When my daughter was a teenager, I told her to avoid two things during her teenage years that could leave her struggling for financial gain and independence for the rest of her life. Two Albatrosses, that could strangle and weigh her down and prevent her from ever getting ahead.
Smoking cigarettes and having babies.
These two things are incredible financial weights that can decimate monthly earnings, prevent you from going to college or learning a trade, and have the potential to actually impoverish you if take these on early in life. Especially in your teens, before you’ve even start building a career.
But there are other weights we can acquire later in life just as devastating, and some might put marriage in that category. Why, because they dissolve and turn into everlasting debt. Or at least very long-standing debt. The debt from a divorce can bankrupt you.
I had just paid off my student loan debt from nursing school. Woohoo! Took me almost seven years to pay that off. Now I could start banking some dough for the future!
Oh, wait a minute. I still had other debts to pay.
True, the “rehabilitative maintenance” I was paying my ex had come to an end after two years. But I was still looking at many years of child support payments. It seemed there was always going to be one debt or another that weighed me down. (We’ll circle back to maintenance in a later chapter.)
Truth be told, I didn’t mind paying child support. She was my child too, and I had a responsibility to her. In fact, I paid more than required and covered extra expenses, like braces for her teeth. What I did mind was that I had absolutely no control over how that money would be spent. If the ex spent it all on herself, the State didn’t care.
No, the State would throw me in jail if I didn’t pay and call me a deadbeat dad. The State would do this even if I were hit by a truck, was hospitalized, and couldn’t work in order to pay.
But the State wouldn’t give a shit if the ex drank all the money away, or gambled it away, or bought bonbons with it. Oh, and I had to pay taxes on that child support. It was not considered to be income for the ex.
Fair? No fairness under the law, remember that.
I’ve been taught to be a linear thinker in both of my careers. A plus B plus C, et cetera, finally getting to the solution = Z. You need to go through all of the steps to completely and accurately finish the equation. Leave out just one element and the analysis fails.
But elements can get lost in translation before you get to Z. So today, we’ll do a bit of zigging and zagging to link all of the ideas presented in this series so far to the end point of today’s foray into the world of marriage and divorce.
First, we’ll Zig back to the myths.
Back to the myths that we’re taught to believe about intimate relationships and how these myths were the magic that we thought defined marriage. Why on Earth do we think we are marrying someone? Getting bound by a tradition that evolved from the trading of property?
We think we’re getting married for love and devotion, a permanent etching of our commitment and fidelity, to raise a family, and for mutual support.
Time to Zag – back to contract law.
Yet the State has declared that marriage is a civil contract, and it just so happens none of these things, these myths, these beliefs, are terms of that contract. In fact, there are no express terms because the document we use is a license that essentially only identifies who we are. That is the only “writing” the State requires.
The closest we get to actual contract terms might be our marriage vows. But those are spoken, not memorialized, so they are unenforceable. And if you think about it, how could they be enforceable? How could you, or the State, force someone to be faithful and devoted to you? To maintain everlasting love for you?
Zig to breach of contract.
If we don’t have defined, express, written terms to this contract, how do we know when it’s been breached and who breached it? This is kind of important, because in normal contract law the breaching party is the one who pays the ensuing damages.
Not so in marriage.
I claimed breach in my first marriage because my partner went outside the marriage for sex. Plain and simple. She was not devoted to me and she committed infidelity. Seems like a breach to me.
Yet most States claim marriage fails at the fault of no one. My state is actually better termed a “modified no-fault State,” but, as a practical matter, that really doesn’t produce different results.*** (Check the footnotes)
So, the State, (A) made up this whole idea of a contract, (B) made us parties to it, (C) bound us in a legal agreement that has no terms, and (D) if in a no-fault state, says no one party can be accused of breaching that agreement. Yet, (E) the agreement can fail, (G) the parties can separate, and (H) joint property will be divided as a result of that separation, (I) the way the State says it will be divided, (J) unless the parties agree otherwise, and (K) that agreement is not unconscionable.
Notice (F) is missing. What the Fuck is “F” ??!!
F, my friends is another legal fiction that fills in the gap for the concept of breach, who breaches, and the result of the breach of contract.
*F is composed of mealy-mouth, willy-nilly, weasel words like “irreconcilable differences,” or my state uses the term “irretrievably broken.” F is an invention of the State that serves as the basis for dissolving the marriage contract.
BTW, I like using the word dissolution. The contract dissolves. As if placed in a vat of acid. That certainly describes what can happen to your assets. They magically disappear. Evaporate. Even future assets that don’t exist yet. Even hypothetical assets that never materialize. Just wait . . .
Well, my wife’s eyes are blue and mine are green. That’s an irreconcilable difference – might as well get divorced. “Irretrievably broken” could include a finding of infidelity, but that finding is only made to say the contract is breached, it may, but usually doesn’t, have any impact at all on property division.
Zag – the Punch Line
A marriage contract, the hidden terms to the contract, are all about property and nothing about love and devotion. Simply stated, a marriage contract is a contract for real (real estate) and personal property. That’s it, period.
If there are children born to the marriage, they too will be awarded like property, with a few extra encumberments, and we’ll talk about those in another chapter to this series.
OK next time, it will be time to Zig – Oh where or where does the property go?
Photo: The lightning bolt a zigs and a zags, but ultimately it strikes something. Hopefully not you.
* All disclaimers from my previous posts on this topic apply.
** Prior posts include:
“Irreconcilable differences” = no-fault grounds for divorce. This basically translates to meaning neither party committed any sort of extenuating act, such as adultery, abandonment or extreme cruelty, which is usually bullshit. One of the two parties, or both, have engaged in some types of behavior that has turned the most powerful emotion of love into something else. Courts and legislatures may play word games in their statutory schemes, but these games have little meaning in terms of the outcome of dissolution in modern society. Laws may have evolved from times where a fault requirement was necessary and legitimately played into property awards, but the given results really haven’t shifted in historical context with the changes in terminology. From what I have witnessed, I believe is because of long-standing judicial bias.
“Irretrievably broken” is a bit different from the grounds used for divorce in a true “no-fault” state. My state is technically called a “modified no-fault” state, which means it must make a finding as to why the marriage is broken from a list of statutory reasons. But right off the bat there is a contradiction because as long as the parties say the marriage is irretrievably broken, the court makes it so and orders dissolution just based upon the parties’ declaration. It’s only when one of the partners resists ending the marriage that the court must make a ruling, upon evidence, that the marriage is broken. It is then that the court makes a determination as to whether there has been adultery, or if the parties can’t live together for any reason, or if a spouse was abandoned for over six months, or if the parties, by mutual consent, have lived separately for at least twelve months. While the behavior of the parties is a factor a judge may consider when distributing the property and children, I would say again, as a practical matter, having this discretion doesn’t usually change the outcome for the parties. Traditionally, the money and property follows the woman. Although there are exceptions.