I’m married – and I’m a divorce attorney. It’s a bit of an oxymoron, isn’t it? Or is it? I don’t even know anymore. I’m also a pretty connected, online person, so I hear all the chatter (I try to make sure I hear all the chatter) about staying single, getting or staying married, and divorce. All of it, from the stay at home moms and the tradwives to the successful, thriving single women, and the happy and unhappy married women, is interesting and relevant to me.
The truth is, as always, there are very few ‘one size fits all’ solutions and, not to start this article with the conclusion, I think we all have to figure out a way forward in life that works for us. We’re all different. We may want different things.
Is marriage bad for women?
I don’t think marriage is inherently bad for women, but there’s no question that being married to the wrong person is. Marriage is designed to be protective of both partners – though probably not as protective as it could be – in the sense that, while married, both are considered partners and earn an interest in anything that was earned, purchased, or acquired during the marriage.
If you are married, you are earning an interest in whatever is earned in your checking and savings accounts, whatever you (or he) put away for retirement, in any real estate that you purchase, and more.
You also potentially entitle yourself to spousal support, if the situation warrants it.
If you share children in common, there may be child support – as well as custody and visitation determinations made.
The law looks at married couples as partners, like in any business organization, and both parties earn an interest in what accrues during the marriage. Sure, some property or interests may be separate, or even hybrid (as in, part marital and part separate), but if it was earned, purchased, or acquired during the marriage, it is a marital asset.
Is divorce bad for women?
Like marriage, divorce is intended to be protective – to ensure that one partner can’t run off with all the money from the marriage and leave the other without access to any of it. The catch – like the catch with all legal proceedings – is that you have to show up and defend yourself according to a set of (somewhat patriarchal) rules.
I do think the law is evolving and I’m seeing good things happening – our new ‘divorce’ from bed and board, Arizona’s Alec and Lydia act, the fact the Colorado is recognizing coercive control as a form of domestic violence, and in Ontario a woman was recently awarded $400,000 in a tort case for “intimate partner violence”, a legal first. It may not be evolving fast enough, but there are such positive changes, such recognition of the difficulties that women (and particularly victims of domestic violence, coercive control, and post separation abuse) suffer, that I feel encouraged.
But still – the difficulties persist. Access to information. Access to assistance of counsel. Access to other, non legal resources, to help address other systemic inequities, especially in situations where there’s a gap in earnings between the parties. An abuser, typically, will be strong in court; the abused, by contrast, might appear erratic or unreliable. Judges, attorneys, and Guardians ad litem have very little training, if any, on trauma and recognizing it, so sometimes the behavior will color the proceedings, making someone who has been abused look like the problem.
I am very pro expanded training for family law and family court professionals. I am also pro expansion of programs that would allow even lesser earning spouses to afford access to assistance of counsel. (In case you weren’t aware, there is no Constitutionally protected right to assistance of counsel provided by the state in family law cases like there is for criminal cases.)
Divorce is designed to ensure that both parties walk away with a portion of what they earned. It’s not inherently prejudicial, but the way that it is implemented sometimes feels like that. Improvements could certainly still be made.
Is it better to stay single?
This is a tricky question. Studies are showing a lot of positive outcomes for single women – happiness, health, longevity, etc. There are all manner of metrics that show great outcomes for single, and particularly childfree, women.
If you want to stay single, that is certainly your choice – much the same as, if you wanted to be married, that would also be your choice.
I think it’s clear, though, that it is better to be truly “stand on your own feet” single than it is to be in a relationship and “all but” married. If you’re living together, bearing his children, combining resources, and everything else, but you’re just NOT married, you’re not better protected. In fact, you are LESS protected than a married woman.
Sure, you don’t have to file a divorce to leave. (Though if you have children in common, you may find yourself in contested custody litigation anyway – nothing protects you from that.) But that’s very little consolation if you’ve made huge financial decisions to support your relationship and now don’t have any rights to ask for a portion of what was earned or even any kind of support.
So, though I can understand a desire to remain single and unmarried, I would caution you that being single and unmarried would only actually protect you if you were really independently single.
What about a prenup? Can I use a prenup to protect me?
People seem to like prenups, but, if I’m being honest, I have a complicated relationship with them. I’ve mostly seen prenups exist as a vehicle for continued financial abuse. I also find that very few people actually know what the law is around marriage and divorce, so they are willing to agree to things that they think are fair, or willing to accept a lackluster excuse for a prenuptial agreement (as in, “I just want to protect what I had before we married,”) that then does far more than what was originally described.
One or two “good” provisions doesn’t necessarily negate a bunch of bad provisions. If he’s able to pay you, for example, to stay home with the kids, or put money into a separate retirement account for you, then chances are he’s got a whole lot more money that would otherwise have been part yours that he is NOT willing to share.
Full and complete financial disclosures should always be provided. You should also have a full and frank conversation with an attorney about what you’d be giving up if you agreed to these terms. I can tell you – I’ve never seen one myself that gives MORE than what the law allows. It’s not that it’s not possible, theoretically, but it’s certainly not probable. (If he was willing or able to pay more, why would he even want a prenup? He’d do what the law allowed as a bare minimum, and keep the rest!)
I generally advise against prenups; I often specifically advise against them, too, in individual consultations or conversations with women contemplating them. I’d advise you to be very, very careful, though.
Ultimately, the world is a hard place for women. Hard choices – like whether to stay single, get married, or even divorce – abound. I don’t think there are perfectly protective solutions and, if you want to bring children into the world, that’s even more true. I also believe that the state of the law is evolving in positive ways and that brings me hope for the future. For our daughters. But it may also be true that it isn’t evolving fast enough to provide the solution(s) that you may be seeking.
Don’t be afraid to consult with an attorney. To ask the hard questions. And then to make the best, most authentic decisions for you. In the spirit of full disclosure, I admitted to you from the beginning that I chose to marry – and I married AFTER I was already a divorce attorney for women only. So far, so good, and I wouldn’t choose differently. Though, if I’m honest, I sort of wish I had kept my maiden name.
For more information, or to schedule a consultation – whether before or after marriage – feel free to schedule online or request a copy of one of our divorce or custody books for Virginia women, visit our website at hoflaw.com.