While Divorce is a legal process, it does not work like other areas of the law. Unlike other areas of the law that aim to determine who was right and who was wrong, guilty or innocent, Family Law and the Divorce process work differently. Most states [including PA] are considered a ‘no fault divorce’ state, which means that the court and the law are not concerned with who did what to whom or what went right or wrong in the marriage.

Family Law and Divorce is concerned with the division of assets and the care of children and other dependents.

For example, imagine a situation in which Spouse #1 has had three affairs, has a small gambling problem, and is generally not a very empathetic person. From an emotional standpoint and from a vantage point of ‘fair,’ it might seem logical to assume that Spouse #2 should get custody of the children and more of the family assets in the divorce. In short, this is not the case.

Given that the outcomes in Divorce cases can run counter to what people may assume should happen, this article lays out 5 common triggers that arise in the course of divorce and what clients and their therapists should know.

Full Custody is VERY Rare

Getting on the same page as parents under the best of circumstances is difficult, so it is very unlikely that two parents will be on the same page about everything after divorce. Parents typically handle everything from bedtime to food differently. There can be different ways of disciplining, different ideas about privileges and even different ideas about what is appropriate use of the computer or phone. One person may seem ‘cheap’ to the other or not to care about school events or homework.

While all of these are things that could drive a parent crazy, they are not very relevant in custody considerations. The law assumes that both parents have a right to parent their children as they see fit, except under the most extreme circumstances – and bedtime, diet, phone time, or levels of affection don’t qualify. While a client may want the court to say who is ‘doing it right’ and correct the other, this is not what happens. Instead, children and their parents need to figure out how best to navigate the incongruities of parenting practices and use them as learning moments.

Unethical Behavior and Poor Choices Do Not Impact Equitable Distribution 

Robert Fulghum wrote a famous poem, “Everything You Ever Needed to Know, You Learned in Kindergarten.” In this piece, he laid out basic guidelines for how to behave and live with others. Unfortunately, things seem to happen along the way that make it difficult for everyone to abide by the same definition of fair, kind and responsible. And if there are any differences between two spouses, it is going to show up in Divorce.

However, just as in the case of custody described above, the Family Law system is not designed to ‘reteach’ those kindergarten principles nor does it purport to hold people accountable to them.

The truth is that the equitable division of assets will not even the playing field between spouses where one has not behaved well. There are basic formulas for guiding how assets are divided and poor behavior is not a variable. Divorce will not make things fair. The legal process is designed only to have a way of dividing up the assets that the system has determined belongs to both parties in a way that is reasonable if not ‘fair.’

The HOUSE! Who should keep it? Should anyone keep it? 

Divorce is disruptive enough, and considering what should happen with the marital home is an added challenge to an already emotional transition. In many cases, when children are involved, there is an instinct to want to keep the children in the home to minimize disruption for them. While well intentioned, there are other things to be considered as well.

  • Cost. Can the person remaining in the home afford to keep it, which includes not only the cost of mortgage but utilities, taxes, maintenance, and care as well. There are many ‘hidden costs’ involved in home ownership.
  • Alienation of one parent. One thing that is more important for most children than the perceived stability provided by the family home is a strong sense of home with both parents. When one parent maintains the home and the other leaves, it can create a sense that one parent is where home is and the other is a place that children visit. This is typically not ideal for children. Alienation is generally a process by a parent to try to minimize the value of the other parent in the eyes of a child. It is a very destructive process.
  • Staying Stuck. The marital home holds all the memories of ‘how things were.’ In many cases, the parent who stays in the home can get stuck, unable to begin creating a new life for themselves.

The decision about what to do with the home should be made very carefully and be considered from a variety of vantage points.

It Doesn’t Matter What Name is on the Account

One of the most confusing aspects of asset division for couples is understanding what belongs to who. What is considered premarital and what is marital? Even though one person may be listed on an investment account or hold the mortgage on the family home entirely in their name, this does not mean that the asset belongs to them. Similarly, because one person earned the money that paid for the house or contributed to the retirement accounts, does not mean they are more deserving of a bigger share. Marital assets are marital. However a couple decided to divide up responsibilities within the family is irrelevant. If the asset was acquired, or increased in value during the marriage, it is marital.

Your Earning Capacity, not your Earnings is What Counts

What happens when one spouse gives up their career to stay home and take care of the kids? And what if the second spouse has earned a good deal of money and provided a good lifestyle for the family? How do the assets get divided?

For many people who gave up their careers, they believe that settlement should put them in the position to live as they have been accustomed to living. After all, they gave up the career path or perhaps supported their partner in the early years so they could advance. And if there are resources, shouldn’t that mean that they can be supported as they have been even after divorce?

The answer in almost all cases is no. In divorce, there are general formulas to guide the division of assets. A spouse who has been at home may get a slightly higher percentage of the marital assets in some cases, but typically (unless there is a lot of money) it will not be enough to support them for life. Additionally, when considering what each person should get, the law does not look at what each person HAS earned but what they COULD earn. In other words, If  one spouse has a law degree, for example, and earned $200,000.00 per year during the marriage, but quits his or her job when the parties separate, the court will most likely assign this person an earning capacity of $200,000.00 or somewhere in that range, when calculating support or alimony. That is called “earning capacity.”.

Divorcing always changes the financial position of both parties and it is vital for clients to understand how their earning capacity will factor into the division of assets formula.

Conclusion

Divorce is so difficult because it impacts all the most important aspects of a person’s life at once: Financial, relational and spiritual. Divorce impacts a person’s sense of control, sense of belonging, and sense of stability… all at the very moment that they have to make some of the most significant decisions of their life.

We have written this article in the hopes of equipping counselors and therapists, a primary source of support for many people navigating this transition, with information that can support them in the challenging work of guiding clients during this difficult time.

 

Authors: Adina B. Tovell is a Life Coach and Collaborative Divorce Mental Health Neutral as well as the creator of The Divorce Companion, a comprehensive and interactive multi-media program designed to support individuals considering and navigating divorce. Lee Schwartz has been practicing Family Law for forty years. He is a trained Family Mediator and Collaborative Attorney, and his practice, Peaceful Separation and Divorce focuses only on non-litigation methods of Family dispute resolution.