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September 12, 2019 by Robert Franklin, JD, Member, National Board of Directors

If you want to know just a few of the ways in which our system of divorce doesn’t make sense, read this article (Business Insider, 8/19/19).  In it, Dave Johnson recounts the “8 things I wish I knew (sic) before I got divorced.”  Now, this being a business publication, those eight things are strictly a matter of Johnson’s finances, so of course there are many more pitfalls of divorce that he doesn’t deal with.

From his style of writing, Johnson seems like a nice guy, perhaps too nice.  He seems slightly miffed about things many find all but intolerable, for example, spousal support.

Let me be perfectly clear: I am not complaining about having to pay spousal support. For 30 years, I was either the sole or principal breadwinner in our household, and consequently, my wife never needed to pursue a career. Now that she does need to pay all her bills, I need to help out.

Johnson isn’t complaining, but a lot of men would be.  About 97% of spousal support obligors are men according to the U.S. Census Bureau.  Johnson spent 30 years as the sole or almost-sole support of his wife.  Now he gets to continue doing the same, probably until the day he dies, but without any of the non-financial help she provided when they were married.  To be a bit clearer on what that means, Johnson adds this:

It turns out that the judgment is a lot of money, relatively speaking — about 20% of the take-home pay I was earning at the time of the divorce. As someone who probably doesn't think hard enough about budgets, saving, investment, and retirement, it only became apparent to me when I started writing those checks after the divorce that this money accounts for virtually all of my disposable income.

In short, from here on out, Johnson will be able to add nothing to his savings, whatever they are.  That means he won’t be able to retire – ever.  He’ll likely work until the day he dies because if he doesn’t, he risks being held in contempt of court.  His “golden years” are beginning to look like lead.

How old is Johnson?  That’s not clear, but he says he married his ex just out of college and stayed married to her for 30 years.  That probably means he was about 55 or 57 when they divorced.  So he’s looking at about 20 – 25 years of paying her every month.  Assuming his ex is his age (they seem to have met in college), you’d think she should be required to train herself for paid employment and go to work, but if she has any such plans, Johnson doesn’t mention them.  But whatever their plans, there’s no requirement that an alimony recipient do what she/he can to earn and reduce the obligation on their ex.

Another financial blow to Johnson came with the division of his marital estate.  He tells us that they were far from wealthy, but their house was sold and the proceeds split in half.  The same was true of his 401(k) account.  Again, his ex contributed either little or nothing to either their home equity or his retirement account, but she still got half, plus of course a generous hunk of his monthly pay.

The point being that the law discourages him from marrying in the first place.  Who wants to work for 30 years just to lose half of everything he’s accrued?  And the law encourages her to divorce.  After all, if she’s stopped wanting to live with the guy, why not leave?  The financial downside to her is modest if there’s one at all.

Spousal support is an artifact of days gone by and should be mostly scrapped.  There was a time when women not only weren’t expected to work for wages, but that divorce was uncommon.  So a woman who didn’t work and earn could be reasonably certain that she’d remain married and therefore supported.  If she did divorce, it was at least defensible for the law to require that her ex-husband continue to support her, at least for a while.

But times have changed and the law should too.  No one is required to work but the law should acknowledge that adults need to take responsibility for themselves and their own well-being.  Neither men nor women should assume that a partner will take care of them forever.  For one thing, doing so courts disaster.  What if the one on whom you rely dies or becomes disabled?  Wouldn’t it be better to have prepared yourself for that eventuality?

Generally speaking, we should expect that adults behave like adults and take responsibility for their own upkeep, at the very least.  That means that the rule should be that no one owes alimony to anyone else.

There should be exceptions to that rule.  If one spouse is very old or disabled, we can’t realistically expect her/him to train for and go to work.  And if one person has stayed home to care for kids for a significant period of time, the other should pay support long enough for retraining to enter the workforce.

Fairness and justice require that our no-fault divorce system doesn’t remain an all-expenses-paid ride to the end of life.  The very concept of gender equality rejects our current system that’s based on the long-dead premise that women are unable to work and support themselves. 

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