One of the most misunderstood realities of divorce is this: divorce isn’t necessarily fair as you understand fair, especially when it comes to the division of property and debts. In fact, the word “fair” probably trips up more divorcing couples than any other word.
For example, many people believe that dividing property is as simple as making a 50/50 split. And to the extent that it’s possible, some couples do want to do it that way.
But sometimes a 50/50 split is anything but equitable, and equitable is what the law is going for.
What Equitable Means
Equitable distribution of marital property has a purpose: it’s meant to keep both parties from having to lower their standard of living too much. This isn’t just out of concern for the spouse that makes less money. Even though childless couples are bound by it, the law is written with parents in mind.
Consider how difficult it might be for the kids if one parent lives in a mansion and one lives in a 1-room apartment. Or how hard it might be for the parent in the 1-room apartment to maintain a relationship with the kids, who will probably want to spend more time in the bigger house, that has more amenities.
And while the judge could award custody of the children to the parent with the 1-room apartment, financial ability to parent is one of the items that’s taken into consideration when deciding what’s best for the kids. It’s not desirable for the spouse with the most money to always have the advantage.
Why 50/50 Isn’t Always Equitable
You have to take a lot of other factors into account to get to equitable. Some will depend on the length of marriage…the courts are not going to give half of a person’s two million dollar fortune to the spouse he or she has been married to for a month.
But assuming a marriage of sufficient length to make it an issue, there’s more at stake here. For example, one spouse has a good job making $200,000 per year. If that spouse walks away with half the marital property, that person’s standard of living is still going to be way higher than the spouse that makes $40,000 per year.
Retirement, current earning potential, future earning potential…the courts have to take all of it into account. Tax implications matter, too. And that is why divorce cases can get so very complicated, because each spouse is trying to grapple with all these realities too.
As it is, the system isn’t perfect.
Conduct in Marriage Barely Matters
Another reason that people trip over “fair” is they think what the other party did matters a great deal to the courts. If one spouse cheated, for example, then the other spouse believes he or she should get more.
But unless that spouse spent a large portion of the marital assets on the paramour, the courts don’t really take behavior into account. They might look at how the boyfriend or girlfriend might impact the kids when it’s time to talk about custody, but it doesn’t matter to the way the real estate or the retirement account get divvied up.
You do better when you try to treat your spouse well.
Unless your spouse is abusive, a narcissist, or overly combative you actually gain an advantage when you start thinking about how your ex might have to live after the divorce. This will cause you to suggest, or accept, far more equitable settlement offers, and may even deescalate the situation by showing your ex that you’re not trying to be malicious.
This doesn’t mean you should walk away with less than your due. Quite the opposite. It just means that thinking about where both of you end up after the dust settles is often more productive than worrying about what’s fair. Why take all the way to trial if you don’t have to? If a judge is going to be thinking equitable instead of fair, then it just makes sense for you to think that way, too.