Economic Consequences of Divorce in the United States: Recent Developments

Abstract

In most states, divorce courts distinguish between the divisible marital estate, generally acquisitions during marriage due to efforts, and pre-marriage acquisitions and gifts or inheritances received during marriage, which are not divisible. The divisible marital estate is divided “equitably,” which usually means that the spouse with the lower earning capacity gets more than half of the marital estate. In many states, these rules can be changed substantially if the parties sign a premarital agreement.If there are minor children, child support is set pursuant to a formula or chart. Courts rarely deviate from this presumptive child support amount, unless the parties have joint physical custody.Spousal support is the wild card. A few states have established more definite rules regarding spousal support. But in most states, courts have great discretion both regarding when spousal support is warranted, as well as regarding the amount and duration of any such award. It is not clear why this has occurred. Apparently the subject is so controversial that legislators cannot agree on a clearer rule and therefore defer to a judge’s discretion.But this situation must make it very difficult for family lawyers to counsel clients about potential outcomes in divorce cases, and thereby impedes settlement discussions and leads to arbitrary results. Perhaps U.S. states can learn from the Canadian experience. When they confronted unclear rules for spousal support, they appointed a committee of lawyers, judges and law professors to formulate advisory standards for spousal support. Perhaps such groups, if established in a state, could clarify what is actually happening in state divorce courts and could thereby give lawyers and their clients some additional guidance about probable divorce outcomes.