Settling in the Shadow of Sex
Shinall, Jennifer B.
Divorce has a long history of economically disempowering women. From the time of coverture to the era of modern divorce reform, women have been persistently disadvantaged by divorce relative to men. Family law scholars have long attributed this disadvantage to the continued prevalence of traditional gender roles and the failure of current marital asset division laws to account adequately for this prevalence. In spite of the progress made by the women's movement over the past half-century, married, heterosexual women endure as the primary caretaker in the majority of households, and married, heterosexual men endure as the primary breadwinners. Undoubtedly, women who have made career sacrifices during a marriage face a harsh economic reality when the marriage breaks down. But this Article is the first to question whether the persistence of traditional gender roles is solely responsible for the gender imbalances in economic security following a divorce. Instead, this Article posits that gender bias against women-bias that is completely separate from women's caretaking or breadwinning status-also harms women in divorce proceedings. This gender bias may be harbored by judges, mediators, lawyers, and even litigants themselves. To test this theory, the Article utilizes an experimental vignette study, fielded on 3,022 subjects. Subjects were randomly assigned to view one of several highly similar scenarios where a couple is divorcing after a long-term marriage, and asked to divide marital assets between them. In half of the scenarios, the male spouse was the sole breadwinner and the female spouse was the principal caretaker, consistent with traditional gender roles. But in the other half of the scenarios, the situation was reversed, with the female as the sole breadwinner and the male as the primary caretaker. Comparing results across subjects reveals that subjects consistently favored the male spouse over the similarly situated female spouse. On average, both male and female subjects assigned a greater share of the marital assets to the male breadwinner than to the female breadwinner. Male and female subjects also assigned a greater share of the marital assets to the male caretaker than to the female caretaker. The results are consistent with gender bias, as subjects penalize the female spouse in both the stereotypic (male-breadwinner/female-caretakera) and the nonstereotypic (femalebreadwinner/male-caretaker) scenarios. Given these sustained preferences for the male spouse in the divorce setting, the Article concludes by considering empathy induction, auditing, and legal presumption reforms to counter the effects of bias in divorce settlements and to assist women, at last, in gaining equivalent economic standing with men after a divorce.