The Problem

Family law in the United States is contested terrain, subject to the push-pull of history, gender wars, racial bias (think “Welfare Queen”), and social change. In the 1970s, no-fault divorce law was deemed revolutionary for the times. With the promise of a less adversarial, expensive, and contrived end to marriage, couples no longer had to prove misconduct such as adultery, neglect, or domestic violence in order to divorce or to claim child custody and fair division of the marital property. Social progressives hailed this change as a victory for gender equity, but critiques of no-fault divorce law began almost immediately. Two examples go to the crux of the matter. First, with fewer assets than men, women often received less in “equitable” settlements (a standard used by the court). Second, the court interpreted equity as a level playing field without regard to structural inequalities at home and in the workplace. To quote family law icon, the late Herma Hill Kay,

Family law scholars argue no-fault divorce contributes to gender inequality in three specific ways. First, women who seek alimony are framed as dependent, even parasitic, on ex-husbands. Second, children are the focus of competing claims under the equity rule. Three, fewer mothers receive custody despite women's roles as caregivers during marriage.

Family law also took a revolutionary turn when, in 1996, the state sought to reduce welfare rolls by collecting and enforcing child support payments. In this role, officials ensured fathers (for the most part) met their financial obligations to support dependent children. In the wake of this reform, income transfers from non-custodial to custodial parents aligned more closely to traditional child support, a pattern that continued until state enforcement procedures were challenged in a case that came before the U.S. Supreme Court.