Does the Woman Have the Upper Hand in Divorce? / by Cassandra Hearn

One oft-repeated idea about divorce and child custody is that women have the “upper hand.”  There seems to be a strong sense that a woman will receive what she asks for because she makes less money and because she is the mother of the children.  These beliefs are not true, but it is important for anyone going through a divorce or child custody case to understand why they are not true.

Statutes are not written to give preference to either the husband or the wife.  California family code 4320 provides a long laundry list of issues to be considered by a court when deciding whether a spouse will receive alimony after the divorce is over.  Notably absent from this list is any mention of gender, or a husband or wife receiving preference for alimony payments.  Similarly, the factors for child support, property division, or child custody also do not make specific mention of whether a husband or wife has the strategic advantage in requesting relief. 

So where has the misconception come from that women automatically receive alimony or child custody during every divorce?  Historically, women have been more likely to be the parent staying home with the children.  This is relevant in terms of spousal support and child custody.  For spousal support, the statute devotes particular attention to providing for consideration for the fact that one of the spouses may have taken on more domestic responsibilities and made sacrifices in his or her own career in order to support the family.  Traditionally, the wife is the one who stays home with the parties' children or makes similar sacrifices.  As a result, her earning capacity may be diminished compared to that of her husband.  The law seeks to help equalize that imbalance—at least temporarily. 

Similarly with child custody, women have in the past often been the one primarily responsible for childrearing, especially when the children are very young.  Judges tend to favor stability and consistency for children, so the person who has been the children's primary caretaker may be more likely to receive more parenting time with the children.

As societal norms change, and women and men take on different roles in the home, it is likely that the misconception that women always receive child custody and alimony will decrease.  Until that time, it is very important that both spouses have a good understanding about the rights and responsibilities when planning for a divorce.

We have experience helping clients in divorce regardless of their family structure and norms.  Call us today at (619) 800-0384 to talk about your case.