What is Fair in Divorce


So many of our divorce laws are based on the idea that a perpetual contract is being violated, and not that it is now null, but now it is managed by the court, because the parties involved are unable to manage it. Once kids are involved there is no such thing as a split. This is a renegotiation between adversaries who might even be hostile towards each other. The general principal of fairness that is applied in an equal partnership is that each gets half. Since the partnership is managed by the court now, the court almost reflexively tries to maintain a 50/50 partnership through divorce. Each party gets half of the stuff, or at least as close as the court can get. Each party gets half of the money. This isn’t done at the time of divorce. Support payments and maintenance are used to keep this split over a prolonged period of time. In most cases it is the man who makes these payments. He will pay out a portion of his earnings to equalize the lifestyles of the two for sometimes the rest of her life. The ideas about child support are rooted in a philosophy that the child is due a portion of the parents earnings, and that too in a shared custody situation should be split 50/50, thus the higher earning parent now must pay the other parent to equalize this. In a sole custody situation this money transfer becomes large enough that often times the ex-wife now can maintain her lifestyle completely, and the ex-husband lives in squalor. His living arrangements now prevent him from gaining more time with his kids. This all makes sense to the courts, because they truly aren’t closing a contract between two equal partners, but they are now managing that contract.

We are now in an age when marriage is not even entered into as a permanent contract. Very few people enter into marriage thinking this will be forever. I see far more men duped by the idea that marriage is forever than women. Now legally marriage may be a 50/50 partnership, but we all know in truth it is not. The husband generally puts in more hours to earn the money for the family. The wife may work, but after kids come along, she will reduce her hours, and even change jobs to a job that allows her to spend more time with the kids. This all makes sense in the partnership. The man is willing to sacrifice his time to allow his wife to spend time with his kids. In modern marriages most men come home to a wife that then quits for the day. She figures he has been out of the house and now it is his turn. He takes over completely with the kids, and may even cook the dinner, and do the housework she didn’t have time to do while taking care of the kids or napping because she was exhausted from taking care of the kids. This may sound obnoxiously sexist, but just spend some time reading Facebook, and you will see moms posting about their naps and their hard days at the park with their friends and other taxing things like making peanut butter and jelly sandwiches. These women will often take off to have a social life once their husband is home, and leave him to take care of the kids alone. A true partnership would be one where when he arrived at home, they would parent together, and spend this time working together to finish what was unable to be done while he was at work.

Now splitting in divorce has become the tricky part. It shouldn’t be. Marriage is no longer permanent. This makes me sad, but it is a reality I am forced to face. I accept that the contract was 50/50, and that in the marriage the reality may not be anything of the like, so anything owned by both should be split in the most equal way possible. I would say this about retirement moneys earned by both during this time as well. What is fair payment after the divorce for support or maintenance, nothing. That’s right, nothing. The marriage is over. The contract is closed. There should be no support. A budget for the children’s necessities should be drawn up, and an account should be set up that is contributed to equally to pay for these things. In most custody, this would be medical and school expenses. Each parent can get clothes and food when they are together, and if dad can feed them steak and mom can feed them hot dogs, so be it. That is the cost she paid and passes on to her kids by the divorce. She would have steak with them if she hadn’t divorced their dad. The idea that the husband owes some amount for any amount of time after the divorce is antiquated. It should be cast off just like the idea that marriage is forever has been cast off. Those two ideas went hand in hand. It is not fair that one goes away, and the other has stayed. Anything extra for the kids can be negotiated between the parents or each parent can pay for what they care about. There is no reason for child support to do this.

Well that is my rant. I do understand that the biggest part of the inertia for change is the fact the government is trying to keep stupid people who divorce from entering the welfare roles. This should not be a part of our family law decisions. The husbands in large part are being punished in divorce, because the wives might not be financially prepared to go out on their own. Its time for fault based divorce to return to society or for legal marriage to go away. I am a fan of the government getting out of the marriage business, and marriage being left to the religious organizations or social clubs as people see fit.