The Marriage Buyout: The Troubled Trajectory of U.S. Alimony Law

3. Alimony and Mother Myths

52 > 53 earning capacity because of family responsibilities, mother myths pose great danger, threatening to seduce even fair-minded divorce courts into peculiar notions of equity. A. Mothering Just Happens: The Law of the Invisible Mother The coolest mom I know who’s not mine is Connor’s. She plays soccer with him all the time. I don’t think she has a job. She cooks. —Amy Finnerty, “Status Is . . . for Middle-Class 8-Year-Olds: A Stay-at-Home Mom,” New York Times, November 15, 1998 (quoting a six-year-old interviewee) When I was a child, I was surrounded by evidence of my mother’s labor. Underwear in drawers. Milk in the refrigerator. Dinner on the table. And sometimes, when I came home from school, oatmeal cookies— crispy ones made with real butter. Yet it never occurred to me that any of these things required much time or effort. In my world, these things were givens, dependably appearing, of mysterious and unimportant origin. Underwear in drawers just happened. In the ordinary course of family life, mothers are invisible. The daily details of caregiving go largely unnoticed, drawing attention (and alarm) only when their absence becomes neglect. In a strange irony, it is thus the neglectful mother rather than the conscientious one who is seen. As Ann Crittenden observes, the “more skillful the caregiver, the more invisible her efforts become. Ideally, the recipients themselves don’t even notice that they are being cared for.”1 If mothers were paid for their work, their efforts would be more visible . Babysitters, nurses, housekeepers, launderers, cooks, tailors, and painters all earn paychecks in the marketplace; yet when they perform similar labors in their homes, they are considered unemployed. The invisibility of mothering thus stems not from the nature of the work, but rather from the fact that mothers are performing it in their own homes and for their own families. That gender plays a critical role in mothers’ invisibility is suggested by the disproportionate attention paid to fathers who perform caregiving tasks. As Justice Bird noted long ago, a decision maker may glorify a father because he “often 54 > 55 2012, the Bureau of Labor Statistics reported that on an average day in 2011, 18.9 percent of men did housework—such as cleaning or doing laundry—compared with 47.8 percent of women.8 That same year, 40.1 percent of men engaged in food preparation or cleanup on an average day, compared with 66 percent of women. In another study of married mothers and fathers, Bianchi, Robinson, and Milkie found that married mothers spent 19.4 hours weekly in primary housework activities in 2000, compared with 9.7 hours in primary housework for married fathers.9 Yet, despite overwhelming evidence to the contrary, the myth is that Betty Crocker10 and soccer mom11 have disappeared, and that family tasks are negligible, largely optional, and shared. If “[c]are of the house and children can be done with one hand tied behind the back,”12 then stay-at-home moms (if they are real) must be lazy creatures. And so a divorce court charged with ensuring equity might, rather innocently, ask a stay-at-home mom, “What have you been doing with all your time?” The question, of course, is rhetorical, the mom’s answer inescapable: “I’ve been doing nothing, really—sitting on the sofa eating bonbons . . . (while the cooking, the cleaning, the shopping, the laundering, the tutoring, the grooming, the chauffeuring, the counseling, the disciplining and the stocking of underwear drawers just happened).” The judicial response is predictable and unequivocal: “Then shame on you. You need a kick in the butt to get you into a productive life.” And so a Wisconsin court explained a short-term alimony award to a full-time mother of three minor children: I don’t think she would want to sit around the rest of her life. My God, she will turn into a vegetable if she did that anyhow.13 56 > 57 market opportunities and ultimately decreased earning capacity. Simply put, time spent laboring in the home is not spent laboring in the market, and as mothers limit their investment in a job or career, their ability to generate income decreases. Ultimately, opportunities are lost altogether. The realities of declining human capital impact many types of caregivers: stay-at...