Divorce - Division of Assets & Alimony

[r3volution 3.0]

As some of you probably know from personal experience, the laws in the US governing the post-divorce division of assets and alimony are often preposterously unjust. Since there have been some significant reform efforts in recent years, I thought this would be a good topic for discussion. How do you think the post-divorce financial settlement ought to work? I lay out my own thoughts below.

1. Marriage is a contract. Putting aside its informal religious and cultural aspects (which have no legal existence), marriage is fundamentally a contract between consenting adults. If a contract concerning post-divorce finances (i.e. a pre-nup) is in evidence, the courts should enforce it. It is reprehensible that courts routinely set aside otherwise valid pre-nups on grounds of "unconscionability" (i.e. the judge's subjective and inchoate dislike of the contract). But this only takes us so far, since evidence of a contract will usually be missing or incomplete. In that case, there must be default rules for the courts to follow to settle the dispute. In general, default rules should represent the contract terms which we think reasonable people likely would have adopted if they had thought about it.

DEFAULT RULES

2. At-Fault v. No-Fault. First, the court should determine who, if anyone, is at fault for the divorce. If neither or both parties are at fault, then the divorce is classified as no-fault. If only one party is at fault, then the divorce is classified as at-fault. A spouse is at fault if he or she commits one of a handful of severe offenses: e.g. adultery, serious physical abuse, or massive waste of joint assets (e.g. draining the bank account to play the ponies). There may well be others, but this is to be a short list of severe offenses.

3. Dividing the Assets. For no-fault divorce, each party should be entitled to a share of currently existing assets equal to the share of assets they brought into the marriage. For example, if Bob generated $1M over the course of the marriage, while Mary generated $100k, Mary's share would be 1/11th of whatever assets exist at the time of divorce. For at-fault divorce, the victim-spouse should get the larger of (a) her share of the assets as calculated above, or (b) half of the assets.

TL;DR - if the divorcing spouse has good reason, she gets half; if not, she gets what she put in.

[oyarde]

If I have to give anyone any of my assets , even the smallest percentage I think they should still be in servitude for a minimum for some laundry and or occasional blowjob .

[euphemia]

If Mary’s (for purposes of this discussion) primary responsibility was to maintain the home’s interior, care for children and drive them to various appointments and activities, the monetary value of that unpaid work should be figured into the amount of the settlement. If Mary left a $200K job to marry and take on all that responsibility, the salary she gave up could also be figured in.

It would be expensive to replace all that, and legally, some of it can only be done by a parent or court-appointed guardian.

And at-fault has to be proven. That means a trial, witnesses, depositions, etc.

[r3volution 3.0]

If Mary’s (for purposes of this discussion) primary responsibility was to maintain the home’s interior, care for children and drive them to various appointments and activities, the monetary value of that unpaid work should be figured into the amount of the settlement. If Mary left a $200K job to marry and take on all that responsibility, the salary she gave up could also be figured in.

It would be expensive to replace all that, and legally, some of it can only be done by a parent or court-appointed guardian.

And at-fault has to be proven. That means a trial, witnesses, depositions, etc.

Services rendered for the household (housekeeping, etc) should be treated the same as property brought into the household, sure.

But counting income forgone (job lost to take up housekeeping) isn't appropriate. I don't see any reason to give a person credit for work which they didn't actually do, just because they could have done it. By that logic, if John makes 100k/year working 40 hours per week, should he really get credit for 200k, if he could have gotten a second full time job at the same pay? That both makes the calculation more difficult (based on speculation) and gives people credit for ability without taking into account effort (you get credit for being able to make a lot of money, even if all you do is drink in the backyard).

[timosman]

if John makes 100k/year working 40 hours per week, should he really get credit for 200k

[euphemia]

The best thing to do is make sure to get a lot of input on the potential marriage. Consult an attorney and a counselor before formalizing the commitment. If you cheat now, don’t get married, because unless there is a huge heart change and a lot of accountability built into the relationship, you will be in divorce court before you know it.

[euphemia]

Adding: First and only marriage, nearly 40 years. No actual experience, but quite a lot in family and friends. Very sad to ever be in that situation.

[Sonny Tufts]

Consider the community property system, which currently exists in Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. It is based on the premise that marriage is a partnership and that property earned during the marriage is due to the joint efforts of the spouses. Such property is community property, whereas property that is brought into the marriage by a spouse or that is received by gift or inheritance during the marriage is separate property. Rules differ among these states regarding the characterization of the income from separate property; some (e.g., Texas) follow the original Spanish civil law rule that such income is community, while in others (e.g., California) such income is separate.

The issue of whether property is separate or community impacts numerous issues, including income taxation; estate taxation; determining what property a creditor of one of the spouses can reach; determining what property a spouse can dispose of by gift or by will; and, of course, how the property will be divided upon divorce.

The community property system will be the default rule in the absence of a pre- or post-marital agreement between the spouses.

[dannno]

I'm not a big fan of any of it.

What if the wife cheats on the husband, but he never finds out because she is really good at it? She stops $#@!ing him, and eventually he gets so desperate he gets roped in to cheating on his wife eventually and gets caught by her.. Now he has to give up half his $#@!?

Or what if he is a decent guy and makes good money and she stops $#@!ing him because she is a bad person, doesn't appreciate her husband but doesn't cheat on him? Eventually he gets desperate, gets laid some how, gets caught and now she gets half his $#@!? Also unfair.

But that isn't really even the main crux of why I am so opposed to it.

The real reason it all sucks is because if it didn't exist, then women would more likely choose men who are loyal, decent, level-headed and sensible to be with. Then what they would do is make sure that they fulfill their end of the relationship in order to keep them around.

The reason many relationships end is because the woman either chose a bad man or they chose a good man and couldn't keep him around. If you get rid of these government incentives for bad women to pretend to be good women and latch on to men for their money, you are going to create a much better situation. If these women knew they could be kicked to the curb any time, they would first go for the men who are most loyal, and then have to become better, more appreciative wives and keep their husbands happy. That would result in far better relationships than what we are seeing today. Women don't even like guys who are loyal. They often call them names like "clingy" and "creepy".