Family Law Promotes Opting Out by Mothers

August 14, 2013 by Robert Franklin, Esq.

Judith Warner’s article in the New York Times entitled “The Opt Out Generation Wants Back In” leaves a lot to be desired (New York Times, 8/7/13). It’s so narrowly focused that it misses a lot about its own topic. As I said in my last piece, as we’ve come to expect, the men in the opt-out women’s lives are all but invisible save through the lens of their wives’/partners’ desires and perspectives. Warner permitted only one husband, Ted Mattox, to express an opinion about his wife’s decision to, for 13 years, abandon her role as partial supporter of the family. Ted didn’t like it one bit and his sentiments echoed those of the 30% of men in his situation whom economist Sylvia Ann Hewlett reports view their partners’ opt-out decision with envy and anger.

Meanwhile Warner’s interviewees adopt the remarkable stance that opting out of earning a living made them second-class citizens. That doesn’t explain the envy felt by 30% of their husbands or the 5.7 women who’ve made the same decision, i.e. to be stay-at-home mothers. A more reasonable examination of the phenomenon would lead Warner and the women she spoke with to conclude that opting out reflects privilege, not junior-member status. After all, it’s what the women wanted to do and their husbands not only agreed but paid their way to do it, often at considerable cost to themselves in longer hours and diminished relationships with their wives and children. Neither the women nor Warner paid that much heed.

But there’s another aspect of opting out that Warner barely mentioned – the role of the family courts in promoting women’s opting out of paid work. Warner begins her piece with the personal story of Sheilah O’Donnel, a 44-year-old one-time sales representative for Oracle. She opted out of earning a living to care for her and her husband’s three children, but their marriage didn’t survive her decision. She went to a divorce lawyer who advised her to get back into the workforce rather than relying on child support and alimony because that way her husband would “be far less powerful over you in the process.”

And that’s the last we hear of alimony or child support. Reading Warner’s article and what her interviewees say, you’d never guess that, behind all this opting out there’s a family court safety net that makes it not only possible, but likely. The women Warner interviewed, those Lisa Belkin interviewed in the early 2000s, those studied by Sylvia Ann Hewlett and by sociology professor Pamela Stone, all of whom are quoted by Warner, are highly educated. As such, they unquestionably have a good knowledge of divorce-related issues like child custody and support, and alimony.

That means they know that, if things don’t work out between them and their husbands, the family law system makes the transition from married to single mom as easy and seamless as possible under trying circumstances. They also know that it doesn’t for their husbands.

Now of course, these women don’t enter into marriage or motherhood with the idea that it’ll all fall apart, but again, being intelligent and informed, they know that upwards of half of all marriages do. But whatever information they have about the matter at the outset, the word we get from Warner is that opting out often creates marital stress between the partners. It would be surprising if these multi-degreed women didn’t know how to Google “alimony,” “child support” or “child custody” for the states they live in.

When they do, they find that the decision to opt out may have deprived their husbands and children of their financial support, but it’s a big plus in the event of divorce. In the first place, the rule in custody cases is that mothers get primary custody. It’s been that way for decades and Census Bureau figures show that, year in and year out since 1993, it hasn’t changed. Back then, 84% of primary custody went to mothers; 16 years later, the figure was 83%.

So mothers generally can feel confident that they’ll get primary custody, but if they’ve been a stay-at-home mother who “sacrificed her career” for the sake of the children, it’s a slam dunk. And, as researchers Margaret Brinig and Douglas Allen have shown, that’s why 70% of divorces are filed by mothers; they know they won’t lose their children.

And with custody comes child support. Although Warner never mentioned specific figures, the men in these women’s lives are clearly high-earners. For example, O’Donnel earned as much as $500,000 at Oracle, and she was the one to quit work to care for the children. That probably means her husband earned more. They’ve got three kids. With no earnings of her own, that means she’ll receive a huge amount of money – far more than enough to live on – every month from her ex.

And that’s not all. States vary a good deal on spousal support, but that too can run to six figures very easily, particularly if, again, Mom has “sacrificed her career” to stay home with the kids. My guess is that O’Donnel, had she not gone out and found work, would be looking at around $200,000 in alimony and child support. Not bad for doing something she wanted to do anyway.

Given divorce then, opting out by Mom is a win/win/win/win decision for her. She gets to spend huge amounts of time she never would have if she’d stayed in the workforce, she assures herself of custody and her lack of earnings translates directly into substantially higher child support and alimony payments.

That brings us to the concept, widely accepted in public discourse and the law, that what these women did by opting out was “sacrifice their careers.” Of course they opted out of work which meant they didn’t earn, in each of the cases Warner cites, for over a decade. But that resulted in the multiple-win scenario just mentioned, so just how much of a sacrifice was it?

And if opting out is such a sacrifice, why do so many women do it? As I mentioned in my previous post, according to the Census Bureau, some 5.7 million mothers in the U.S. are stay-at-home parents. And, given the extremely restrictive definition of “stay-at-home-parent,” the reality is that far more mothers than “just” that 5.7 million are exactly that.

The women Warner interviewed put a face on that phenomenon.

[N]ot a single woman I spoke with said she wished that she could return to her old, pre-opting-out job — no matter what price she paid for her decision to stop working.

And of those who did return to work when the kids were old enough to fend for themselves, few of them even tried to get back to a high-powered job, often opting instead for work in the non-profit sector. They left the rat race and, even when they could have gotten back in, they elected not to. One person called opting out her “escape hatch.”

And they’re perfectly content with their decisions. Warner reports that the women she interviewed told her that “the perils of leaving the workforce were counterbalanced by the pleasures of being able to experience motherhood on their own terms.” In other words, with their husbands paying the freight, these mothers left something they wouldn’t go back to if they could and found years later that they didn’t regret it. That doesn’t sound like a sacrifice to me.

Then there are the husbands like Ted Mattox who looked at his wife’s opt out decision and sees, not her sacrifice, but a cushy life of getting to do “what you want, when you want,” as one opt-out mom described it. Hewlett found that 30% of men with opt-out wives felt as Mattox did – envious and angry. So maybe those who claim opting out is a sacrifice can explain why those men would feel envious of a sacrifice. Me? I can’t figure it out.

Nothing in family law forces a woman to quit work, but clear patterns of child custody orders, child support and alimony obviously encourage it. They do so by increasing the payoff in child support and alimony, and ensuring Mom gets custody. So you’d think that feminist organizations like NOW would avidly support changes to family law like the ones the National Parents Organization has always championed. After all, feminism has always urged women to work and earn more and to avoid motherhood as a patriarchal trap. Surely then feminists should support things like a presumption of equal parenting post-divorce, rational child support formulas and drastic reductions in alimony. Doing so would discourage mothers from opting out of those jobs feminists have always said they need above all else.

But no. NOW, Canada’s National Association of Women Lawyers, Britain’s Fawcett Society and countless others invariably oppose the very amendments that would promote their own agendas. It’s almost as if their antipathy for fathers outstrips their concern for women. But that couldn’t possibly be, could it?

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#JudithWarner, #NewYorkTimes, #PamelaStone, #LisaBelkin, #Oracle, #optout, #alimony, #childsupport

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