortgage obligation (Garrison, 1991, pp. 684-685). Wives ordinarily receive the lion’s share of these assets, but they seldom receive a substantial portion of business assets or real estate (when these assets exist) or even the pension, which generally represents the bulk of the couple’s retirement savings (Garrison, 1991, pp. 683-684; Weitzman, 1992, pp. 122-123). The substantial share of marital assets typically granted the wife thus seldom provides meaningful liquid capital.

Third, the available evidence suggests that deferred distribution of the family home when there are minor children is ordered with increasing infrequency. Research that I conducted on divorce outcomes in New York

12 FAMILY AND CONCILIATION COURTS REVIEW

revealed that deferred distribution of the home declined by 50% between 1978 and 1984 (Garrison, 1991, Table 24). Researchers in California (Seal, 1977, p. 12; Weitzman, 1985, pp. 79-84), Connecticut (McLindon, 1987, pp. 376-378), and Vermont (Wishik, 1986, p. 91) have also reported sale of the family home with increasing frequency, even when there are minor children and the family home would provide housing that is affordable. Such sales appear to occur most often when there are insufficient assets for the custodial mother to trade for the home (Arendell, 1986, p. 42; Weitzman, 1985, pp. 79-81). Courts universally have the power to defer distribution in such a case and insulate the children against the further trauma of a new home, neighborhood, and school-as well as potentially higher housing costs-but in too many cases this does not occur.

Finally, the little evidence we have suggests that as the value of marital property increases, the wife’s percentage share declines. Among couples in my New York research sample, the average and median percentage of net marital property awarded to wives in the group with the lowest net worth was more than double that of wives in the group with the highest net worth (Garrison, 1991, Table 35). Research in Connecticut suggests a similar pattern (McLindon, 1987, Table 22). This tendency helps to explain the popular misconception that women fare poorly under equitable distribution laws. In cases where there is enough property to make a difference, they often do.

ALIMONY AND CHILD SUPPORT

Because of the scarcity of marital property, the redistribution of income through alimony and child support is, for most, the really important entitle- ment. But national census data show that only about 15% of divorced wives are awarded alimony (US. Bureau of the Census, 1991a, p. 1). Although there are no national data on the duration of alimony awards, several state research reports have also demonstrated a remarkable shift toward time- limited, “rehabilitative” alimony over the past couple of decades (Garrison, 1990, Table 3.11). My research on divorce outcomes in New York, for example, showed that the likelihood of a permanent alimony award declined precipitously between the late 1970s and the mid-1980s. In the earlier period, four of five alimony awards were permanent; during the later period, only half that many were (Garrison, 1991, Table 37). Moreover, the average duration of a time-limited award is, in many states, quite short (Baker, 1987, p. 17, 1 year; Garrison, 1991, p. 698.4.7 years; Rowe & Morrow, 1988,3 years; and Weitzman, 1985, p. 165,2 years).

Garrison I ECONOMIC CONSEQUENCES OF DIVORCE 13

Census data and state studies (Garrison, 1990, Table 3.13; Rowe, 1991, Table 1) also suggest that the value of alimony awarded is typically low. In 1985,’ for example, the average alimony payment received by census respondents was only $3,730 (U.S. Bureau of the Census, 1987, p. 7). Child support is awarded far more reliably (U.S. Bureau of the Census, 1991a, p. 1, Table C; Pearson et al., 19%a, p. 231), but here too the value of the award is typically small. In divorce cases nationally, the average child support award is less than $3,500 per year (U.S. Bureau of the Census 1991a, p. 7, Table E). According to census-based research from the mid-l980s, that value represents, on average, less than 10% of the noncustodial parent’s income (Fletcher, 1989, p. 414).

The value of alimony and child support also erodes over time. Awards have rarely been updated to take account of inflation; noncompliance, on the other hand, is common. Nationally, only about half of mothers entitled to child support receive full payment; another quarter receive no payment at all (US. Bureau of the Census, 1991a, p. 6). The statistics are no better for alimony. The likelihood of paying also tends to worsen, rather than improve, over time (Pearson et al., 1993a, p. 233), and two out of three recent research reports offer gloomy assessments of wage withholding orders as a means for improving payment (Gorden et al., 1991; Pearson et al., 1993a, pp. 233-234; but see Garfinkel & Klawitter, 1990).

THE ECONOMIC CONSEQUENCES OF DIVORCE

What, then, are the economic consequences of divorce? Putting together what we know about the various divorce entitlements, it is not surprising that researchers have invariably reported that women, and children in their custody, do suffer a disproportionate share of the economic burden of divorce. For example, when household income is divided per capita (by the number of family members), divorced women’s households have less income than do those of married couples, whereas the households of divorced men enjoy higher per capita incomes than do those who are married (Sorensen, 1992, p. 265). When the per capita incomes of divorced men and women are compared with that of the predivorce household, the same pattern is evident. Researchers have typically found that the per capita income of divorced wives declines by about a third after divorce while that of husbands actually improves (Garrison, 1991, Table 56; Rhode Island Advisory Committee, 1991, pp. 7,24). The average income gap between divorced men and women varies from one study to the next, from 39 percentage points (Rhode Island Advisory Committee, 1991, p. 24) to more than 150 (Wishik, 1986, p. 98),

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but every researcher to date has reported that, on a per capita basis, women fare worse than men after divorce.

Per capita income is not, of course, a highly accurate measurement of a family’s standard of living because it fails to take account of economics of scale. But despite the variation in techniques used by researchers to measure the impact of divorce on standard of living, no researcher has found that men and women are equally affected by divorce. The estimates vary widely (Duncan &Hoffman, 1985; Hoffman & Duncan, 1988; Sorenson, 1992; US. Bureau of the Census, 1991b; Weiss, 1984; Weitman, 1985, pp. 338-339), but according to all reports, by all measures, women disproportionately bear its burden. It is this gap that has led many women’s advocates to claim that divorce law is unfair and that it is an important cause of women’s and children’s poverty.

BEYOND GENERALITIES

Although these are the broad generalities, the aggregate statistics leave unresolved a variety of important questions.

ARE THINGS GETTING BETTER OR WORSE?

The first question that the aggregate statistics do not address is the direction of change: Are divorced wives generally better or worse off today than their counterparts a generation ago?

We have the best historical record for the alimony award rate. According to Census Bureau data, 15% of divorced wives were awarded alimony in the early 1920s (Jacobson, 1959, p. 127); in 1990,15.5% of divorced or separated women reported to the Census Bureau that they had been awarded alimony (U.S. Bureau of the Census, 1991a, p. 1):

Whereas these national data suggest remarkable continuity in the long- term alimony award rate, several state reports dating from the late 1960s consistently show declines in the alimony award rate over the past couple of decades (Garrison, 1990, Table 3.11): In the three New York counties where I conducted research, for example, the alimony rate declined from 2 1 % to 12% over a 6-year period, a 43% drop (Garrison, 1991, Table 21).

We do not have a lengthy historical record for the value of alimony or child support. Between 1979 and 1985, however, the mean alimony payment received by Census Bureau respondents declined, in constant dollars, by 2 1 % (U.S. Bureau of the Census, 1987, p. 6). State research reports also show declines in the amount of alimony awarded, although more modest ones


(Garrison, 1990, Table 3.13). Moreover, because of the shift toward dura- tional alimony, most alimony awards today are worth less than those of the past simply because they will be paid over a shorter time period.

Nor does it appear that child support awards have increased to make up the difference. Census data (US. Bureau of the Census, 1987, p. 6) and state studies (Garrison, 1990, Table 3.13) also show the mean child support payment declining, in constant dollars, between the late 1970s and mid- 1 9 8 0 ~ ~ My research, for example, revealed a 25% decline in the mean child support payment between 1978 and 1984 (Garrison, 1991, Tables 50,51).

We have little historical data on postdivorce disparity in the standard of living of men’s and women’s households, but one fact suggests that such disparity may be increasing. Whereas the employment rate for divorced women has been relatively constant over the past 30 years, the employment rate for married women has gone up markedly (U.S. Bureau of the Census, 1992b, Table 618). Fewer women are thus able to increase their incomes after divorce through employment now as compared to earlier periods.

On the other hand, despite these trends, the poverty rate among divorced or separated women with children has remained relatively constant. In 1969, 50% of such families had incomes below the poverty line, as compared to 46% in 1988 (Hernandez, 1993, Table 8.2). Declines in the level of child support and alimony apparently have not been large enough to push the poverty rate upward. This constancy in the poverty rate may reflect the relatively small role played by alimony and child support in determining the economic well-being of the postdivorce mother-child family as compared to earned income (Garfinkel & McLanahan, 1986; McLanahan, 1992). One pair of researchers, for example report that, in 1983, child support and alimony accounted for less than 13% of total income in White mother-only families and for less than 3% of total income in Black mother-only families (Garfinkel& McLanahan, 1986).

In a nutshell, then, the evidence does not suggest that the economic outlook for divorced wives is improving. It is true that the research reports and most of the census data antedate the widespread introduction of child support guidelines. But these appear to have had only a modest impact in reversing the trends. One three-state research project found that the average postguidelines child support award was only 15% higher than the pre- guidelines average (Pearson et al., 1989, p. 577; Thoennes et al., 1991, p. 332). An increase of this magnitude would not even completely eradicate the decline in child support values registered between the late 1970s and mid-l980s, let alone produce a major improvement in the economic well- being of divorced women’s households.


CONSISTENCY, PREDICTABILITY, AND RATIONALITY

The second issue that the averages and medians fail to portray is the consistency of results and their level of rationality. The average of 50 and 50 is 50, so is the average of 0 and 100. Researchers have typically reported only averages or medians; we have thus known little about how divorce outcomes are distributed and whether that distribution is rational.

It is possible, for example, that the average gap in former husbands’ and wives’ standard of living following divorce primarily reflects the results in cases that are not troubling from a public policy perspective. Consider John and Mary Doe, childless, age 25, married for 3 years, and employed: John at an annual salary of $20,000 and Mary at one of $lO,OOO. If divorce results in Mary receiving the lion’s share of the assets (the household goods and a used car) and not receiving alimony, the result would be typical. Mary’s per capita income would also fall by close to the average percentage described above.

There are lots of Johns and Marys. Four of 10 divorcing couples have not had children together (Oldham, 1992, p. 1100 n. 44). Half have been mamed for less than 7 years, and half of divorcing wives are 32 years of age or younger (US. Bureau of the Census, 1992b, Table 132). Among manied couples, husbands contribute, on average, about two thirds of the family income (Garrison, 1991, p. 650 n. 117). Given the lack of public support for alimony to childless women in short marriages (Weitzman, 1985, pp. 150- 163), the result in John and Mary’s case is not one for which most would fault divorce law. Blame would probably fall instead on prevailing patterns of occupational segregation (Fuchs, 1988, pp. 32-44; Jacobs, 1989) and wage inequality based on gender (Fuchs, 1988; Goldin, 1990).

For divorce reform, then, it is important to know whether the overall trends are primarily applicable to the Marys in the divorce population or whether are they also applicable to Mary’s counterpart with small children and to Mary’s mother who divorces after a lengthy marriage without significant employment experience. Or are some types of divorcing wives better off than others? Are the better off the “right” ones? The aggregate picture, in short, fails to tell us about the distribution of divorce outcomes and the extent to which it comports with public policy goals.

Until recently, we have had little data on these issues. It was therefore a topic that particularly interested me when I conducted research on divorce outcomes in New York. What I found was that the average results masked widespread variability, which was, to a large extent, unpredictable. With respect to property division, for example, only about one of five couples in my research sample divided their net worth relatively equally (Garrison,

Garrison I ECONOMIC CONSEQUENCES OF DIVORCE 17

1991, Table 18). The only other researchers who have published data on this issue report a similar proportion (Rowe dz Morrow, 1988, p. 475). The central idea behind equitable property distribution is, of course, individualized results-but the factors that one would expect to predict disproportion (marital duration, employment, income, custody) were not significant out- come predictors (Garrison, 1991, p. 696; see also Rowe & Morrow, 1988, p. 475). Variation in the distribution of property was largely inexplicable.

The award of alimony was considerably more predictable than property distribution. My research showed, not surprisingly, that the most likely alimony candidate is the long-married, low-income or unemployed wife married to a high-income husband. Among couples in my research sample, women married for 20 or more years were about three times as likely to be awarded alimony as were those married less than 5 years (Garrison, 1991, Table 38). Unemployed wives married at least 10 years were about twice as likely to be awarded alimony as were employed wives married less than 10 years (Garrison, 1991, Table 40). Other researchers have reported similar results (Bell, 1988; McLindon, 1987; Rowe & Morrow, 1988; Sterin et al., 1981; Weitzman, 1985).

Although alimony decision making is thus more predictable than property division, there is still substantial, inexplicable variation in outcomes. For example, almost half of the wives in my research sample whose income represented less than 20% of family income were not awarded alimony (Garrison, 1991, Table 46). Neither marital duration, age, income, nor custody status was significantly related to the alimony decision for this group. Nor were wives in the group that was not awarded alimony granted more child support or property to make up the difference; on average, they were awarded less.

Moreover, the new rehabilitative alimony norms were imposed on long- married and unemployed wives as well as the Marys in the divorce population.’ Women married for 20 or more years suffered, in both absolute and percentage terms, a larger loss in the likelihood of an alimony award than did women in shorter marriages (Garrison, 1991, p. 700); the alimony prospects of unemployed and low-income wives were reduced no less than were those of their better-off counterparts (Garrison, 1991, pp. 702-703):

Problems of consistency and rationality applied as well to the duration of alimony and payments, their value, and to the value of combined alimony and child support. For example, among couples in the research sample with no minor children where the wife’s income represented less than 10% of family income and where alimony was awarded, the award ranged from 6% to 36% of the husband’s income. Marital duration did not explain the variation, nor was any rational explanation for the variation to be found in


the available data (Garrison, 1991, pp. 719-720). Cases where there were minor children showed no less variability in the size of a chiId support award or in the size of combined alimony and child support in relation to the obligor’s income.

The aggregate statistics thus appear to mask a second important source of unfairness in divorce law. The available evidence suggests that divorce law has failed to ensure that like cases are treated alike or that the burden of divorce is rationally distributed based on legitimate case differences. It is not simply the Marys who are affected; divorce law too often resembles a lottery, in which it is impossible to guess in advance the winners and losers.

TO WHAT EXTENT IS DIVORCE LAW RESPONSIBLE FOR WOMEN’S AND CHILDREN’S POVERTY?

A third issue that the aggregate statistics do not resolve is the extent to which divorce law is a cause of (and a potential cure for) women’s and children’s poverty. There is, of course, no question that households headed by women, particularly those with children, have lower incomes and are far more likely to be poor than are married-couple households. The median income of married couples is more than double that of households headed by women and, when there are children, more than triple that of single mothers (U.S. Bureau of the Census, 1992b, Table 708). The result is that the poverty rate for single-mother families with children is more than five times that of married couples with children (U.S. Bureau of the Census, 1992b, Tables 719,727). For Black single mothers, the picture is even more bleak; 69% of these families have incomes below the poverty line.

The economic advantage of marriage is sufficiently great that even male-headed households have a significantly smaller median income than that of married couples (U.S. Bureau of the Census, 1992b, Table 708). (This gap is, of course, smaller given the typically higher wages of men as compared to women.’) With almost 60% of married women in the wage labor force (U.S. Bureau of the Census, 1992b, Table 618), most married couples today have the economic advantage of two wage earners. The divorced and never married do not. Moreover, the combined salaries of the married couple must be used for only one house payment and utility bill.

The economic disadvantage of divorce as compared to marriage is thus clear and inevitable. But this disadvantage does not result from divorce law and cannot be cured by it; no divorce law can provide a standard of living for families that experience divorce that is commensurate with that enjoyed by the marital household. With increasing numbers of two-earner families, the economic disadvantage of divorce as compared to marriage will not abate


and will likely grow. We can be confident that divorce will almost always occasion a decline in standard of living as compared to marriage. All that divorce law can accomplish is fair apportionment of that disadvantage.

It is thus important to distinguish poverty caused by divorce law, which is preventable, from poverty that flows from divorce (or predates it) and is thus unpreventable. Put differently, the important law reform issue is how much poverty a revised divorce law could prevent. Evidence on this question is still scanty but accumulating.

First, it is now apparent that many women who are poor after divorce were also poor before divorce. Recent Census data suggests that divorce is approximately twice as likely among couples with incomes below the poverty line as compared to others (U.S. Bureau of the Census, 1992a, pp. 2,20). Among families with children, census researchers have reported that 21% of those that experienced the loss of the father from the household during a 2-year survey period were already poor (U.S. Bureau of the Census, 1991b, p. 2), a poverty rate generally double that of married-couple households with children.' Among mothers living in married-couple families who formed mother- child families within the year, 26% of White mothers and 39% of Black mothers were already poor (U.S. Bureau of the Census, 1992a, pp. 22, 30). Moreover, those mother-child families that were poor before parental separation are most likely to remain poor. One expert has thus estimated that more than 60% of poor Black mothers were poor before forming mother-child families (Bane, 1986, Table 9.5). A large proportion of poor single-mother families thus represent continuing poverty rather than poverty occasioned by family dissolution.

Second, an increasingly large segment of poor mother-child families reflects nonmarriage rather than divorce. Between 1959 and 1988, the proportion of poor children in single-mother households who lived with a never-married mother approximately quadrupled, from about 4% of the total to 37%-40% (Hernandez, 1993, p. 287; U.S. Bureau of the Census, 1992a, Table G). Moreover, the poverty rate for families of never-married mothers is more than double that of their divorced or separated counterparts (U.S. Bureau of the Census, 1991a, p. 2). Paternity and child support law are relevant in these cases, but the poverty of these families does not stem from divorce?

The already poor and the never-married are not the only women represented in the poverty statistics, of course. According to census research from the mid-l980s, almost twice as many mother-child households were poor following divorce as had been during marriage: 35.5% versus 19% (U.S. Bureau of the Census, 1991b, p. 2). Not all of that increase was preventable, however; for families at the margin of poverty, the increased expenses of two


households would likely drive both into poverty under any divorce regime. The available data do not permit any precise estimates of how many entries into poverty that accompany divorce could be averted by divorce law, but because of the greater tendency toward divorce at lower-income levels, the number that are unpreventable is certainly not insubstantial.

Because many divorcing families are already poor or near poor and because never-married mothers constitute a growing segment of the poor, the ability of divorce law to affect the rate or numbers of women and children living in poverty is severely limited. We cannot expect divorce law to have a major impact on the feminization of poverty or to substitute for any antipoverty program."

That is not to suggest that divorce law currently does enough to ensure an adequate standard of living for women and children of divorce. The available data suggest that divorced fathers not only spend far more on basic necessities than their former wives and children do (Fletcher, 1989, Table 2), but that they could, on average, pay more child support. During the mid-l980s, the mean percentage of income that noncustodial parents reported to the Census Bureau that they paid as child support was less than 10% (Fletcher, 1989, p. 415). Moreover, estimates of the absent father's ability to pay support indicate that, on average, the income of noncustodial fathers is only $3,000 less than the average for all prime-age males (Garfinkel & Oellerich, 1990). Although divorce law thus offers no cure for the feminization of poverty, it should be able to effect some improvement in the standard of living of mother-child families postdivorce and to keep some out of poverty.

This modest goal is well worth our efforts. There is a large body of research showing that children from single-parent homes obtain fewer years of education and are more likely to be poor when they become adults than are their counterparts in two-parent families; they are also more likely to engage in delinquent behavior and more prone to early marriage, childbearing, and divorce (McLanahan, 1992, Table 16.1). Although the explanation for these disadvantages goes beyond money, socioeconomic status appears to be the most important of the contributing factors (McLanahan, 1992, pp. 292-293, 298). The consequences of inequity in distributing the burden of divorce are thus serious and have the potential to affect generations to come.

WHO IS TO BLAME? WHAT, IF ANYTHING, IS THE CURE?

The last question that the aggregate statistics do not address is the mechanism by which these results are produced. Who, or what, is to blame? How can we fit it?


These questions are particularly interesting ones because the divorce outcomes described by empirical researchers do not comport with the expec- tations and predictions of legal experts. In three surveys of judges, for example, not a single judge failed to predict alimony for a long-married homemaker; at least two thirds predicted apermanent award (Milligan, 1988; New Jersey Judge Workshop, 1990; Weitzman, 1985, pp. 152,154-156).

There has been, to date, surprisingly little research on how judicial decisions at divorce deviate, if at all, from the average outcomes described above. The handful of reports suggest somewhat contradictory conclusions (Lieberman, 1986, p. 12; Melli, 1983, pp. 41-42; Reynolds, 1991; Weitzman, 1985, pp. 195-201; White & Stone, 1976, p. 80; Yee, 1979, pp. 28,52-53). One part of my research project in New York has thus involved an examina- tion of judicial decisions so as to obtain more information on this issue.

I found that the alimony rate was three times higher for the judicially decided cases than for the larger sample. Although that difference partially reflects the lengthier marriages and smaller proportion of family income earned by wives in the group of cases decided by judges, judges also awarded alimony more frequently to low-income and long-married wives. For example, judges awarded alimony to 83% of unemployed wives married for 10 or more years, as compared to an award rate of 49% for this group in the larger sample. The average value of alimony and child support when judicially determined was also markedly higher than that of the settled cases and, more importantly, represented a significantly larger share of the obligor's gross income. Judges' alimony and property decisions were also more predictable" than were outcomes in the larger sample, and property division when judicially ordered was far more likely to approximate an equal division of assets. In a nutshell, judges do not appear to be the primary source of the economic disadvantage experienced by divorced wives.

Nor do lawyers appear to be the problem. In my study of divorce in New York, legal representation was a significant positive predictor of whether the wife was awarded alimony (Garrison, 1991, Table 48), and of the value of alimony and child support (Garrison, 1991, pp. 715-716); 30% of wives were awarded alimony when both parties were represented by counsel. None were awarded alimony when neither spouse was represented. Even under child support guidelines, researchers have reported that awards are significantly higher when lawyers are involved (Pearson et al., 1993a, p. 236; Thoennes et al., 1991, pp. 340-341).

While it should be gratifying to the legal community to know that judges and lawyers have a positive impact on outcomes for divorced wives, it is sobering to contemplate how infrequently divorcing couples see a judge or

22 FAMlLY AND CONCILIATION COURTS REVIEW

are fully represented by counsel. All but a small percentage of divorce cases are settled before trial (Melli et al., 1988, p. 1142; Mnookin & Kornhauser, 1979, p. 951); it is probable that both parties are represented by counsel in less than half the cases. Even in the wealthy suburban county I studied, only 47% of the couples in the sample were both represented by counsel (Garrison, 1991, Table 2). Reports on the level of legal representation in other locations are consistent (Baker, 1987, pp. 2-3; Pearson et al., 1993b, pp. 281-282). Many couples who do see a lawyer appear to employ him or her simply as a scrivener (Jacob, 1992, pp. 580-581) and thus obtain results only marginally different from those of couples with no legal advice.

The failure of most divorcing couples to fully make useof the legal system is not surprising when their economic circumstances are taken into account. Recollect that half have been married for less than 7 years and have less than $25,000 to divide: the best data available suggest that the average family income of a divorcing couple is about $30,000 (Brett et al., 1990, p. 17; Weitzman, 1985, p. 60). These couples cannot afford lawyers or litigation;12 it is unclear that they can afford a divorce.

The problem thus appears to lie more in a system that necessitates legal and judicial assistance. Divorce law, in most states, is vague, complex and highly discretionary. It is ill-suited to the volume of divorce cases filed and their generally routine characteristics. Divorce may not be quite as certain as death or taxes, but in an age of mass divorce, probate law, which employs clear, simple, and universal rules to decide family assets at death, offers a better model for divorce than does our current legal regime.

We need adivorce law that does not require judicial and lawyer assistance; that is focused on equalizing postdivorce income disparities in families with children and where there is a lengthy marriage; and that is sensitive to the economic plight of divorcing families, many of which are already poor, all of which will be worse of as a result of divorce. This is not the law we have today.

The economic consequences to divorce today are the “equitable” division of property worth too little to matter; no or short-term alimony; child support that fails to ensure a standard of living for the children and their mother equivalent to that of the father; outcomes that are inconsistent and often unpredictable, and that, for women and children, do into appear to be getting better; and economic hardship that often could have been lessened through more equitable rules.

Divorce law cannot cure the feminization of poverty or the problems of single-parent families, but it can ensure outcomes that impose the burden of divorce fairly upon all family members. That is the goal for which divorce reform should strive.

Ganison I ECONOMIC CONSEQUENCES OF DIVORCE 23

NOTES

1.1985 is the last year for which the Census Bureau has reported information on the amount of alimony awarded or received.

2. National data for the mid-portion of the century is unavailable, but the available state data for that era do not suggest large increases in the alimony rate. Reporting on the data in the 195Os, Jacobson (1959) concluded that an alimony or property settlement was made in about one fourth of all marriages dissolved in the United States @. 127).

3. Such a decline would not necessarily appear in the recent census data because they are based on reports by the total pool of divorced or separated women rather than those divorced or separated in the preceding year (U.S. Bureau of the Census, 1991b, p. 1).

4. From $2,966 in 1979 to $2,215 in 1985, a 25% drop. The most persuasive explanation of the decline reflects several concurrent phenomena: The proportion of women eligible for child support who were never married, a group that is less likely to be awarded child support, increased markedly during this period, and the real value of awards was eroded by a high inflation rate. Many courts also consider the incomes of both parents in establishing child support and the ratio of women’s to men’s annual eamings increased quite dramatically during this period (Beller & Graham, 1988; Garfinkel, 1992; Robins, 1992).

5. In California, on the other hand, the decline in the alimony rate reported by Weitzman (1985) was experienced primarily by women in short marriages. Long-married wives, particularly homemakers, actually saw their alimony prospects improve over the period Weitzman surveyed.

6. Long-married and low-income wives also saw major declines in the likelihood of a permanent alimony award. In 1978.81% of alimony awards to unemployed wives married 10 or more years were permanent; in 1984, only 32% were (Garrison, 1991, p. 703).

7. There appear to be no census data comparing the incomes of father-headed households and those of married couples.

8. Unemployment was also significantly more likely among fathers who depart the household than those that remained in stable two-parent families (US. Bureau of the Census, 1991b, p. 2).

9. The fact that no more than a quarter of never-married women are awarded child support (US. Bureau of the Census, 1991a. p. 1) appears to reflect, in large pm, unmarried mothers’ difficulties in establishing paternity (Garfinkel, 1992, p. 64; Pearson, 1993% p. 236) rather than any systematic bias in child support law. However, the average value of child support awards to never-married mothers is considerably lower than that awarded to divorced women (US. Bureau of the Census, 1991% p. 7). a differential that may reflect differing judicial attitudes toward the child support claims of the never married as well as the low incomes of fathers (Garfinkel, 1992, pp. 64-65) in this population.

10. Hernandez (1993) has estimated that, even if all mother-child units (including those of unmarried mothers) could be (re)united with the father, the current childhood poverty rate would be reduced by no more than 4% (p. 290). The low value of the estimated reduction derives from the fact that parental employment is a far more important determinant of poverty status than family composition (pp. 336-341). coupled with the tendency for nonmaniage and divorce to be concentrated in lower-income brackets (pp. 288-290).

11. On the duration and value of an alimony award, the judges were largely unpredictable, however.

12. Researchers thus report that divorcing couples consistently express concern about the cost of lawyer’s fees and sometimes settle the case so to avoid additional legal expenses (Melli et al., 1988, pp. 1155-1156).


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79-103.

Marsha Garrison is a Professor of Law at Brooklyn Law School in New York.

the economic consequences of divorce

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