Divorce, American Style contests the frequent claim that marriage has become a more flexible legal status over time. Enduring ideas about marriage and the family continue to have a powerful effect on the structure of a wide range of social programs in the United States.
2021 | 344 pages | Cloth $55.00
American History / Women's Studies/Gender Studies
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Table of Contents
Introduction. Divorce, 1970s Style
Part I. The Divorce Revolution
Chapter 1. From Alimony Drones to Breeding Cows: Women and the Divorce Law Revolution
Chapter 2. From the Altar to the Grave: The Beginnings of the Feminist Divorce Reform Movement
Part II. A Galaxy of Laws
Chapter 3. Partners or Parasites? Class, Race, and Credit Rights
Chapter 4. The Privileges of Marriage: Divorced Women and Selective Entitlements to HealthCare
Chapter 5. Marriage as Work, Marriage as Partnership: Divorced Women's Fight for Social Security
Chapter 6. "How You Lose Money by Being a Woman": Divorce in an Age of Proliferating Retirement Savings Options
Chapter 7. An Expensive Endurance Test: Compromising Toward Success in the 1980s
Part III. Stable Divorce Rates and Unstable Politics
Chapter 8. "Responsibility, Equity; Not Cruelty": Changing Venues for Feminist Divorce Reformers
Chapter 9. "Saving the Next Generation": The Changing Politics of Divorce
Conclusion. No-Fault Divorce in a Morality-Based Welfare System
Figure 1 in this chapter
Divorce, 1970s Style
The first woman to run for vice president of the United States on a major party ticket, Geraldine Ferraro, did not start her political career as a feminist. "When I ran for Congress in 1978, I did not consider myself a feminist. I ran as a tough, no-nonsense prosecutor. My campaign slogan was 'Finally, a Tough Democrat,'" the New York congresswoman told an audience in 1983. In Washington, however, she began hearing from constituents. "I learned by listening," she explained. "I listened to a woman whose husband divorced her while she was in the hospital having cancer surgery. Her husband's former employer is refusing to pay her part of his pension. The company claims he earned it all by himself during 30 years of marriage." Stories like this one convinced Ferraro to adopt a feminist agenda.
Ferraro's narrative of feminist awakening rooted in the particular experiences of divorced women would have sounded familiar to her audience in the 1980s. Between 1967 and 1979 the divorce rate in the United States doubled. When it reached its all-time high in 1979, the divorce rate was two and a half times what it had been in the 1950s. Ultimately, close to half of marriages formed in the 1970s ended in divorce. For many women, divorce led to a political awakening and brought them into the feminist movement. There they articulated a political agenda that sought to directly address issues women faced after divorce like the loss of retirement security Ferraro described. This book tells the story of these women—whom I call "feminist divorce reformers"—women specifically politicized by their divorces who turned to the feminist movement for answers and molded their corner of the movement to fit their needs.
In 1976, the popular women's magazine McCall's ran an article about these women titled "Divorcees: The New Poor." It announced, "America's four million divorcees are the new poor of our society. If last year's divorce rate holds steady they will be joined by at least another million in 1976, swelling the ranks of women and children who once lived in middle-class comfort who now live in or near hardship and poverty." The article explained what divorce did to a homemaker: "Divorce wipes out her job, her health insurance pension rights, and often old-age benefits. Many men have low-cost group health insurance as a fringe benefit of their employment. When divorce comes, it continues to cover the children but not the ex-wife. To purchase a health policy on her own she often has to pass a physical exam and many women can't qualify." At divorce, the article showed, women discovered that they not only depended on their husbands for their incomes but also for myriad other economic rights and resources that by law and custom flowed to women through their husbands.
The McCall's story ended on a hopeful note, reporting on divorced women's efforts to address their economic situation through activism. One woman told the magazine, "Women are getting together out of frustration and despair . . . . It's a fragmented grass-roots kind of ferment." This grassroots ferment was led by women who had been in their marriages and out of the workforce for years. When divorced women tried to reenter the workforce to regain access to the resources they had lost, they found that getting a job was difficult, to say the least, especially when balancing ongoing childcare responsibilities. For this reason, the divorced women who managed to also add activism to their full plates skewed older with children out of the home. Often self-conscious of the fact that they did not fit the popular image of radical young feminists, feminist divorce reformers frequently disagreed with some of the analysis offered by their younger colleagues in the movement. Nevertheless, they found that, overall, the feminist movement offered a compelling explanation for their experience and its organizations provided a useful home for their work.
The large number of divorced women who responded to their suddenly precarious economic lives by joining the feminist movement tells us much about the formation of political identity and sheds new light on the history of feminism and how it intersected with the conservative backlash of the late twentieth century. From the start, feminist divorce reformers had a complex relationship with other feminists not just because of demographic differences but also because of their agenda. More focused on creating equality in marriage and the home than in the workforce, their agenda often did not look like the 1970s feminist agenda with which historians are most familiar. Furthermore, the timeline on which feminist divorce reformers campaigned and succeeded forces us to look beyond the time frame historians have typically applied to the "Second Wave" feminist movement. Acting from within the most prominent feminist organizations of the 1970s (for example, the National Organization for Women and the Women's Equity Action League), divorced women activists won important victories well into the 1980s.
From the late 1960s through the 1980s, feminist divorce reformers struggled to articulate to their fellow feminists and to policymakers how the state should conceptualize marriage. They experimented with a wide range of theories of marriage and policy solutions, but throughout remained committed to the idea that women's economic relationship to the state—their economic citizenship—need not be mediated through their husbands. The many understandings of marriage that activists and policymakers considered as they tried to respond to the problems caused by the rising divorce rate provide new insights into how marriage has operated as both a political and politicizing institution in the late twentieth century.
Feminist divorce reformers fought for new economic protections from the state. They claimed this support both on the basis of the economic and social value of the care work they performed in the home and on the basis of the moral value of their marriages. In the former argument, divorced women's claim to economic resources was rooted in an understanding of marriage as a sort of economic contract; in the latter argument, marriage was understood as conferring a privileged status on women, one that should outlast the length of any specific marriage. Feminist policy debates about divorced women's rights thus made concrete a century-long debate among legal theorists about whether marriage is best conceptualized as a public status because by entering a marriage individuals gain a predetermined set of rights and obligations enforceable by the state or as a private contract whereby two individuals make enforceable economic commitments to each other. Throughout the 1970s and 1980s these two lines of argument led to conflict among divorced women and between feminist divorce reformers and other feminists.
By the late 1980s, the legislative agenda most feminist divorce reformers favored, an agenda that proposed that public social insurance programs see marriage as a contract, had failed almost entirely. Feminist divorce reformers and their allies had compromised it away even as they won legislative victories. By the end of the 1970s, feminist divorce reformers had tacitly agreed to focus on state-ensured access to private and work-based social insurance rather than public or universal programs. Even as they put their energy into these programs, they understood that a move away from an agenda focused on public programs meant abandoning low-income women. As they made this compromise, feminist divorce reformers continued to insist that such policies recognize marriage as a contract. Over the first half of the 1980s, the rise of social conservatism alongside neoliberalism led to further concessions. In the end, Congress agreed to expand access to private insurance benefits to divorced women on the basis of a moral claim rooted in their relationships to their former husbands rather than on the basis of an implied economic contract.
Policymakers showed a deep and lasting commitment to using social insurance benefits to encourage and reward the breadwinner-homemaker model of marriage. Despite women's growing economic independence and changing popular understandings of marriage, throughout the 1970s and 1980s policymakers clung to a model of marriage that had its roots in the common-law concept of coverture and suggested that marriage was above all a status. The activism of feminist divorce reformers had the ironic result of deepening the state's use of marriage to distribute economic resources by creating new marital statuses through which an individual could become eligible for benefits.
Divorce, American Style examines feminist divorce reformers, their relationship with the broader feminist movement, and their lasting effects on the American social welfare regime. It shows how the two distinctive qualities of the American welfare state—its gendered nature and its public/private nature—combined to encourage the breadwinner-homemaker model of marriage's use as policy tool. The linking of access to economic benefits to marriage, begun early in the development of the American social insurance system, shaped political identity and activism in the 1970s and has continued to do so into our current political moment. The result has not only affected policy questions directly relating to marriage but also limited the possibilities for expanding America's social welfare provisions. As a gateway to full economic citizenship, marriage has always served as an institution that protects and perpetuates class privilege.
An Era of Instability
American marriages started to fall apart at a moment when many Americans believed that social traditions all around them were crumbling. The social and political assumptions that had shaped the decades immediately after World War II fell one by one in the 1960s and 1970s. New social movements, such as the civil rights movement, the women's rights movement, and the antiwar movement, challenged long-held beliefs about Americans' rights and duties. African Americans moved slowly into the voting booth and an unprecedented number of women entered the paid workforce. The 1970s began hopefully for many Americans who had previously been excluded from basic social, political, civil, and economic rights. Then, as questioning of and challenges to traditional authority spread, a backlash formed. The rising divorce rate contributed to the sense of a widespread and dangerous—if potentially also liberating—social instability. Women's responses to their divorces carried both feminist social movements and the backlash to them forward into the 1980s in new and unexpected directions.
Second Wave feminism has many origin stories. Some date it to 1963 when Betty Friedan published The Feminine Mystique, which exposed the simmering discontent of suburban housewives throughout the United States. The postwar baby boom and drive toward suburbanization had led a remarkable number of women out of the workforce and into suburban subdivisions full of children. Friedan's book allowed millions of women to realize that the lack of fulfillment they found in the home was a shared experience—a widespread "problem with no name." They came together and began to organize. Others argue that the feminist revival of the 1960s began in 1964 with segregationist senator Howard Smith's addition of legislation banning sex discrimination in employment to the Civil Rights Act in an attempt to stop the act from passing. In spite of Smith's intentions, Congresswoman Martha Griffiths (D-MI) seized on the addition and pushed the bill through. In the following years, this new legal ban on sex discrimination was weakly enforced. Anger over the government's failure to stop employers from discriminating on the basis of sex led a group of women, including Friedan, to found the National Organization for Women (NOW) in 1968. Still others trace the Second Wave feminist movement to the meeting rooms of the social movements that predated it. Women in the civil rights movement and on the student left would later describe being pushed into secretarial and other support roles by the men leading these efforts. Eventually, women decided they needed a movement of their own.
The truth, of course, is that the revival of feminist activism in the 1960s had many mothers. Indeed, historians today are likely to refer to feminist movements, plural, to describe this outpouring of activism. The activism of the African American women's movement looked different from the efforts of legalist feminists to pass anti-sex-discrimination laws, and the legalists, in turn, had a different agenda than lesbian separatist feminists. This book argues that feminist divorce reformers also crafted their own form of feminism within the movement and are just as important to understanding the late twentieth-century feminism as other, more frequently discussed, branches of the feminist movement(s).
Despite the tremendous variety encompassed within the umbrella category of Second Wave feminism, for the wider public, feminism quickly became associated with a few specific demands. The National Organization for Women made passing the Equal Rights Amendment (ERA), which had first been proposed by feminist activists in the 1920s, its legislative priority. After the ERA passed quickly in both houses of Congress in 1972, ratification by the states became the recognized priority of feminists. Then, only a year later, the Supreme Court ruled on the legality of abortion in Roe v. Wade. Both the ERA and abortion received a tremendous amount of attention, in part because they inspired a backlash that took the form of vocal opposition to the entire feminist agenda. Although feminist organizations addressed a broad range of issues—including, but not limited to, equal pay, women's representation in the media, gender-based violence, and federal child care legislation—the ERA and abortion became the iconic centers of the feminist movement.
Historians often divide the 1970s in half, arguing that the first half of the decade was a continuation of the 1960s social rights movements and liberal politics, while the second half saw the rise of a conservative backlash and the start of the economic contraction that would define the 1980s. This framework papers over some of the decade's complexities. Progressive social movements may have continued to blossom in the first half of the 1970s, but they did so in the context of the conservative Nixon presidency, the ongoing Vietnam War, and eventually the Watergate scandal—a political moment that suggested instability and a crisis of traditional lines of authority perhaps more than any other. Just as the ERA and abortion came to infuse all feminist politics, Watergate and Vietnam infused all politics in the first half of the decade.
For political activists, policymakers, and the general public, instability defined the 1970s. Even the social movements that had challenged old structures of authority in the 1960s began, themselves, to fracture. Women on the student left and working in the civil rights movement began to rebel against the service roles they were pushed into; within the feminist movement, lesbian activists demanded their own voice. Authority figures as big as the president and as small as people's own fathers and husbands fell. This instability was exacerbated by a weakening economy. Starting in the middle of the decade, rampant inflation and deindustrialization undermined the earning power of the American middle class. The inflation rate in 1974 was 11 percent; it hit 18 percent in the summer of 1980.
In the face of this instability, some people saw social movements like feminism as offering a way to understand why old lines of authority should fall. But others turned to religion and conservative political movements to push back against the rapidly changing world. At the heart of this new conservatism was a coalition that defined itself around "family values." Their agenda included a wholesale rejection of feminist demands, an effort to increase parental control in schools, and a general belief that families, not government, should serve as the social safety net. In 1972, the best-known leader of the "pro-family" antifeminists, Phyllis Schlafly, founded her first antifeminist organization, STOP ERA; three years later she founded the Eagle Forum. Both organizations were devoted to fighting the ERA and by extension the rest of the feminist agenda.
Whether they were attacking or defending old structures of authority, political activists and elected officials on the Right and Left paid increasing attention to the family. When they turned their attention in this direction, activists—no matter their political persuasion—could not help but notice the rising divorce rate. In a 1973 report calling for legislative reforms, the National Organization for Women's Marriage and Divorce Task Force informed readers that, "For the 12 months ending August 1972, there were 72,000 more [divorce] decrees than in 1971." And in testimony on behalf of support of Social Security reform in 1978, the executive director of President Carter's Interdepartmental Task Force on Women argued that the rising divorce rate was one of the most "important aspect(s) of the change in the American family."
Many factors drove the rapid rise in the divorce rate. Some contemporaries blamed the feminist and sexual liberation movements and the attendant combination of new contraceptive technologies and shifting morals that made it possible for women not to marry. Shifting morals also lifted the stigma of divorce and encouraged individuals to seek self-fulfillment through divorce and remarriage when their current spouses did not meet all their wants and needs. Others argued that increasing career opportunities for women allowed women to leave husbands they had relied on for support. Crucially, changing laws made getting a divorce significantly easier.
In the five years between 1969, when California adopted the nation's first no-fault divorce law, and 1974 almost every state modified its divorce laws so that they no longer required couples to prove that adultery, abuse, or other specific violations of the code of marital conduct had occurred. In place of these rigid requirements, reformed laws allowed couples to receive a divorce on the basis of "irreconcilable differences," with no party at fault. Since couples knew that a loosening of divorce laws was in the works, part of the rise in divorce rate in the 1970s came from a pent-up demand from couples that waited to divorce under the new laws. Between 1970 and 1975 alone, the divorce rate rose from fifteen divorces per thousand married women to twenty. Once the backlog of divorces had resolved itself, after 1979, the divorce rate leveled off with around 50 percent of marriages formed in the 1970s ending in divorce within twenty-five years.
Even as the divorce rate found a new equilibrium, the number of divorced women remained high. The remarriage rate for divorced women dropped 38 percent between 1970 and 1990. But women's chances of remarriage also dropped dramatically as they aged. Three quarters of women who divorced under thirty remarried and half of women who divorced in their thirties, but only one quarter of women who divorced after forty, would remarry. (Remarriage rates also differed by sex. Of the cohort born between 1950 and 1955, 71.3 percent of divorced men remarried, while only 66.8 percent of women remarried.) All of this meant that in the 1970s and 1980s there were not only increasing numbers of divorced women but also increasing numbers of divorced women who could expect that "divorced" would be their marital status for, if not the rest of their life, then a substantial portion of it. By 1973 there were 3.25 million divorced women in the United States, a political identity group ready to act.
Political Identity, Social Insurance, and the Feminist Divorce Reform Movement
Divorce was often a politicizing moment for women because, through divorce, middle-class, white, formerly married women lost their membership in the mainstream political, economic, and social culture. Divorced women organized around their sudden loss of status, which, not incidentally, generally came with the literal loss of credit, health insurance, Social Security, and pension rights. This loss forced divorced women to reckon not only with the new no-fault divorce laws but also with the gendered structure of the American social insurance system and the many ways the federal government used marriage to regulate access to economic benefits.
Women in the 1970s divorced at a moment when they could not help but be aware of how the law shaped their divorces. Because almost every state had adopted new no-fault divorce laws, women divorced under a different legal regime from the one they had married under. New state divorce laws not only loosened the grounds on which a couple could divorce but also changed how property was divided and ended the assumption that alimony would be awarded at a marriage's end. Instead, judges were told to award continuing support payments on the basis of need. McCall's summed up the effect of the new laws this way: "With a dramatic shift to no-fault divorce in recent years, the battle over money is now what divorce is all about." When a couple went to court, the question was no longer whether they would get a divorce but what its financial consequences would be.
By the early 1980s, only about 15 percent of divorced women were awarded alimony and only about 4 percent of those women regularly collected it. Not only did men fail to pay alimony, support payments specifically for the ex-wife, but women had difficulty even collecting child support. By 1976, 44 percent of divorced women were awarded child support, but only 20 percent of divorced mothers collected regularly. Providing support to children and women from multiple marriages was outside the financial capacity of many men. These were not new problems, but the increasing prevalence of divorce and prominent public debates about efforts to reform divorce law increased women's awareness of divorce's financial dangers.
With support payments so rarely awarded and even more rarely complied with, women's post-divorce financial security rested increasingly on how property was divided in a divorce. Here, too, women encountered problems. Courts were familiar with dividing traditional forms of property—real estate holdings, savings, and personal belongings. Increasingly, however, families—especially poor and middle-class families—held their wealth not in these forms of property but in income streams embedded in the American social insurance system such as Social Security benefits and veterans' benefits. Even the better-off depended on economic resources such as occupational licenses, housing subsidies, and government-regulated services such as insurance. In a 1964 Yale Law Journal article, the legal scholar Charles Reich dubbed these sources of income "the new property" and argued, "The wealth of more and more Americans depends upon a relationship to the government."
Though "new," these forms of property had developed using the breadwinner-homemaker model of marriage as their spine, the very same spine as traditional forms of property. From its earliest days, the American social insurance system was designed to treat men and women and married and unmarried women differently. Beginning in the aftermath of the Revolutionary War, certain categories of women—defined by marriage or motherhood—have always been able to make special claims on the American state.
The system of distinct entitlements for women—especially widows and single mothers—that developed over the course of the nineteenth century became firmly entrenched in American law and began to touch the lives of the majority of Americans during the 1930s with the rise of the New Deal. The architects of the New Deal, the basis of the modern American welfare state, built the country's new Social Security system on the assumption that married women would not, or at least should not, work outside the home, and designed policies to encourage this pattern of family labor. Under this system, for example, most married women, even those who worked outside the home, received access to Social Security as their husbands' dependents instead of earning Social Security credits on their own. Many women never worked outside the home, and among those who did, the majority held jobs that were not covered by the original Social Security law, such as domestic service jobs. Moreover, married women employed outside the home tended to move in and out of the workforce as their family situations changed, and they generally received lower wages than men. As a result, even when they accumulated Social Security benefits through their own employment record, women did so more slowly and at lower rates than men. When it came time to claim benefits, married women had to choose between their own benefits and the benefits they were eligible for as their husbands' dependents. The latter almost always amounted to more money. When married women chose to collect Social Security through their husbands' record, any contributions they had made to Social Security through their own work record over the years went into a general fund. From the start, the Social Security system was designed to support and reward families with breadwinner fathers and homemaker mothers.
The Social Security system could not completely ignore the fact that not all women were married. The same law that created Social Security retirement benefits created Aid to Dependent Children (ADC) (later Aid to Families with Dependent Children [AFDC], which we colloquially know as "welfare"). ADC was a program designed for poor, single women with children. Unlike Social Security's retirement pension programs, it was a means-tested program, which meant that it offered support payments to qualifying women with children and no male provider. These support payments were less generous than other payments created under the Social Security Act. Receipt of ADC payments also came with far more social disapprobation than participation in other Social Security programs.
After the 1930s, whenever the government expanded the social insurance benefits it offered—especially during the Great Society reforms of the 1960s—it took Social Security's distributive mechanisms as its model. So, too, did the private benefits—such as pensions and health insurance—that were layered onto government-sponsored programs as the United States built a unique social insurance system that combined benefits sponsored by both public and private entities to ensure most people a basic standard of living. In the hybrid American social welfare regime, in addition to directly administering some benefits to some populations, the government promotes and regulates privately offered economic resources to help ensure their availability. For example, since 1954, the government has encouraged and regulated employer-sponsored health insurance through beneficial tax treatments. These private, employment-based benefits often include dependent benefits just as Social Security does. By positioning employers as the source of health insurance for most Americans, the federal government encouraged private benefits to become part of what breadwinner men expected to provide for their families.
By the time no-fault divorce laws swept across the country, America's hybrid social insurance system built on a breadwinner-homemaker model of the family was solidly entrenched, yet invisible to most Americans. Historians and political scientists have spent the last thirty years carefully documenting each strand of this system's development: they have progressively pushed back our understanding of when the government began to offer welfare benefits; deepened our understanding of how gender has shaped those benefits; and woven in the parallel and linked history of the private, government-regulated social insurance benefits that are unique to the American social insurance system. Until now, however, scholars have not asked what happened to this system when the nature of marriage shifted in the public consciousness. When no-fault divorce laws emerged at the end of the 1960s, social insurance programs had only barely begun to consider how divorced women might access benefits. This is the point at which this book picks up the story of the gendered, hybrid welfare state. It asks what a dramatic shift in the assumptions about marriage meant for a social insurance system organized around the logic of marriage and, reciprocally, what the social insurance system meant to women whose place within it suddenly changed when their marriages ended.
After divorce many women faced a precipitous decline in standard of living. Studies suggested a woman's standard of living, measured as income compared to need, fell by anywhere from 29 to 73 percent immediately after a divorce. Many newly divorced women facing this loss were pulled toward the revived feminist movement. As Geraldine Ferraro explained when describing her own feminist awakening, through the experience of divorce women learned that "our laws and our budgets and our federal regulations—all neutral and fair sounding on the their face—are simply not working for women the same way they work for men." Even many divorced women who had never before identified as feminists turned to the burgeoning women's movement for an explanation for the situation in which they found themselves and for the tools with which to deal with it.
As divorced women reached out to them for help, national feminist organizations quickly set up committees to address their needs and feminist elected officials had their staff begin to look for solutions. NOW, the Women's Equity Action League (WEAL), 9to5, and the 1975 International Women's Year (IWY) Committee all worked on the rights of divorced women. By 1975, the NOW Marriage and Divorce Task Force had the fifth largest national membership of any of the organization's twenty-four issue-based task forces. By the mid-1970s, WEAL, which devoted much of its time to homemakers' economic rights, had several thousand members. An array of regional divorced women's membership organizations emerged as well, as did groups devoted to specific constituencies of divorced women like ex-military wives.
The women activists I group together under the term "feminist divorce reformers" share two key traits: they joined feminist organizations specifically to advocate for the state to take on an expanded role providing divorced women with economic security, and their politics flowed directly from their experience of divorce. Both sides of this definition are critical to understanding these women as a distinct ideological group. Many different women engaged with issues surrounding divorce. Social Security reform, child support, and marital property rights were issues of concern for socialist feminists, welfare rights activists, and other women working under the big tent of feminism, including some of the larger movement's most prominent leaders, such as Betty Friedan and Bella Abzug. Moreover, antifeminists and conservative women also spent time on these issues. The women I term "feminist divorce reformers," however, specifically joined the feminist movement because of their experience of divorce. Unlike antifeminists and conservatives concerned with the problems of divorce, feminist divorce reformers wanted to create more equal marriages and divorces and believed that a more active presence of women throughout the legal and political process would help bring this about. Their divorces led them to believe (or confirmed their belief) that men's control over the law had created the problems they now faced.
As feminist divorce reformers worked through the 1970s and into the 1980s, they encountered an increasingly hostile social and political response. A great deal of work has been done on the rise of a conservative backlash against feminism and the welfare state in the 1970s and the rise of neoliberalism. The history of feminist divorce reformers' work allows us to see how one group of feminists sought to adapt in real time to conservative and neoliberal challenges to the New Deal order. As the 1970s progress we see divorced women pivoting their agenda away from building more expansive social insurance programs and toward gaining access to their husbands' existing benefits. By the 1980 these concessions to fiscal conservatism were joined by concessions to increasingly powerful social conservatives. In order to continue to enact some form of their agenda, feminist divorce reformers were obliged to agree to reforms that upheld marriage as a status rather than a contract and understood wives as dependents, not partners.
It is in understanding when feminist organizations made decisions to compromise and how and why certain women got left out of reform packages as a result that the origins of activists' feminism become most relevant. The problems divorced women faced were in many ways the problems of all low- and middle-income single women in a political and economic system designed around men. As a result, feminists of many different stripes with many different marital statuses advocated legislation that supported the feminist divorce reform agenda. But the vocal and organized women whose agenda grew specifically out of their experience of divorce were remarkably white, and when they had to make difficult choices this showed.
The rise in the divorce rate and decline in standard of living after divorce reached across classes and touched both black and white women; however, it was not equally politicizing. Although black women and women from other minority groups suffered economically and emotionally in a divorce, they did not experience the same sudden transition to outsider status in relationship to their citizenship rights. Already too familiar with the inequities of the American social welfare system, women of color did not, for the most part, experience divorce as a reason to enter politics. At a moment when race- and ethnicity-based social movements flourished, women of color were far more likely to connect limitations on their citizenship rights to racism than to divorce. Although there were black, Latino, lesbian, and poor divorced women, it was middle-class white women for whom divorce served as a primary politicizing catalyst and whose needs dominated feminist divorce reformers' political agenda. Thus, when feminist divorce reformers struck compromises, they often chose legislation narrowly tailored to address the needs of women who could access middle-class status through their ex-husbands. These choices understandably provoked frequent conflict with women of color and feminists whose analysis was rooted in race or class.
The following chapters reconstruct the ideologies and agendas of feminist divorce reformers in order to understand how these activists came into conflict with each other and with other sectors of the feminist movement in ways that transformed not only the movement but also the social insurance system. Many scholars have argued that, in the late 1970s and early 1980s, feminists moved away from a "formal equality" agenda to demand "equality in fact," or laws that accounted for men's and women's different life patterns in order to create more equal outcomes. But feminist divorce reformers offered an alternative to the formal equality agenda from the earliest years of the Second Wave feminist movement, when they began advocating for divorce, pension, and equal credit legislation that accommodated women's roles as mothers and wives instead of treating them exactly like men.
Though focused on the home, not the workplace, feminist divorce reformers, like earlier difference feminists, sought policies that recognized and compensated women for their different social and legal position instead of policies that tried to change that position. In this respect, they shared much with welfare rights activists working at the same time. Yet, despite their shared focus on compensation for women's work in the home, feminist divorce reformers and welfare rights activists clashed frequently. Most (but not all) feminist divorce reformers maintained their distance from women receiving welfare payments by refusing to organize as mothers. Welfare rights activists, in their campaigns, drew on a long history of maternalist politics, arguing that women deserved robust economic support from the state in recognition of the important work they did caring for their children. In contrast, divorced women consistently emphasized their connection to their husbands rather than their children when demanding economic support. Feminist divorce reformers organized not as single mothers but as single wives. This failure to find common ground—even among women who shared an emphasis on the value of care work in the home—reinforced class and racial divisions within the feminist movement.
By organizing around the status of single wife, feminist divorce reformers accepted and perpetuated two defining aspects of the American social insurance system: its ideology of "breadwinner liberalism" and its structure of "selective entitlements." Historian Robert Self has argued that "breadwinner liberalism" drove the expansion of public social insurance benefits over the course of the twentieth century. As a political ideology, "breadwinner liberalism" sought to make the "idealized nuclear family" with a breadwinner father and homemaker mother "attainable to more Americans than ever before." Programs built around this ideology consistently created and affirmed a privileged place for married women within the social insurance system. By their very nature these programs insisted that married women were worthy of what historian Kristin Collins has called "the selective entitlement," not broad, citizenship-based economic rights but rather specific entitlements for constituencies considered especially deserving.
Although they accepted and worked within many of the confines of the American social insurance system's structures, feminist divorce reformers did demand a radical shift in the legal understanding of women's economic citizenship. Scholars of the welfare state often talk about four types of citizenship: political, social, civil, and economic. The final category, economic citizenship, refers to the access to economic resources that allows full participation in the polity. In the early twentieth century, women's rights activists won full political citizenship through the vote. Their political rights no longer flowed through their husbands. But in the ensuing years, as the state apparatus around economic citizenship was built out, in almost every case public policy ensured that access to economic resources flowed to married women through their husbands. Feminist divorce reformers sought to change that and bring married women into a direct economic relationship with the state.
The history of divorced women's activism shows how the selective entitlement system creates a set of specific political incentives for constituencies trying to win new benefits. It encourages individuals to make claims on the state on the basis of their moral deservingness. Moreover, it raises the stakes of such claims by not only deciding whether or not to provide benefits to each group on the basis of subjective judgments about the morality and righteousness of their need, but also deciding the size of the benefits, their administrative structure, and the stigma attached to them on the basis of these judgments. Feminist divorce reformers proved ready and willing to position themselves as a particularly deserving group.
Between 1974 and 1986, in response to the demands of feminist divorce reformers, Congress passed ten national laws expressly designed to improve divorced women's access to economic resources. This wave of legislation is almost entirely missing not only from our histories of the welfare state and feminism, but also from the historiography of marriage and divorce. Yet, this legislation and its history provide a key to understanding the marriage equality movement and, more generally, how marriage functions to distribute rights, resources, and economic power in the contemporary United States. Rather than limiting marriage's distributive role, each of these laws tied divorced women's new access to benefits to their former marriages. The new laws actually deepened the social insurance system's use of marriage to distribute resources and mediate women's economic citizenship rights and strengthened the idea that marriages were comprised of breadwinners and homemakers instead of equal partners.
The new laws did more than entrench breadwinner-homemaker marriages in the American social insurance system; they also changed how the law understood marriage. When Congress created rights to benefits that continued after a marriage ended, it did so on the basis of the number of years a woman had spent in her marriage. Women who divorced after a certain number of years of marriage won new status-based rights to economic resources. These new laws pushed marriage in the opposite direction from the one many legal historians have seen courts taking the institution in the nineteenth and twentieth centuries: they did not make marriage more contract-like, but rather affirmed its status-creating function. Indeed, the new laws transformed marriage from a unitary status that came with a specific menu of benefits to a series of statuses in which the benefits to which a marriage entitled a woman increased with the years spent in it.
The chapters that follow explore how falling outside the family structures and statuses recognized by public policy politicized women. In the book's first section, the spotlight is on the no-fault divorce "revolution" and the myriad ways changing divorce laws brought women into and thus, ultimately, shaped the feminist movement. The second section, "A Galaxy of Laws," looks at a range of economic resources—consumer credit, health insurance, Social Security, and private pensions—that provided the underpinnings of economic citizenship in postwar America.
Across the board, feminist divorce reformers found that the federal government was far more willing to order private companies and employers (e.g., banks) to treat marriage as a partnership than it was to remove the breadwinner-dependency model of marriage from federally managed social insurance programs. This runs contrary to most theories of inequality in public and private benefits. Jacob Hacker, one of the chief theorists of the public-private welfare state, argues that the public has tolerated inequality in private benefits more than they have in public benefits. While this is true of explicitly discriminatory policies in social insurance programs, it is clear that gendered assumptions are more deeply ingrained in the law governing the public insurance system than the law governing the private.
The book's final section takes a step back from detailed legislative policy debates to consider how feminist divorce reformers' work in the 1970s and early 1980s shaped feminists' relationship to state institutions and political activism as the century came to a close. Most histories of feminism end with the collapse of the ERA campaign and the election of Reagan. The history of feminist divorce reformers' work necessarily extends the timeline into the 1980s, when many of the laws feminist divorce reformers advocated for passed. In the 1980s, feminists adapted to a moment of significant political adversity by making difficult choices about what sorts of legislation they could continue to win. When political winds shifted again in the early 1990s, feminist choices in the prior decade not only harmed the women they explicitly abandoned through their 1980s compromises but also created unanticipated constraints on further reform.
As a result of the compromises feminist divorce reformers accepted in order to continue their work, by the end of the 1980s, wealthy, middle-class, and low-income women had radically different experiences of divorce. By compromising on legislation that addressed gender inequities in private benefits and increased judicial control over the division of property, feminist divorce reforms had given an advantage to wealthy women, who could afford to go to court and fight for the award of certain forms of privately accumulated property. Increasingly, these privileged women found judges willing to treat marriages as contracted partnerships and divide economic resources evenly. On the other hand, when a marriage ended with benefits that were divided according to statute rather than judicial rulings, women were left with fewer resources than men.
At the peak of divorced women's activism, the Colorado Springs Sun ran a political cartoon that featured an airplane labeled "military marriage" in a tailspin. Three people fall to earth beside it. A man floats gently down attached to a parachute labeled "government issue retirement benefits." A young boy grips his leg and yells, "Open your parachute Mom!!" The mom, angry, calls back, "I wasn't authorized one!" The cartoon captures how many divorced women—military spouses or not—felt about their rights and the government after going through a divorce. Thrust out of their marriages and the life they expected, divorced women were shocked to learn how few protections the government offered them as individuals. Their political activism in response fundamentally changed the American social safety net—or parachute—often in unexpected ways. By the time the divorce rate stabilized in the 1980s, more women had been authorized parachutes, but many still found themselves in free fall at the end of a marriage, and women who never married still found themselves entirely without support.