The Divorce Gap

There’s a common perception that women siphon off the wealth of their exes and go on to live in comfort. It’s wrong.

Elnur / Nils Z / John Wollwerth / Andrea Slatter / Shutterstock / Zak Bickel / The Atlantic

A 38-year-old woman living in Everett, Washington recently told me that nine years ago, she had a well-paying job, immaculate credit, substantial savings, and a happy marriage. When her first daughter was born, she and her husband decided that she would quit her job in publishing to stay home with the baby. She loved being a mother and homemaker, and when another daughter came, she gave up the idea of going back to work.

Seven years later, her husband told her to leave their house, and filed for a divorce she couldn’t afford. “He said he was tired of my medical issues, and unwilling to work on things,” she said, citing her severe rheumatoid arthritis and OCD, both of which she manages with medication. “He kicked me out of my own house, with no job and no home, and then my only recourse was to lawyer up. I’m paying them on credit.” (Some of the men and women quoted in this article have been kept anonymous because they were discussing sensitive financial matters, some of them involving ongoing legal disputes.)

She is far from alone. Despite the common perception that women make out better than men in divorce proceedings, women who worked before, during, or after their marriages see a 20 percent decline in income when their marriages end, according to Stephen Jenkins, a professor at the London School of Economics. His research found that men, meanwhile, tend to see their incomes rise more than 30 percent post-divorce. Meanwhile, the poverty rate for separated women is 27 percent, nearly triple the figure for separated men.

Women like the mother in Washington, who leave the workforce for several years, will likely see their earnings stunted when they resume working. The main reason women suffer the brunt of divorce’s financial burdens, according to Jenkins, is that during marriage, they are more likely than men to stop working in order to raise kids. “The key differences are not between men and women, but between fathers and mothers,” he told The Guardian.

On top of that, divorce proceedings alone can pose a serious financial burden. According to Divorce Magazine, a trade publication, the cost of divorce varies wildly, from as little as $8,500 to well over $100,000. An accurate average is hard to nail down, but estimates usually fall within the range of $15,000 to $30,000. And if the split is relatively amicable, costs can sometimes be as low as $250 to $3,000, according to Lee Borden, a divorce lawyer in Alabama.

These burdens tend to fall disproportionately on women, and, in its usual way, the market has recognized that: A handful of firms have started providing loans—some of them for hundreds of thousands of dollars—to women so that they can properly argue their case in court. The loans’ interest rates can be high, but one firm estimates that applicants typically win assets worth three times the amount of their loan.

But without such outside help, many find themselves trapped, and it’s not just women who can experience divorce’s ill financial effects. Bari Weinberger, a family-law attorney working in New Jersey, says that while child support and alimony can cause hang-ups in court, it’s also the case that many people simply cannot afford what they’re ordered to pay, and end up defaulting because they are out of options. “You now have two households and one check to make ends meet. And it’s not easy,” Weinberger said. “When men come to us looking for advice on how to handle this support, we can’t create the funds that aren’t there.”

Weinberger says that because of the inevitability of alimony and child support, she advises ex-partners to make peace with paying for support before proceedings even begin. “The judge is going to order how much you pay and for how long, once you go to court, and that’s it,” she says. (If spouses choose to divorce via a settlement, she notes, they have a little more flexibility.)

And alimony and child support don’t always flow from ex-husband to ex-wife. Many men fear they’ll be ridiculed when others find out they’re receiving money from their exes, Weinberger says. Some would rather forgo their monthly stipends than swallow their pride, even if they are the stay-at-home parent bringing in no income.

Of course, the messiness of life can cause serious stress before there’s time to have a judge step in. When asked what she got out of her divorce, a mother in New Hampshire I spoke to simply says: “divorced.” Having been married to her husband for two years and having been the mother of their child, the woman found herself without any financial safety net when they split abruptly. “He would not contribute to any expenses,” she said. “He gave me 15 days to get off his cellphone plan, and expected that I wouldn't default on our rent, which was $1,600 a month. I sold my cellphone for food and got a prepaid number.”

To get out from under that debt, she needed to submit official divorce paperwork, which wasn’t cheap. “I managed to find a sympathetic lawyer to whom I still owe a ton of money,” she said. “I sold my car and all my furniture to afford the retainer. Then I prepared and filed the initial motion myself.”

Technically, though, even if this mother and people like her don’t know it, they might have access to some of their spouses’ money. Cotton says that because women are still legally married while filing for divorce, they therefore might have a legal right to their partner’s funds. “If someone calls me and says, ‘I need an attorney but I have no money,’ I remind them they’re not divorced yet, so they actually do have money,” he says. “In those cases, I file a motion asking for retaining fees and the other person’s lawyer will cut a check.”

But that route isn’t an option in every scenario. The mother in Washington suffers from several chronic illnesses and conditions, and while her health is currently on the mend, her savings have dwindled to nothing—having been used on house and condo payments, appliances, and basic necessities—since she separated from her husband. She says that when they were together, she even paid off her husband’s student loans. With shared money, they bought residences, but put them under her husband’s name. She has been left with no way of procuring income. Given her health, she said she would normally qualify for disability, but can’t because she didn’t have enough work credits in the past decade to get into the system, since she was busy as a stay-at-home mom.

Though she and her husband are not yet divorced, her spouse was ordered by a judge, after they entered a request for legal separation, to pay her $1,000 a month while the paperwork was finalized. But she says it’s not enough to live on, particularly because she still takes care of her two girls during the day. “Don’t get me wrong—I want my kids all of the time, but he uses me like free childcare. I watch the girls all day every day, but I can’t afford groceries and basic utility bills anymore. I’m really scared,” she says.

Mothers or fathers without income can make their cases to a judge, Cotton says, based on their contributions to the household. “One of the things they can say is, ‘I had these specific work skills but I took care of the child for our family, instead of going back into the workforce.’” Doing this increases the likelihood of receiving a livable amount of money from their estranged partners. Still, many spouses don’t know that, and the court system is often confusing and inaccessible to them.

And in some cases, women get manipulated by their partners. For instance, one woman was living in Missouri when she and her husband of three years divorced. While they had no children together, the woman said she agreed to unfavorable terms just to get the process over with. “I didn’t know what choices I had,” she said. “My ex scared me, and I felt I had nowhere to go. He was mentally abusive and sexually aggressive, and he threatened to drag it out in court until I lost the little savings I had left. So I cut my losses and ran.”

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Why does divorce so often lead to situations like this, and is it possible that there’s another way to handle them? Bill Doherty, a professor of family social science at The University of Minnesota, argues that having the courts involved sends a cultural message that divorce is a contest—a relic of the old, fault-based system, in which people could only dissolve their marriage if they could prove their partner did something that in a judge’s opinion made cohabitation unbearable. “No-fault divorce was intended to take a lot of conflict out of the divorce process, but it has not lived up to that goal because court-based processes carry the baggage of being adversarial in nature,” Doherty says.

“The system makes a lot of money this way,” he adds. “The only way to curtail the divorce-industrial complex is to create an alternative pathway to divorce that keeps courts and judges out of the process.” Making the process of divorce cheaper certainly wouldn’t erase the post-divorce earnings disparity between men and women, but it could still help ease the shorter-term financial burdens that arise.

In that vein, Doherty helped write the Cooperative Private Divorce bill, which the Minnesota state legislature is expected to vote on during its next session, according to Doherty. The bill, if passed, would make divorce an administrative agreement, much like marriage. Under the bill, couples would have the freedom to craft their own agreements in their own language in as much or little detail as they want. Once it’s filed, they have the option to go back and amend the agreement down the line, should they see the need to. The forms will have guidelines and suggestions for language regarding property and child custody, as well as warnings to help make sure neither party is being coerced or manipulated during the agreement process. “We’ve developed a coercion self-screening tool, so that people who are likely to be coerced during the process by their partners will be steered away from this,” Doherty said.

To obtain a divorce under this bill, Doherty says, couples would first go through an online orientation educating them about the process. If they decide to go through with it, they would file an online form stating their intention to divorce. Minnesota’s Bureau of Mediation Services will have staff members to give personalized help to those who need it, but there would be no third-party or judicial review, according to Doherty, as the point of the bill is to leave the couple to come to an agreement themselves and then submit it to the BMS. After a three-month waiting period, they would file the finalized agreement and sign off on it. Then they would receive a certificate of divorce through the mail. No courts, no lawyers, no judges.

Right now, there are other options available to those who don’t want to enlist the services of lawyer. There is an option to handle it pro se, which means that each side represents himself or herself in court, filling out and filing the paperwork on his or her own, and showing up in court to arrive at a final agreement. One man I talked to from Gainesville, Florida, orchestrated his own divorce after four years of marriage in order to save on attorney fees. “I went to the courthouse on my lunch break most days. Each time, I asked the clerks questions and when they told me my lawyer had to file certain documents, I told them I was my own lawyer,” he said. “It’s not easy, but if you’re patient, you can do it.”

Doherty says the Minnesota bill is different from pro se because it prioritizes ease of use. “In pro se, people have to follow the arcane language and rules of the court system,” he said, “and the common person doesn’t have the background to do that without at least some confusion. So it gets tossed back to them because they’ve forgotten to dot some i’s or cross some t’s.”

But Cotton, the divorce lawyer in Boston, cautions that courts offer some benefits that more-streamlined divorces don’t. He says that most people who think they can part ways amicably are mistaken. Joint bank accounts, real estate, and child custody can prove to be more difficult to hash out than they seem. “One of the big problems we have in court already is that people think they can do this themselves,” he said. “By giving people an administrative option, you could be putting children at risk because people grow and evolve and change. The needs of a nine-month-old are very different from the needs of a nine-year-old and if you don’t have a contract with the courts to enforce how that child is to be raised, then you have no place to go with it.”

Another woman I interviewed, a mother and doctoral candidate living in Alabama, is discovering that what seemed to be a cheaper alternative—using mediation instead of litigation—may have only been a short-term solution. With this option, both parties sit down with a professional mediator to attempt to come to an agreement, and then bring in lawyers only to finalize that agreement and give legal advice during the process.

This can save thousands of dollars, but it only works smoothly if the parties easily arrive at an agreement. “For us, it was surprisingly easy, fast and cheap,” she says. “It cost maybe $200, all told. But the long-term ramifications have been much more difficult. Our custody agreement is very loosely defined as joint custody, but now that my ex-husband has a serious girlfriend in another state, I have to seek out a lawyer to protect my parental rights.” The woman says that in hindsight, the way she divorced simply delayed the inevitable litigation, and in the interim, she’s been stuck with what she feels is an unfair portion of living expenses.

“Mediators can sometimes make things better, but there’s no real licensing for it,” Cotton says. “There is no governing body that holds anyone to anything.” He adds that “your divorce is something you have to rely upon. You need to be able to go back to it. With a divorce, you can get in front of a judge within days if something isn’t going right. If you only have a contract, it can take six to nine months. In those months, if you need money for medication or heat or child support, you could actually die. The last thing you want is your divorce breaking on you.”