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>> 169 9 Beyond Alimony Lovers, Parents, and Partners “What’s for dinner?” she asks, adding “Dad,” as if to remind him who he is. Nate finds this question suddenly so mournful that for a moment he can’t answer. It’s a question from former times, the olden days. His eyes blur. He wants to drop the casserole on the floor and pick her up, hug her, but instead he closes the oven door gently. “Macaroni and cheese,” he says. —Margaret Atwood, Life before Man (New York: Simon and Schuster, 1979), 10 Divorce is not a tool for spinning off children. While divorce may deeply affect children, divorce is not about them. Divorcing parents understand this point well enough; at least it’s what they tell their children: “We will still love you, still be there for you, still be your parents after divorce.” Custody norms reinforce such parental assurances, increasingly reflecting the premise that shared custody is best for children and that divorce ordinarily should not end the spouses’ role as co-parents. This shared-parenting norm has its most recent incarnation in the ALI’s approximation model, which assigns custodial responsibility after divorce in a way that quantitatively approximates each parent’s share of child care prior to divorce.1 Rejecting the traditional sole-custodian, winner-take-all custody model, the ALI advances a vision of continued, shared parenting that survives divorce. The ALI model, like contemporary custody norms in general, nudges parents toward an expectation This chapter incorporates portions of an earlier work published as “Lovers, Parents, and Partners; Disentangling Spousal and Co-Parenting Commitments,” Arizona Law Review 54 (2012): 197. 170 > 171 about this state of things. If parents continue to share parenting rights after divorce, why shouldn’t they also share parenting costs, including the human capital costs of post-divorce parenting? Family law’s failure to acknowledge parents’ shared responsibility for the costs of parenting stems from a more systemic tendency to conflate marital and parental promises and to assume that divorce terminates all commitments between spouses whether or not they share children. The solution to the problem of post-divorce parenting begins with recognition that marital commitments and co-parenting commitments are two distinct undertakings. A. Disentangling Marital and Co-Parenting Commitments 1. The Marital Partnership As we have seen, marriage signals a lifetime commitment between intimate partners who typically exchange promises, comply with state formalities , and so acquire the legal status of spouses. Less often, couples forgo formalities, entering common-law marriages, which generally require a present agreement to be husband and wife and a holding out to the community.8 Couples who choose marriage through either method are joined in a marital partnership, as diagrammed in figure 9.1. If spouses happen to be parents, current law connects each parent to the child in a relationship line distinct from the marital partnership, as shown in figure 9.2. Figures 9.1 and 9.2 depict two free-standing, unconnected relationship lines, one for spouses and another for parents. Responsibility for a child’s financial support and physical care is thus viewed as the Figure 9.1. The Marital Partnership (spousal commitment) Spouse 1 Spouse 2 (spousal commitment) 172 > 173 undertake a new mutual commitment as parents. This parental commitment runs not only to the child, to whom each parent owes an independent , state-imposed obligation, but also to the other parent, both spouses understanding that they will share the physical and financial costs of parenting. The result is a second layer of commitment between intimate partners—a co-parenting partnership—that supplements the marital partnership. The co-parenting partnership builds on each parent ’s individual obligation to the child, as shown in figure 9.3. The co-parenting promises may be express, but more often they are implied, both spouses understanding that the addition of children to their family means a shared commitment to raise those children. The child benefits from the stability of the co-parenting partnership and from the mutuality of the parents’ commitment, which, at least as a normative matter, makes child care more dependable, more bountiful, more efficient, and more manageable for parents. While the state-imposed parental obligation requires only a minimal standard of care enforced by actions for abuse or neglect, the coparenting commitment may incorporate the parents’ desire to provide more. The state, for example, requires parents to feed their children. If macaroni and cheese is on the menu, some parents believe it should...

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