Fineman's The Illusion of Equality: A Review-Essay

Abstract

In The Illusion of Equality: The Rhetoric and Reality of Divorce Reform, Martha Albertson Fineman collects and connects five law review articles that she published during the last decade. The volume is well worth reading for its basic thesis: Women and children are not well served by a law of divorce based upon formal equality of the spouses, a law that posits degendered spouses rather than husbands and wives. It is a critical point and one that has not been adequately developed in the literature of feminist legal theory or family law. Fineman's collection of essays makes a good start, but it does not fully cover the necessary ground. Fineman tracks the effects of formal equality, or sameness of treatment, which she also calls equal treatment and rule equality, in two central areas of divorce law: wealth allocation and child custody. In wealth allocation, formal equality treats wives and husbands as though they were economically equally-situated; in child custody, formal equality considers fathers and mothers equally deserving of child custody. In this review-essay I shall confine myself to the first issue, wealth allocation at divorce, because it is the area with which I am most familiar and because it presents more difficult issues than those posed by child custody.'