Divorce and Separation

Divorce Culture

One of the major social changes to characterize the last three decades of the twentieth century was the marked increase in the divorce rate worldwide. In the United States, about half of all marriages end in [Page 431]divorce, and in Great Britain the ratio of marriages that end in divorce is four out of ten. The rising number of divorces has become a new “cultural universal,” and social scientists examining the impact of family breakdown on the welfare of women and children conduct their research on the presumption that this emerging “divorce culture” is here to stay.

A sweeping “no-fault revolution” dating from the late 1960s radically reformed the grounds for divorce and the requirements for alimony in legal systems around the globe. According to the standard divorce typology, the three most common forms of divorce are no-fault divorce, unilateral divorce, and divorce by mutual consent. If parties choose one of the first two unilateral types, they are not required to prove fault or grounds for divorce beyond a showing of irretrievable breakdown (or irreconcilable differences). In continental civil law systems, bilateral divorce by mutual consent is socially prevalent. Its summary quasiadministrative proceedings provide the simplest and most inexpensive way to end a marriage. Today most, if not all, national legal systems have a divorce regime that offers the divorcing spouses a choice among these types of proceedings.

Effects of Divorce on Women and Children

The liberalization of divorce law has encouraged divorce by reducing its costs. Over the last thirty years, social scientists have increasingly been concerned with the distributional effects of no-fault divorce on the members of disrupted families. The severe economic losses suffered by divorced women and their children have been extensively documented in what is now an impressive body of literature. Empirical studies conducted since the early 1980s (such as the pioneering work of Lenore Weitzman) consistently show that women on average suffer a significant decline in their standard of living following divorce. The three main reasons for this decline are the following:

• 1.
  After divorce, an overwhelming majority of women retain physical custody of their children. During the past two decades, all developed nations have reported a dramatic increase in female-headed households. Women's disproportionate responsibility for child care is also the most powerful explanation for the fact that divorced mothers as a group earn significantly less than divorced fathers. Divorced women's revealed preference to maintain direct physical ties with their offspring generally decreases their alternatives over their life course and lowers their probability of participating in the labor market on equal terms with men. This problem is exacerbated by the shortcomings in existing family policies that do not allow working parents to successfully combine workplace and family responsibilities.
• 2.
  Many divorced men are negligent in paying their court-ordered alimony or child support. In 2003, the U.S. government announced that fathers owed $96 billion in back child support. Empirical data demonstrate that few divorcing women receive alimony, and those that do receive only short-term “rehabilitative” alimony. Furthermore, child support awards are generally low and poorly enforced (for example, in the United States, more than half of all divorced women never receive the full amount of child support they are due). The U.S. Congress has twice enacted legislation concerning the collection of child-support payments, including a provision that payments are to be automatically deducted from the absent parent's paycheck. Although the nonpayment levels are lower now than they were in the past, the effect on lifting a larger share of children out of poverty has not been significant.
• 3.
  The courts have generally treated the husband's postdivorce income (which is often a family's most valuable asset) as property of the husband alone. For example, courts have refused to designate professional degrees earned during marriage as marital property. Thus, in practice, a husband is not required to apply his human capital (that is, the economic value of his ability to produce goods and services in the future) to help his former wife and his children sustain an adequate standard of living. However, in the typical marriage, the wife has enhanced her husband's actual or prospective earnings by providing unpaid family work—and existing divorce [Page 432]statutes prevent her from receiving a fair share of her husband's increased earnings.

Sociolegal Analysis of Divorce

Many studies confirm that after divorce, the lack of financial resources is the major reason that children experience high levels of physical, emotional, and psychological stress. Research has also linked the absence of fathers to child poverty, juvenile delinquency and violence, teenage promiscuity, and child abuse. Fathers' rights activists have suggested that these social problems are aggravated by the marginalization of fathers as a direct result of the almost automatic granting of custody to mothers in contested divorces. Stigmatizing single fathers as deadbeat dads or incapable caregivers who do not assert their parental rights after divorce is just as harmful as perpetuating negative stereotypes about single mothers.

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