In 2012, 28-year-old Mark Zuckerberg, the founder of Facebook, married 27-year-old Priscilla Chan. The timing was auspicious for both: It occurred the day after Facebook went public, cementing his status as one of the world’s youngest billionaires, and shortly after her graduation from medical school. The surprise for some observers was that they had waited so long: They had known each other since their early days together at Harvard University. The surprise for others was that they had wed so soon, given their intense (and time-consuming) careers.
They were in fact following a common script—for college graduates. And that script is marked by gender, as well as class. Indeed, women who have graduated from college, who used to be among the least likely to marry, have led an elite march back into traditional relationships. They are more likely to marry than other women. They have become more likely to raise their children in a two-parent family. And their divorce rates have fallen back to levels of the mid-60s—before no-fault divorce.
How did they do it? They became pickier about careers and partners.
Most affluent people are not marrying (or having children) until their educations are complete, they have decided what city they will live in, they have settled on a career, and they have found a partner they can trust. And upper-income women can find the men they are looking for. The number of men earning $100,000 and above is far higher than the number of women. While that doesn’t bode well for gender equality, it does for marriage for affluent women: The only group in society whose marriage rates are stable are the top 10 percent of women by income.
For everyone else, however, the trend has moved in the opposite direction. For women who do not go to college, marriage rates have declined and nonmarital birth rates for first children now exceed 50 percent; those who do get married, before or increasingly after a child’s birth, have divorce rates that have continued to climb. White female high-school graduates have higher rates of cohabitation than any other group as they marry, divorce, repartner, and raise their children with a rotating cast. African-American mothers, particularly in poorer communities, are more likely to be raising their children alone.
While this growing inequality and “diverging destinies” are now commonplace to sociologists, the reasons for the changes are contested.
The right blames deteriorating moral values, the pill, welfare, and other social ills for the decline of families, without a convincing explanation of why these changes affect one group more than another. The left celebrates individual choice, sexual liberation, and women’s equality, without acknowledging that not all the sources of change are benign or that they contribute to growing inequality. Neither group provides a complete explanation of why families at the top and bottom of the income scale are moving in opposite directions.
We need to ask not just why marriage is disappearing in our poorest communities, but also why the most-privileged women are most likely to marry, in a reversal of historical trends. And we need to ask whether our legal system has caught up with reality—or whether outdated family law is making things worse.
Economic inequality is remaking the way men and women match up.
We believe that economic inequality is remaking the way men and women match up with each other within American marriage markets. Greater inequality produces the higher concentration of men at the top and a greater concentration of effectively “unmarriageable” men at the bottom, leaving fewer men in the middle. As male college graduates have become increasingly likely to marry only fellow college graduates, and as women see no reason to marry men who cannot hold a job, income and education profoundly affect who marries whom.
A more unequal society raises the stakes. Today, men care much more than they did a half century ago about a prospective spouse’s income (and women, who have always paid attention to such things, care a bit more). The top-earning men accordingly express greater wariness about marriage. Among those with at least some college education who cohabit between the ages of 18 and 29, only 46 percent of men versus 68 percent of women expect to marry their current partner. In contrast, among those without a high-school diploma, it’s the women who are warier: 47 percent of women versus 67 percent of men.
At the same time, family law has made marriage safer for high-income men. In an era where both men and women can be in the labor market, family law presumes that all adults are independent. Long-term spousal support has become rare. Instead, lasting commitments are to the children. Most states favor custody awards that allot substantial amounts of the children’s time to both parents, and the easiest way for a high-income father to reduce child-support payments is to take on greater responsibility for the children.
In this world, married men call more of the shots. While statistics show that women initiate two-thirds of divorces, they are less likely to call it quits in states that give substantial custody rights to men. And the more money a father has, the more likely he is to end with a shared custody award that gives him a substantial portion of the children’s time.
The biggest losers in an era of greater inequality have been low-income men. Their earnings have stagnated (if not declined) for more than 30 years. Their jobs have become less stable. The numbers not even looking for work have risen. What does that mean for marriage markets?
Women in poor communities view commitment to a man who runs up the credit-card bill, cycles in and out of jobs, or deals drugs on the side as more of a threat than an asset. Even those who do marry report less satisfaction in marriage than poor women 30 years ago. Financial stress decreases satisfaction in marriage. For their part, men view women who take their money when they have it and won’t stand by them when they flounder with distrust. These patterns encourage women to invest in their own resources rather than in the men in their lives, and men to move on to new relationships when their existing ones hit rough passages. Family stability is an inevitable casualty.
The legal system doesn’t help this group either. An unmarried woman can end a relationship on her own. It is then up to the man to go to court, pay the several hundred dollars involved in paternity testing, obtain a custody order, and try to enforce it. For married couples, in contrast, the burden falls on the party who seeks to end the relationship. The mother most typically is the one to go to court, and the courts are unlikely to issue the divorce without an order allocating both parents a chance to spend time with the children. Marriage, in short, can be a bad legal deal for women.
The hardest patterns to analyze are those of the middle—the group clustered around the 50th percentile of family income in the United States. Once thought of as “the white working class,” it is more racially diverse today. This group is made of those who have graduated from high school but lack a college degree, and its women have outpaced its men. They earn higher grades, stay in school longer, and are more likely to return to college to finish their degrees. They are also less likely to be in first marriages than they once were: under 50 percent today, compared with almost 75 percent during the 1970s.
The jury is still out as to whether the family patterns of the center, which used to look more like the family patterns at the top, will eventually resemble those of the poor. At the core of family relations for this group is an intense fight over gender.
For affluent Americans, family law has become a bit more father friendly. Poor women evade male control by staying out of court—their family system has effectively become a single-parent one. But middle-income women are more likely than those in either of the other groups to marry, divorce, and find another partner. Increasingly, family law seems to be reining in their independence.
Today we see more and more cases that involve fights between the biological father and the mother’s new partner for recognition as a dad, and between the father and his new partner and the mother over custody. These disputes are different from those at the top, where a stable two-parent model prevails, or the bottom, where women effectively control access to children.
These couples have not yet established default norms of their own. (Does the mother owe the father a relationship with the child? Must the father acknowledge the mother’s needs to be able to establish such a relationship?) The cases that don’t receive much attention are those where the parties simply agree to go their separate ways. The custodial parent (still typically the mother) does not seek support, and the father does not see the child, except on the mother’s terms. When they end up ruling, the courts tend to impose the relatively father-friendly norms of affluent families.
In the past, when the family changed, the law often helped us make sense of the changes. But family law has failed to respond to changes in marriage today. It can’t—because it can’t write one script for the increasing divergence in marriage markets.
Family law—and our broader society—faces a dilemma: Ratify the results of fundamentally different power balances in marriages at the top and the middle, or ratify the practical effects by continuing to look the other way and pretending that the differences do not exist.
Clearly, the solution to making family law work in a society with growing inequality lies outside family law. If society provided more equal opportunities for women as well as men at the top, for men as well as women in the middle, and for all groups on something closer to a level playing field, a single system of family law might emerge.
June Carbone is a professor of law, science, and technology at the University of Minnesota Law School, and Naomi Cahn is a professor of law at the George Washington University Law School. Their book Marriage Markets: How Inequality Is Remaking the American Family has just been published by Oxford University Press.
