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Good Intentions Gone Awry: the Impact of New York's Equitable Distribution Law on Divorce Outcomes

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Good Intentions Gone Awry: the Impact of New York's Equitable Distribution Law on Divorce Outcomes Brooklyn Law School BrooklynWorks Faculty Scholarship 1991 Good Intentions Gone Awry: The mpI act of New York's Equitable Distribution Law on Divorce Outcomes Marsha Garrison Follow this and additional works at: https://brooklynworks.brooklaw.edu/faculty Part of the Dispute Resolution and Arbitration Commons, and the Other Law Commons Recommended Citation 57 Brook. L. Rev. 621 (1991) This Article is brought to you for free and open access by BrooklynWorks. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of BrooklynWorks. GOOD INTENTIONS GONE AWRY: THE IMPACT OF NEW YORK'S EQUITABLE DISTRIBUTION LAW ON DIVORCE OUTCOMES Marsha Garrison* I. Alimony and Property Division Rules in Historical Perspective .................................... 626 A. The Development of the Alimony Entitlement 626 B. Equitable Property Distribution: A Remedy for Inadequate Alimony .................... 627 C. The Shift to Equitable Property Distribution and Its Rationale .......................... 628 D. The New Reform Movement ............... 632 II. New York's Equitable Distribution Law and Its Consequences .................................. 637 A. Divorce in New York: The Adoption of the Eq- uitable Distribution Law ................... 637 B. Research Methodology ..................... 641 C. Characteristics of the Research Sites and Sam- ple ....................................... 643 D. The Impact of the Equitable Distribution Law 651 1. The Divorce Process ................... 651 2. Property Distribution .................. 651 a. Who Owns the Property? . 653 * Professor of Law, Brooklyn Law School The research described in this article was made possible by the Alfred P. Sloan Foundation. The Brooklyn Law School Faculty Research Fund provided additional fi- nancial support. Over the course of the research I have benefited from the support and suggestions of many. I am particularly indebted to Justice Joseph F. Gagliardi, former Administrative Judge of Westchester County, N.Y., Justice William R. Roy, Administra- tive Judge of Onondaga County, N.Y., Norman J. Goodman, County Clerk of New York County, N.Y., Elaine Lytel, former County Clerk of Onondaga County, and Andrew J. Spano, former County Clerk of Westchester County, without whose cooperation and as- sistance the research would not have been possible. David Chambers, Linda Edwards, Carol Lefcourt, Robert Levy, and Martha Minow provided valuable assistance as mem- bers of the research project's advisory committee. I also wish to thank Arthur J. Singer, of the Alfred J. Sloan Foundation, and R. Wayne Parsons, of Kane, Parsons & Associ- ates, Inc., for their special contributions to the research project. BROOKLYN LAW REVIEW [Vol. 57:621 b. How Much Are Their Assets Worth? 658 c. How Much Property Is Unavailable for Distribution? .. 660 d. What Is the Value of Marital Prop- erty? ... 662 e. What Types of Assets Do Divorcing Couples Own? .. 664 E. The Distribution of Assets and Debts ....... 668 1. Methodological Issues in Property and Debt Division Analysis ................. 668 2. The Overall Distribution of Assets and D ebts ................................. 670 3. The Distribution of Some Specific Assets: A Closer Look ......................... 679 a. The Marital Home ................. 679 b. Pensions .......................... 683 c. Businesses ........................ 683 4. Typical Asset Distribution Patterns: What Kind of Assets Do Wives Receive? . 684 F. Winners and Losers: Variation and Its Ration- ality ....................................... 685 1. The Relationship Between Marital Dura- tion and Property Distribtion ........... 687 2. The Relationship Between Custody and Property Distribution .................. 688 3. Need and Contribution: The Relationship Between Employment Status, Spousal In- come, Alimony, and Property Distribution 689 4. Other Factors: Fault, Net Worth ........ 694 5. Sum m ary ............................. 696 G. The Impact of the Law on Alimony and Child Support .................................. 697 1. The Frequency and Duration of Alimony A ssets ................................ 697 2. Who Gets Alimony: The Relationship Be- tween Marital Duration, Employment, In- come, Custody, and Alimony Awards ..... 699 a. Marital Duration .................. 699 b. Wife's Employment and Income ..... 701 c. Spousal Income .................... 703 d. Child Custody ..................... 705 1991] NEW YORK'S EQUITABLE DISTRIBUTION LAW 3. Variation in Alimony Decision Making and Its Rationality ......................... 706 4. The Value of Alimony and Child Support 711 a. The Value of Alimony Awards ...... 711 b. The Value of Child Support Awards. 713 c. Child Support and Alimony in Rela- tion to Income .................... 717 d. The Effect of Income Transfers on Post-Divorce Per Capita Income .... 720 III. What the Data Mean: Directions for Divorce Re- form .......................................... 724 A. Property Division .......................... 728 B. Alimony and Child Support ................ 733 Conclusion .......................................... 739 Appendix ............................................ 741 INTRODUCTION Over the past twenty years American divorce law has gone through a period of dramatic change. No-fault divorce swept the nation, bringing in its wake far-reaching changes in the rules that govern the allocation of a couple's income and property. In the first wave of reform, most states enacted laws that deem- phasized alimony, the traditional entitlement of a divorced wife, and instead emphasized property distribution as a means of allo- cating marital wealth and spousal needs. Among property alloca- tion schemes, most states adopted some form of "equitable" property distribution, a system that permits judges to distribute marital property in accordance with their perceptions of the eq- uities of the particular case. While changes in divorce grounds were largely motivated by the desire to conform the law to existing practice and reduce the level of acrimony in divorce proceedings,' changes in the rules 1 Although divorce laws of this era required a showing of marital fault as a precondi- tion to obtaining a divorce, spouses frequently colluded to fabricate grounds. See Rich- ard H. Wels, New York: The Poor Man's Reno, 35 CORNULL LQ. 303 (1950); Note, Collu- sive and Consensual Divorce and the New York Anomaly, 36 CoLuW& L. Rzv. 1121 (1936). For historical accounts describing the policy reasons for no-fault divorce reforms, see HERBERT JACOB, THE SILENT REVOLUTION: THE TRANSFORMATION OF DIVORCE LAW IN THE UNITED STATES 66-69 (1988); Herma H. Kay, Equality and Difference: A Perspective on No-Fault Divorce and Its Aftermath, 56 U. CiN. L REv. 1, 4-14 (1985); Lynn D. War- dle, No-Fault Divorce and the Divorce Conundrum, 1991 B.Y.U. L. REv. 79, 91-97. For a BROOKLYN LAW REVIEW [Vol. 57: 621 governing alimony and property division were also motivated by a desire to improve the position of divorced wives. The old rules, reformers urged, failed to comport with the modern view of mar- riage as an economic partnership of equals: the myth of alimony as an entitlement had obscured the fact that it was rarely awarded 2 and even less frequently paid, while title-based prop- erty rules had caused women to get less than their fair share of marital assets.' This first wave of divorce reform is now the subject of a new reform movement. Critics claim that, rather than helping di- vorced women, the reforms have hurt them.4 They argue that too few women are receiving alimony, in inadequate amounts, and for inadequate periods of time. Moreover, they claim, "equi- table" property distribution is in practice inequitable to di- vorced wives. Property awards are said to be arbitrary and un- predictable, with the result that many women do not receive their fair share of marital assets. Equal distribution of marital assets, some contend, should replace equitable asset distribution. While recent research reports have established that modest declines in the likelihood of receiving alimony and major de- clines in the permanence of those awards have indeed occurred following no-fault divorce reforms in some states,5 information regarding equitable property distribution is still scanty. Infor- mation regarding the interplay between alimony and property distribution is scantier still. Have women typically been getting more, or less, property than men? What factors, if any, predict a large or small award? Is a large property award typically corre- lated with a small or nonexistent alimony award, or vice versa? comparative perspective on no-fault divorce reform, see MARY ANN GLENDON, ABORTION AND DIVORCE IN WESTERN LAW: AMERICAN FAILURES, EUROPEAN CHALLENGES (1987). 2 See notes 27-29 infra. ' See note 27 and accompanying text infra. 4 One prominent critic has argued that the major result of the divorce law revolu- tion "is the systematic impoverishment of divorced women and their children." LENORE J. WEITZMAN, THE DIVORCE REVOLUTION: THE UNEXPECTED SOCIAL AND ECONOMIC CONSE- QUENCES FOR WOMEN AND CHILDREN IN AMERICA XiV (1985). For other representative criti- cism, see, e.g., GLENDON, supra note 1, at 63-144; Martha L. Fineman, Implementing Equality: Ideology, Contradiction,and Social Change, 1983 Wis. L. REV. 789; Herma H. Kay, An Appraisal of California's No-Fault Divorce Law, 75 CAL. L. REV. 291 (1987); Deborah L. Rhode & Martha Minow, Reforming the Questions, Questioning the Re- forms: Feminist Perspectives on Divorce Law, in DIVORCE REFORM
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