Divorce sucks. Especially when your lawyer tells you that you are likely going to come out with the short end of the stick. Even legal sophisticates, meaning those who have experience with courts and lawyers because of their business affairs, their real estate acquisitions or their estate planning, often gasp at the perceived immorality of divorce laws.
Clients frequently complain about the unfairness of divorce laws and the courts' reluctance to consider moral issues that are important to litigants, but irrelevant to the court.
Five of the most common complaints are:
1. My wife left me to move in with her boyfriend, why do I have to pay her spousal support?
In bygone years the courts only made spousal support orders where a recipient spouse was innocent of marital fault. When a wife was considered to be the cause of the marriage breakdown, no support was payable.
In the middle of the 20th century, divorce law began to evolve and currently many countries and states administer "no-fault" divorce. That means even if your husband or wife is a serial philanderer, or physically abusive, if they qualify for spousal support, they will likely get it. A long marriage results in a lengthy period of support and support theory is based on a lack of means of one spouse and the ability to pay of the other.
Imagine the dismay of a spouse with means when their husband or wife leaves them for another partner, moves in with that partner, and still receives support from their aggrieved left-behind spouse. The obvious question is "Why do I have to support her (or him) when she has chosen to move on with a new partner? Shouldn't she be supported by him?"
Sounds logical, however, the legal test for entitlement to support is based on "means and need". If the spouse moves in with a starving artist or someone on a disability pension, that spouse may still have need, despite their attachment to a new partner. Related to this complaint is the next one:
2. My ex spouse has remarried, why do I still have to pay spousal support?
Often long-divorced clients will call their family law attorneys bursting with good news. He or she will announce that after 15 years their ex has finally remarried and when can the spousal support payments end? The problem is that only if a former spouse agrees to the cessation of support, in writing of course, can payments be terminated.
Ex-spouses, however, are loath to give up what they have enjoyed for many years and most frequently the matter ends up in a courtroom. Twenty-five thousand dollars later and with a little luck, the support may be reduced, but not eliminated, because of the "means and needs" test.
3. Why does my ex get spousal support after my death?
In long marriages, spousal support is often ordered to be paid permanently or indefinitely. Some jurisdictions even order that support be secured by life insurance or binding on the estate of the payor upon his or her death.
What that means is that even after a paying spouse dies, the support lives on, paid from a life insurance policy or from the proceeds of the deceased payor's estate. The practical reality is that as spouses enter their "golden years" they generally live off their pensions or the proceeds of sale of their assets. Yes, the same pensions and assets that were already divided between the spouses at the time of divorce.
The alleged unfairness is that the deceased spouse's estate is reduced by the ongoing support obligation, to the detriment of the deceased spouse's heirs, and worst of all, it is paid from assets that were already divided equally. It's back to "means and need" again. If the recipient spouse has need and the payor spouse has means, support may continue after death.
4. Why am I still paying child support for my 24-year-old child?
Clients often ask why they are obliged to pay support for their children after the age of majority, and in particular, why they are ordered to fund an expensive university education? The argument usually centres around the fact that if the family was intact, decisions would be made that may include parental funding of school, but could also include children working part-time or applying for student loans.
The answer is simple. If divorced parents cannot agree on how to educate their adult children, then the court must step in. The laws in many countries provide that child support must be paid until the child obtains one post-secondary degree or diploma. Yes, even if the family, pre-marriage breakdown, had no intention to fund their children's schooling.
5. Why doesn't my ex spouse have to contribute to child support?
In many jurisdictions child support is governed by child support guidelines enacted by legislators. Many of these laws provide that a parent with primary residence of the children is entitled to child support based on the other parent's annual income. So far, so good. However, issues arise when the recipient parent's earnings outstrip the payor parent's earnings and yet the higher-earning parent is not obliged to make a financial contribution to support, so as to reduce the support obligation of the lower-earning parent.
The policy behind the law is that a primary resident parent's contribution is more than equal to monies paid for child support, for it is the primary parent who does the most work including transportation, socialization, schooling, medical and dental issues, psychological and emotional guidance and many other day-to-day matters for the care of children.
The common denominator in these scenarios is that if you and your spouse cannot come to an agreement on support, the court will intervene. Best to try to reach a compromise with your spouse then to risk the rigours of the law.