History Tells Us Men Need Help Protecting Their Rights in Divorce

Don’t be fooled – a man can lose his house, his income, and his children in a divorce for a variety of reasons without the proper knowledge of the laws and rules that apply against them in divorce court. Because men have historically been treated with an unfair bias against them in family court, it is essential to have an experienced divorce lawyer for men counsel and guide males through the process. When men begin thinking about how their lives will be affected when a divorce appears imminent, it is important to understand the history of how men and women have been treated differently in terms of marital property, custody of their children, and the divorce process in general. These biases have changed over the years but there is still an uphill battle to climb for equal rights in a divorce for a man.

Biases Against a Man in Divorce

Men have always had a difficult time obtaining certain rights when going through a divorce because of the outdated divorce laws that were written and the notions of what a husband’s responsibility is compared to the responsibilities of the wife. One of the largest of these biases is known as the “Tender Years Doctrine.” This made it virtually a lock that women would gain custody and control over the children in a divorce and resulted in an extremely small percentage of men retaining custody rights over their children. These biases are exactly how the father’s rights movement began across America, where family law attorneys specialize in helping father’s get equal rights in court.

History of Divorce in the U.S.

Why is this important to know and understand? Because of the way the laws have been written decades ago (and in many instances, with few updates), issues such as child support, child custody, and property rights lean towards supporting the woman post-divorce. The history of divorce law in the U.S. makes it clear that men need to be educated on the laws and/or have a specialized father’s rights professional on their side through the process.

The Tender Years Doctrine was based on common law in England (which is where many of the basis of our law comes from already). This doctrine presumed that a mother was the better caregiver of the children of the marriage, especially for children age 7 or younger. However, in the late 19th century, English Common Law was changed even more so granting the judge discretion to assume that a mother should have custody over a father for children up to age sixteen! States across America soon adopted these English Common Laws as their own, which gave the presumption that women should have custody over men for the children of the marriage.

Because of this recurring bias against men, there was almost no chance a father could win custody of the kids and the rights that carried with it. And when a mother was granted custody of the children, the court always ordered the husband to support the mother financially by way of child support, allowing her to keep the home they lived in, and many other things damaging to the husbands well-being. However, even with these biases, divorce was fairly uncommon in the early 1900’s in America, and continued that way up through the 1950’s. This all changed in the 1960’s when No-Fault divorces began to take place, but the notions of a wife being granted custody and support stayed the same.

How No-Fault Divorce Damaged Men’s Rights

Originally, every state in the U.S. had a series of individual “grounds”, or reasons, why a divorce could be granted. These reasons needed to be proven in court with witnesses, evidence, and testimony for the judge to grant a divorce. The most common “grounds” for divorce were:

  • Adultery;
  • Incurable Insanity;
  • Chronic Alcoholism;
  • Mental or Physical Abuse;
  • Abandonment for greater than 1-year; or
  • Commission of a Felony.

This all changed in the 1960’s when California began the process of allowing “no-fault” divorces, starting a trend that many other states soon followed (many states now only allow no-fault divorces even!).

Once no-fault divorce began to take place across the U.S., women began coming out to file for divorce in droves compared to just a decade earlier. This was in part to both no-fault divorces gaining acceptance and the changing gender roles of men and women with women beginning to work outside of the home in higher frequency. But even as the laws were changing to allow an easier divorce, the laws and preconceptions of the spouses remained the same. This meant that in higher numbers, men were losing their homes, custody of their kids, and were forced to pay alimony (spousal maintenance) to their ex-wives.

Women File Divorce Twice As Often As Men!

In fact, numerous studies have been completed by the government’s National Center for Health Statistics that show that, as early as the 1980’s, women were the spouses filing for divorce in over 60% of the cases nationwide. That number has only grown, and recent estimates put the number strongly over 70% of all divorce cases being filed by women. Men need to understand that one possible reason so many more women file for divorce than men is because of the simple fact that they know that biases against men exist in the legal system and they are able to use it to their advantage when deciding which parent will retain custody and which spouse will pay spousal support.

How Can a Divorce Lawyer for Men Help?

By understanding the basic history of divorce in the United States, and having an in-depth knowledge and experience of the biases against men in family law courts, father’s rights attorneys are able to give men more than just a fighting chance at obtaining equality in the eyes of the law. While many states specifically have outlawed the use of the “Tender Years Doctrine” in divorce cases, the feeling that many judges still hold near and dear is that mother’s, not father’s make better residential parents.
The antiquated notions of women being better caregivers then men may be beginning to dissipate, but the fact remains that women file divorce at more than double the rate of men because they know the law (and biases) are on their side. There is no better defense than a good offense, which is why having a divorce lawyer for men is critical to protecting a man’s rights to his family, property, and income.

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