Homemakers: protected and punished by the law

Marriage is a partnership. That was a tenant of tribal law held by the Visigoths as they invaded Spain. It reappeared in the eight (mostly Southwestern) "community property" states in the US. And it is an idea that has made significant inroads into remaining states over the last 10 years, largely through an upgrading of the status of homemakers. Community property versus common law states

In a community property state, the wife --marketplace -- is considered an equal partner, entitled to an equal share of any assets accumulated during a marriage. If the marriage ends in divorce, she gets an equal share. And if she chooses, she can pass on her share in a will.

"The law is not all that perfect, of course," cautions Iris Mitgant, head of the National Women's Political Caucus and a California community property lawyer. "There are still some types of property that either spouse can sell without the other spouse agreeing, and there are probably ways to hide property. If someone wants to be really nasty. But generally, marriage is considered an economic partnership in these states."

The remaining common-law states, based on the English feudal law that saw husband and wife as one person, treat property ownership differently. Traditionally, whoever paid for an item in a common-law state owned that item -- a fact that hurt economically dependent wives for generations. Rights gained by 'married women's acts'

Under the original state laws in this country, married women were not allowed to own most kinds of property. This vulnerability was tempered over the last 100 years by the "married women's acts," which returned to wives the rights held by single women, such as the right to get credit and make contracts.

While the income-earning husband usually had title to the property and could sell it without his wife's consent, the law also granted his widow a certain percentage of the remaining estate (typically one-third) and gave her the right to protest a will she considered unfair.

Contesting a will is one thing; getting a divorce is another. As increasing numbers of homemakers went to divorce court, they found that the monied spouse held title to the vast bulk of their holdings. Property distribution in divorce cases

At first, property was distributed largely according to title, leaving the homemaker almost literally without the right to the shirt on her back. To counterbalance this, lawyers asked for large alimony and child support payments -- payments that proved difficult to collect.

The National Conference of Commissioners on Uniform State Laws in 1971 recommended its "Uniform Marriage and Divorce Act" as one answer to the states' straining divorce laws. This, says Dr. Doris Freed, a respected member of the Governing Council of the American Bar Association's 15,000-member Family Law Section, "initiated the realization of the value of nonmonetary homemaker services." Recognition of nonmonetary contributions

Attorney Freed explains: "The homemaker -- usually the wife -- stayed home and raised the kids so her husband could go out and earn money. She kept the home up to a certain standard, did most of the housekeeping chores, entertained his guests, joined the right clubs -- all of these factors made a big difference in his career development."

Recognition of the nonmonetary contribution of homemakers began to creep into the common-law statutes, and in 1981, Dr. Freed asserts, such a contribution "is recognized either by statute or court decisions in practically all states. Property acquired by either or both spouses during the marriage is considered, by the majority of the states, to be 'marital property' and regardlessm of title, subject to distribution upon divorce. In about 15 states all property is divided by the courts upon divorce, though the courts usually consider the method by which the property was acquired."

The catch here is that you have to get divorced to get equity. The laws generally give spouses no right to property they did not directly pay for, and they cannot pass along their share in a will, as they could in the community property states. 'Equity' depends on the judge

Also, as lawyers are quick to point out, there are no guarantees in a divorce court --what one judge may find "equitable," another may find "excessive."

In fact, Mary Ann Glendon, co-chair of the American Bar Association's Marital Property Section, would prefer to call these laws "discretionary" instead of "equitable." She vigorously criticizes the equitable distribution laws as "just another way of giving the lawyers and the couple an opportunity to rehash the details of their marriage.

"They used to do this when they determined 'fault' in a marriage," she says. "Now we have no-fault divorce (in 48 states), but in Massachusetts, they use 'fault' as a factor in property distribution."

Dr. Glendon favors a 'no-fault distribution' law based on a 50-50 ownership of the marital assets "except when there are children involved. Then, you don't have marital property -- you have family property, and the governing principle should be to provide for the needs of the children."

The original 'equitable distribution' clause of the uniform state law proposed such a no-fault distribution system. John McCabe, legal counsel with the National Conference of Commissioners on Uniform State Laws, points out that many states have adopted this portion.

"Illinois is the reverse of Massachusetts," he says with a chuckle about his home state, Illinois. 'Here, we still have fault in divorce, but we have no-fault distribution." He concedes, though, that divorce courts have become more discretionary with these changes.

John Galvin, a lawyer with the Department of Labor Women's Bureau, is disturbed by this personal approach to the law, which he sees as heightened by no-fault divorce. What disturbs Mr. Galvin about the trend is the "lack of protection to the homemaker. In the past, she could use the 'fault' clause as leverage for increasing her alimony or child-support payments. Now that leverage is disappearing."

Mr. McCabe disagrees, saying that "the leverage was never there. We don't know much about alimony and how it was awarded, but I doubt that housewives got any more in the past than they get now." In fact, some lawyers believe that 'equitable distribution' serves as a more useful lever than 'fault' in gaining marital property.

Mr. McCabe sees equitable distribution as a "40 percent step toward the concept of marriage as a partnership. It brings the partnership idea to the divorce court, but in no way meddles with distribution upon death."

Asked if there was a similar movement to bring the marriage-as-partnership concept to inheritance laws, Dr. Glendon says she knows of none, but offers this interesting insight:

"There was an American Bar Association study of the wills of married couples, and they found a tendency among those who had been married for life to pass along the whole estate to their spouse. Apparently they trusted the spouse to distribute the property in the best way," she says.

"These couples," she points out, "already had a partnership-type marriage, regardless of the law."

The second article will appear next we ek.