> Because that social expectation is there [...]
The court should temper society's vices not empower them.
The court should temper society's vices not empower them.
I'm also curious, what is the 'vice' in this statement?
IANAL, but I do have familiarity with the subject, and if you read a common law book, you'll see how the courts think.
Now, to be fair, in a way, we could say that courts don't give precedence to a parent based on the sex (this is made explicit in the law of a certain country I've examined)... but they could give it based on the hair count :-)
But again, courts definitely take into account many factor in the cases.
There are other factors involved too.
Then the court doesn't need to show a particular bias towards either party on this subject. As you have very astutely pointed out, there exist other circumstances which may compel a court to apply a bias one way or another. That's what courts are for.
> What if is the higher earner that sacrificed an even higher position - do you make the lower earner pay them?
If a decade of childcare materially and demonstrably damaged their future career, they should take that into account. If not, no.
Please pay attention to the words I'm using - 'bias'. This means putting some weight on the scales, not dropping a bag of bricks on one of them.
They are a parent by their own actions, why should they be moated from the duty of parenting in the case of a divorce?
You are saying that if one of the parents sacrifices their future to care for the child, and the other does not, during a divorce, the latter does not owe the former anything.
The better question is - why do you want to moat the latter parent moated from the duty of parenting so much?
Or, if parenting is too complicated, here's a simple example.
Bill marries Jill. Bill works, buys their food, pays their rent, pays their bills, does the housework, and pays Jill's way through medical school. Bill and Jill have no assets, because all the money went into Jill's education.
Jill graduates, becomes a doctor, starts making mountains of money, meets a pretty intern, and divorces Bill.
Does Jill owe Bill anything?
It's the same situation as with childcare. Bill put more into maintaining the marriage/child than Jill did. Jill benefited/was harmed less during the marriage. Bill deserves compensation after the fact.
Had the fruits of his labours gone into a savings account, he'd receive at least half of it on divorce. Instead, they went into developing Jill's earnings potential - so he's entitled to a share of it. Likewise, if instead of paying with money, he paid with childcare that was damaging to his career.
Would they consider rent, food, utilities, and everything else a gift too?
A marriage is a not a quid-pro-quo financial transaction. It is an entanglement of two people's lives. The purpose of divorce court is to unentangle those lives in a fair and equitable manner.
One person supporting the household, while the other mooches off them, and then divorcing right when they start becoming responsible for supporting the household is not a clean break with zero financial entanglements.
Imagine if instead of pouring money into an education, Bill was supporting Jill as she was building a startup. He kept the family afloat, he poured money into it, while it was running at a loss - and then, right as it turns profitable, she leaves him with nothing.
Would that be fair and equitable? If not, why is a high-earning education any different? [1]
[1] The difference is obviously, that in this case, the startup's ownership would be split between the two spouses, with the spouse that financially supported the founder receiving a portion of it - probably not a 50/50 portion, but some portion nevertheless. An education's ownership can't be split... But the wages derived from an education can be.
Your statement about credit for paying all the utilities is not how it works. In fact, that can work against you. Like I stated before, lifestyle can be a big part of the decision. The spouse paying all the bills may still be required to pay many of them because the other person has a lifestyle the court wants to preserve. Take for example the divorce in California where a man had a porn addiction and the wife was ordered to pay alimony to continue supporting that addiction.
Your example of a startup is not the same. A startup is property, which can be sold and has inherent value. Being acquired during the marriage, that makes it marital property.
Coming back to your previous comment, do you really think that is a fair split at 50/50 even though one person provided the intellectual capital and work? That would be devastating to most people to have their "baby" of a company ripped from them to the point where they no longer have majority ownership.