Divorce Court 2001

In cases where the higher-income partner is the ex-wife, the court may assume that the father is primary caregiver and thus merits compensation

I recently spoke with a managing partner of a large law firm in New York City who is anxiously awaiting the financial verdict on her divorce case. Not only is she the family's primary breadwinner, but she also has been the parent who has taken the most responsibility for the couple's three children throughout her 20-year marriage.

Aside from the distribution of marital assets, the court will decide how much the woman must pay her ex-husband in alimony. While divorce laws differ by state, "the courts are increasingly willing to award alimony to men, even though it goes against legal and social traditions," says Sally Goldfarb, a law professor at Rutgers University School of Law in Camden, N.J., who specializes in family law and women's rights.

What you may not know is that alimony is based not only on economic need but also on a spouse's role in managing the household affairs. (Other, lesser considerations include the duration of the marriage and ability to pay.) The law assumes that by taking care of the family, a stay-at-home or lower-earning spouse helps the higher-income partner achieve success. Sometimes, however, an inequity arises when the wife is the main breadwinner and has to pay alimony to her ex-husband. It's calculated on the mistaken assumption that the traditional roles have been reversed and the man has primary responsibility for the household and care of the children.

Economic need is relatively easy to determine. Basically, the law allows for both spouses to retain their standard of living after a divorce. Since two households are more expensive than one to maintain, a typical way the courts strive for equity is by requiring an equal decline in both parties' standard of living.

The real difficulty surrounds the issue of contribution to the family. "Traditionally, alimony has been awarded to a stay-at-home parent, usually the woman, who becomes economically dependent because she is raising the family and running the home life," says Patricia Barbarito, head of the matrimonial department of the Denville, N.J., law firm Einhorn, Harris, Ascher, Barbarito, Frost & Ironson.

In families where the wife brings in most of the income, some husbands do act as "Mr. Mom," but they are few and far between. A study done by sociologist Arlie Hochschild and published in her 1997 paperback, The Second Shift (Avon Books, $13.50), found that 80% of all women in dual-income couples do the lion's share of the housework. Says attorney Barbarito: "These professional women haven't been assisted on the home front, and yet they still need to pay alimony" on the basis of the man's contribution to the household.

CLEAN CLOTHES. One of Barbarito's clients, a high-earning female executive in New Jersey, was responsible under state law to pay permanent alimony to her husband when their 15-year marriage ended. The court clearly saw an economic need, since the husband's standard of living would be adversely affected by the divorce. But since the wife took charge of the child-raising duties, Barbarito succeeded in limiting alimony to $18,000 a year for 10 years. A portion of those payments still accounted for the husband's much more limited contribution to the family.

So what can be done about this? The law should not make an automatic assumption that every husband, or wife, who remains at home or has a lower-paying job functions as a homemaker. Judges and lawyers must examine which parent actually performs such domestic duties as taking the kids to the doctor, arranging play dates and child care, and making sure that there's food in the refrigerator and clean clothes in the closet. Then, an economic value must be placed on those duties. Both need and contribution must come into play in the alimony decision, says Rutgers' Goldfarb, "which suggests that a spouse who has one and not the other should receive less alimony than one who has both."

For financially successful women about to tie the knot, a prenuptial agreement may be the way to go. Unfortunately, the divorcing female law partner I spoke with didn't consider a prenup 20 years ago. It is certainly on her radar screen now.

By Toddi Gutner

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