Gender Bias in Spousal Support?

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We happened upon this interesting article that noted that, while 40 percent of households in this country have female breadwinners, only 3 percent of men receive spousal support, or what in Missouri we call maintenance. If more men serve as “Mr. Mom” and care for the children in lieu of pursuing a career, why should these men be deprived of spousal support should the marriage end in divorce? Is maintenance truly gender biased?

We do live in an era of profound social change where traditional gender roles have been eviscerated and replaced by more egalitarian principles. When a couple has a child, the mother must get maternity leave, but the father must get paternity leave as well, pursuant to the Family and Medical Leave Act. And it is true that as more women have advanced to higher paying careers, many of their spouses have chosen to forego full time employment and raise the children. If divorce upends this family, should the stability the children have known end not just in two households, but losing the primary caregiver to a nanny or other childcare providers because dad must go back to work?

For those who think the law must change to accommodate fathers in “homemaker” roles, check the law more carefully – in Missouri, it is gender neutral. In awarding maintenance, the courts look to the incomes of both parties, their ability to meet their reasonable needs, and the ability of each parent to pursue gainful employment to cover those reasonable needs. It also looks to the family structure and will not punish a parent who by agreement of both spouses gave up employment to stay home and raise the children. Generally, in these situations, the law assumes that the stay at home parent will, at least immediately after divorce, receive some maintenance to assure continuity in the home. Also, the law understands that if that stay at home parent must go back to work, the children will need childcare which adds to the financial expenses of that parent. But eventually, as the children get older, the law assumes the parent will have more time to pursue work. Indeed, the law assumes that the parent receiving maintenance will pursue a path to self-sufficiency. While this may never happen in certain cases, it is the general rule.

Having set out the general principles of the law governing maintenance, we must point out that each case is unique and handled on its facts. No two families are exactly alike, and the court will take evaluate what is best for all parties, especially the children. In this sense, custody and spousal support are related.

So, if statistically men receive much less in spousal support even though more women are breadwinners, it could be that the courts have been slow to catch up to these changing realities. Or it could be that courts operate with assumptions about self-sufficiency for men that stereotypes them as we have mothers in the past. Or it could be that the facts in individual cases may not warrant spousal support. But it may also be the case that certain stay at home dads are not getting the support they truly need.

As times and family arrangements change, family lawyers will need to be sure to press the facts to the court to protect stay at home fathers just as they do stay at home mothers.

If you have questions about gender and spousal support, contact us – we can help.

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