Death, taxes and divorce. Well, almost. The first 2 are unavoidable; for roughly sixty per cent of those who marry, divorce will be unavoidable, too.
Divorce is almost universally regarded as an awful experience. One of the many reasons it is awful is that couples who marry have little or no understanding of the way divorce law deals with the vast array of seemingly benign and conventional decisions they make during the course of their marriage. Nor do they have the cultural conventions, now largely discarded, that guided, for better or worse, the everyday business of being married. If, before a couple tied the knot, they had a clear understanding of even the most basic legal concepts concerning divorce, they could make decisions during their marriage that did not come back in the midst of the chaos of a failed relationship to wreak havoc on them and their children.
The unwillingness to talk about divorce until after the marriage is engulfed in flames is the same kind of magical thinking that informs our attitude toward death – an altogether unpleasant topic best left unexamined. Yet, divorce law is designed to end a marriage on terms that are equitable – in other words, fair. Those of us who have experience representing clients in divorces or mediating divorces know that the central importance of fairness and the various legal mechanisms designed to achieve fairness are a mystery to most divorcing couples. That lack of knowledge, coupled with a romantic kind of naïveté about marriage, leads to the kind of decision making that creates unfairness during the relationship and heartache in the divorce.
So let’s have an open, candid conversation about divorce before the clerk issues the marriage license. Let the family law bar create a 2 hour class that provides those on the verge of marriage with an understanding of the legal consequences of the things people do in marriages. What happens with the stuff you bring with you to the marriage – money, debts, real property, personal property, children, etc? How about buying a house and obtaining financing; credit cards and other kinds of consumer debts; cars, real estate, retirement funds. If both people work or only one of them works, what happens to their earnings when it comes to alimony in its various forms? Child support, time sharing plans and health insurance (an admittedly abbreviated list) are important and unavoidable questions that have to be answered in a divorce; but who gives them any thought before they start their family. In fact, the parenting classes that divorcing couples are forced to take should be taught before the children or along with child birth and Lamaze classes.
Divorce is simply the legal method we use to deconstruct the most important, complicated and challenging of human relationships. If couples understood the ways their relationships will be taken apart, they might choose to build marriages that are more fair and durable or, if they fail, less of a Gordian knot to untangle.