How to Fair Play Your Divorce

An interview with Eve Rodsky

Feb 27, 2024

If you have been a reader of The Mother Lode since its conception, you have heard me reference Eve Rodsky and Fair Play a multitude of times. Her work created the spine that allowed me to even start The Mother Lode. I wrote last week about how my Fair Play discussion with my husband signaled the end of our marriage (read it here as well as a full explanation of the book and system). As I have embarked upon the process of divorce, I wanted to bring the concepts that feature in this newsletter into how I approached our settlement. How does one get divorced as a feminist? Is it un-feminist to receive financial support from an ex? What if alimony is just restitution for the exploitation of women’s time?

Fair Play and Rodsky continue to gain traction even five years after the publication of Fair Play (The Cut just published a piece this week, and

Emily Oster

interviewed her on her podcast Parent Data two weeks ago). Rodsky was kind enough to chat with me about how her next frontier is applying the metrics of Fair Play to the family law system. Our conversation has been transcribed and edited for clarity and length.

Cindy DiTiberio: There were a million issues in my marriage, but what I call “The Fair Play Issue” was a big one. It felt like this chasm, this divide, that was insurmountable. I felt like if you cannot get over here, it’s done. I’m not willing to go back over on the other side (of doing all the invisible labor on my own). And so here I am getting divorced. I consider Fair Play to be a feminist work, where you are trying to reclaim the value of women’s time and to stop letting their efforts be taken for granted. So how can it factor into divorce?

Eve Rodsky: Time equity was not anything I saw being talked about and by that I mean the idea that an hour spent holding a child’s hand in the pediatrician’s office has the same value as an hour spent in the board room. Five years after its publication, I feel like people understand that time choice is a piece of the feminist movement. I think people first misunderstood Fair Play, which is why I didn’t release the cards with the book because I didn’t want it to feel like one more scorekeeping exercise. I didn’t want people to think they would magically solve their problems if they just sat down with these cards. We also have to address the Toxic Time Messages that are ubiquitous in our society which treats men’s time like diamonds and women’s time like sand. The home is like an organization and healthy organizations have three things: boundaries, systems, and communication. The biggest gap [for most marriages] is boundaries. Time fairness and toxic time messages were my attempt to dispel the thought that you can solve the problem with just systems.

CD: When I got my cards out again, because they had been packed away because, you know, I’m no longer married and started to look at them again…

ER: We have so many people using Fair Play in co-parenting and in family law. I just testified last year because the court didn’t want to give this woman spousal support, even though she had been the one taking care of the kids for years. So I started to read all the Fair Play cards into the record. And I read not just the cards, but I went through and read the CPE (conception, planning, execution) checklist for each of the cards (these can be found on the Fair Play website where if you click on each card and scroll down, it will take you to what it means to conceptualize, plan and execute each task). So that the court could see how much time it took to do the things she did that just went un-noticed, unrecognized.

That’s my next frontier as a lawyer - starting to speak to family law conferences and sitting in divorce meditations because unpaid labor is not discussed in any of the calculations.

CD: Fair Play was so important in my own evolution in learning to value what I was doing and recognizing its inherent worth (read The Math of Motherhood series for a deeper dive). My favorite card is the “Magical Beings” card because yes! All of that is work, and it is so important to children to have that little dose of magic in their lives. But guess what? Someone has to be the Tooth Fairy. Someone has to be Santa. Someone has to figure out what fun birthday traditions our family will have. It is literally creating family culture. Without it, what is childhood?

ER: Yes, I try and tell the judges, this isn’t about fucking housework, this is our fucking humanity. Our memories. Every novel has a scene of somebody shopping in the grocery store with a parent.

CD: Exactly. It creates the ecosystem of family memories, how your children feel in your home, whether they trust you. I think it is so interesting that family law is where your work is headed. Because as I’ve been going through my divorce, I’ve wondered: How do I Fair Play my divorce? How can I ensure we are factoring in not just my unpaid labor but the hit my career and earnings took in order to be the primary parent to my children? Alimony and child support isn’t being dependent on a man, it is restitution for the exploitation of my labor and the number of opportunities I had to forego in order to be the one at pickup each day. Shannon Carpenter, who is a stay-at-home dad, wrote that alimony is like repayment of a loan for all the unpaid labor that a stay-at-home parent performed. How do you go into the courts and explain that, even though she didn’t bring in the majority of the paycheck, this is the value she was bringing and this is how it should be factored into these divorce settlements?

ER: One of the Toxic Time Messages I write about in the book is this idea that “I made her life.” So many men say that to me, like, what does she have to complain about? I make her life. She couldn’t do anything without me. In other words, his financial contributions ‘make’ his wife and the family’s life possible. But wait a second, who is actually putting food on the table in terms of meal planning, shopping for groceries, and preparing breakfast, lunch, and dinner? My idea is: You make his life.

“The breadwinners/husband/fathers I surveyed are able to have the committed careers they have because their spouses carry the majority of the mental and physical load of keeping a functional home life possible. Nowhere is that more apparent than with widowers, who I actively sought out to ask: what changed after your wife passed? The majority admitted that they no longer had the same amount of unfettered time to focus exclusively on their careers.”

But back in 2012 when I started doing the research and interviewing for Fair Play, that was the most prevalent message. It was traumatizing to hear that, especially watching women be destroyed in the family courts who don’t understand these issues at all. When you can reframe the Time Tax, and understand its impact, you get that, first of all, women are paid less. Then they are expected to do all these unpaid labor tasks. Because of that our careers take a hit. That time tax needs to be repaid.

Alimony and child support isn’t being dependent on a man, it is restitution for the exploitation of my labor and the number of opportunities I had to forego in order to be the one at pickup each day.

CD ASIDE: Time tax is a term often referred to as the amount of time that is used (and wasted) when people are applying for government benefits. It is the time spent applying for aid: “learn about a program, fill out paperwork, assemble required documents, and schedule visits to government offices.” Those in government recognize that this is time lost. Time that these people could be spending doing paid work, or enjoying themselves. Doing this work is tedious and like drudgery and for the most part invisible. Rodsky uses the same term for the work that mothers do. When mothers are doing all this unpaid labor, it is time that they are not spending earning money, climbing the corporate ladder, receiving notoriety. We also must factor in the promotions they don’t apply for, the work trips they don’t take, the additional roles they don’t seek out because it would tax their family. Women are taxed in this way, while men are not. So when women are applying for alimony and child support, they are being repaid for this time tax they have given to the family. In other words, they overpaid and now the government/husband (who benefitted from their overpayment) is making things square.

ER: The math is that there are 24 hours a day and there are 100 cards that must be done. If a person decides to take on the unpaid labor, their time is taxed because they don’t have time to do paid work nor do they have time to do anything for themselves, for their mental health or physical health or to have something that brings them joy (I call this Unicorn Space and wrote an entire book about it). To me, it was always this idea that hours spent working in the home are just as worthy as hours spent working outside the home. If you believe that, this is a time tax on women’s time, and you are acknowledging that tax and are compensating them for that. Paying their taxes, essentially.

CD: I think the pandemic was a pivotal shift for some women, in that we got fed up (as

Gemma Hartley

would say). We are done doing it all. But the family law system is not set up to acknowledge that women are no longer just willing to take a hit in their career and raise their kids and hope to get back in it when the kids are grown. I do think that divorce disrupts the tidy narrative and then all of a sudden, you are like wait? What? How does this all work?

ER: Exactly. I mean the truth is that men are able to have the careers they have because of their wives. Unfortunately what happens in the court system all too often is that the men say: well, that was their choice [to downshift to take care of the kids]. They should be able to be self-sufficient. I didn’t make them quit. But what choice is there? We are seeing today with the cost of childcare that 43% of mothers downgrade their careers after they have kids because something has to give, right? A Gavron Warning is something that a judge in California can give to make a wife go out and become self-sufficient so the ex-husband doesn’t have to pay alimony. But they are not factoring in the sacrifice that woman made for her family. Husbands are able to have those careers because of their wives.

THE COSTS OF MOTHERHOOD

The Motherhood Penalty:

Less $ for Retirement:

Here’s what I want judges to take into account before they issue a Gavron warning. I have told women to say:

Before we discuss what I need to do to get back on my feet, I want to read into the record every single thing I did during those years I was “just a housewife.”

And then spend four hours reading it into the record. After 10 minutes, the judge will be like: that is enough.

No. I am going to read every single card into the record because this was my time tax. This is how I spent my time. This is how I am still spending my time. I need to have my partner take on at least half of the cards and then I will think about re-entering the work force. Otherwise, I am still doing all this work and trying to carry the load of a full time job. It just doesn’t work.

We belittle what women do but when you put it out there, on the legal record, you see that this is a huge amount of labor that allows all the rest of the labor in the workforce to take place!

I mean, look at the garbage card. It sounds easy, right? Take out the garbage. How hard can that be? How long does that take? But if you go to the garbage card on the Fair Play website, you see that it isn’t about emptying the garbage and taking it to the can outside. The conception of the garbage card includes: being in charge of all garbage matters in the house.

Planning involves:

Knowing when the garbage gets picked up
Ensuring there are garbage bags in the house that fit the trash cans

Execution involves:

Going to each trash can in the house to empty it
Taking garbage out to the outside can
Pulling garbage cans out to the curb on the proper day
Returning the cans to their proper space in the driveway once trash has been picked up
Refilling the trash bag in the now empty can
Making note when garbage bags are getting low

Usually men think they are in charge of garbage, right? But how much do they actually do? They probably take the garbage out when the garbage can gets full with a prompt from their wife. They probably take it to the curb with a prompt from their wife. What are the odds that they refill the empty can with a fresh bag? Maybe 20%? What are the odds they put garbage bags on the grocery list? 15%?

This is why full ownership of a card is so important to Fair Play because without it, the card is still held by the wife. She is holding it and delegating and reminding. No. We are done with that.

CD: I’m so interested that you are now using the Fair Play cards to help people with co-parenting because in some ways divorce forces Fair Play because we now run two separate households.

ER: Yes, divorce is a forcing function. 100%. But what is so fascinating about the forcing function in coparenting is that while there are a minority of women who still hold all the cards because their partners are incompetent and I am so sorry for them, most of the time I see men stepping into these care functions, because they were always capable of doing so. Women think they will be free of the mental load when they get divorced, but it is more like a slow burn. Because you are teaching your partner conception of the cards. A lot of men still want their ex-wives to hold the card and they say: Oh, I’ll reimburse you or a new woman will come into their life and will be the one in charge of gifts.

Data shows, over 10 years, that there were some cards that no longer cause fights in co-parenting (like laundry, garbage, and dishes that are very triggering while you are in a marriage). But there are other cards that become very intense triggers for people upon divorce. It isn’t the daily grinds, but the cards like school transitions, health care, or homework. For example, I was just talking to a mother who wanted to spend their income on a child staying at a private school for consistency post-divorce, whereas the father no longer wanted to pay the tuition on top of the alimony and child support he was paying. She felt like he was putting his financial situation ahead of what was best for their kids. When this happens, I’m like: well, see, this is why you divorced him. But these cards can be used almost like emotional blackmail. Homework is another issue. I see kids that are on the MTW custody schedule at the father’s and then the rest of the week at their mom’s. The moms are scrambling to get a week’s worth of homework done because they know nothing will get done at the father’s house. Bathing and grooming is another one. I know a woman who is now spending $25k on dental work for her eighteen-year-old daughter because her daughter never brushed her teeth when she was at her father’s house. Her cavities are so bad that she now has severe gum disease.

This was the father dropping the ball of bedtime routine, to ensure his daughter was taking care of her teeth. The mom is no longer there in the household to oversee and ensure things are being taken care of. Now she has to deal with the aftermath.

Sometimes even the medical card becomes a trigger because I have seen women have to take men to court to ensure that they give their kid their prescribed Adderall during their parenting time. This is another way that men can use emotional blackmail with these cards. “Well, I didn’t even think they needed it anyway,” etc.

CD: I think a hard part for women to let go of, is the idea that you can’t control what goes on in the other house, that your kids are going to be parented differently over there, but you can only control your little sphere, your own household. It can be hard to let go of that.

ER: I push women to let go of meals but not let go of medical and health. Not to let go of what kind of education their kids need. And moving forward, your task is to make sure you are not subject to a time tax. Look at the unpaid labor and make sure that in your co-parent’s home, they are appropriately holding their Fair Play cards so that you are not holding any conception and planning for their tasks. For example, if you are still in charge of school calendar or planning extracurricular activities or scheduling playdates, if you are still holding those cards, then your time is still being taxed and that should be factored into any alimony and child support payments because it is preventing you from giving your time to paid labor.

CD: Yes, even things like clothing. I am still the one buying all the clothing for the kids.

ER: Yes, that card has like 11 steps. It is understanding your child’s style, understanding appropriate clothing, knowing your kids size, buying clothing for extracurricular sports, noticing when they have outgrown something, or it is worn out.

I really recommend that even though you are living in two households that you do the Fair Play exercise, going through the CPE of all cards and ask yourself: am I still holding the conception and planning of these cards and how many? And if you tell me, oh shit, Eve, I’m still in charge of conception and planning for 66 cards, then you are nowhere near ready to go back to full-time paid labor. I won’t let you do it.

The Mother Lode

How to Fair Play Your Divorce

An interview with Eve Rodsky

THE COSTS OF MOTHERHOOD

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