Alimony on the Margin: Is
Homemaking Service Really
“Productive Labor?”
LYNN D. WARDLE
BRUCE C. HAFEN PROFESSOR OF LAW
BRIGHAM YOUNG UNIVERSITY SCHOOL OF LAW
PROVO, UT 84602
PRESENTED AT
THE INTERNATIONAL SOCIETY OF FAMILY LAW
1 3 TH W O R L D C O N F E R E N C E
VIENNA, AUSTRIA, 16-20 SEPTEMBER 2008
Outline
Alimony on the Margin:
Is Homemaking Service Really “Productive Labor?”
I. Introduction: Focusing on Public Interests and Productive Labor.
A. The Confused State of Alimony Doctrine and Justification
B. The Conundrum of Alimony Law and Practice in America
II. Homemaking is Productive Labor and Promotes Substantial Public Interests
A. Homemaking Service Saves the Public Treasury Significant Costs.
B. Homemaking Service Directly Generates Valuable Social Capital.
C. Homemaking Services Reduces the Rate and Huge Costs of Marital
Breakdown.
D. Homemaking Service Produces More Secure, Well-Educated, Law-
Abiding, High-Performing and Productive Future Generations.
III. Despite Governmental Disregard, Many American Women Recognize the
Value of Homemaking Service and Organize their Lives to Give Maximum
Homemaking Service
IV. Conclusion: Alimony in the Public Interest Should Recognize the Public
Worth of Homemaking Service
The Confused State of Alimony Doctrine and
Justification
The traditional labor division between husband
and wife, with the husband-as-full-time-wage-
earner and wife-as-full-time-homemaker, no
longer characterizes most marriages in the United
States or in many of the developed nations around
the world.
Today, married women in most highly developed
countries seem to prefer and pursue paid
employment “productive labor” instead of
homemaking service work.
US Labor Statistics
The percentage of women over 16 in the US
workforce rose by two-thirds, from 36% in 1960 to
58% in 2000.
Likewise, more on point, the US labor force
participation rates among mothers of all children
under 18 rose from 47.4% in 1975 to 72.9% in 2000
Alimony
Alimony refers to support money which a court
orders one divorcing spouse (typically the husband)
to provide in some specific amount to his former
spouse (typically the wife) after the dissolution of
their marriage.
Legal Justification
The old legal justification for alimony (that the
marriage had not formally ended, or the dissolution
was due to the “fault” of the husband), ceased to
justify alimony upon the adoption of no-fault
divorce. As John Eekelaar and Mavis Maclean put it,
“when the legislature [in the UK] made a definite . . .
move away from the fault-based divorce in 1971, the
only rationale for [the award of alimony] collapsed. .
. . The retention of the fiction of the marital support
obligation was no longer tenable.”
Other Justifications
Justifications for alimony are “private” (serve private
economic interests) and “public” (serve public interests).
Lots of “private interest” theories suggested, to no avail.
Some have argued that alimony awards are contrary to the
“public interest” in promoting the “productive labor” of all
employable adults.
I will suggest that homemaking is “productive labor,” and
that there are compelling public interest justifications for
awarding alimony in cases in which a good faith spouse
has engaged in homemaking rather than in employment
for pay. Alimony is best understood as an incentive to
promote and protect investment by spouses in critical
functions relating to child and family maintenance.
Caveat: What This Paper is NOT Arguing
This paper is not arguing that all (or any particular)
married women or married mothers should be full-
time homemakers. How to balance the work-
family conflict is a decision every married woman
and every mother must make for herself (advisedly
in counsel with her husband).
However, this paper argues that women who choose to engage in
full-time homemaking service make valuable contributions
to the public interest that deserve to be recognized in the law
of alimony and elsewhere.
U.S. Data on Divorces Cases Awarding Alimony
Constance Shehan (2002): “Alimony awards are currently—and have
historically been—rare in the US. . . . The portion of divorces in which
alimony has been awarded has seldom exceeded 15%.”
Robert Kelly & GL Fox (1993): Sample of 879 divorce cases from Oakland
County, Michigan in the early 1980s;
-Alimony awarded in divorce cases involving couples with a single
income alimony 13.6% of the cases.
-Alimony awarded in divorce cases involving dual income couples in
only 6.5% of the cases.
Robert Kelly & W Rinaman (2002): data from (NSFH) focusing on
respondents who had first divorces between 1977-1988 and had
dependent children, alimony (~) awarded in only 8.9% of the cases.
“Margin”
The “margin” referred in the title reflects the
assumption that today alimony would be awardable
only in “marginal” cases, not the bulk of cases,
because so few married woman are full-time
homemakers today.
The Conundrum of Alimony Law
and Practice in America
Today courts in all American jurisdictions have the
power to award “alimony” or “maintenance” to a
divorcing spouse in at least some circumstances and
for at least some period of time.
However, alimony awards have become less common
and more temporary.
Today, it appears that alimony is awarded in
relatively few cases, and the alimony awards usually
are small or of short duration.
Inadequate Justifications: Legal & Practical
Unilateral no-fault divorce destroys the assumption that marriage is
a lifelong obligation (or even, in some communities, that this is a
reasonable expectation).
“Need” no longer suffices because social and economic changes in
the past thirty years have made it possible (and socially preferred)
for women to obtain the same kind of education and jobs that men
have.
What justification is there now for ever ordering a man (usually) to
continue to pay support to a woman to whom he is no longer
married, who has (or is capable of obtaining) an education and a job
that will provide her with enough salary to be fully self-sufficient?
Many legal scholars have promoted many creative theoretical
arguments to justify the general or more widespread award of
alimony.
Homemaking is Productive Labor and Promotes
Substantial Public Interests
The term “productive labor” refers to that which
“produces or increases wealth or value” or “(chiefly
in Marxist theory): that contributes to production;
esp. in productive forces: the sources and
determinants of productivity, as labor power, . . . the
skills of the individual worker, etc..” For example,
Adam Smith, in The Wealth of Nations wrote:
“There is one sort of labour that adds to the value of
the subject upon which it is bestowed: there is
another which has no such effect. The former, as it
produces a value, may be called productive.”
Homemaking is “Productive Labor”
Homemaking service is productive labor because:
(1) Homemaking service saves the public treasury enormous
costs,
(2) (2) because homemaking service directly generates valuable
social capital which benefits all members of society,
(3) (3) because homemaking services reduces marital
breakdown, dysfunction, and dissolution, and
(4) (4) because homemaking service enhances and increases the
stability and quality of marriage, parenting, and family life
which produces more secure, well-educated, law-abiding,
high-performing and productive future generations.
Women who engage in homemaking service rather than paid
employment are engaged in productive labor.
Already, many American women organize their lives
to maximize the time they can give to homemaking
service and bypass economic-earning opportunities
that would detract from or impair their
homemaking.
Marx, Engels, Lenin
“In classical Marxist theory, as in early Soviet policy, the
transformation of the family was perceived to be essential to the
liberation of women. . . . It required a shift of functions from the
family to the wider society.”
Engels expressed the core assumption underlying the Marxist view
of the family: “[T]he first condition for the liberation of the wife is to
bring the whole female sex back into public industry, and . . . in turn
demands that the characteristic of the monogamous family as the
economic unit of society be abolished.”
Lenin, also was “strongly opposed” to the individual household with
its “stinking kitchen,” and dedicated to “sav[ing] woman from
housewifery.” He wrote that a housewife was “a daily sacrifice to
unimportant trivialities. . . . They are like worms which, unseen,
slowly but surely rot and corrode.”
Homemaking service saves the public treasury
significant costs
Homemaking
service saves
the public
treasury
significant
costs
A 2008 study by Salary.com (MA), a firm that studies
workplace compensations, estimated that the annual
value of homemaking services is $117,500 per year.
Ric Edelman (6 times on Baron‟s list of top financial
advisers) of Edelman Financial Services estimated in
2008 that the value of homemaking servies is
$773,700 per year.
Homemaking Service Directly Generates Valuable
Social Capital
A social organism of any sort whatever, large or small, is
what it is because each member proceeds to do his own
duty with a trust that the other members will
simultaneously do theirs. Wherever a desired result is
achieved by the co-operation of many independent
persons, its existence as a fact is a pure consequences of
the precursive faith in one another of those immediately
concerned.
The family is the first schoolroom, where children learn
duty, responsibility, self-control, obedience and other
virtue essential for the functioning of democratic society.
The level of public service and charitable service are
highest among those who have been raised by a
significant homemaker)
Homemaking Has Constitutional Significance
Michael Grossberg has written:
“By charging homes with the vital responsibility of molding the private virtue
necessary for republicanism to flourish, the new nation greatly enhanced the
importance of women‟s family duties. . . . At times „it even seemed as though
republican theorists believed that the fate of the republic rested squarely,
perhaps solely, on the shoulders of its womenfolk.‟”
De Tocqueville wrote: “[T]he American derives from his own home that love or
order which he afterwards carries with him into public affairs.”
Francis Grund: ”Change the domestic habits of the Americans . . . and it will
not be necessary to change a single letter in the Constitution in order to vary
the whole form of their government.”
Homemaking Services Reduces the Rate and Huge
Costs of Marital Breakdown
The public costs of family marital break-up and of non-
marital child-bearing (CBOW), total at least $112 billion
each year for the USA, more than $1 trillion every
decade. $70 billion in federal budget costs go to dealing
with the consequences of marital break-down and
avoidance every year, and family fragmentation costs
state and local governments $42 billion every year.
In Utah the state and local costs attributed to family
fragmentation amount to 10.7% of the total tax burden,
or $276 million per year.
In California the state and local costs attributed to family
fragmentation amount to11.5% of the total state and local
tax burden, or $4.829 billion in taxes per year.
W. Bradford Wilcox, Soft Patriarchs, New Men: How
Christianity Shapes Father and Husbands (2004)
Active Evangelicals (most) and Mainline Protestants (second) are more
traditional gendered in family structure (husbands work, wives are primarily
home-makers) than un-affiliated.
Active Evangelicals and Mainline Protestants are both about one-third more
affectionate as parents (hugging, kissing, and praising their children) than
unaffiliated dads.
“[W]ives of active Evangelical Protestant family men report the highest levels of
happiness with the affection and the understanding that they receive from
husbands, and they are followed fairly closely by wives of active mainline
Protestant family men. Wives of unaffiliated family men report the lower levels
of happiness.”
Wives of active Evangelical Protestant family men report the lowest levels of
violence (2.8 percent), followed by the wives of unaffiliated men (3.2 percent)
and the wives of active mainline men (5.4 percent).
Religious men and their wives, who tend to be follow homemaker gendered
labor division, “enjoy happier marriages, they are less likely to father a child
outside of wedlock, and they are more likely to take an active and affectionate
approach to child rearing, compared to secular or nominally religious men.”
Homemaking Service Produces More Secure, Well-Educated, Law-Abiding,
High-Performing and Productive Future Generations.
The potential risks to children raised in fragmented families that have been
identified in the literature include mental illness, physical illness, infant
mortality, lower educational attainment (including greater risk of dropping
out of high school), juvenile delinquency, conduct disorders, adult
criminality, and early unwed parenthood.
“[T]he prevalence of delinquency in broken homes is 10-15 percent higher
than in intact homes.”
Gottfredson and Hirschi report that “[s]uch family measures as the
percentages of the population divorced, the percentages of household
headed by women, and the percentage of unattached individuals in the
community are among the most powerful predictors of crime rates.”
Likewise, a 2001 British study reported that boys living in permanently
disrupted families on their fifteenth birthdays had significantly higher rates
of delinquency, whether measured by delinquency convictions, self-
reported juvenile delinquency, or adult convictions.
Youths from broken homes (especially those broken by desertion) are most
at risk of being maltreated, and maltreatment correlates strongly with
delinquency.
III. Despite Governmental Disregard, Many American Mothers Recognize the
Value of Homemaking Service and Organize their Lives to Give Priority to
Homemaking Service
A 2007 poll by the respected Pew Research Center revealed
that most American mothers of children under 18 prefer to
work only part-time (50%) or to not work at all (30%) rather
than full-time employment (20%).
Only 16% of all mothers with pre-school aged children (0-4)
desire full-time employment.
Mothers who were employed rated themselves as significantly
poorer parents (only 28 percent rated 9 or 10 out of 10) than
part-time (41 percent) or not-employed (43 percent) mothers.
Of the general population (41 percent) says that the trend
toward mothers working outside the home is a bad thing for
society (compared to 32 percent who say it makes not
difference, and 22 percent who say it is a good thing).
The movement of young mothers into paid employment
correlated with the divorce boom in the 1970s and 1980s,
and with the economic downturn of that era.
Most married mothers work to supplement the level of
benefits for their families, to enhance the level of
personal benefits, and for social recognition, interaction,
and achievement.
The Bureau of Labor Statistics reports that women are
more than twice as likely as men to work part time
shows commitment of US working moms to
homemaking.
Also BLS date on tiered % of working mothers (of 0-2,
lowest; of 3-5 next, of 6-18 highest percentage working).
The persistence of the gender pay gap also attests to the
continuing commitment of American working women to
giving significant homemaking service.
Conclusion: Alimony in the Public Interest
It takes more faith to enter, maintain and seriously
invest one‟s life in a marriage today than in earlier
times because divorce has become so common-place
in and accepted by our society, and because our
unilateral no-fault divorce laws convey a powerful
message about the legal insecurity of the
relationship.
Homemaker service is “real” work.
Homemaker service is “productive labor”
Homemaker service contributes significantly to the
public interest in encouraging “productive labor.”
Alimony awards to full-time and near-full-time
homemakers furthers the public interests in alimony
of supporting “productive labor.”
Awarding alimony to full-time homemakers is
consistent with the historic “golden thread” of
protecting the good faith investment by homemakers
in marriage, to support the public interest in
supporting investment in marital families, that runs
through the centuries of alimony doctrine and
practice.
Since the introduction of no-fault divorce, this public
interest has become obscured, lost.