Finley, G. E. (2004). Divorce inequalities. 
Special issue on Inequalities and Families, 
National Council on Family Relations Report, 49, (3), 9 – 10.

Divorce Inequalities

by Gordon E. Finley, Ph.D., Professor of Psychology, 
Florida International University 

An analysis of divorce inequalities using portions of the work of Parsons and Bales (Family, Socialization, and Interaction Processes, 1955) yields unique insights into contemporary divorce outcomes. What contemporary divorce has done for Parsons and Bales is to resurrect their gender role assignments for at least one current American family form – the post-divorce family – but with a uniquely reversed power twist.

Parsons and Bales are well known for their depiction of the unequal division of family labor that assigns the social-emotional tasks and roles to women and the instrumental tasks and roles to men. While many feminist social scientists abhor this division of labor, contemporary divorce law ironically has resurrected and rigidly enforced precisely this unequal division of labor in today’s post-divorce family. 

Post-divorce matriarchy

Contemporary divorce law and court practices are premised on the presumptions of inequality, unequal opportunity, unequal rights, and the absence of due process. As a result, divorce transforms family power from intact patriarchy to post-divorce matriarchy. The key mechanism underlying this transfer is the assignment of physical custody to the mother. This has been rationalized in various ways, which include the tender years doctrine, the primary caretaker presumption, and the best interest of the child standard. The awarding of physical custody to the mother explicitly assigns to the mother the primary tasks and responsibilities of the social-emotional role and an uncertain portion of the instrumental role. Above all, however, she is assigned absolute power over the life and well-being of the child – in short, matriarchy. 

By contrast, divorce courts explicitly assign the primary instrumental role (breadwinner, child support, alimony) to the father with — perhaps — a minor social-emotional role as a visitor in his former child’s life. Divorce explicitly excludes the father from a major social-emotional role and disenfranchises him from a meaningful place in his child’s post-divorce life. Tragically, this completely reverses the past quarter century of research and family policy that encourages fathers to be more involved and more nurturing. 

When physical custody of the children is given to the mother after a divorce, the structural transformation in the family is permanent and irreversible. Power becomes forever matriarchal. Specifically, if the mother remains single, dates, or cohabits she retains all power because there is no legal change. If she remarries, she retains absolute power because the stepfather has no legal rights to her children. Should the stepfather adopt the children, the mother likely retains prevailing power, although she loses absolute power because adoption grants legal parental power to the stepfather.

Emerging reform efforts

On the horizon, two quite different — but potentially powerful — reform efforts are emerging as a reaction to the existing structure of divorce. Both have the potential to reshape the structure of the post-divorce family.

The first effort is taking place in Iowa where recently enacted legislation supports post-divorce parental equality. Iowa law now favors the awarding of joint physical custody when joint legal custody is granted. Specifically, if joint legal custody is awarded to both parents, the court also may award joint physical custody upon the request of either parent. 

In signing this legislation, Iowa Governor Tom Vilack — who drew upon his own experience as a child of divorce and his reading of the divorce literature — emphasized the importance of the child’s relationship with both parents. The law became effective July 1, 2004, and Vilack believes it is the most important legislation he has signed this year.

Fathers 4 Justice, a father’s rights organization in the United Kingdom, is responsible for the second effort. Fathers 4 Justice has recently expanded worldwide because of its extremely successful “superhero” and “decontamination” protests, which have brought attention to and created sympathy for divorced fathers. The organization perhaps is best known for the throwing of purple power filled condoms at Prime Minister Tony Blair in Britain’s House of Commons. 

Fathers 4 Justice is about to release “Blueprint for Family Law in the 21st Century,” a platform for family law reform. The organization describes the blueprint as a radical and visionary document that proposes a top-to-tail revolution in family law with the creation of a minister for Family Life and a Department of Family Affairs. Fathers 4 Justice also plans to form a branch in the United States this fall. The American organization will join existing branches in Australia, Canada, the Netherlands, and New Zealand. 

Both divorce reform efforts have successfully raised consciousness about the shortcoming of existing divorce law, and both have the potential to attenuate the “divorce inequalities” explored in this article. 

Changing views?

If these efforts are successful, both researchers and practitioners will likely change their views about the post-divorce family. For researchers, sole maternal physical custody will no longer be considered the “modal” form for these families. Post-divorce families will become increasingly diverse. As a result, conclusions about divorce outcomes will become yet more complex. For practitioners, “best practices” practice will also likewise become more diverse, complex, and individualized. 

For more information, contact: finley@fiu.edu