Caregiver Payments and the Obligation to Give Care or Share

Abstract

This article argues that law disserves parents who are the primary caregivers. Some parents perform a disproportionate amount of caregiving labor, but receive little or nothing in return from the other parent. In order to be eligible for any sort of legal remedy for this freeloading, the law generally requires that the caregiver was married and performed the disproportionate caregiving during the marriage. Unmarried caregivers are left with few, if any, remedies, and divorcing caregivers find that alimony fails to address adequately their postdivorce caregiving. This article proposes a legal obligation that would exist between parents to share fairly the caregiving responsibility for their children, regardless of whether the parents are married, unmarried, separated, or divorced. Every parent should be obligated “to give care or share,” i.e., to pay compensation to the other parent for any disproportionate and unfair caregiving that occurs. This article argues that the general obligation should be imposed without delay, despite the fact that the legal solution will be untidy. A broad mandate that a court make “fair” a breach of the obligation to give care or share will allow courts to determine immediately, on a case-by-case basis, the appropriate remedy for each caregiver’s particular situation. A broad mandate will also lay the groundwork for improvements to a complicated area of the law. Specifically, claimants’ awards and judicial assessments of “unfairness” can inform the development of future adjudication guidelines. The article concludes by addressing the disadvantages that might arise if this proposal were adopted.