2000 Wis

2000 Wis. L. Rev. 637

Wisconsin Law Review

2000

Special Issue

Faculty Perspectives

*637 WHATEVER HAPPENED TO DIVORCE?

Marygold S. Melli [FNa1]

Historically, divorce has been seen as the end of a relationship including economic and parental ties. The no-fault divorce revolution that began in the 1970s embraced this view of divorce. [FN1] It espoused the rhetoric of a "clean break" so that the parties could have a "fresh start" unencumbered by entanglements from the earlier marriage. The Uniform Marriage and Divorce Act, first promulgated in 1970, contained a number of provisions reflecting this approach. It based marriage dissolution on a finding that the relationship was dead and encouraged the courts to use property division instead of maintenance to provide for the financial needs of the spouses so there would be no continuing financial obligations. It tried to protect against post-divorce squabbling over the children by putting a two-year moratorium on the modification of custody awards. [FN2]

The no-fault reformers were concerned about the hostility, acrimony, and bitterness that divorce generated and attributed it to a process that authorized divorce only on a judicial finding that one party was at fault for violating certain statutory standards. The aim of no-fault reform was to enable parties to end their marriage as amicably as possible. Therefore, no-fault divorce statutes are based on the premise that the issue is not who is at fault but whether the marriage is a viable relationship. If it is not, parties should be able to end that marriage and move on to a new relationship with few ties to the earlier marriage.

Couples who wish to sever their marital relationship are much better served by the no-fault divorce process than they were by fault divorce. In those cases no-fault divorce attains its stated objective. However, in many divorces--perhaps most--only one party wants out of the marriage. No-fault divorce allows that party to request and obtain a divorce unilaterally, leaving the rejected spouse feeling helpless and angry at a law that allows so much power to the rejecting spouse.

I remember the early days of no-fault reform well. I was asked by a legislator to testify in favor of a bill to change the grounds of divorce in Wisconsin to no-fault. "Why should I favor such a bill?" I asked. "Because, *638 it will take out all the hostility and bitterness we see in divorce now." My reply was more visionary than I knew. "Senator," I said, "if my husband of twenty years decides he prefers a new--probably younger--wife to me, I want you to know that I will be just as spiteful and bitter and uncooperative as I can. And I don't care what you call it."

I was right, of course. We know now that no-fault divorce did not end the bitterness of the divorce process. As we often do, we attributed more efficacy to the role of the law than was warranted. What no-fault divorce did was to refocus public policy concerns from the problems of the fault-based process for divorce to the undesirable consequences of divorce. It has brought about a heightened awareness on the part of policymakers of the failure of our divorce system to apportion fairly the economic and parental burdens of marital dissolution. [FN3]

This short Article explores the results of this new public policy focus. It examines post-no-fault changes in the law in three areas where relationships continue after divorce--child support, spousal support, and child custody. It finds that, as we have begun to develop a legal structure more responsive to the consequences of divorce and the needs of children and their parents, we have changed the nature of divorce. The modern institution of divorce has become quite different from its predecessors; in particular, it differs from the "clean break" vision of divorce of the early no-fault period. Today, divorce is not an end of a relationship but a restructuring of a continuing relationship.

I. Child Support

For most of the twentieth century American public policy was somewhat schizophrenic about the issue of child support. On the one hand, failure to support one's children was seen as a serious moral failure. As early as 1910 the National Conference of Commissioners on Uniform State Laws had proposed legislation making such failure a crime and eventually all states adopted criminal statutes on nonsupport. [FN4] On the other hand, society seemed to accept the idea that after divorce, the duty to support the children of the marriage fell to the custodial parent, who was usually the mother. Child support orders were often inadequate, set by judges who sometimes treated child support and car payment obligations of fathers equally. And enforcement of the orders was minimal. A study in the mid-1960s of Wisconsin fathers ordered to pay child support found that sixty-two percent *639 of them failed to comply fully in the first year and forty-two percent did not make even a single payment. [FN5] Yet legal action to enforce collection was taken in only nineteen percent of the cases. Ten years later, eighty-six percent of the fathers were not paying and legal action to collect was taken in only one percent of the cases. [FN6]

Beginning in the 1970s, these policies of nonenforcement of child support came under scrutiny. Although this attention to nonenforcement coincided with the spread of no-fault divorce through the states, the principal impetus for changing the child support policies came from another source: the federal government. Faced with escalating costs for its program of aid to families with dependent children, the federal government began to revamp the child support system for those children who received payments in the federal program. Today, that reformed child support system applies to all child support cases and provides for child support awards set by mathematical formulas and collected by withholding from the paychecks of the support-paying parent.

These changes and sweeping new child support enforcement reforms, enacted as part of the 1996 federal welfare reform legislation (The Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA)), have transformed the role of child support as a post-divorce obligation. [FN7] The objective is to make the collection of child support automatic and inescapable. Paying child support has become similar to paying taxes. Child support payers can no longer change jobs or leave the state to avoid withholding of their child support payments. Employers are now required to report all new hires to a state agency that maintains a directory of new hires. These new hires are checked against the registry of child support orders now required in all states. If the new employee has an outstanding child support order, the employer is notified to begin withholding. New hires are also reported to the Federal New Hires Directory and matched against the Federal Registry of Child Support Orders so that the support order is not lost when the payer moves out of state. Furthermore, all states have now been required to enact the Uniform Interstate Family Support Act (UIFSA), [FN8] which enables state agencies to send income withholding orders directly across state lines to employers. [FN9] Other enforcement remedies required by the federal legislation include the requirement that states make provisions to revoke *640 driver's, professional, occupational, and recreational licenses of delinquent child support payers.

These enforcement remedies have been amazingly successful. The federal government reported a fourteen-fold increase in child support collections between 1978 and 1998 from a little over one billion dollars in 1978 to over $14.3 billion in 1998. [FN10] In less than three decades, child support has been transformed from a seldomly enforced minimal obligation to a more substantial--if still inadequate--source of income for children of divorce that is vigorously pursued. At the beginning of the twenty-first century, divorced parents face larger and more certain child support obligations.

II. Property Division and Spousal Support

For most of the twentieth century, divorce ended any economic ties the parties had to each other. The law paid minimal attention to problems of post-divorce economic support. Although most states made provisions for alimony--as post-divorce spousal support was called--it was often limited by statute to an "innocent" spouse in the fault-based divorce and even then it was rarely awarded. For example, Census Bureau statistics show that alimony was awarded in only 14.6% of the cases in 1922. [FN11] This was about the same percentage (14.3%) awarded in 1973 as no-fault divorce began to be adopted by the states. [FN12]

Property division was also not an important economic factor at divorce. Except in the community property states, [FN13] where property acquired during the marriage was jointly owned, the party whose income was used to purchase the property was the owner. Property division was, therefore, primarily for the purpose of sorting out who owned what, i.e., whose money had made the purchase or whether the property had been inherited by one of the parties. Often non-income-producing wives left marriages with none of the assets acquired in the marriage.

In the early days of the no-fault divorce movement, public policy focused on giving the parties the ability to begin a new marriage and a new life free of any encumbrances of the old marriage. The purpose of alimony--now called maintenance or spousal support--became one of helping formerly dependent spouses to become self-supporting. In the 1980s, limited-term or *641 "rehabilitative" maintenance seemed to be becoming the norm, [FN14] and it looked as if alimony would join fault divorce as an institution of the past.

But as the century ended, the coming of age of the no-fault era has given policymakers a different perspective. The "clean break" theories of the early no-fault reformers have given way to the realities of post-divorce life. Courts and legislatures are beginning to make it clear that indefinite maintenance is appropriately awarded for older homemakers who have no significant prospects for employment. [FN15] They are also recognizing the problems homemakers face as a result of the job sacrifices they often make throughout a marriage. [FN16]

Today, most states have adopted statutory criteria to guide the courts in making maintenance awards. [FN17] These criteria cover more than concerns about support and self-sufficiency. They contain provisions that allow courts to use an alimony award to compensate spouses who financed a professional education for their husband or wife but whose marriage ended before the couple realized the benefits of the education. Statutes like these have been found by the Wisconsin Supreme Court to be intended to ensure a fair and equitable financial arrangement between the divorcing parties. In Wisconsin, alimony now has two objectives: support and fairness. [FN18] As a result, alimony, rather than falling out of use, has not only continued but has taken on new purposes. [FN19]

The post no-fault divorce era has also seen the spread of the concept that had already been the law of the American states with community property regimes: the idea that marriage is an economic partnership and on its dissolution, both spouses should share in the accumulated assets. This concept that all property acquired during the marriage--except by gift or inheritance-- was marital property and subject to division on divorce had been one of the major reforms proposed by the Uniform Marriage and *642 Divorce Act. Today, all American jurisdictions recognize some form of "equitable" distribution on divorce. [FN20]

Even more important than this acknowledgment that the assets of the marriage should be divided on divorce has been the recognition that our concepts of property which in the past had been limited to tangible assets have changed to include job-related benefits and income-producing skills. One major job-related benefit, the retirement pension, has changed the post-divorce relationship of many divorced couples. For a middle class worker the job-related pension often may be the most important asset that person has. But tapping into a pension fund may mean delaying final settlement until the worker retires. More significantly, it may not be practical to have a lump sum settlement of the spouses' share in the pension. Instead the court may award an interest in the monthly payments. Former partners may find themselves dividing monthly or yearly pension payments long after the divorce has been granted and the parties have moved to other relationships.

III. Child Custody

Divorce drastically affects the relationship of children with their parents. Typically, children reside with one parent, usually their mother, and the maintenance of their family ties with the other parent is problematic. Prior to the 1970s the structure of the law did little to alleviate this situation. It provided for the award of custody to only one parent on divorce. That parent, the sole custodial parent, was both decisionmaker and provider of day-to-day care for the child. This arrangement assumed that the children would maintain a close relationship with only one parent, the one with whom they lived. The other parent was, of course, expected to spend time with the child, but the term used by most statutes to describe that time--visitation--was indicative of the fact that the role of the noncustodial parent was a very limited one. Given this structure and these expectations, for many noncustodial parents the divorce ended not only the relationship of husband and wife but also the relationship of that parent to his or her children. Scholars began to refer to noncustodial parents as "absent" parents.

In the 1970s, interest in reforming the grounds for granting a divorce also increased the attention paid to the total divorce process. Parents-- primarily fathers--and policymakers began a search for a structure to increase the ties between children and their noncustodial parents. The most controversial result of this search has been the enactment of statutes that authorize the award of joint custody to parents on divorce. Today, either by statute or case law, almost all states have adopted some form of joint custody award. [FN21] Some states have gone farther to adopt a statutory preference for joint custody.

*643 In the early conceptualization of joint custody, the actual relationship of parents and their children was not very clear. Over time, however, a more sophisticated analysis of the legal construct of custody has emerged. Today, the law generally recognizes that there are two parental roles involved in custody--decisionmaking and residential care--and that these roles can be exercised separately. Joint legal custody is the term used to describe a situation of shared decisionmaking by both parents when the child resides with only one parent who also has physical custody of the child.

Joint legal custody with the child residing with only one parent may be the fastest growing form of legal custody. Although statistics on post-divorce custodial forms are scarce, information from at least two states--California [FN22] and Wisconsin--shows that joint legal custody is growing and is awarded in a great majority of the cases. In Wisconsin, for example, a study over a twelve-year period found that the percentage of cases where the outcome was joint legal custody increased from eighteen percent in 1980-1981 to over eighty-one percent in 1991-1992. [FN23] Joint legal custody--shared decisionmaking--not only maintains parental contact with the child, but it also requires a continuing relationship between the former partners. A parent with shared decisionmaking must not only maintain sufficient contact with the child to inform the decisionmaking process but also must exchange information with the other parent.

Most state statutes also authorize courts to award parents full joint custody, i.e., joint legal and physical custody. In these cases children have dual residence. Full joint custody has been both problematic and very controversial, [FN24] and parents who share both decisionmaking and physical care of their child are much less common than those who share decisionmaking only. But these figures have shown an increase also. The information from Wisconsin shows that cases where children reside with each parent thirty percent or more of the time have increased from 2.2% in 1980-1981 to 14.2% in 1991-1992. [FN25] Joint physical custody requires considerably more co-parenting than joint legal custody. Clearly divorced parents with joint physical custody not only have more involvement with their children but also with each other.

Although sole custodial parenthood--where one parent exercises both legal and physical custody--may be an institution of the past, most children continue to reside with only one parent, usually their mother. Therefore, *644 post-no-fault policymakers have focused attention on improving the relationship of children with their non-residential parent. A number of states reflecting concerns that the term is inappropriate, have dropped the term "visitation." [FN26] In Wisconsin, for example, the court orders legal custody, defined as decisionmaking, and allocates periods of physical placement [FN27] with one parent usually having primary physical placement. A few states have enacted minimum visitation schedules. [FN28] Public policy that has long paid lip service to the fact that parental ties continue after divorce is now attempting to provide more support for those ties.

These legal reforms reflect changes in the ways in which divorced families operate. Research studies indicate that noncustodial parents are spending more time with their children [FN29] and that overnight visitation is increasing. [FN30]

IV. Conclusion

The post-no-fault era has seen a reordering of the divorce system brought about by the increased recognition by policymakers that the system has failed to apportion fairly the economic and parental consequences of marital dissolution. Traditional divorce placed a disproportionate share of the economic burdens of divorce on homemakers and mothers. It placed a disproportionate share of the loss of co-parenting in marriage on fathers who came to be treated as "visitors." The recent reforms attempt to alleviate those problems.

This reordering of the aftermath of divorce has resulted in a structure that necessarily requires more interaction between former spouses. Whether this is good or bad, it seems to be inevitable. The restructuring of post-divorce relationships is a work in progress and we have yet to see the final results. But if we are to tolerate a high rate of divorce we have to continue to search for ways to alleviate the losses and spread the burdens fairly.

[FNa1]. Voss-Bascom Professor of Law, Emerita, University of Wisconsin Law School, and Affiliate, Institute for Research on Poverty, University of Wisconsin-Madison. B.A. 1947, University of Wisconsin, LL.B. 1950, University of Wisconsin Law School.

[FN1]. Today all American jurisdictions provide for some form of no-fault divorce. No-fault grounds include proof that the marriage is irretrievably broken, that the parties have irreconcilable differences, that the parties are incompatible, or that they have lived apart for a stated period of time. See Linda D. Elrod et. al., A Review of the Year in Family Law: Children's Issues Dominate, 32 Fam. L.Q. 661, 715 chart 4 (1998).

[FN2]. See Unif. Marriage and Divorce Act of 1970 §§ 305, 307, 308, 9A U.L.A. 242-447 (1999); id. § 409, 9B U.L.A. 439 (1999).

[FN3]. Perhaps the best known example of this refocusing of the concerns about divorce is Lenore J. Weitzman, The Divorce Revolution: The Unexpected Social and Economic Consequences For Women and Children in America (1985) (reporting a study of no-fault divorce in California).

[FN4]. Homer H. Clark, Jr., The Law of Domestic Relations in the United States 269 (2d ed. 1988).

[FN5]. See Kenneth W. Eckhardt, Deviance, Visibility, and Legal Action: The Duty to Support, 15 Soc. Probs. 470, 472 (1968).

[FN6]. See id. at 475.

[FN7]. These changes are discussed in Paul K. Legler, The Impact of Welfare Reform on the Child Support Enforcement System, in Child Support: The Next Frontier 46-65 (J. Thomas Oldham & Marygold S. Melli eds., 2000).

[FN8]. Congress mandated enactment of UIFSA in order for a state to remain eligible for federal funding of child support enforcement. See 42 U.S.C. § 666(f) (West 1999).

[FN9]. See Unif. Interstate Family Support Act § 501, 9 U.L.A. 336 (1999).

[FN10]. Data provided to the Institute for Research on Poverty, University of Wisconsin-Madison by the federal Office of Child Support Enforcement.

[FN11]. See Paul Harold Jacobson, American Marriage and Divorce 126 (1959).

[FN12]. See Bureau of the Census, U.S. Dep't of Commerce, Current Population Reports: Child Support and Alimony: 1978, Series P-23, No. 112 (Sept. 1981).

[FN13]. These states are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, and Washington. Wisconsin joined the ranks of the community property states in 1983 with the adoption of the Marital Property Law. See Wis. Stat. Ann. ch. 766 (West 1997-98).

[FN14]. See Sally F. Goldfarb, Alimony, Fam. Advoc., Winter 1990, at 28; Clark, supra note 4, at 650.

[FN15]. See Marygold S. Melli, Alimony Trends, Fam. Advoc., Fall 1996, at 21.

[FN16]. See Kyle Johnson, In Resurgence of Alimony, New View of Women, Christian Sci. Monitor, Nov. 30, 1999, at 1.

[FN17]. See Elrod et al., supra note 1, at 712 chart 1.

[FN18]. See In Re Marriage of LaRocque, 139 Wis. 2d 23, 32, 406 N.W.2d 736, 740 (1987).

[FN19]. This does not mean that alimony is awarded any more frequently today than it was under fault divorce. The latest available statistics are from spring 1990 and show alimony awarded in only 15% of divorces. See Bureau of the Census, Current Population Reports, Series P-60, No. 173, 13 tbl. L (Sept. 1991); see also Lynn A. Baker, Promulgating the Marriage Contract, 23 U. Mich. J.L. Reform 217, 238-40 n.71 (1989). The low incidence of alimony may be a matter of economics--of the inability of most divorced spouses to pay . See id. at 239; Rosalyn B. Bell, Alimony and the Financially Dependent Spouse in Montgomery County, Maryland, 22 Fam. L.Q. 225, 295 (1988).

[FN20]. See Elrod, supra note 1, at 716 chart 5.

[FN21]. See id. at 713 chart 2.

[FN22]. A California study of 908 divorcing families who filed for divorce between September 1984 and March 1985 reported that the outcome was joint legal custody in 79% of the cases. See Robert H. Mnookin et. al., Private Ordering Revisited: What Custodial Arrangements Are Parents Negotiating?, in Divorce Reform at the Crossroads 37, 71-72 (Stephen D. Sugarman & Herma Hill Kay eds., 1990).

[FN23]. See Marygold S. Melli et al., Child Custody in a Changing World: A Study of PostDivorce Arrangements in Wisconsin, 1997 U. Ill. L. Rev. 773, 778.

[FN24]. See id. at 779 n.16.

[FN25]. See id. at 779.

[FN26]. The American Law Institute proposed provisions on post-divorce responsibility for children require the court to allocate custodial responsibility. See Am. Law Inst., Principles of the Law of Family Dissolution: Analysis and Recommendations § 2.09 (Tentative Draft No. 4, Apr. 2000).

[FN27]. See Wis. Stat. § 767.24(i) (1997-98).

[FN28]. See, e.g., Tex. Fam. Code Ann. § 153.312 (1999); Utah Code Ann. § 30-3-34 (1998).

[FN29]. See studies discussed in Joan B. Kelly, Current Research on Children's Post Divorce Adjustment: No Simple Answers, 31 Fam. & Conciliation Cts. Rev. 29, 41 (1993); Melli, supra note 23, at 784.

[FN30]. The California study cited supra note 22 reported that visitation most commonly involved overnight stays. See also Eleanor E. Maccoby & Robert H. Mnookin, Dividing the Child: Social and Legal Dilemmas of Custody 172 (1992).

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