HIDDEN COSTS OF DIVORCE – HOW FAIR IS 50/50?
I have been reflecting on the differences between equal and equitable since finishing a trial last week. The longer I am involved in family law, the more I realize how inequitable “equal” can be. The default in a divorce case is to divide things 50/50, with each spouse receiving half of the assets. On its face, it seems like it should be fair. However, there are so many other “things” at play in a family that cannot be divided, and that is where significant inequities reside.
For instance, take a marriage that dissolves after 30+ years. In many of the cases that I see, the husband has been the primary income for the home. He has spent significant time in a career and has gained valuable experience in that field which has enabled him to continually improve in his ability to provide. The wife has likewise dedicated herself to taking care of the children, providing a good home for the family, and building important relationships for and with the family. The law starts with the premise that equal division is also equitable. While that may seem good on paper, it doesn’t take into account all of the intangibles that cannot be divided.
Take for instance the husband’s work experience. Often that has been years of growth, positions with increasing levels of responsibility, and corresponding changes in compensation. After 30 years, the husband has significant contacts, a reputation, and skills that can be marketed in many different ways. His income is going to be difficult to replicate; it would take a similar length of time for someone to match those factors. When the wife has been home, focusing on responsibilities there, how does that workplace experience get divided? She is going to be starting out in the lower levels of any career. She probably does not have the time to work and gain 30 years of experience before the end of her life. She certainly doesn’t want to work into her 80’s.
Some of this inequity is balanced through an award of alimony, but even that is not totally fair. The courts focus on what the wife’s needs are; in so many cases I see opposing counsel going through a list of expenses, arguing that the wife doesn’t need so much money for miscellaneous things such as nails or hair styling, no money for gifts or donations (“those are luxury items”). The alimony issue is limited by the wife’s needs, which all too often means the wife has enough support to just get by, but not to thrive as she hopefully did during the marriage. As attorneys representing women in these alimony situations, we need to do a better job of painting the full picture of what the household lifestyle was like during the marriage in order to justify a more equitable alimony award. We should be taking into account what sort of travel was being done annually, and how much money was spent on that. We need to be looking at how much was being saved in retirement and for other purposes and be certain that our clients get similar treatment after the divorce. We need to build in expenses that will increase since wives will need to replace some of the household repair and maintenance work that their husbands previously did. We need to be more aware of what life will be like for a newly single woman in order to better address these issues of equity.
If you have been through a divorce, what are some places where you faced inequity? Let me know so we can talk about those issues further and help others who face similar challenges.