The New York Times published an interesting article today about people who opt to stay married for 25 to 40 years or longer. What’s odd about that? The article is about folks who stay married but live separately. Some continue to function as a married couple, filing joint tax returns, enjoying company perks like health care insurance, etc. Others live separate lives. Often financial reasons keep them together, particularly if one party has a debilitating disease and the other has great health care coverage.
One man quoted in the article said: “Since separating we get along better than we ever have. It’s kind of nice.” Because their children are grown and no longer live at home, he sees no reason to divorce. He said: “Why bring in a bunch of lawyers? Why create rancor when there’s nowhere to go but down?”
Lynne Gold-Bilkin, a divorce lawyer practicing family law in Norristown, PA said that she sees a lot of these kinds of arrangements.
Check out the comments to the article, however. One from Wendy, a retired Ann Arbor, Michigan family law lawyer was filled with good advice about some reasons why people who might have divorced at 30 should have done so. If you’re not the most astute manager of money, you might forfeit a lot by remaining married and tossing your money into a communal pot. Wendy pointed out that “Most frequently it is the woman and the children in these "undivorced" marriages who suffer the negative legal consequences.” Her entire comment is here, and if Wendy reads this blog and wants to email me with her full name, I’d like to give her a lot of credit for this good advice.
“As a retired family law attorney, specializing in divorce, I regularly saw cases involving the "un-divorced". Contrary to what appeared in the article, my perception is that many of the parties in these marriages fail to file for divorce out of sheer disrespect for the institution of marriage, and ignorance of the protections provided by a legal separation or divorce. It allows one or both parties to drift from one relationship to another w/out dealing w/ their formal legal status as the spouse of another. This often causes numerous problems, not the least of which concerns the paternity of children born or conceived during these "undivorced" new relationships. In most states, a child born or conceived during a legal marriage is presumed to be the child of the legal husband. When a pregnant woman, for example, wants to marry her new male companion who is the father of her child, the husband in the prior marriage could/would sometimes use this situation to extract legal advantage for himself in the divorce, such as threatening to take custody of their children unless wife agrees to no support, less property, etc. Wife w/ new relationship and pregnancy/new child must then not only deal w/ the simmering anger, etc. of her legal husband, but she can also be made to appear sexually promiscuous, which could, in fact, help the other spouse obtain custody, or other advantages in the divorce.“In Michigan, as in most/many other states, this presumption of the paternity of a child born or conceived during a legal marriage being the child of the legal husband can create other havoc. The wife could threaten to make it difficult or expensive for husband to disprove paternity, as a show of anger, for support advantage, etc. In the end, very often the legal status of these children born in this legal never-never land is unclear, and unfortunately, this may not be discovered until later in the child's life when confirmation of paternity for health/benefits or estate claims, must be provided.
“In general, despite my liberal politics, I came to view this disregard of the dividing line between the married and the divorced as causing many more problems than it solved. Most of the younger/lower income clients involved in these situations had no idea of the potential paternity issues, were ignorant of the fact that the acquisition or growth of property during a legal marriage is or can be divided equally between the parties long after a separation, an inheritance or lawsuit settlement by one party could be part of the marital estate, the growth of a pension/retirement fund may/would be taken into account long after a separation despite contribution by only one party, etc.“It’s one thing for this arrangement to possibly work for middle aged/retired people who have enough jointly acquired assets to share equitably, and who have no immediate need/desire to solidify a new relationship w/ marriage. The fact is that most of these ambiguous marriage situations are not well thought out in financial (and emotional) terms, and can be a recipe for disaster.
“There is also the problem of people (most often the husbands) just walking away, w/ no formal custody/visitation or support orders for the children of the marriage, and occasionally going to another state and remarrying w/out the benefit of a divorce from his prior wife. I don't believe there is currently a formal central registry shared between the states that requires the public reporting and availability of marriage and divorce records.
“Most frequently it is the woman and the children in these "un-divorced" marriages who suffer the negative legal consequences.
“As for the spouse who "wanders" to another jurisdiction and "remarries" another, it becomes very difficult (and expensive) to prove a negative (in this case that there was no legal divorce from prior wife). This makes it very easy it "get away w/" bigamy. Remember, these are often younger and/or lower income people, where the financial stakes involved w/ even limited assets, can make a huge difference. Unless there is a clear cut legal separation agreement (or divorce), setting the terms of property valuation, custody, alimony/support, property division (including date at which the property is to the valued), insurance, etc., these marriages w/ long term separations, are often just a big and expensive legal mess, and most often are detrimental to the spouse w/ the most to lose or who is the most financially vulnerable, and any minor children.”
The entire article The Un-Divorced, by Pamela Paul, published on July 30, 2010 may be read here.
Or, if you are contemplating staying in a long-term marriage, check out what happened to Mrs. Reed, who signed a pre-nuptial agreement prior to the marriage, stayed in the marriage 20-some years, used her income to pay family expenses, while her husband used his to invest in real estate and other money-making ventures. Net result? He got about 7/8ths of property worth $8 million accumulated during the marriage. I guess she did not review the pre-nup with her own family law attorney prior to signing it. Nevertheless, the potential for the same kind of financial abuse exists where two people stay married, particularly where one party is shrewd and the other party is clueless. See Reed v Reed, here.