Marriage as a Framework for Divorce

One of the least appreciated “benefits” of marriage is the framework it offers couples in the process of divorce, should their relationship come to an end. State legislatures have worked for decades to refine the legal dissolution process, and while the system is far from perfect — and it can create unexpected problems for some couples — it offers a clarity of rules and a rational process that can be very useful in the heated emotional atmosphere of a break-up. The rules are both substantive and procedural, and both aspects are often helpful.

On the procedural dimension, most state court rules mandate an exchange of financial information, provide access to a judge who is specially assigned to dissolution disputes, and provide a methodology for determining parentage and resolving custody disputes. In most states there are significant initial filing requirements and formal timelines for finalizing the dissolution. Most important to note is that if the couple is able to work out all disputes the court process need not be protracted or expensive.

On the substantive side, the divorce rules establish a baseline for determining who owns what asset and who is responsible for the couple’s debts, and provides more general rules for resolving disputes about property and other assets, such as retirement benefits or payment of post-separation support. While to some folks the rules are an unwelcome imposition of a normative set of guidelines, there are underlying principles of fairness and mutuality of support that form the basis for these rules. Rather than viewing the relationship as a mere “contractual” deal, the marriage rules incorporate the values of care and support over time, a respect for the fiduciary obligations of the parties, and restrictions on the disposition of assets without mutual consent.

In other words, a legal marriage (or its equivalent in the domestic partnership or civil union states) binds the parties to participate in a judicially supervised dissolution process. It can be time consuming and expensive, and it can result in an allocation of assets that is different from what might have occurred in the absence of such regulation. In light of the changing nature of the rules for same-sex couples, there can be many legal complexities to fight over, for couples that want to go into battle. But for many couples, the divorce process offers a more rational and more equitable outcome.

A “good divorce” is never a reason to get married or legally partnered, but in many instances it may end up being an unanticipated benefit of “making it legal.”

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