What's The Deal With This Divorce Thing, Anyway?
If you are planning to ask your spouse for a divorce in the near future, lists are going to become your best friends.
Negar Katirai, the director of the Domestic Violence Law Clinic at the University of Arizona James E. Rogers College of Law in Tucson, Arizona, supervises law students and provides legal representation to survivors of intimate partner violence. Her expertise in family law gives her unique and valuable insights into the phenomenon of modern divorce.
"You want to have a list of all your assets," Katirai said. "Retirement accounts, any real property, houses, any investments. Anything that basically is worth anything."
Today, divorce is relatively easy to access, with or without cause, and courts generally strive to help distribute assets and property equitably, as well as settle any questions of child care. Despite this, some courtroom biases and considerations require further thought.
Undoing marriage is no simple task
"Marriage is really silly," said Billy Mickelson, a full-time musician based out of central Oregon who went through a divorce about three years ago. He didn't mince words about the experience. "It's basically about tying your legal bind to a third party. It doesn't make any sense for a relationship and I don't ever really want to be married again."
Mickelson noticed a sharp contrast between the legal processes almost right away.
"Getting married is really cheap, it's really easy," he continued. "We did it ourselves. And then the divorce process is a lot more complex and a ton of paperwork. It was kind of insane."
He and his former spouse completed the divorce without a lawyer's assistance. When factoring in the emotional nature of the process, terminating the union proved a lot more overwhelming than the process for initiating it.
"If you're not already seeing a therapist, it's probably a good idea to start seeing one," Katirai said. In addition to legal counsel, people going through a divorce are likely to benefit from mental health counselors, too, she said. Even if that doesn't mean setting appointments, once divorce becomes a reality, it's a good idea to keep phone numbers for therapists and counselors available and bookmarked.
The despair of divorce is not something we inherently consider when espousing the allure of marriage.
Mickelson got married because of the bond he formed with his former spouse's children from another marriage. The loss of the pseudo-adoptive relationship was one of several factors that inflicted devastation on him mentally and emotionally.
"It wasn't the financial part of divorce that was so damaging," he said. "It was the emotional abuse that was so damaging and left me with no self-esteem."
Mickelson described the divorce process as cold and complicated during a time when he was mourning the loss of tremendous warmth. This collateral damage, the despair of divorce, is not something we inherently consider when espousing the allure of marriage, so it's important to have all of the support systems in place in order to compensate for the emotional highs and lows, whether children are involved or not.
Laws are dated
Albertina Antognini, a professor of law at the James E. Rogers College of Law in Tucson, Arizona, pointed out that a majority of family law is rooted in language and principles from long-forgotten eras. As early as the 1970s, cases around the country began to challenge the notion of what it meant to be a married or unmarried couple in the eyes of the law.
"Before then, cohabitation was criminalized," she said. "Non-marital sex was heavily criminalized. It was a very different time when the law explicitly channeled all relationships into marriage."
This origin story of American family law and divorce proceedings still informs how the court views gender and domestic roles. Certain prevailing attitudes about women held by judges and upheld by court rulings can make it so one-half of the separation is uniquely more vulnerable than the other.
In most cases, having a marriage in place lends itself neatly to protections for both parties, as far as the law is concerned. In the absence of marriage, things like property distribution can turn nightmarish.
"Things are changing, but it's still assumed that most women take care of the home," Antognini said. "Meaning, even if both people are income-earners, generally the woman in a different-sex relationship still does more of the childbearing, still does more of the caretaking. And in a lot of these relationships that end up making it to court, they are going to court because one of these individuals has dropped out of the market and they don't have the earning power that the person who still has their job has."
People often think marriage makes personal property allocation complicated, but this isn't necessarily true. With the exception of individual family gifts and inheritances, pretty much anything obtained by a spouse after marriage is considered common property between spouses if there is no intervening stipulation, such as a prenuptial agreement or assets protected as business holdings.
"Whatever was acquired from when you got married to when the divorce is going to be [final] will be equitably distributed upon divorce," Katirai said. "Whatever salary that came into the marriage during that time is going to be shared, so [that could mean] any bank accounts. You just want to have a good list of all that so you kind of have it handy and you know everything you're going to be talking about with respect to assets and property being divided."
Social media is fair game
Katirai said it's important to remember that any social media profiles are on record.
"You don't even have to subpoena, if you just have a screenshot of a text that they sent you or an email they sent you—all of that, all of social media creates a record that wasn't there before," Katirai said.
She cited cases where evidence provided in divorce court proved abuse by displaying admissions of guilt in a text message, email or private message form. In these cases, spouses apologized or excused behaviors, and engaged in threatening or menacing correspondence, all through seemingly private channels that were easily referred back to.
It's not only the private parts of your social media that could garner attention in a trial if your divorce requires it, either. Your public profiles are fair game, too, and in some cases, ripe with evidence of wrongdoing or dishonesty about things like substance abuse, social activity or income history.
"You should expect that your attorney will look into the other parties' social media and, also, a good thing to think about on the checklist is that you should be very careful about what's on your social media," Katirai continued.
Is it worth it?
When asked if he would do anything differently armed with his experiences of marriage and divorce, Mickelson responded blankly.
"I wouldn't have gotten married," he said.
The stark response serves as tongue-in-cheek, but maybe the real lesson is that keeping it simple is often the best thing to do. He and his former partner were able to amicably agree upon the distribution of assets and property, and were able to skip the court headaches and lawyers' fees. The two ultimately split the total cost of their divorce, about $300, right down the middle.
Of course, this strategy requires both parties to have open communication and a relatively tough hide. Mickelson said the experience was extremely challenging emotionally, but they were able to manage the logistical aspects with relative ease. For emotional hurdles, Mickelson relied on therapy and advocacy organizations, which he said were surprisingly hard to find and gain access to.
"For example, Saving Grace saved my life," he said. "It's typically women that are being abused and that go to that advocacy program, and so it's very rare that it's a man, but when it is, they don't miss a beat."
When it comes to dealing with the emotional and psychosocial fallout of divorce and relationship loss, organizations that offer support should be high on your list of essential resources.