For Better, Worse, Or Divorce Podcast

In this episode, Jake Gilbreath and Brian Walters dive into the ‘tradwives’ movement and its implications in modern Texas family law cases. Jake and Brian discuss the challenges and legal considerations that arise when traditional roles meet contemporary family law issues, ranging from divorce petitions to custody disputes.

If you are interested in speaking to us about your family law matter or if there is a topic you would like for us to cover on the podcast, please visit www.waltersgilbreath.com or email us podcast@waltersgilbreath.com.

Your hosts have earned a reputation as fierce and effective advocates inside and outside of the courtroom. Our partners are experienced trial attorneys who’ve been board-certified in family law by the Texas Board of Legal Specialization.

Jake Gilbreath:

Thanks for tuning into For Better, Worse, or Divorce Podcast. This is where we provide you tips and insight on how to navigate divorce and child custody situations in the state of Texas. I’m Jake Gilbreath and I’m here with my partner, Brian Walters. Today we are going to be talking about a term that’s trending on social media. I had to ask my wife what it meant when I saw that we were talking about this today, but the term is tradwives. It’s apparently a term that’s used I think primarily for women who embrace traditional gender roles. I think social media defines it as often being homemakers, primary caregivers to their children, working inside the home as opposed to outside the home and married. I guess under this definition to husbands who are the primary breadwinners. I think we actually looked it up online and saw that there’s an actual definition. I don’t know what website we pulled this from, but I’m going to go ahead and give the actual definition that we were able to find online.

It’s women who value being a traditional wife subscribing to homemaking and historically conventional gender roles. The Tradwife Movement is a social media trend that glorifies the traditional wife of the 1950s and its philosophy, including submitting to their husbands. Serving husband, family, not working outside the home and having traditional gender roles. According to this website the origin and resurgence in modern society according to Google Trends the online searches for the term tradwife began to rise in popularity about five years ago. It has experienced a noticeable uptick in usage of the term starting in the early 2020s, which is I guess where we’re at right now. That’s an interesting trend. Like I said, I was not aware of it until we set up this podcast. My wife is more social media adept than I am, so she was able to give me more information about it and of course Google apparently has told us more information as well.

Brian, for the purpose of this let’s put aside what actually is traditional. I don’t know how one actually defines traditional or put aside what people feel about this, what is right or wrong, or what a marriage should look like. You and I know from the work that we do that marriages and families look very different. The structure that people set up looks very different and families look very different. As we teach our kids in my household, Daniel Tiger tells us that families are different and that’s okay. And that’s the same for all our clients. But there are folks that come to us that have a certain structure. Let’s say it’s a structure where it’s a husband and a wife and the man works “outside the home” and the wife has a “traditional role” like it’s defined in this movement. Where the man earns an income and let’s say the wife doesn’t work outside the home and works just as hard if not harder, taking care of the children in the household but doesn’t have a salary. She doesn’t work outside the home.

Then let’s say these folks go through a divorce. It’s not uncommon and it’s something that we’ve seen even before what this says, the early 2020s. We’ve seen marriage relationships set up like this throughout our careers. Let’s talk about what that means in the family law sense. If we have a family structure that comes in like that and they’re going through a divorce, this is how they decide to structure their family and raise their kid. Thinking through the various issues in a divorce, how could this impact custody for example?

 

Brian Walters:

It is certainly very common. Just by coincidence, the last consult I did, which was at the end of the day yesterday, was exactly the situation. My wife’s actually an attorney, but once she had kids she decided to stay at home. We sort of had exactly this discussion a short time ago. Certainly the first and most important question I think for families like that is what about the kid or kids that you’ve got? Custody situations and our system in Texas is set up so that the focus is on the children. The best interest of the kids. I think the courts figure that the adults are going to make it through and be okay, so they’re focused on the kids. Our system generally wants both parents to be involved post-divorce or split up if you’re not married. To try to be both involved in decision making, what’s called conservatorship and to both have a lot of time with the children, however it’s not 50/50. 

There generally needs to be a way to resolve disputes and that’s what people call custody, sole custody or primary custody, all of those common terms that we hear that really aren’t in the family code. So in that particular case what courts generally look at, assuming both parents are functioning at a decent level, which is the vast majority of parents, is they’re going to want to keep the status quo for the primary home or the main home. That’s going to be the stay-at-home mom in that case, which can be difficult.

If you’re the dad or the husband and you love your kids just as much as your wife or the mom, I’m sure you’ve been working outside of the home and then things don’t work out and now your spouse, the mom or the traditional mom in this case is going to get custody most of the time, the vast majority of the time. Whether that’s fair or not, I’m not sure. That’s a question for somebody else, but that’s the way it generally is thought of in our system. There’s some exceptions to that for sure, but that’s generally the way I would start explaining that to people. I’m sure you might want to add something to that or more details. There’s obviously always exceptions to that situation.

Jake Gilbreath:

I was going to just add what you just said – there’s exceptions. Every single case is different, every single family is different, every single case is different. I think people have a right to know the starting point of where we’re at. If you have a parent that stays at home and primarily raises the children, if I’m a judge, well that’s a huge factor for me to look at. Y’all have decided that this is the structure for your family. You have this primary caregiver and this tradwife phraseology, it’d be the mom. Y’all decided that the mom’s the primary caretaker. That’s a starting point, but there’s exceptions to every single case. Every single family’s different and there’s lots of reasons why that may not be in the best interest of the children moving forward, but it is important for people to know the starting point.

Brian, what about finances? For example you have a spouse, and again let’s just use this structure. Let’s say the husband’s outside the home developing his career. I don’t know what the husband did in your consultation yesterday, but it sounds like the wife gave up or at least put on pause a successful career to focus on children. So how does that work regarding spousal support? We call it spousal maintenance in the state of Texas. Also property division, how does that work if I’ve got one spouse that’s working outside the home and the other spouse that’s focusing on the children?

Brian Walters:

Well, it’s going to be a lot of change financially. Especially for the traditional wife in this case. Texas is not an alimony state. We have something called spousal maintenance, which is very limited and very rare. Once the divorce is final, while the case is pending, that’s a different situation. Things will stay relatively similar, but it’s not going to stay pending that long. Maybe a year on the outside, maybe a little bit more in some unusual cases.

That’s going to be a big change unless for some reason these folks have acquired many, many millions of dollars in assets during the marriage, in which case they’d be divided. Maybe there would be enough money to at least do that for a while. But a lot of these moms in these situations have to go back to work once their marriage ends or their relationship ends with the dad. That’s just the nature of the system. Now, of course, statistically a lot of people remarry within five years. Not everybody, but a lot of people do and maybe things will return to relative normalness after that, but it will be a significant change for most people who go through this financially.

Jake Gilbreath:

Brian, we spoke about alimony or spousal maintenance a little bit, and then property division, how does this set up affect property division? If you have one spouse that’s got the higher income, or in this case the income and the other spouse either has a lower income or does not have an income at all because they’ve made a decision that there’d be a parent that stays at home and focuses on the children?

Brian Walters:

Yeah, the court can consider all of that. It’s kind of a common misconception that property is going to be divided 50/50. That doesn’t say that anywhere in the family code. It says it’s going to be divided in a fair and just manner. So what does that mean? Well, I think that’s a classic example of when a court would lean toward the non-earning spouse with the property division. In this case, the husband has developed his career (assuming that’s happened) and his income’s gone up. Or he has built his business, whatever the case is. So the court might lean toward the mom, 55%, maybe 60%.

It’s generally not a huge percentage swing, but that can add up. I will say that once the assets get above a certain level, I’ve heard it said 2 million, sometimes 4 million. Something like that, and assets that are being divided, then it kind of tends to go back to 50/50 where the courts essentially think that’s plenty for everybody. We don’t need to worry about dividing it too unevenly. The court can make up some of that difference by dividing the property in what we call disproportionate division or non-50/50 division of the community property.

Jake Gilbreath:

Brian, of course every single case is different, but I think you say the same talking to clients. I think there’s these various factors that the court can use and divide up an estate. This is obviously a much longer discussion and all lawyers will tell you – good lawyers will tell you, it just depends. Every single case is different, but there’s these various factors that the court can look at and divide up the estate. It’s not necessarily a 50/50 division like you said Brian. The larger the estate usually you’ll see closer and closer to 50/50 the larger the estate, but the court certainly doesn’t have to divide up 50/50. All the family code says is that the court’s supposed to make a just and right division, whatever that means. Then there’s this case that we reference Murph v. Murph from the Texas Supreme Court that lists out several factors that’s non-exhaustive list, but factors that the court can consider.

We talk about things like fault in the breakup of the marriage and that can have a factor. The way property is structured, that can also have a factor. I’d be curious about what your opinion is, but my opinion is that really in all courts, in my experience, the biggest driver is going to be a disparity in income. Even beyond fault, frankly, that they really look at a disparity of income. I think it’s even more like that in more urban centers that we look at more liberal courts. Particularly if the reason being that there is a disparity of income is because there’s been this decision made that one parent stays at home and takes care of the kids. Then that parent is way behind the eight-ball when it comes to taking care of themselves financially upon the divorce because we’ve made this decision.

For example, what if we’ve been married nine years and at the very end in Texas to qualify for spousal maintenance you have to be married for 10 years. There’s a few other instances, but primarily it’s going to be a ten-year requirement to get spousal maintenance. Let’s say we’ve been married for nine years and we made a decision early on in our marriage that mom’s going to stay at home and let’s say gave up a successful career as an attorney to focus on the kids. She gave up a six-figure job, gave up making partner, spent nine years raising the kids, and the husband went off and started a business. He makes high six/seven figures a year and then they get divorced.

She can’t get spousal maintenance and he’s going to continue on with that income and she is not. She is going to have to start from where she was really nine years ago. Probably even behind that because the world’s moved on and the employment world’s moved on for nine years. That could be a really hard situation, particularly for essentially a no alimony state like we are. Brian, that goes back to what I was saying but I’m curious about your thoughts. I think disparity in income is the largest driver for most of our judges when it comes to dividing up property.

Brian Walters:

Yeah, I agree with you. That’s correct. I guess the other extremist folks who haven’t saved much. There isn’t much property to divide disproportionately. So in that case there’s just not a lot you can do.

Jake Gilbreath:

Well, and that goes kind of to our last topic on this subject. What advice would you have for somebody that’s in this tradwife structure as social media calls it. Say a stay-at-home mom is considering divorce and she has this family structure. What advice would you have for that person if they’re thinking about going through divorce, both for planning and what to expect in the divorce process?

Brian Walters:

I would say there’s about to be a lot of changes. Just like we talked about, you’re not likely to get spousal maintenance even if you’ve been married 10 years. Even then there’s multiple hurdles to get past that, or if you do it probably won’t be much or for very long. Again, unless you have a lot of assets you are looking at needing to go back to work to make ends meet. Even with child support, it’s not intended to equalize your standard of living. It’s intended to support a child. Number one, there’s going to be big changes. So if the tradwife is the one that’s kind of thinking of initiating the divorce, they should think carefully about that. You got to do what you got to do, but it’s going to change things considerably. Also, as is the nature of any divorce or split up of parents, you’re not going to see your kids 100% of the time anymore.

You’ll probably have a majority of the time, but it will be a pretty slim majority actually in most cases. It’s going to be just a huge change and really a complete 180 in most cases from what you’re doing. I don’t know exactly how much planning you can do in that situation. If you know that’s coming, then you might advise them to start thinking about work or looking at work. Polishing up their resume and trying to save money rather than spending it so that there’s more to divide at the end of it. Marriage counseling, if there’s a way to save the marriage. Those are the kind of things you can do. But there’s not going to be a silver bullet that’s going to put you back to post-divorce and leave you where you were prior to divorce.

Jake Gilbreath:

That kind of stems into a question that we got from a listener, and I know your answer, Brian is going to start with the words, “It depends,” but let me ask the question. It says, “Will I be expected to get a job again after being out of the workforce for 10 years raising our children?” Somebody asked that on this topic. So what generally are your thoughts on that?

Brian Walters:

I’d say very likely. Just to qualify that, I mean the judge cannot tell you to get a job. But I think what that implies is am I going to have to? How am I going to make ends meet? And the answer is, we don’t have a system that’s designed to. Even if you’ve been married 10, 20, or 30 years, to put you in the same position you were when you were married. It’s a very different philosophy from that. In most cases, yes, you are going to need to work if you haven’t been working while you were married or at least the later part of your marriage.

Jake Gilbreath:

I think this kind of ties into what we were just talking about, planning. A lot of planning is just being aware of what things look like. It’s not our job and people don’t pay us to come in and for you and I, Brian to say, “Everything’s great, it’s going to be wonderful. Don’t worry about the future.” We’ve just had a lot of conversations with this podcast that it’s often not nearly as daunting or as intimidating as a client thinks it’s going to be. But you also need to be aware of what the situation is going to look like if you go through divorce. You have to have really frank conversations with people about what child support looks like in the state of Texas. What alimony looks like in the state of Texas or property division for both sides of the coin in any family structure. There has to be that frank discussion.

It is tempting as lawyers, particularly people that don’t do a lot of family law, it’s very tempting in the moment to want to tell clients just what they want to hear. Sugarcoat things and tell them that not to worry about it or we’ll figure out some way around this. Obviously we’re going to advocate for our clients and to get everything that we can for them, but people need to know parameters. Ultimately those parameters that are put in place by the state legislature, the family code, and we just need to have that discussion. There just needs to be this frank discussion with clients when they’re thinking about divorce, planning through divorce or maybe the divorces are even filed. This is what things look like, this is kind of your range. Nobody’s going to ever give you a guarantee, but this is what our years and years and years of experience with me and you, Brian and the associates and partners that we work with, this is what we think the world looks like.

You need to be aware of that because people are adults and they deserve to know this information, it’s why we have this podcast. People are adults. They can make their own decisions. They need information to be able to make those decisions. Hopefully this social media phenomenon led to a discussion on how this structure is dealt with in Texas family law and divorce. We’ll wrap up with that and that’s what we have for today. As always, if you like what you’ve heard today please do us a favor and leave us a review. That’s very helpful for us. If you have any follow-up questions to this episode or like to talk to one of us directly about your family law situation, you can reach out to us at podcast@waltersgilbreath.com or you can contact us directly through our website, which is waltersgilbreath.com. I’m Jake Gilbreath. I’m with my partner, Brian Walters. And thank you all for listening.

For information about the topics covered in today’s episode and more, you can visit our website at waltersgilbreath.com. Thanks for tuning into today’s episode of For Better, Worse, or Divorce, where we post new episodes every first and third Wednesday. Do you have a topic you want discussed or a question for our hosts? Email us at podcast@waltersgilbreath.com. Thanks for listening. Until next time.