Second Thoughts About No-Fault

By Richard Lacayo

Two months after obtaining his license to practice medicine in 1980, Michael O'Brien sued to divorce his wife Loretta, who had worked to support them both while he studied and trained to be a doctor. The New York State Court of Appeals has now decided that the medical license earned by O'Brien during his marriage is "marital property" and that his ex-wife is entitled to a portion of it--a share that one lower court calculated to be worth $188,800. The court noted that Loretta O'Brien had sacrificed her educational and career opportunities to further those of her husband, now a resident at a New York City hospital. Contributions like hers, the state high court said, are precisely the kind of "joint effort" that framers of the state's 1980 divorce law had in mind in its provisions regarding the division of property.

The decision has stirred a legal tempest. Harriet Cohen, president of the New York Women's Bar Association, calls it "a major victory for justice and fair play." Philadelphia Lawyer Edward Blumstein disagrees. "The highest court in New York," he says, "has created a legal fiction." In fact, the New York decision is not unique; 13 other states, by statute or court ruling, recognize a spousal property interest in a professional degree. But, asks Harry Tindall, chairman of the family-law section of the state bar of Texas, "if a college professor has tenure, how do you quantify that? Will the New York ruling apply to a plumber's license?"

These and other complex questions have been raised by the widespread adoption of no-fault divorce laws. When the first such legislation was implemented in California in 1970, it was hailed by many for permitting a marriage to be dissolved simply through one partner's decision to do so. It thus promised an end to the unsavory courtroom squabbles in which husbands and wives tried to prove each other guilty of infidelity or mental cruelty. Today some version of no-fault is the law in every state, although most do not permit divorce quite so easily as California.

While the new laws have succeeded in making divorce less traumatic, there are growing com plaints about the way in which they instruct judges to divide assets acquired during marriage. Critics complain that while these laws require a fair division of "property," judges often do not include in that term such intangible assets as future earning capacity, professional education and medical insurance. These assets, they argue, usually benefit the husband but are acquired in part through the wife's sacrifice of her own career opportunities. "Let the wife share in the standard of living that she helped to build," says Stanford University Sociology Professor Lenore Weitzman.

In her recently published book The Divorce Revolution (Free Press; $19.95), Weitzman charges that the new laws have had a startling and unforeseen result: "The systematic impoverishment of divorced women and their children." Weitzman studied the impact of no-fault on 114 women and 114 men in California. She calculates that during the first year after divorce, the women experienced, on the average, a 73% decline in their standard of living, while the men enjoyed a 42% rise. At a time when half of all American marriages are expected to end in divorce, Weitzman even contends that no-fault is partly responsible for the so-called feminization of poverty, the disproportionate increase in the number of poor U.S. households headed by women.

One reason, says Weitzman, is that long-term alimony under the old laws has been replaced in many instances by short-term maintenance support intended to help former wives only until they can find a place in the work force. The problem, she charges, is that courts commonly fail to consider that after years at home, many wives lack the advanced job skills they might otherwise have acquired. Younger women with custody of small children face additional problems. Not only must working mothers pay for child care, but only about half of all fathers fully comply with court orders to pay child support. "Children," Weitzman says, "are entitled to the standard of living of their fathers."

Some who take issue with Weitzman's view insist that "equitable distribution" has benefited women in states where previously they were not entitled to a share of assets held in their husbands' name. Others maintain that in the many settlements that are negotiated without going to trial, wives and their children are often well provided for. And there are those who say that judges strive in many divorce proceedings for real, not just legal, equity. Says Chicago Divorce Lawyer Victoria Hewelt Cazel: "You've got a guy who makes $100,000, and the woman has to go out and get a part-time job making $3.35 an hour at K mart--she'll get more property."

Several states are taking action to adjust their no-fault laws, typically with an eye toward giving more precise guidance to judges in the division of property. But even the most judicious revisions of no-fault will never settle a central dilemma: many divorced men earn salaries scarcely adequate lip for one household, let alone two. This suggests to some experts that no-fault laws merely underline the j need for women to attain true equality. Ideally, says Rose Marino, an attorney in Lawrence, Kans., "women will learn from birth that they are going to have to be self-sufficient." Indeed, says Author Weitzman, such repercussions of no-fault are the "larger theme" of her work. "We haven't just I changed the rules for divorce," she says. "We've changed the rules for marriage too." --By Richard Lacayo. Reported by Sandra Lyon/San Francisco and Raji Samghabadi/New York

With reporting by Reported by Sandra Lyon/San Francisco, Raji Samghabadi/New York