Where Is the Equitable in Equitable Distribution? Part 1

One of the challenges of divorce is dealing with two types of equity – emotional and financial – when the two may be distinct and even discordant.

Consider this set of circumstances. The husband, the breadwinner of the relationship, desires the divorce. He is willing to pay above and beyond what is economically fair because he feels responsible for the emotional toll his decision is taking on his wife. Here the economic and emotional equity seem to match.

Now take the example of the financially dependent wife, who is the catalyst for the divorce. She wants to end the marriage, and wants alimony. The husband does not want the marriage to end, and on top of that, cannot fathom why he should be penalized by having to pay alimony in order to appease a situation he opposes. The financial reality and the laws governing divorce would dictate one type of settlement to create a financial equity. Emotional equity, however, might look quite different.

The law gives us some guidance, but it requires us to see things through a different lens – without the messy, colored entrails that are feelings. According to law, marriage is a financial partnership; divorce terminates and divides the partnership, but there the analogy waivers. Dividing a marital estate requires an examination of multiple variables such as the parties’ material and nonmaterial contributions and the parties’ economic needs. The goal is for each party to be able to enjoy a reasonably comparable standard of living as experienced during the marriage. It’s not a meritocracy; the party who was the greater contributor, may leave with less than she would consider her “share.”

Many married people have endured all levels of compromise in an effort to make their marriage work. Sometimes this results in tolerating unmet needs for years. There may be recurring tension whenever the issue arises, but it is never resolved to anyone’s satisfaction. The parties may have the illusion that they are living in an in between, conflicted situation, but the emotional conflict is not the tactile reality.

No matter how unhappily the parties regard the status quo, it will serve as the foundation from which future decisions will be made. That is, divorce will give weight to the facts, much less weight to the feelings about the facts. The law regards adults as conscious decision-makers, responsible for the natural consequences of their choices. Adults are even held responsible for decisions made through omission or passivity, good reason, inaction, or aversion to conflict or change. Choosing to continue on in a relationship that isn’t meeting certain needs may not feel like an affirmative choice, but the law regards this as a choice indeed.

This is to say that the law gives little to no weight to your feelings about the decisions you made year after year. In mediation, we can take into consideration whatever the parties deem relevant and certain inequities can be considered, if the parties choose.

The power in mediation comes in making new choices and moving forward based on what has been learned, both what worked and what didn’t.