Monday, January 23, 2006

No-Fault Divorce Presumes Two Incomes

There is a horrible and very public divorce case going on now, pitting Bai MacFarlane vs. Bud MacFarlane. [Not the Bud MacFarlane of the Reagan scandals, by the way.] They were, up to now, professional Catholics. He runs the Mary Foundation, and has written Catholic apocalyptic novels. She was the happy Catholic mom who home schooled their four boys.

Then he dumped her.

One of the public issues in this case has been whether the civil courts should take any account of the religious vows, and the decisions of the religious courts, in determining custody.

I was drawn by another issue. He did not want to pay enough child support to allow her to stay home and continue home schooling their children. Instead, he sued to make her get a job. The court sided with him; she refused to comply; he got custody and put the kids in school, including full day care for the two year old.

The court was forced to judge whether an at-home, home-schooling spouse had a right to keep living the life to which she had become accustomed – indeed, to which she was religiously committed – or whether each individual is obliged to get a job and be self-supporting. Thus far, the court has taken the individualist side of this argument, not the marital side.

I asked a family court judge whether no fault has a presumption against home schooling. He replied that “DIVORCE has a bias against home schooling, fault or no-fault.” In theory, a fault standard of divorce would give the innocent spouse some claim for continuing to get enough support to keep home schooling. In practice, though, “the majority of the time most courts (in my opinion) would likely find such a result inequitable in the event that it rendered the ‘at-fault’ spouse unable to maintain some semblance of a residence. And, in most circumstances, it would.”

Most institutions in our culture now presume two incomes for a middle class or better life. This is not simply an economic fact, but is the result of legal and policy decisions to treat everyone as an individual before the law, and not as part of a family, or even a marriage. No-fault divorce laws do presuppose two-income marriages – but so does the rest of social life.


SPorcupine said...

I want to try to translate the insight from the family court judge. How much child support plus spousal maintenance (alimony) would the father have to pay for the mother to continue home-schooling? Basically, his entire salary; the mother's household would need a very similar home, with very similar utilities and very similar costs for almost everything. She wouldn't need money for the father's meals, clothes, and out of pocket expenses, but that's all she could spare. If more money stays with him, she quickly won't have enough to continue the home-schooling standard they had jointly set. Just another way of saying that divorce means less for all, but worth understanding as a potent example.

fidelity said...

He had enough money. Everything was fine in terms of assets.

I was the attorney for her and am handling the appeal. Interesting to read your comments. See my site, and my blog

Gruntled said...

Wow, this is weirder than I thought. Did Bud MacFarlane really call himself Lord of the house?

Gruntled said...

The link for further details on the case is

fidelity said...

He claimed he was her Lord and he was Lord of the household.

She had to obey IMMEDIATELY in everything but sin.

She was/is trying to protect the kids. They could use your prayers and help.

Charlotte said...

He sounds like a vile sort of person and I hope she wins her appeal and gets the kids back, but she really should look for a school that meets her standard, and get a job. Life's tough at times, but going to school is what most kids do and those kids might benefit from being out of both parents' pressure cookers. How is she planning to support herself once the kids are grown?

Gruntled said...

Yep, Bud sounds waaaay over the line.
She will probably have to get a job, but in principle I think he should keep paying her to be the kids' school.

Charlotte said...

What if she had dumped him? Should he then have to put most of his salary into supporting her home-schooling standard?

Gruntled said...

If she walked out on him, then, no, he shouldn't have to keep supporting her the same way. However, he does sound like a serious nut, so she might have a case for pre-emptive action. But that is not what happened here -- he dumped her out of the blue.