Divorce and the Displaced Homemaker: A Discourse on Playing with Dolls, Partnership Buyouts and Dissociation Under No-Fault
73 Pages Posted: 10 Dec 2010
Date Written: 1993
For too long, no-fault divorce laws have served as a "handy vehicle for the summary disposal of old and used wives." No-fault laws that authorize divorce at will place all women who assume primary caretaking responsibilities in jeopardy. No-fault mistakenly assumes that the division of property and little, if any, maintenance will afford equity to these women. The broad discretion given trial courts exacerbates this mistake, by inviting unrealistic and gender-biased views of a homemaker's opportunities for rehabilitation and self-support. Divorce has thus become an economic catastrophe for homemakers.
Often attributing this disaster to no-fault's partnership model of marriage, concerned legal scholars have searched for a better model of marriage that will provide a basis for maintenance. While their efforts have laid important groundwork, none has identified a model that provides a satisfactory basis for maintenance in the ordinary case of a wife whose role as primary caretaker limits her career options and advancement, and thus reduces her post-divorce income.
In this Article, I advocate a new model of marriage based on contemporary partnership law. Under this model, divorce occurs when a spouse dissociates from the marriage before expiration of the term. Dissociation ends the relationship, but it does not usually end the spouses' shared enterprise, which continues to generate income in the .hands of one or both spouses. The spouse who takes the smaller portion of the marital enterprise - that is, the spouse who earns less - should receive a buyout. Most often, this buyout rule will require a husband to pay maintenance to a wife who served as primary caretaker. To implement a buyout rule, I offer a simple mathematical model for legislative reform that limits trial court discretion. It is my hope that this effort will help to halt the financial exploitation of caretakers under no-fault, and so contribute to the effort of the American Law Institute to formulate a set of principles that brings integrity to the law of divorce.
Keywords: Divorce, partnership, displaced homemaker, buyouts, alimony, judicial discretion, no-fault, clean- break, economic consequences of divorce, marriage, maintenance
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