Sure, the playing field might be leveling, but it is not level, and the players on the filed are not equally equipped to play the game.
Take child custody as an example -- Every year in Michigan, for the past several years and including this one, some legislator has introduced a bill that would require judges to begin with the presumption that a child should spend an equal amount of time with each parent, Mom and Dad. The parent wishing to have more than equal time would have to prove, by clear and convincing evidence (a very high standard), why less time for the other parent is in the child’s best interests. Our current law says that a child is entitled to a relationship with each parent, but the law does not fix the quantity of time each parent has to establish and foster that relationship. At odds with it is the required presumption that a child should spend a majority of his or her time in “the established custodial environment,” which may be with both parents but is usually with the primary caregiver, often (either in reality or as perceived by an older traditional judge, Mom). With the growing number of “stay at home” dads and two-working-parent households, one would think that the presumption that a child should spend equal time with each parent is a given – but not so. Every year, the bill is met with hostility, from the public, attorneys and advocates, as a perceived attack on women. The bill never passes, but everyone knows it will reemerge with the next legislative year.
On the positive side, the very introduction of the bill spawns conversations and draws attention to the good dads who really do deserve equal, or more, time with their children, even if the law does not start with that presumption. So, although the bill has yet to become law, every year we see a further eroding of the idea that Mom should have the kids as the public, attorneys and advocates, at a minimum, talk about the concept of Dad having that time, too.
Take alimony as another example -- Talking to a guy about asking for alimony from his wife is one of the toughest parts of my, and I dare say all family attorneys’, job. Tough not because the concept is difficult to explain, but tough because most guys just refuse to do it. Isn’t that a woman’s thing, after all? In no State is gender one of the written factors to consider when awarding alimony. In some States, the legislature or the courts have fashioned a framework based on years of marriage, household income and separate incomes to determine who receives alimony, if anyone, and for how long. In most States, though, there is no framework, and, instead, the judge is left to a much more fact-intensive analysis– and one more susceptible to disguising a gender preference. The problem is, judges have so much discretion that virtually any award is acceptable on appeal. A discretionary ruling receives the greatest amount of deference on appeal. Moreover, although the judge must state findings of fact on each support factor, there are so many factors that it is easy to mask what is really punishment for being “lazy” or suspicion for “milking it” in the name of age, employability and potential to earn money. So long as the judges rationalizes the decision with the other factors (age, health, lifestyle, employability, marriage length, etc.), the award will survive appeal even if gender was one of the (unstated) considerations, or even the guiding one.
So, how many guys actually receive alimony? According to the US Census Bureau, in 2000 men made up only 4% of the divorcees receiving alimony. By 2009, the figure had quadrupled to 8%, but the study did not include men who could have obtained alimony and just refused to request it. The “quadrupled” figure might sound impressive, but, over the same timespan, men bore almost 75% of the job loss in the nation, women’s earning capacities increased to 80% of their working male counterparts, and women still received 92% of all alimony awards. See “The Controversial Rise in Manimony” by Hillary Stout.
Why the disparity? There are many reasons. I can tell you, from my practice, that a lot of guys just refuse to ask for it. Asking for alimony is perceived as a sign of weakness, further emasculating them in a relationship that was already lopsided and broken. Even when they do ask for it, it’s a tougher job persuading the judge that they need it, as opposed to just want it for revenge. Judges are humans, and humans come with a host of preconceptions and assumptions about what men and women should and should not do – who should stay at home with the kids, who should work, who is capable of reviving economically from a divorce faster, etc. I am not saying judges do not apply the law, because most do, but that it takes more persuading when the man is the one asking for what is traditionally for women.
All of this goes to say that, although the laws may be changing, how they play out in a case is not the same for men and women. This is not the result of the law, usually, but the people involved in the case. There are judges to persuade, and, in some States, juries; there are other attorneys to deal with and family members who advocate for “the traditional outcome” (Mom with the kids, Dad out of the home and paying support); there is reluctance, hesitation, from men themselves, and sometimes their attorneys, to challenge “the norm.” I’ve been accused of “being mean” to Mom in a few of my cases, when all my client was really after was more than 25% of the year with the kids he raised. And, I’ve stood in awe in courtrooms watching men settle their cases, their faces weary from having to “fight” while their attorneys assured them that “you don’t really need one-half the time” or “it’s not worth the fight.”
Maybe they would rather give-in than accept alimony or be perceived as a “bad guy” taking away the kids. Moms in these cases tend to be sympathetic, Dads greedy.
But it doesn’t have to be that way. For a man, it just takes more preparation, a solid offer to settle before the case goes head-strong into litigation, a game-plan, persistence and confidence that you really can have what you are seeking, and the law allows it.
The laws might be, or are becoming, gender neutral; but guys needs more tools to play that field.