One final factor pushing Lily away from marriage is, ironically, more progressive ideas about family, particularly in divorce courts. The biggest legal change is custody. If a couple marries, a court will insist on a custody order and it will expect that both spouses continue their relationship with the child. Indeed, some states presume that the child should spend approximately equal amounts of time with both parents. These changes make marriage a better deal for elite men. They do not need to make a long-term commitment to support a dependent partner as lengthy spousal support has largely disappeared, but they enjoy protection of the relationship they establish with their children. Women initiate two-thirds of all divorces, and some law professors have argued that shared custody is one of the factors that has lowered divorce rates.
If Carl and Lily had married, Carl would have automatically been named the father, and, if they divorced, the courts would insist on an order giving Carl a considerable portion of the child’s time. Carl, however, was not at the hospital with Lily and his paternity has never been established. Lily has let Carl see the child, but he hasn’t pressed for more involvement and Lily is happy to keep it that way. If Carl wants more contact, he would have to take a series of legal steps, including filing a court case, paying the several hundred dollars it would cost for paternity testing, obtaining a court order, and enforcing it if Lily doesn’t cooperate voluntarily. If Carl were that organized and determined, though, he didn’t show it during their relationship. And, in fact, University of Wisconsin researchers find that the likelihood that a father has shared custody of his children after a breakup correlates strongly with marriage (husbands are much more likely to have a shared custody order than unmarried fathers) and with the father’s income within each group (husbands, for example, with more money are more likely to have such orders than poorer husbands). In divorce court, Carl’s lack of financial or other contributions would typically make little difference in either the property division or a custody award. By not marrying, Lily can leave the relationship on her own terms—with her savings intact and no responsibility for Carl’s debts.
Does society have an interest in helping couples like Lily and Carl stay together? Probably, but not in the way many policymakers have proposed. Those who would promote marriage seek to do so largely by taking away Lily’s independence. New York Times columnist Ross Douthat, for example, suggests that more restrictive abortion policies could increase the marriage rate. And many who seek to promote marriage, like the Catholic Church, link the availability of contraception to the sexual freedom they see as responsible for the decline in marriage. Others, like Charles Murray, would cut programs such as Medicaid, food stamps, early childhood education and child care, mandatory family leave, and other policies that make it easier for women like Lily to raise a child on their own.
In our view what would make the most difference to this unfair marriage market are policies that would increase the number and quality of jobs available to working class men, retraining and unemployment benefits that fill in the gaps between jobs, and ongoing support for women’s autonomy. Since the ’80s, the gender gap in wages has increased at the top but shrunk in the middle. As a result, Lily finds that she can say no to marriage and raise a child on her own. Modern family law protects the interests of elite men who make an investment in their children. It does not recognize the burdens of women like Lily who are often both the more reliable breadwinner and the primary caretaker in their families—and of the men who are shut out of their families. Let’s not make raising a child become yet another marker of class.