The American Interest
Analysis by Walter Russell Mead & Staff
Are Divorce Courts Unfair to Men?

Noah Berlatsky argues over at The Atlantic that sexism is alive and well in divorce court, and that the chief victims are men.

He scores some good points. Decades ago, family structures were such that most men went to work and most women tended the home, partly because open discrimination against women in the workplace was widely accepted and women couldn’t get a fair shake in the working world. The laws of the time reflected that reality, providing married women with various financial protections in case of divorce. At the same time, laws assumed that women were better suited to nurturing and raising children than men, so the kids usually ended up with mom.

The world has changed, but the divorce courts have lagged behind, writes Berlatsky:

After divorce men can face burdensome alimony payments even in situations where their ex-wives are capable of working and earning a substantial income. Even in cases where temporary alimony makes sense—as when a spouse has quit a job to raise the children—it’s hard to understand the need for lifetime alimony payments, given women’s current levels of workforce participation. As one alimony-paying ex-husband says, “The theory behind this was fine back in the ’50s, when everybody was a housewife and stayed home.” But today, it looks like an antiquated perpetuation of retrograde gender roles—a perpetuation which, disproportionately, harms men.

Permanent alimony still persists in New Jersey, Oregon, Vermont, Connecticut, North Carolina, West Virginia, and Florida (some lawmakers in these states are pushing for reform). This means that men may be financially indebted to ex-wives for the rest of their lives, even if the mariage was extremely brief and both partners are employed.

The laws and procedures surrounding child support and child custody are deeply unsettling, says Berlatsky. At the moment, most courts determine custody based on the “best interests of the child.” But in practice, they usually side with the mother. Today men receive custody in only 10-15 percent of cases.

What’s more, while men often struggle to gain custody of their own children, they may also find themselves forced to pay for children fathered by other men. At the moment, family courts are structured in a way that makes it particularly challenging for a man to dispute paternity. Some states have statutes of limitations  on a man’s right to request a paternity test (in Texas, it’s four years). So if a woman lies or, being uncertain of paternity, says nothing, and the man fails to question the issue right away, he could be stuck paying for another man’s responsibility.

Gender justice is hard to measure and hard to enforce. On average, men get less out of Social Security than women do because women live longer and payouts aren’t adjusted to make up the difference. Is that unfair? Should it be changed? As we’ve noted before, there is a tendency in our society to “problematize” any policy or law that seems to bear more heavily on women than on men, without much concern over laws and policies that give men a hard time. Disentangling the rights and the wrongs of every issue is difficult; to some extent, no matter what we do there will always be a relative winner and a loser in gender battles. Divorce law is especially difficult to get right; changing mores make it necessary to review even well-crafted laws from time to time.

But there are important societal reasons for thinking these issues through carefully. There are signs today that a growing number of men are simply opting out of education, marriage, and other markers of adulthood. That’s not good—for men, for women, or for the country as a whole. It’s not sexist to think about how we can make critical social institutions more attractive to men. Indeed if we fail to engage these questions we will pay a high cost down the line.

Published on June 6, 2013 5:00 pm
  • Anthony

    Generally speaking, divorce courts can be unfair to men in our 21st century transforming social arrangements; that is, changes over last half-century have both expanded women choices and opportunities. This social shift, as it relates specifically to divorce and male inequity via legal system, has failed to factor in anti-discrimination legislation for women now makes traditional court ideas governing support for former wives and children worthy of revisiting (intentional discrimination against women both systematic and in work place are no longer societal constants and ought to be generally acknowledged judicially).

  • rheddles

    It’s not the courts, it’s the law. Divorce law has been a disaster since the adoption of no-fault divorce. Until this is remedied, the assault on the family will not end.