Legal Answer Can Make Divorce Much Worse
Guest Author, Anne Kass, - a retired District Judge of Albuquerque, New Mexico

Many people come to court expecting that the legal answer to their problem will make everything all better. That just isn't so. Sometimes the legal answer makes things worse.

For example, in a divorce case the legal answer to the question of how to allocate community debts is that they are to be divided equally. Each spouse is to pay half the debt.

However, in the market place in this country, men and women are not generally paid equal wages. A common reality is that the husband's portion of the combined incomes is 70%, wife's 30%. It seems rather obvious that it may not work too well to require someone with 30% of the resources to pay 50% of the debt.

And in fact, often it doesn't work well. Divorcing women frequently are unable to meet their half of the monthly payments, which results in post-divorce litigation in which an angry divorced man, (angry because the creditors are hounding him to pay what his former wife hasn't paid) is convinced his former wife is irresponsible or doing it just to harass him. Of course, post-divorce litigation costs money in legal fees, which makes the problem worse.

Not only do divorced women sometimes fail to make timely payments, it is not uncommon for divorced women who are assessed 50% of the debt to be forced into bankruptcy. When this occurs, all the creditors who she was supposed to pay demand that the former husband pay instead. Community creditors have a right to collect money owed from either or both spouses no matter what the divorce papers say, a fact of law that surprises a good many divorced folks.

The result of the woman's bankruptcy in these cases is that the divorced man, with 70% of the money, is required to pay 100% of the community debt. As you might expect, that may well force him into bankruptcy too.

It seems only common sense that if the money is split 70/30, to allocate the debt 50/50 is not smart. Still 50/50 is the right legal answer.

The point is that in many instances the right legal answer is not a good answer, is not a fair answer, is not a sensible answer and may not even be a workable answer. Which is just one more reason why divorcing people should explore ways other than litigation to resolve their disputes. Divorcing men and women should try to make-up their own answers, answers that are practical and that work for their particular circumstances. There is nothing magic about a legal answer.



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