Thesis Statement: When North Americans appeal for the right in a divorce to property,

a judge’s decision is often unfair to the non-working wife.

I. Benefits from the family business

A. Knowing how to operate

B. Hiding property

C. Holing a fortune

II. Disregard for supporting spouse’s worth

A. Giving up career or working part time

a. Doing housework

b. Raising children

B. Mental and physical support

C. Promoting

III. Non-equal split for future living

A. Men

a. Continuing their work

b. Living on increasing salaries

c. High skills and experiences

B. Women

a. Living on their property

b. Never work and hard to get a job

c. Draining of big cash

Unfair Divorce Property Decisions

When couples cannot get along with each other anymore, they have to find a way to solve their problem. Many couples choose divorce for resolving the marriage problems. Sometimes couples are happier after the divorce, and they live alone like before the marriage. However, frequently, couples feel unhappy when they divorce because it is not easy to untangle their lives. There are many decisions to make, such as who gets custody of the children, who has to move, and how to divide the marital property. When couples cannot agree together in dividing the marital property, they need a court to render a decision for them. Unfortunately, when North Americans appeal for the right in a divorce to the marital property, a judge’s decision is often unfair to the non-working wife.

Benefits from the Family Business

There are many different cases in North America where couples appeal to a court for the right to the marital property. Each case has different conditions that a judge will consider when making his decision. However, when a couple has a family business, usually a judge will consider the term of "operating spouse" (Moskowitz, 1990, p. 16). An operating spouse is a spouse who manages and organizes the family business, and is usually the husband. Moskowitz reveals that "when the marital/community property includes a family business, the [spouse] who is operating it at the time of separation has a distinct advantage over the [non-operating spouse], particularly if the family income has been derived primarily from the business" (p. 16). So, an operating husband tends to get the business since usually almost all of the family income will come from the family business. Also, Moskowitz shows that if the family business is small, usually a judge’s decision will give it to the husband who is operating this business. As a result, the husband tries to make the family business appear to be valued as low as possible.

An operating husband tends to possess the family business because a judge will consider who has a capability to maintain the business. "If the husband operates a business and the wife does not know how to operate the business, the husband will receive the business" ("Practice Limited," 1999, p. 1). An operating husband tends to build the business, since he has high skills and the experience to extend the business. Also, the husband can enhance his capability to organize and manage the business. On the other hand, a non-operating wife never works in the business. Although the wife helps an operating husband occasionally, the wife lacks the skills to manage and organize the business alone, so a judge considers the non-operating wife has a high risk of failure in the business, which may lead to losing the business.

Another advantage for the operating husband is that he knows how to hide property in the family business. Since the husband is operating the business, he can figure out and evaluate money or profit, knowing how much money or property the family has. He can make a wrong statement in order to hide some money whereas his wife never knows the total property worth. Moskowitz (1990) suggests that "the operating spouse may engage in one or more tactics designed to keep the apparent value of the business down and/or to frustrate the non-operating spouse’s efforts to value it" (p. 100). Even though hiding property is illegal, an operating spouse can find the way to do it in order to get property as much as possible.

The operating husband’s advantage, which results from possessing the family business, is that an operating husband is holding the fortune. He still continues his work in the business while the wife has to find a job and begin to learn how to work outside which she has never done before. The husband plans for the future whereas the wife plans to start a new life that she does not know exactly for the future. Moreover, the husband is hardly concerned about equitable distribution because he realizes that he can build the business, and he will have more and more property. Evidently, a non-operating wife who usually is also a non-working wife has disadvantages when a judge decides in case that couple has a family business. Of course, it is a hard work for the wife to get property equal to her husband. These disadvantages make it difficult for the wife to have the right of owning the family business after divorce, including retaining her standard of living. It likely is not unfair for the non-working wife when a judge awards the family business to the operating husband.

Disregard for Supporting Wife’s Worth

Many couples start their family lives from nothing until building a high position and expensive property together. Sometimes after living together for a long time, maybe more than 20 years, regrettably, family life does not run smooth. Finally, the end of the family life is divorce. It is time to divide the marital property. The non-working wife is supposed to get half of the marital property. However, "statistics of appellate court cases show that equal division occurs only in approximately 28% of the cases" ("Practice Limited," 1999, p. 1). Clearly, in most cases, when a judge decides, the wife will get less than half of the marital property. For this reason, "more women are choosing to fight rather than settle for less than half" (Baker, 1998, p. 73). Nevertheless, Grover (2000) emphasizes that "the judges award the non-working spouse only an amount that’s required to maintain the life style" (p. 300). It seems a judge makes a good decision for the wife’s life. However, many wives cannot maintain their life style the same as before the divorce because they have more burden, but less income.

Many wives before getting married had worked to make money to support themselves. Typically when a woman got married, she decided to give up her career or only work a part time job while taking care of the house when the husband worked for the pay check. She had to work as hard as her husband. There are many things for the wife to do in the house, such as cleaning, cooking, managing and decorating the house. In addition, she had to rear and raise her children, including disciplining and instructing. Kuryllowicz (1998) declares that for "homemakers and stay-at-home parents, . . .work on the domestic job front is generally recognized as freeing up the other spouse to focus on the business" (p. 213). Since the wife tries to take responsibility for managing the house, her husband can pay full attention to the business. In this way, the wife is an important promoter for her husband’s success in the business.

Although a wife works very hard running the house, she also has to support her husband physically and mentally. One such wife said, "I was there consulting or actually doing his designing and providing whatever assistance he needed. And of course being a support system-emotionally, spiritually, and physically" (quoted in Baker, 1998, p. 74). Usually, the wife is a person who cheers up and sympathizes with her husband when his work gets difficult, and sometimes she has to take part in making decisions with her husband, not to mention taking part in intimacy and physical affection.

Furthermore, many wives have to promote their husbands in his work by giving their personal money to enhance their husband’s business, or making money to support their husbands during studying at university (Grover, 2000, p. 300). The wife willingly does these things to help her husband in every way she can for his success, and hopefully, her standard of living will be better, and the family will be happy in the future.

Unfortunately, even though a wife has to work very hard at home, she has to fight harder to prove her right to get half of the marital property when she divorces. Everything she has done for her husband, children and house is unwritten evidence that cannot prove how hard she has worked for her family. However, usually a judge will use "the unwritten rule" (Baker, 1998, p. 73) meaning that "the non-working spouse -mostly the woman- seldom receives more than a third of the total share of the marital property" (p. 73). Baker also states "judges are being asked to consider whether gender bias contributes to the way they value the contribution of wealthy but nonwage-earning wives" (p. 73). Despite the existence of women’s right, judges seem to take the men’s side, so many wives are forced to appeal for their right to get an equal share of the property.

Obviously, a judge’s decision in this case is unfair for the non-working wife who works equally hard in the house equal to the extent her husband works at the office. Unfortunately, it is impossible for the wife to ask for her husband’s signature for every aspect of her support to him providing written evidence in order to confirm her worth to get a half of the marital property when she divorces. This would seem the marriage is being prepared for divorce in advance.

Non-Equal Split for Future Living

Even when a judge does distribute the marital property equally, it still might be unfair if we look into the future, maybe the next 10 or 20 years. "The average woman sees a 45% drop in her standard of living after divorce, while the average man improves his standard of living by 15%" ("Getting Your," 2000, p. 250). Because of some factors after divorce, such as finding a job, working outside the house and raising children at the same time, the impact to women is severe. Conversely, men leave some responsibilities which they used to do out of their lives, such as raising children and taking care their wives. Vance (2000) supports this idea that "the husband’s financial situation often recovers, and improves, while the wife’s situation many times begins a downhill slide into poverty" (p. 1).

For man, after divorce, it seems nothing is different from when he was still married except he no longer has the burden of an unhappy marriage. "The man usually walks out with the most valuable asset" ("Getting Your," 2000, p. 250). He continues doing the same work. Also, he is living on increasing salaries. Moreover, he has high skills and experiences in working. As a result, he can increase his property quickly and easily, including getting a high posting and authority within the company.

In contrast, for the woman, divorce can drastically change her life. Most women are living on their divorce settlement. "According to a 1990 study, two-thirds of divorced women have incomes below the poverty line" ("Plain-English," 1994, p. 82). Some women change their lives from a homemaker to a working woman who has to rear children at the same time. However, it is very difficult for a woman to find a job when she is getting older with no experience and skills to work outside the house. Moreover, when judges divide the marital property, usually wives will get the rights for custody of the children, and get hard property, such as the house and car. These can lead to a big cash drain out of the household, since wives have to spend a lot of money to raise the children, and for fixing or improving their house and car.

Superficially, a judge’s decision seems reasonable for equality in the present, but in 10 or 20 years from now, it probably seems unfair for ex-wives who have to live on their divorce settlement without income. The longer time is, the less property they have. Consequently, a judge should look at this point and remember to consider the wife’s life in the future.

Certainly, many husbands feel uncomfortable for the equitable distribution in the marital property. Some husbands think if the wife wants half of the marital property, she should get half of the debts, too. The others think the divorce settlement is enough, and it is not necessary to be equitable because they have to continually pay alimony to their wife. These seem reasonable if we think about a specific situation in the present. Nonetheless, looking into the future, everything changes. The ex-husband keeps working, and gets a higher salary, while the amount of alimony he pays to his ex-wife is still the same. On the other hand, the ex-wife still finds the way of her life, and settles down by herself. Many wife’s lives are still mystified. They may not be able to pay the marital debts because they have to spend the rest of the property and alimony to make their living, and rear their children. Equally important, if judges still want couples to keep a written evidence in order to confirm their worth in the marital property, it will seem couples live together not for love, but for business when they divorce. Consequently, judges need to make sure their decisions are fair not only for the present, but also for the future.

References

A plain-English guide to women and the law. (1994, April). Chatelaine, pp. 77, 79-89.

Baker, D. (1998). Wealthy wives’ tales. ABA Journal, 84, 72-76.

Getting your fair share in a divorce. (2000, May 29). Business Week, p. 250.

Grover, M.B. (2000, June 12). I want half. Forbes, p. 300.

Kuryllowicz, K. (1998). To have and to hold. The Magazine for Canadian Entrepreneurs, 17(3), 201-204.

Moskowitz, L.A. (1990). Unfair tactics in matrimonial cases. Toronto: Wiley.

Practice Limited to Family Law. (1999, May). [Online article]. Gitlin & Gitlin: Divorce and property distribution. Retrieved August 4, 2000, from the World Wide Web: htttp/www.gitlin. com/qaprop.htm

Vance, L.M. When is a 50/50 split not equal? (2000, May). [Online article]. Divorce-online. Retrieved July 24, 2000, from the World Wide Web: http/www.divorce-online.com/articles/283 975.htm.