What's a wife worth? What's a wife worth in a marriage that started with zero assets, but after 30 years of marriage has assets of about $100 million, which came from the husband's earnings and stock options? What's the "equitable distribution" at the time of divorce of that $100 million when during most of the marriage the wife has been a full-time homemaker, mother, and corporate wife? In other words, how should we think about valuing women's unpaid, invisible work?
In the 1996 Connecticut divorce case of Wendt v. Wendt, the facts were precisely those I just described. Since I testified in that case in December 1996, I have served as an expert witness in four additional high-asset divorce cases, where as in the Wendt case, I was asked to value the unpaid work of wives who were full-time homemakers in long-term marriages and to give an opinion as to how the couple's assets should be divided.
These cases have led me to think at some length about how feminist economists should conceptualize the economics of marriage and divorce.
There are, of course, some things on which all of us agree: that the invisible work of women has value; that being a full-time homemaker is an exceedingly risky job; that men and women entering into marriage ought to see prenuptial property agreements as simply good protection.
But in talking to feminist economists about the Wendt case, I find a good deal of disagreement. Many people, including feminists, say, "Yes, these women certainly had a great deal on their plates. But are you really saying that preforming these duties, even performing them in an outstanding manner over a long marriage, is worth half of the couple's assets, worth something like $50 million?"
Some feminist economists don't like the fact that I'm spending my time defending "rich women." They don't think it is fair that anyone, husband or wife, should be permitted to earn such high returns on their human capital investments. But it is my view that in a society that allows people to retain very high gains from investments, the same rules must apply to wives as apply to husbands.
Determining how to divide the economic returns from the two parties' human capital investments is easy if they spelled out their intentions or expectations at the time, so that we are left to infer the property agreements that were implicit in their marriage contracts. In my view, it is fair to say that couples assumed that their marriage was a 50-50 partnership.
When business partnerships divide their assets, unless contrary arrangements were specified in the partnership agreement, each partner gets an equal share. Neither of the partners nor the court ask, for example, whether the contributions of the partner with the expertise in marketing were greater in quantity than those of the partner with expertise in production. It is assumed that each thought the other's contribution was necessary to make the partnership work.
The same is true for a marriage. Giving the wife half of the estate and a declining portion of her husband's future earnings should not be viewed as a gift to her; nor should it be seen as related to her economic need. Rather, it should be seen as her earned right.
Ms. Wendt got about $20 million - considerably less than the approximately $50 million that would have constituted about half of the estate.
Judge Kevin Tierney, of course, was under no compulsion to use economic theory to value Ms. Wendt's unpaid labor. His decision not to rely on theory or methodology in making the property awards was quite intentional. He used the work of two feminist legal scholars, quoting them in his opinion by saying that thinking of marriage as a set of mutual investments has "the effect of objectifying both husband and wife and their relationship" and "pushes the institution of marriage from a relationship based on love and obligation toward one based on self-interest."
The views of these scholars, Ann Laquer Estin and Margaret Radin, are not dissident voices among feminist legal theorists. Many still think marriage is mostly about falling in love or being in love. Some will tell you that marriage is a spiritual union. People resist applying any kind of economic model to marriage as a way of having at least one part of their lives not governed by the market paradigm.
The Wendt case is not yet over. Ms. Wendt is appealing the judge's decision. She wants the appellate court to make equality in marriage a principle of Connecticut law. We will see what the next judge has to say. In the meantime, the case has given all of us the opportunity to think more seriously about the issues involved in valuing women's invisible work and about the economics of marriage and divorce. I hope we will rise to the challenge.
* Myra H. Strober, a labor economist and a professor at the School of Education at Stanford University, was an expert witness in the Gary and Lorna Wendt divorce case. This article is excerpted from a speech she delivered at the Radcliffe Public Policy Institute in May 1998 and appeared first in the Radcliffe Quarterly.