The “Un-Advisability” of an “Un-Divorce” Arrangement

Psychotherapist and Guest Contributor Donna F. Ferber sent me an email a month or so ago encouraging me to read Suzi Parker’s article about famous couples who chose, rather than going through a divorce, to simply live separate lives. Click here to read Ms. Parker’s article about a trend some people call an “un-divorce.”

We both agreed to attempt to fairly evaluate the “pros and cons” of this option: she from a psychological perspective and me from a legal perspective. Initially, Donna was much more open to the possible merits of this arrangement than I was. She made it clear that she was most interested in hopefully reaching and empowering people who are in unhappy marriages and who feel trapped by fear, ignorance, and the lack of financial and emotional resources. Donna and I continued to exchange numerous emails over the last six weeks about this “un-divorce” arrangement, discussing the relative merits of couples remaining married but living separate lives. By reading the title of this article, I suspect you can tell that I am not impressed with the overall wisdom of such a relationship.  While it is certainly possible to construct various hypothetical situations when an “un-divorce” arrangement might make both emotional and legal sense for a client, for the overwhelming majority of individuals such a choice would be legally imprudent for a multitude of reasons.  Those include:

• Postponing the divorce might well increase the legal issues and costs. A divorce would result in a disentanglement of the parties’ legal, financial and emotional obligations to one another, ultimately providing clarity and certainty.  An “un-divorce” may well muddle the legal, financial and emotional obligations of the parties and leave them in legal limbo.
• If your spouse changes his or her mind or later disagrees about the terms of your “un-divorce”, there may well be unanticipated problems in the future.
• In many states, including Ohio, written agreements after the marriage (post-nuptial agreements or “un-divorce” agreements) are not enforceable.
• Problems may arise in an “un-divorce” arrangement if one party becomes romantically involved with a new individual.
• Your credit score might suffer negatively because of your spouse’s financial actions during an “un-divorce.”
• Extending the length of the marriage may well increase your spouse’s interest in both your retirement accounts and investments should you become divorced at a later date.  In addition, this could also significantly increase the amount and term of a spousal support (alimony) obligation since the length of the marriage is a key factor in that determination.
• An “un-divorce” arrangement may create joint liability for both of you arising from legal claims or judgments against your spouse (such as from a car accident he or she may be involved in).
• One or both of the spouses could have a significant change in health. If they remained married, there would be responsibility for taking care of the person with illness, chronic condition, etc.
• College scholarships and grants for your college age children might be reduced or eliminated because of the combining of both the husband and wife incomes, even though in reality perhaps only one of the parents is the “de facto” custodian of the children.
• Since your marriage has not been terminated, your spouse would be able to claim a portion of your estate if you die unexpectedly as well as other legal rights granted to a surviving spouse by operation of law.
• In an “un-divorce” situation, there remains the potential for liability for the debts of your spouse, including his/her funeral expenses, medical expenses and other “necessities.”
• Current Medicaid rules might wipe out a significant portion of your savings. For example, if a husband and wife have a million dollars of combined liquid retirement assets and one spouse becomes institutionalized, the community spouse can only shelter about $110,000 and the rest would have to be used to pay for the care of the institutionalized spouse. If they were divorced, the community spouse could shelter $500,000.

Certainly, our economic times are challenging.  Many more individuals have lost jobs and have negative equity in their homes.  These pressures have, no doubt, created unhappiness and are the origin (or at least a contributor) of many divorces.  As a result, many people may need to obtain both a bankruptcy discharge of indebtedness and a divorce because of the debts that have been accumulated or perhaps because of a real estate foreclosure or deficiency.  If you are in this unfortunate situation, talk to both a bankruptcy attorney and a family law attorney.  Together they can coordinate the timing of those proceedings.  Additionally, the good news is that in most states, retirement accounts and pensions are exempt from bankruptcy attachment, meaning that hopefully all the bad debts can be eliminated often leaving just the retirement assets which can be preserved. Discharging financial burdens via a bankruptcy and getting a fresh start can be extremely important both financially and emotionally!

Some people remain married to maintain health care insurance.  In Ohio (and Connecticut, too), it may be possible to be granted a Decree of Legal Separation and finalize the financial terms but still maintain the health insurance coverage.  This is not true all the time. It is necessary to review the coverage terms under the policy and determine if the health insurance coverage ends when a Legal Separation occurs as it does when a marriage is ended in a divorce proceeding.

In addition, I  have appeared before many family law judges to discuss the date to be used to value assets and determine the alimony terms, and I’ve heard judges say, “Don’t tell me that the parties should be treated like the divorce occurred years ago when they separated.  If they wanted a divorce then, they would have obtained a divorce.”  I suspect if I tried to explain that there was an agreed upon “un-divorce”, I’d expect to hear the Judge laugh and tell me my argument was “un-persuasive.”

I frequently hear that a divorce is just simply too expensive. However, if you and your spouse are able to reach settlement of all issues in an “un-divorce”, you certainly should be able to resolve the issues amicably in a divorce or dissolution proceeding.  Therefore, Attorney fees for non-contested proceedings can be less than a few thousand dollars. While not inexpensive, obtaining a divorce or dissolution most likely is a wise investment considering all the possible consequences in an “un-finished” divorce.

At the conclusion of our lengthy dialog, Donna and I ended in the same place. At first blush there are some positives that might be associated with an “un-divorce” arrangement; however the potential legal risks significantly outweigh the possible benefits! Think about all the important formalities that were required before you became married.  If your “union” and marriage contract are over, then it makes legal sense to do what is necessary to formally end it and avoid future legal limbo.  As Donna cleverly put it, the un-divorce is only an “un-choice”. Just like years ago, when there was a big campaign for people to switch to the “uncola”, we say it is still time to stick with “the real thing, baby” and that is obtaining a “divorce” not an “un-divorce!”

Donna’s Concluding Thoughts:

Thanks to Atty. Mues for giving this subject so much thought and for laying out such a concise, cogent argument. I admit to bombarding him with e-mails extolling the (perceived) merits of “Un-divorce”. Perhaps, it was a viable alternative? How great it would be ( I thought) to offer a rational option for all those people who are struggling with a deteriorating marriage and the absolute terror that accompanies anyone about to engage in a lengthy legal process! However, copious e-mails and his thoughtful dissection of the situation resulted in my reconsidering and ultimately changing my position. In a divorce, often there is a space of time between the decision to divorce and the action of initiating the legal dissolution. The truth is the “un-divorce” is not a realistic alternative to divorce. It is merely the prolonging of the very uncomfortable limbo between when a couple decides they no longer want to be married but haven’t yet gotten the energy to pursue the action.

“Un-divorce” may be like being “a little bit pregnant”. You either are or you aren’t.

This article would not have come about without the inspiration and perseverance from my collaborator Donna Ferber, LPC, LADC. She is a licensed psychotherapist in Connecticut. Her first book, From Ex-Wife to Exceptional Life: A Woman’s Journey through Divorce, won an Honorable Mention Award by the Independent Publishers Association and is available at bookstores everywhere or at www.Amazon.com. Please visit her website at www.donnaferber.com.

© 2010, Ohio Family Law Blog. All rights reserved.

Robert L. Mues

Attorney Robert “Chip” Mues has been focusing his legal practice throughout Southwest Ohio primarily in divorce and family law matters since 1978. Chip is passionate about family law and has proudly published the Ohio Family Law Blog since 2007. In addition, he is the managing partner of Holzfaster, Cecil, McKnight & Mues. To learn more about him or the law firm, visit the firm’s website at www.hcmmlaw.com. Appointments are available in person, over the phone or by Zoom. Call us at 937 293-2141.

www.hcmmlaw.com/attorneys/mues