8. Wives and Husbands
Law Partners and Marital Partners
Cynthia Fuchs Epstein
Family members working together characterized the economic unit in much of human history. On the farm, in small craft shops, and in businesses, family members—husbands and wives, sons and daughters—have labored together. Only after the industrial revolution when the site of most work was transferred to central locations—factories and office buildings—did family members engage in the economic sphere as individuals. Yet, although the percentage of individuals engaged in family businesses has decreased, a substantial number of families in the United States and elsewhere continue to engage in economically productive activities together—on family farms, in family-run businesses, and in professional partnerships. It was, and is, the pattern for a significant percentage of immigrant husbands and wives to work together (Foner 1999). The place of women in such family enterprises has often gone unnoticed, both officially and in the minds of the public. For example, in the past, the United States Census classified husbands as “farmers,” but wives were regarded as “unemployed” when both worked on the family farm. Similarly, wives in “mom-and-pop” stores were not counted as shopkeepers or businesswomen. The historian Alice Kessler-Harris (1981) has noted that women's economic activity often went unrecorded because they did not share ownership of businesses run by their
Parts of this chapter appeared in Cynthia Fuchs Epstein, Women In Law, 2d ed. (Chicago: University of Illinois Press, 1993).
husbands or did not draw money as a salary although they worked hard in them.
Attention to the work of women, for pay or without pay, has increased. But even today, scholars of “women-and-work” issues and journalists of the media do not observe or pay much research attention to the extent to which husbands and wives share business lives. Even today there are no reliable statistics on how many husbands and wives work together. Indeed, much more attention has been devoted to the analysis of the sharing of housekeeping and child care rather than shared work lives.
Although the overall percentage of small businesses is declining, however, and traditional mom-and-pop grocery stores and pharmacies, for example, have been replaced by large chain stores in most of the United States, family businesses in which husbands and wives participate still exist and are common among immigrants from Asia, Latin America, Korea, India, the Caribbean, and Eastern Europe. They, like generations of immigrants before them (Foner 1999), struggle to make a living in cities and towns where their access to jobs in established sectors of the marketplace is limited because of language barriers, prejudice, and lack of connections. These businesses are highly visible in cities across the nation and include grocery stores, dry-cleaning establishments, newspaper kiosks, and ethnic restaurants, to mention only a few of the types owned and run by husbands and wives.
Among the family “businesses” of the past were the professional practices of male lawyers, doctors, accountants, and dentists who, as solo practitioners, depended on their wives to be receptionists, bookkeepers, assistants, and secretaries. Excluded from becoming professionals themselves, women (we will never know just how many) were clustered in these subsidiary positions. These, of course, were not real partnerships. Only for the few women who overcame many obstacles and completed professional degrees was it possible to become a formal partner, although, as I note, they were far from equal partnerships. Women attorneys faced employment discrimination, which resulted in limited job opportunities. Only a very few broke through the barriers, so a number of women subsequently turned to small family practices with husbands or fathers or entered the profession with the express purpose of helping their husbands. Like immigrant families, these practices provided opportunities in an otherwise inhospitable world.
In the course of studying the obstacles and facilitating factors that women faced in the legal profession (Epstein 1981, 1993), I encountered
What advantages and disadvantages did women experience in fusing their marital relationship with a professional relationship in which their husband was a partner? First of all, in the past, it was often the only employment they could obtain. Today, that is no longer the case for women in the professions, but many women choose to work with their husbands for many reasons, among them dissatisfaction with employment opportunities and time pressures reconciling child care and work.
HUSBAND-WIFE PRACTICES AS A RESPONSE TO
My first study of women attorneys revealed extensive discrimination both in law school admission and in employment. In the late 1960s they were just about 3 percent of law school students and 3 percent of all lawyers. This was before a number of lawsuits opened the doors of law schools that had placed quotas on female recruitment, and the doors of law offices—large and small—that were closed to women attorneys. Today, women constitute about a quarter of all lawyers and more than 40 percent of all law school students. In my first study, most women attorneys who were not in practice with their husbands or fathers worked for the government, in law schools (usually as research assistants or librarians), or for firms, or had their own solo practices. I followed some of them later on and encountered new ones in the late 1970s. The couples I encountered in the succeeding decades tended to work in firms with other attorneys because that was where the growth in the legal profession was and because antinepotism policies were no longer operative.
As I noted above, most women worked in law partnerships with their husbands because they couldn't get jobs elsewhere or believed they could not. Many of their husbands encouraged this arrangement because it was advantageous to them. For a male independent practitioner, having his wife as a partner meant he had a devoted and a far better than average attorney. Most women who had graduated from law school in the 1960s and 1970s had to surmount many obstacles. Yet, they usually entered law school with higher Law School Aptitude Test (LSAT) scores on average than men, got higher grades in their law school classes than men, and were dedicated to professional life. They were the survivors in an usually punishing environment in which only the brilliant and hardy women survived.
For the women attorneys, partnerships with husbands were a safe harbor in a hostile professional world. Other male lawyers might be suspicious of a woman lawyer and doubt her capacities, her femininity, and her motives, but the lawyer to whom she was married did not.
However, most of the partnerships studied in the mid 1960s and 1970s were not characterized by equality either ideologically or in practice. Yet, given the contribution of both husband and wife to the family income, they probably were more egalitarian than most other marriages of their generation. Husband and wife law partners depended on each other, felt a common stake in the their firm, and were less competitive than other partners.
Yet, husband-wife partnerships tended to adapt the sex division of labor within their firms to that of the profession. Not unlike many workplaces today, including larger firms, the men usually did the “outside” work such as client contact, courtroom appearances, and other highprofile work. The women typically did the less visible work, such as writing briefs and researching cases. They also tended to the office management—the “housekeeping” of the firm.
Neither partner saw these arrangements as problematic or as sexist. In the mid 1960s and 1970s, it was still unusual for women to handle litigation or argue cases in court—it was believed that women did not want to do those things and were not good at them. Wife-lawyers accepted the prevailing cultural view about sex differences in interests and ability. Thus, they thought it was more appropriate for their husbands to go to court while they did the “backroom” work of the law firm
Wife-lawyers usually defined themselves as their husbands' “helpmates” and saw their professional roles as part and parcel of their family roles. They used this definition to explain their presence in a “masculine” occupation and at the same time to prove they were still feminine. Because they defined their activity as helping their husbands, it was socially acceptable to be in a “masculine” profession.
DOING THE HOUSEKEEPING OF THE FIRM
Many of the women interviewed in partnerships with a husband (or in a small firm with a husband and unrelated partners) reported that they were performing the practice's nonlegal administrative tasks—hiring secretaries, running the office, and keeping the work calendar. Performing these tasks came at a price. These “sex-appropriate” duties unfortunately did not develop the attorney's skill or contacts and usually condemned her to professional obscurity. In addition to performing the “housekeeping” tasks, women in partnerships with their husbands were limited to the same specialties as other women lawyers of the time—matrimonial cases, probate work, and realestate law. In a diversified practice this prevented the women from competing with their husbands. It also often gave husbands an opportunity to avoid work they did not care to do—the more mundane or “emotional” hand-holding counseling work lawyers are often called upon to perform but which is not highly regarded in the profession. One consequence of this division of labor was that women did not build an independent client base, had a lower chance of getting referrals, and had low visibility in the profession.
Although theoretically husbands and wives were equal partners and drew equal shares, in fact, women tended to earn less money or ceded control over the money to their husband-partners. Further, wifeattorneys usually felt wedded not only to their husbands but to their joint firm, and therefore unable to leave when a better opportunity came along.
Nevertheless, women lawyers in such practices had real jobs in the law and many of their peers did not. They were subject to fewer role strains because the demands of their work were not in conflict with their domestic duties. Husbands knew when their wives had a hard week at the office and, because it was a joint family enterprise, they were not likely to complain. Furthermore, husbands could and did cover for their
Most wife-partners I interviewed in the 1960s and 1970s presented a rosy picture of their work situations and even those who were dissatisfied showed resignation more than resentment. Yet when I interviewed other lawyers who knew the couples, they sometimes provided insights into their relationships. Colleagues reported that husbands could and did take advantage of their wives. Some wives complained to friends that their husbands used them as secretaries, for example. “He says it's easier to give me the things to do than to explain them to a secretary” was a common observation.
Yet most of the wife-partners suppressed their resentment because the need to maintain good family relations was paramount, and there was no place else to go. Rebels were scarce, but they did exist. One unusually dissatisfied lawyer-wife turned the problem into an advantage, reported a friend. “She complained that it was always ‘Darling, get me this form or that one from the file,’ until she was so disgusted, she went out and got herself a judgeship.” Of course, she could do this only as women began to be appointed to the judiciary in a changing social environment.
Career competition between husband and wife can put a partnership under enormous strain. If competition on the part of the wife is intense and unmasked, it can become a central threat to both partnerships, professional and marital. Although high career aspiration has been culturally approved for the husband, the career-ambitious wife faced disapproval in the past, and there are still residues of this ideology today. Thus when the wife-attorney is not only in the same field as her husband but engaged in practice with him, her hopes to move upward professionally may be thwarted, which can result in friction in the marriage and disapproval from outsiders. Ambition and achievement on the part of a wife are tolerable and appreciated more easily only when the husband is equally or more accomplished. Incompetence of either husband or wife is a source of strain, and the two partnerships in which it was reported to me by wives criticizing their husbands, the marriages dissolved later. Of course, charges of incompetence may really be an expression
Competition is potentially so disrupting to the husband-wife partnership that arrangements develop to physically separate the partners or the spheres in which they work. The division of labor within the firm certainly reduces competition. The husband's hierarchic position as primary decision maker and the wife's more limited career aspirations and underlying “helpmate” ethos traditionally served to control competitiveness. Further, the structure of partnerships as nominal (if not actual) relationships of equality served to reduce potential conflict.
It would be difficult to assess how much competition was reduced because women's work with husbands was defined as “help” and not the contribution of an equal. Although women in partnerships who began practice after the 1970s felt strongly that a woman should not be merely considered helpers but true partners, a division of labor within the family usually served to reduce the potential for competition. But self-selection also played a role. Very competitive women rarely wished to practice with their husbands, and those who tried it soon turned to other kinds of practice.
It was hard to know what women's feelings were about the effects of their partnerships on their careers and their aims and hopes. A few of the women interviewed—those who aspired to judgeships, for example—indicated that if they were given a second chance they might not choose to work with their husbands. They believed the family partnership had restrained their career development. Most of the women in family partnerships admitted to modifying their initial ambitions in law, typically setting their sights lower. (But this was true also of many women professionals of their generation, no matter what their type of practice.) It was noteworthy, however, that in all my studies of lawyers, the most successful women were married but not in partnerships with their husbands.
It is difficult to determine whether the family partnership serves to restrict the women anymore than the profession at large. For those women who might have dropped entirely out of law to raise families—as some did—the family partnership served to maintain their identity as a
THE IMPACT OF SOCIAL CHANGE
While the number of dual husband-wife practices has been diminishing, today it is not uncommon to find husbands and wives working in the same firm or partnership along with other lawyers. In these situations, the wife's role is not as helpmate but as full partner. Women lawyers are alert to the need to establish reputations now and are less willing to do work that might impede them. They resist being moved into work traditionally considered to be “women's specialties,” and they don't willingly do invisible work in back rooms. As a result, more and more women are handling litigation in the courtroom and engaging in client contact. Some lawyers in practice with their husbands have come into the partnership with established reputations. The following accounts provide an insight into some “new” partnerships I studied in the 1990s.
Katherine Marshall (not her real name), an Illinois lawyer, commented on her own family partnership, formed after she had launched a successful career in a major U.S. Attorneys' office: “The problem of not having the option or inclination or opportunity to participate in the active litigation of the law firm has not been a problem in our firm. Perhaps it is the case because I came out of a very highly litigationoriented United States Attorney's office. As a matter of fact, many clients came to me in the area of litigation because of my presumed expertise.”
Another women reported that the sex division of specialties continued to shape her partnership, though she and her husband had quite different abilities. “I bring in more business clients than my husband does, although he handles more of that type of legal work for the firm than I do. By the same token, he probably brings in more family law problems than I do, although I handle all that type of work for our firm.”
One couple who decided to go into practice together found themselves in traditional specialties. The wife, a lawyer in feminist public interest work, reported that
“He had background in corporate work and I had background in Title VII. Neither of us had background in matrimonial work. So we both read everything there was to read on matrimonial work because we suspected that's where most of our clients would be coming from. I learned it by the practice, really.”
“Does your husband handle matrimonial cases with you?”
“He hates it even more than I do, so I do most of it and he is trying to build up the corporate end of the practice.”
Wives in husband-wife partnerships today, even if they started out together in the past, are far more evaluative of their positions in the firm than their predecessors had been. An established lawyer who went into partnership with her husband in the late 1970s said she felt “her identity oozing away” when her husband's male clients made remarks such as “I see you have the little wife here.” She could not be an “associate to my husband” she said, because “it sticks in my craw.” It was mainly in this partnership that she realized “how much it means to me to be a hotshot lawyer.”
Another couple evaluated their partnership as “being ideal for the family, because it's our own outfit with our own hours and our own thing.” In this partnership the wife took off a day a week to take courses that interested her. “What about competition?” I asked. “People always ask about competition,” she said. “It's never an issue. If he does well I am delirious. The same is true for him.”
Couples who had been in practice for a long time, and those followed up ten years after the first study, had undergone changes. Some were ideological changes, some were life-cycle changes, and some developed because of the new opportunities created by changes in the law as well as the women's movement. The women partners were doing much better in their professional lives than they had been previously. One had become much more active in bar association activities, had developed her reputation, and was bringing in business independently. The firm had grown, and she now had a number of younger attorneys working for her. She claimed to have been affected by the women's movement and seemed also to be assessing her marriage anew. The children were now grown, giving her considerably more freedom.
Sarah Leiber (not her real name), an attorney in a labor relations firm, had developed a specialty in sexdiscrimination cases independently of her husband and another partner. She, too, had a heightened sense of career. Because her children were grown, she now had the time
New and old partnerships have thrived when opportunities for women have expanded. In fact, husbands and wives both benefit from them. Kathryn Marshall illustrated this in a note about her husband: “I have had the distinct pleasure of hearing my husband discuss the awesome benefits of having his wife as a law partner. He tends to emphasize how his comfort level is increased because of the absolutely unquestioned loyalty that he knows is part of his relationship with his law partner. He also emphasizes his security in working with a known quantity and with someone whose abilities and capabilities he has no doubt about.”
Work in a family law firm may also permit women attorneys to take advantage of new opportunities in playing public roles. This is true whatever their ideological commitments. Consider the case of Phyllis Schlafly, an active opponent of the Equal Rights Amendment, whose public-speaking engagements have taken her far from home. Schlafly, who received her law degree in 1979 when she was fifty-three years old, went to work part-time in her husband's firm, Schlafly, Godfrey and Fitzgerald, and continued to pursue her political activity.
It is significant that husband-law partners today share the new ideology of sharing. When their wives have come forward, expressing the desire to take more visible roles in the firms, they usually have gained their husbands' support. One prominent lawyer, well known for his work on cases highlighting social causes, practiced with his second wife until his recent death. Friends of the couple noted that the wife started out in classic style “carrying his briefcase.” As time went on, however, the husband promoted his wife's career and gave her a more prominent role to play in court.
It is clear the norms have changed in the past thirty years. Women who work with their husbands do so by choice because they have other options. Women lawyers no longer are satisfied doing the firm's housekeeping or taking on invisible roles, and lawyer-husbands accept this. Moreover, the benefits are shared. Now that women's contributions to family firms have become more visible, men can more easily refer cases to their wives without fear of the disapproval of their clients. Of course, the benefits and rewards in husband-wife partnerships ultimately depend on the personalities involved and the social contexts in which they practice. Other family members, friends, and professional associates can
MARITAL PARTNERS AND
One indicator of interest in couple business-partnerships is the number of books advising couples who work together in partnerships on issues of conflict, division of responsibilities, and time problems that have come out (James and James 1997; Marshack, Scott, and Jaffee 1998), and there is a website, www.couplesatwork.com, sharing information.
Today, with a new entrepreneurial spirit, husbands and wives are going into business together in enterprises springing up all over the country. These include professional legal and medical partnerships, cinema management, music production, book and magazine publishing (Davies 1998), and large-scale businesses such as the $50-million-a-year bakery chain Cinnamons, based in Kansas City (Nelton 1989). From the outsider's perspective, the new husband-wife partnerships can be viewed as prototypical of a new and useful equality between marital partners and other professional partners. Sharon and Frank Barnett (1988), authors of Working Together: Entrepreneurial Couples, have coined the term “copreneurs” for husband-wife partnerships. They point to the benefits that accrue to couples who are similarly and equally engaged in a family business because of the sensitivity each has to the other's work demands, problems, and aspirations. In a work environment in which firm loyalty to employees is decreasing (Epstein et al. 1999; Sennett 1998), many people, among them couples, are deciding to start their own businesses. The number of couples in nonfarm sole proprietorships rose by nearly a quarter of a million—from 257,899 to 482,933 between 1977 and 1985 (the last period for which I could obtain data) (Nelton 1989). No doubt there are substantially more today.
As I noted earlier, family businesses are common among immigrant families although I have not been able to locate research on professional partnerships. Studies of Korean immigrants seem to be most plentiful. They illustrate the issues that successive waves of immigrant couples face who go into business together. A 1996–97 survey of Koreans indicates that 38 percent of employed Korean women worked together with their husbands in small businesses (Min 1998). Other studies of Korean immigrants
Husband-wife partnerships, professional and entrepreneurial, are ageold and continue in today's economy. They provide the opportunity for a true egalitarianism between husband and wife in a joint enterprise. We have seen the development of equal professional partnerships over the past thirty years in the United States. In the most positive situation, husbands and wives are interdependent and equal as they depend on each other to provide labor and emotional resources. But, as in the past, husband-wife businesses may foster gender inequality by reproducing traditional hierarchical domestic roles in the family in which husbands exploit the labor of their wives. Much depends on women's opportunities in the marketplace, the reduction of ethnic, racial, and gender stereotypes that limit employment possibilities, and the exposure of the family to an ideology of equality.
Bonacich, E., M. Hossain, and J. Park. “Korean Immigrant Working Women in the Early 1980's.” In Korean Women in Transition: At Home and Abroad, edited by E. Yu and E. M. Philipps. Los Angeles: California State University, Center for Korean American and Korean Studies, 1987.
Park, Kyeyoung. “The Korean-American Dream, Impact of New Productive Activities on the Organization of Domestic Life: A Case Study of the Community.” In Frontiers of Asian-American Studies, edited by G. Nomura, R. Endo, S. Samda, and R. Leong. Pullman: Washington State University Press, 1989.