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What Divorce Can and Can’t Do

Rachel Alexander April 29, 2014

This week I spoke with a gentleman who, during a 22-year marriage, amassed a considerable pension. His wife, on the other hand, had secured no retirement at all. He asked if there was some provision in the law that would address this inequity – the fact that he had saved while she had spent.

This is the dilemma of the saver and the spender, and I was in the unhappy position of telling him that this age-old dilemma does not get resolved in divorce. In matrimonial law, there is a presumption that the spouses are working as a financial team; if one is utilizing his pension to save, the other’s income may be going to directly support the day-to-day marital lifestyle. Whatever is or isn’t accrued belongs to the marital estate.

Waiting to address marital inequities through divorce is like spending a week gambling at a casino and then, when cashing out your chips, saying,

“Hey, wait a minute. This didn’t go well. That guy seems to have cheated. I should have won that game. I’m entitled to $50,000, not just the $5,000 you are giving me. Let’s square it up now.”

We don’t get square with divorce. If there is an issue in your marriage, it needs to be attended to then and there, not umpteen years out. If something isn’t working, address it. Available remedies during a marriage are plentiful. In the case of the saver and spender, they could have seen a financial counselor together and worked out an arrangement that supports the relationship and the spouses’ senses of integrity and fairness.

Many people for a multitude of good reasons, try to put up with things in their marriage that they dislike.

There is nothing wrong with choosing to be in a marriage that is limited in certain respects; most human relationships are. But choose consciously and wisely and make peace with your choices.

The best a divorce can do is dissolve a marriage and mitigate damage to the parties. Even a good divorce doesn’t remediate the limitations of a difficult marriage. Nor can it rescript the past. Divorce merely provides options going forward. In order to get any peace of mind, in order to have your present (which is the only place anything good can happen), you have to acknowledge that the past is dead. But you are not!

Divorce cannot reimburse you for the time you held your breath hoping things would change. Breathe now! That may mean addressing issues with your spouse (and professionals), deciding that the benefits of the marriage outweigh the detriments, or ending the relationship.

In law school my tort professor said, “In heaven we have justice, here on earth, we have law.” The remedy to a hurting marriage is not to be found in the legal system. The remedies we have in family law are often reminiscent of the surgical remedies available during the civil war – when often the cure was more brutal than the disease.

That doesn’t mean the law doesn’t try, but it’s trying to do something that even the powers of quantum physics can’t accomplish. Yet.