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 statesSkip to next paragraph
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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."