November 23, 2014 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
If this article is any indication, two of the reasons we still have alimony are sexism and the difference in the sexes (Forbes, 11/20/14). The writer is Emma Johnson and, as her previous three pieces on the subject suggest, she’s got a clear eye on the subject.
That comes with one minor error on her part, one that’s all-too common, given the incurious news media we live with.
Of the 400,000 people in the United States receiving post-divorce spousal maintenance, just 3 percent were men, according to Census figures. Yet 40 percent of households are headed by female breadwinners — suggesting that hundreds of thousands of men are eligible for alimony, but don’t receive it.
As I’ve mentioned before, that 40% figure is (a) accurate and (b) astonishingly misleading. Yes, about 40% of households have a woman as chief breadwinner. But, as University of Indiana Law Professor Margaret Ryznar demonstrated almost immediately after the figure was first published, the rise in female-headed households indicates, not a great increase in women’s earnings vis-à-vis men, but the fact that they’re the only earners in their households. In other words, the increase in that figure is little more than the increase in single-motherhood. Ryznar pointed out that, when married women were studied, only 15% of them out-earned their husbands. The parallel figure was 11% in 1960, so there hasn’t been much change. Single mothers out-earn their children, but not the fathers of those kids; they just no longer live with them. Here’s my piece on that from 2013 (NPO, 7/22/13).
So Johnson’s conclusion that there are countless men who deserve alimony but aren’t receiving it is almost certainly overstated. But her main point still looks to be valid. That point is twofold – that men don’t tend to seek alimony even when they’re entitled to it but women do, and that they’re far less likely to get it when they do seek it.
“Gender equality is a relatively new concept in the span of history, and old stereotypes die hard,” says San Francisco Bay area divorce attorney Mark Ressa. “A successful man is considered a breadwinning man, and asking for alimony is considered emasculating.”
Keith Craig agrees. His lawyer said should make a case for spousal support, as he had given up his public school teaching career to stay home with their two children while his then-wife earned more than $100,000. After his wife filed for divorce, Craig cobbled together adjunct professor jobs and freelance writing gigs, but sustained for four years on dinners of potato chips and canned soup and “an allowance from my parents.” Asking for alimony was not an option.
That shouldn’t just be the way it was for Keith Craig, it’s the way it ought to be for everyone. (I make exceptions for very old people and those who are too disabled to find gainful employment.) Now, if Craig had gotten, say, two years of alimony that would have allowed him to improve his training, I wouldn’t have argued. He chose to eat canned soup and potato chips during that time, and that too is OK with me, but I wouldn’t require him or anyone else to do that. But, in my perfect world, he’d be entitled to those two years of alimony solely because he was upgrading his skills and training for the purpose of going to work. Had he accepted it, he’d have been using the money productively. Needless to say, many, many people who receive spousal support use it to remain idle.
But not everyone is like Keith Craig.
This is a typical attitude held by men of all generations, say Ressa and Lee Rosen, a Raleigh, N.C. based divorce lawyer and author of Divorcing Smartly: The End of a Marriage Isn’t the End of the World. Both lawyers report that very few men walk into their offices with the intent of asking for alimony, even when their situations are clearly eligible for spousal support. Meanwhile female breadwinners never pay alimony without a contentious battle. “Every guy in that situation has to go through a fight, while (breadwinning) guys go into the divorce accepting they have to pay,” says Rosen. Then, facing humiliation, stress and expense of that fight, they are further disincentivized from pursuing spousal support. “Men are essentially shamed into not receiving alimony,” Ressa says.
Adds Rosen: “Her attitude is always, ‘Dude, get a job.’”
Judges are all-too likely to “second that emotion.”
In the San Francisco Bay area Ressa says that alimony is based on a fixed schedule determined by income and length of marriage, and that he does not see sexism on the bench. However, he recently represented a female vice president of a giant Bay area technology company divorcing an unemployed tire store worker who was seeking alimony. Despite the dramatic discrepancy in income, she fought and no support was awarded. Rosen, however, sees “a whole lot of bias against men in our judicial system” in North Carolina. In a recent case, the wife was an executive at a major national bank, while her husband stayed home with the kids, trying build a business “selling keychains online, but essentially not earning anything,” Rosen says. The man was awarded 6 months of alimony. “If they had swapped gender roles, she would have been given years of alimony, no questions asked,” Rosen says.
And that of course is one of the main problems with the practice of awarding spousal support. Much of what I’ve written in the past deals with the issue irrespective of who pays and who receives alimony. My basic conclusion is that (again with those two exceptions) alimony is a bad idea. In this day and age, there’s just no reason to require one ex-spouse to continue to support the other post-divorce. Alimony is an artifact of bygone times when women didn’t have equal access to jobs and earnings. Now they do.
As important are the facts that alimony encourages divorce and discourages marriage and re-marriage. And of course it discourages gainful employment by the recipient. After all, why should a person go to work if doing so will only decrease the amount they’re receiving for not lifting a finger? No one tracks just how much income is transferred from one ex to another via alimony, but I did my best to figure it out on my own and came up with the figure $8 billion, i.e. a fairly hefty transfer of funds between two people who’ve just gone to court to say they want nothing further to do with each other.
More to the point, it doesn’t make a lot of sense for our economy to be deprived of the energy, talent and creativity of all those people just because of an institution that clearly has no reason to exist.
Meanwhile, men and women tend to approach receiving alimony differently for another reason.
Men’s reasons for for foregoing alimony are not all attributed to sexism, however. Keith Craig says one of his motivations for financial independence was just that — a pursuit of a new life after his marriage. And like women I profiled in ‘I Turned Down Alimony — 3 Women’s Stories, he hoped taking alimony out of the divorce would make it a smoother process and facilitate co-parenting — which he says it has. Ressa says that the differing approaches to spousal support speak to another fundamental difference in the sexes. Men, he says, tend to be confident in their ability to be self-sufficient, regardless of how dire their immediate post-divorce situation may be. “In general, women tend to be much more cautious about finances, and are insistent on availing themselves of every asset they’re entitled to,” Ressa says. “Men are more the eternal optimists. They see a bright future, no matter how bleak their finances are now.”
That difference may reflect that fact that women haven’t been as active in the workplace as men have, at least until recently, so they’re less likely to grasp the notion that, when it comes to divorce and its attendant financial hardships, “this too will pass.” Of course, to the extent they pay attention to the blandishments of feminists, they’re even more likely to be cautious. Sadly, many feminists in the public sphere are eager to tell women that society is a patriarchal structure bent on harming them, so, whatever advantage they’re offered by the legal system must be taken.
That of course explains why feminist organizations routinely oppose any reform of alimony laws. Rather than preaching that women are strong and capable of handling their own lives, those latter day feminists prefer the narrative of women as weak and feckless. In the area of alimony, that leads to their remaining dependent on men, a concept feminists used to reject out of hand.
Fortunately, Emma Johnson is one woman who’s plainly not in thrall to today’s feminist mindset.
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