Lovers, Parents, and Partners: Disentangling Spousal and Co-Parenting Commitments

This Article offers a fresh perspective on a problem that has long vexed legal scholars. The problem is a fundamental one: Although divorced parents share legal responsibility for their children, the parent who serves as primary caretaker bears most of the opportunity costs associated with that responsibility. Emerging custody norms may teach that divorce should not end spouses’ roles as co-parents, but laws governing property, alimony, and even child support remain wed to the clean-break myth that divorce can end or minimize all economic ties between spouses with children. Divorced caretakers are thus told they must share rights to children, but that they have no right to share the family wage that once supported caretaking labor.

The solution to the conceptual bind of the primary caretaker lies in an expanded vision of commitments between intimate partners and a narrowed vision of the role of divorce. In this Article, I argue that married parents are committed to each other on two levels—as intimate partners through marriage and as co-parenting partners through the addition of children to their family. Divorce ends the marriage, but it does not end the parents’ responsibility to share the financial costs and daily labors required to raise their children to majority. Disentangled from the marital commitment, the co-parenting commitment provides a conceptual basis for income sharing between divorced parents of minor children and ultimately an answer to the disparate costs of post-divorce caretaking.