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Within popular culture, the viewpoint on marriage is that it’s something women intensely desire and something men have to be dragged into reluctantly. In this mindset, marriage enables women to raise children with a stable helpmate and source of income while men give up their “freedom” and money while being forced into a life of monogamy, then monotony, then celibacy.

While the culture of marriage has changed over the past fifty years–single motherhood less vilified; men more willing to handle household and parenting tasks (although still rarely on an equal basis); women earning a greater share of the couple’s total income–it is still almost solely men doing the proposing and women doing the accepting (or rejecting). The question “when is he going to ask her [to marry him]?” is commonly heard. I’ve yet to hear anyone ask, “when is she going to ask him?”

Yet, as a great moral philosopher Jane Austin noted two centuries ago, “It is a truth universally acknowledged, that a single man in possession of a good fortune must be in want of a wife.”  Myriad social science studies demonstrate that marriage is a tremendous boon for men.   This is one of the few things that both liberal and conservative media agree upon. For men, marriage means bigger income, better health, less depression and substance abuse, greater longevity, and more and better sex. For women, not so much. Yet the cultural belief continues to be the opposite.

One advantage of marriage for men is so obvious that it is rarely noted: a man who is married to the mother of his children is likely to interact with his children on a daily basis. I’ve previously written about why women are more likely to get custody. However men who have lived with their children since birth are much better candidates for custody–and if they don’t get custody, are much better candidates for very generous visitation–then men who did not. A sizable portion of my unmarried male custody clients complain about settling on a 30-70, or even 46-60, division of custodial time. However it’s hard to get them more time when the child is more closely bonded to the mother–a normal consequence of the child primarily living with the mother during infancy. To these men I quote a great contemporary moral philosopher Beyoncé, “If you liked it, then you should have put a ring on it.”

Beyoncé - Single Ladies (Put a Ring on It) (Video Version) - YouTube

It’s time to stop treating marriage as something men should enter warily and as a boon to women. As most happily married men know, we get the better end of the marriage bargain. On this Valentine’s Day I urge all my single male friends, if you like it, put a ring on it.

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A few months ago, an attorney friend asking me if I’d ever “cheated” on my wife. Being a legalistic sort, I asked back, “what do you mean by cheating?” He didn’t think it was a question that needed clarification.

In this culture, he’s right–which is a shame. A definition that considers all adultery cheating is too broad. As I explained in a blog earlier this month, and as Esther Perel has discussed in her recently released second book, The State of Affairs: Rethinking Infidelity, an understanding of adultery that cleaves “guilty” perpetrators from “innocent” spouses is simplistic and counterproductive.

Yet, if this definition of cheating is too broad, it is also too narrow. Every time we tune out our spouse in the middle of a coversation to check our twitter feed we cheat our spouse. Every time we diminish our spouse’s dreams because they aren’t our dreams we cheat our spouse. Every time we talk harshly to our spouse because we are tired, stressed, or otherwise engaged, we cheat our spouse. Making adultery the one and only way one can “cheat” one’s spouse not only fails to acknowledge the dynamic that leads to much adultery, it also fails to acknowledge the myriad ways that everyone cheats on their spouse every single day.

The modern wedding vows (which removed the “obey” from the wife’s pledge) are typically “to love, honor, and cherish so long as you both shall live.” Nothing explicit about monogamy there. Now, outside of an open marriage, one wouldn’t argue that adultery fails to honor or cherish one’s spouse. But there are numerous ways one fails to love, honor, and cherish one’s spouse that one is likely to accomplish before finishing breakfast. When we tune out our spouse when he or she needs an ear and a bit of compassion, we aren’t cherishing our spouse. When we denigrate or diminish something meaningful to our spouse because it isn’t meaningful to us (perhaps it even disgusts us), we aren’t honoring our spouse. When we yell at our spouse, roll our eyes at our spouse, or talk harshly or sarcastically towards our spouse, when we are critical of our spouse in ways that demean him or her, we fail to honor our wedding vows.

To answer my friend’s question in the way he intended it and to answer it accurately is to conisder two very different questions. The modern wedding vows are clearly aspirational. It is the nature of aspirations that we continually fail to meet them. The mindfulness necessary to fulfill these vows is difficult, but such mindfulness is vital to sustaining a strong and loving marriage. It’s when we stop putting in the effort to love, honor, and cherish our spouses that we truly cheat them of what we have pledged. Years–even decades–of a closed heart and a sharp tongue are way more damaging to a marriage than simply joining one’s genitals with some third person on one (or even multiple) occassions. A culture that considers the latter, but not the former, cheating, is not a culture designed to sustain strong, long-term marriages.

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Both personal and professional curiosity have engendered a fascination with books about the sociology of marriage. Frustrated spouses come to me looking for a divorce but what they are really searching for is to feel peaceful again. Developing an understanding of marriage helps me help them achieve that goal. It also helps me navigate my own marriage–which, like every marriage, has its own mix of pleasures and frustrations.

I’m not yet so old that I attribute the decline of traditional marriage to the breakdown of morals over the past generation or two. Humans simply do not change that quickly. Rather marriage has changed and, unless one understands the culture of marriage, one cannot understand why long-term marital stability is declining. As I tell my daughters (and would tell my sons if I had any), who one chooses as one’s mate is likely the most consequential decision one will make in one’s life. That’s certainly been true in my case. Yet, while during our youth we devote considerable time and attention to education and career development, we devote almost no time in developing the skills to maintain long-term companionship relationships or how to find and attract suitable partners.

Three recent books address these issues in a manner I assume some readers will find interesting or novel. The most basic of the three is “Loving Bravely: Twenty Lessons of Self-Discovery to Help You Get the Love You Want,” by Alexandra H. Solomon PhD. The book is the outgrowth of an extremely popular undergraduate course Solomon teaches at Northwestern University called “Building Loving and Lasting Relationships: Marriage 101.”

As befits what is essentially an undergraduate textbook, there are exercises/suggested tasks at the end of each chapter and most of what Solomon recommends will be obvious to anyone who’s read much on modern relationships and marriage. Know thyself; remain flexible and compassionate; focus more on your own development, rather than trying to fix your partner. This is the essence of Loving Bravely. For young adults navigating their first serious romantic relationships, this advice (and book) could be useful. Too many young people (and older people) devote their energies for search for Mr. or Ms. Right. Solomon correctly notes that they would be better off working on become the person who might attract such a partner. Once these folks have partnered-up, they devote much energy to trying to improve those partners. Loving Bravely suggests they would be better served devoting energy to changing their own behaviors.

The All-or-Nothing Marriage: How the Best Marriages Work,” by Eli J. Finkel combines relationship advice with sociological research on modern marriage. Whereas Loving Bravely targets young adults, the advice in The All-or-Nothing Marriage is aimed at the folks twenty years later, when they are trying to balance career, children, household maintenance, and sex/romance. The past few years Finkel, another Northwestern Professor, has written extensively on modern relationships in the New York Times, and this book expands on those articles.

Finkel sees marriage having evolved through three distinct models over the past 150 years. He employs Maslow’s hierarchy of needs as a metaphor for these transitions. Pre-industrial age marriage was simply a pragmatic method of insuring survival and the perpetration of the species. In a pre-industrial society, in which government’s role in insuring public safety was minimal, having physical access to male kinship was valuable. In an era where starvation was a real possibility, having the “safety net” of a partner, and the ability to divide and specialize in the labor of household management, greatly reduced that possibility. Under these standards, any marriage that resulted in two or more children being raised to reproductive age was a successful one.

Maslow’s hierarchy of needs

Sex didn’t have to be satisfying in these marriages–it merely had to produce children. Arranged marriages flourished in agricultural but pre-industrial societies because safety, children, and material comfort were the primary goals of marriage. Love was a welcome byproduct of marriage but wasn’t its intent or purpose. The extremely low divorce rate in this era wasn’t due to better morals but lower expectations.

With industrialization, marriage went through a transition from a pragmatic relationship to a love relationship. To reference Maslow’s hierarchy, physiological and safety needs were more easily met without the requirement of marriage, so love/belonging and self esteem started becoming important. The traditional marriage of a breadwinning husband and homemaking wife became a cultural ideal. Children went from being a physiological benefit–a source of cheap labor when young; a form of social security in one’s old age–to an expense. As children were no longer an economic benefit, their importance as a source of love and esteem became more prominent.

Moving upward on the hierarchy from physical needs to emotional needs increased the benefits of a good marriage but also made achieving a successful marriage more difficult. The divorce rate increased rapidly during this period.

As women gained greater autonomy, education, and economic empowerment, marriage began another transition, that basically started in the 1950’s, accelerated in the 1980’s and ‘90’s, and has become more of a cultural norm (at least in most Western democracies) today. Moving to the apex of Maslow’s hierarchy, marriage is now seen as a vehicle for self-actualization: the ability to understand one’s true nature, live one’s life authentically, and achieve one’s potential. While the model of traditional marriage is still quite prevalent, many marriages are moving towards a more egalitarian model, in which gender roles are more fluid, and gender expectations less fixed. Even in marriages where the male breadwinner/female homemaker roles remain, few modern marriages would accept male dominance within the marriage. The breakdown of gender roles within marriage is the reason gay marriage went from absurd (at least to heterosexuals) to accepted within a generation.

However, if it is hard to sustain love within a marriage, it is exceedingly harder to achieve self-actualization within a marriage. With this new marital goal comes a new marital role: assisting one’s spouse in achieving self-actualization. If, within a good traditional marriage, one was a cheerleader for one’s spouse (helping that spouse feel loved and esteemed), now one is also a coach to one’s spouse (helping that spouse understand his or her true nature and live authentically). There are inherent tensions between being a cheerleader and a coach; it is exceedingly difficult to balance these roles. Finkel notes that successful modern marriages are perhaps the most fulfilling marriages in history, but that it takes tremendous effort to meet these goals.

Thus, an important component of The All-or-Nothing Marriage is the numerous pointers (Finkel calls them hacks) that can be used to sustain self-actualizing marriages. Finkel recognizes that no marriage can operate continuously in the self-actualization mode. The trials of daily living frequently intrude, and stressful times make this marital model counterproductive. Seeking self-actualization while caring for a newborn (and the interrupted sleep, incessant demands, and life alterations this entails) or dealing with a crises (unemployment; health issues; death) will destroy a marriage. In these situations, Finkel advises dialing back goals to a love or even pragmatic model of marriage.

Some of these hacks The All-or-Nothing Marriage recommends involve reframing one’s thinking to render acceptable what might be unacceptable if self-actualization was the sole marital goal. Other hacks are designed to help one achieve esteem and actualization within the marriage. Most of these hacks will be known to anyone who’s spent years in counseling. Those who haven’t will find them useful to know but difficult to apply without the luxury of time and the benefit of counseling.

Therein lies the rub of the self-actualized marriage. While such marriages can be the most important and satisfying relationship one can have, they are awfully hard to achieve and sustain. Many of the hacks Finkel suggests require more resources than even many upper-middle-class couples can devote to their marriage. While Finkel maintains that even folks with limited money and time can have a self-actualized marriage, I don’t believe him.

Modern research on marriage shows both the rate of marriage and long-term marital stability greatly diverging based on socioeconomic status as the self-actualization model of marriage has taken hold. The past thirty-five years has shown tremendous divergence in both rates of marriage (non-marital family formation started as a trend among the poor and working class and is now becoming more common among the middle-class), and marital stability (divorce is becoming less common among those with college degrees and much more common among those without). The self-actualization model of marriage has made the best marriages even better but made other marriages much less stable. The All-or-Nothing Marriage explains this trend but its proposed solutions will be unworkable for most.

The third book is Esther Perel’s “The State of Affairs: Rethinking Infidelity.” This is Perel’s sophomore effort, coming out a decade after her groundbreaking debut, “Mating in Captivity: Unlocking Erotic Intelligence.” Mating in Captivity addressed the problem of sustaining eroticism in long-term romantic relationships. Mating noted the contradictory impulses in modern marriage of stability and eroticism, with stability requiring feelings of closeness and security and eroticism requiring distance, novelty, and a sense of the forbidden and unknown. As Perel wrote, this was “a paradox to manage, not a problem to solve.” While most contemporary scholarship on marriage attempted to find methods of reconciling these contradictory impulses, Perel’s central insight was that they were not reconcilable. This was literally a revolutionary idea and, a decade later, many couples counselors work off Perel’s ideas in addressing issues of sexual intimacy in long term marriage.

However, if the central insight of Mating was revolutionary, the central insight of The State of Affairs should be obvious to anyone who’s practiced family law (or done marriage counseling) for more than a few years. Outside the context of open marriages, adultery is frequently better understood as a symptom of a marriage that the participants have allowed to atrophy than as a sign of moral failure on the adulterer’s part. This is not to excuse the adulterer’s behavior but simply to note that adultery frequently occurs because one or both partners have checked-out on their marriage. While culturally and legally we assign a victim role to the “cheated upon” spouse, and a perpetrator role to the adulterous spouse, Perel contends, I believe correctly, that much adultery is best understood and addressed as a symptom of an unaddressed and underlying problem within the marriage.

However some adultery may also have nothing to do with the marriage and may have everything to do with the adulterous spouse’s unaddressed psychological issues. A culture that fails to acknowledge or understand this can leave the other spouse feeling responsible for something that may have had nothing to do with him or her (most often, her).

The culture’s impulse to push the “victim” spouse into goals of retribution and divorce is counterproductive on numerous grounds. First, adultery can sometimes be an impetus for both spouses to work on resolving long-standing issues within the marriage and can result in marriages that are a sustained, and occasionally strengthened, by finally addressing these problems. Second, by assigning one spouse the “victim” role we relieve that spouse of any obligation into examining how his or her behavior may have contributed to the breakdown of the marriage. That spouse then reenters the dating pool without resolving, or even identifying, these issues, increasing the likelihood that these problems recur in subsequent relationships.

Perel suggests couples should work on understanding the meaning of the adultery within the context of the marriage before deciding what affect the adultery will have on the marriage. She also suggests understanding the outside party’s emotions in the context of a newly discovered affair and suggests that the ghosting recommended by many current marriage counselors is not only unethical to the feelings of that third party but also counterproductive to any healing process for the couple.

I have long believed that this culture’s view that adultery is somehow more immoral than divorce to be extremely misguided. Sometimes adultery is simply a sign that one spouse has unexamined psychological issues that, if that spouse is willing to examine, can lead to a healthier marriage. Sometimes adultery is a sign that folks have failed to properly maintain their marriage. If that marriage is worth maintaining, the discovery of an affair can be an impetus to long overdue changes in the marriage. Finally, sometimes adultery occurs in a marriage that is long broken and should rightly lead to the end of the marriage. However, in these case, the adultery is the symptom, not the cause, of a broken marriage.

The simplistic notion that marriage is decaying because folks are less moral than they were decades ago is frankly wrong.  Moreover this view is counterproductive to sustaining contemporary marriages. In the history of human pair bonding, marriages that are entered with expectation of routinely lasting 50+ years and are considered vehicles for self-actualization and fulfillment are a new phenomenon. These three books illuminate these changes and provide methods of thinking about the dilemmas and benefits of this new model of marriage.

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I was 9,930 days old when I married Karen Anne Klickstein on December 30, 1989.  As of March 8, 2017, I had been married 9,930 days–half a life.

That day’s approach had me reflecting on the meaning of marriage. I spend much of my time working with people in unhappy marriages. Sometimes they are certain their marriage is over and are ready to move on (and elsewhere). Sometimes they struggle over whether and how they might repair their marriage. Sometimes the end of their marriage comes as a shock that makes them question the very validity of their perception of how they’ve lived their life. No one–even the folks on their 6th divorce–ever really expect to be in my office when they first arrive.

The institution of marriage is both deeply unnatural and deeply human. Intimately living with a single other human being for the majority of one’s adult life is extremely rare are among sexually reproducing animals and does not appear to come naturally. Yet almost every culture has developed some form of pair bonding for household creation.

The concept of marriage is not necessarily tied to parenting. In Genesis, both the first human couple and the first Jewish marriage did not initially anticipate child rearing. God created Eve as a helpmate for Adam–sex and childbirth not becoming part of their relationship until after they ate the forbidden fruit. Abraham marries a quite elderly, and apparently barren, Sarah. While child rearing clearly had some impetus for the creation of marriage, even the ancients recognized a significant companionship aspect to marriage. Even if one marries with the expectation of raising children together, one also marries for companionship.

Choosing early in one’s adulthood to have a companion for life is a remarkably optimistic act. Every lengthy marriage will be filled with frustrations and disappointments. Before one marries one can try to anticipate what those frustrations and disappointments might be–and forgo the marriage if what one anticipates is too much to bear. But humans have a remarkable ability to surprise. Every wedding is a leap into the unknown.

I was nine years into legal adulthood, and a long way from maturity (likely still am), when I decided whom to marry. While I thought I put a great deal of thought into whom and when to marry, my 54 year-old self is shocked at the brashness and naivety of my 27 year-old self. This doesn’t mean I regret the marriage–I don’t at all. I am simply shocked that I ever felt ready to spend 50+ years in close quarters with another human being–and was quite thrilled that another human being might feel ready to do the same with me.

For someone who makes a nice living helping folks tear their own marriages asunder, the concept of marriage continues to fascinate. I’m completely uncynical about weddings. Hoping and expecting that one’s life may be immeasurably improved by spending countless days [yes, I know I’ve counted–humor me] in close proximately and mutual co-dependance with another person may be the defining characteristic of being human.

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In the Sir Arthur Conan Doyle story “Adventure of the Silver Blaze,” Sherlock Holmes deduces the identity of the thief, in part, by noting that a dog did not bark, indicating the thief was no stranger. Holmes understood that the absence of evidence can be as telling as evidence itself.

This is often true in family court cases. Often a litigant’s claims would be corroborated by documentary evidence. When a litigant makes such claims but fails to produce the documentary corroboration, a court is right to look skeptically at the litigant’s claims. That appears to be what happened to Wife in the November 2, 2016 Court of Appeals opinion in Miteva v. Robinson, 792 S.E.2d 920 (S.C. App. 2016)

Wife filed an divorce action on the ground of Husband’s habitual intoxication. She alleged that some of her property was non-marital and some of Husband’s pre-marital property had been transmuted. At trial, the family court refused her fault divorce claim (granting the parties a no-fault divorce), rejected some of Wife’s transmutation claims while dividing the marital estate equally, and required her to pay all of Husband’s attorney’s fees. She appealed.

On the fault-divorce issue, the Court of Appeals affirmed the family court. While both parties presented corroborating witnesses on allegations of Husband’s habitual intoxication, the family court found one of Husband’s witnesses most credible. Wife presented four incident reports, claiming she called the police four times while Husband was intoxicated. However none of these four reports mentioned Husband’s intoxication and one report was made by Wife after the separation regarding an incident Wife claim occurred before the separation. The family court felt Wife had made this report to create corroborating evidence.

Both the family court and the Court of Appeals found “Husband’s appearance and professional accomplishments suggested he was a person of considerable self-control.” This was a significant factor in rejecting Wife’s fault-divorce request. Numerous successful professionals are also alcoholics (the law is, sadly, full of them). Evidently the ability to hold oneself together professionally mitigates the risk that heavy alcohol use will lead to a fault divorce.

The family court rejected Wife’s claim that mobile homes Husband owned prior to the marriage had been transmuted into marital property. She claimed she had given Husband funds to pay off credit card debt that was related to these mobile homes. However Wife failed to produce the credit card statements or her proof of these payments, leading both courts to reject this claim.

Wife also argued that two pieces of real estate she owned were not marital. One property was purchased prior to the marriage and Wife claimed she had used proceeds from the sale of pre-marital property to purchase the second property. Husband argued that both properties were marital. He was listed as the purchaser of both properties (Wife was listed as a co-purchaser on one) and was listed as the landlord of one property. Husband contended he had done significant work in maintaining and improving the properties, and produced documentary evidence to corroborate these claims. The family court further found that documentary evidence supported Husband’s claim that his HELOC had not been used to repay Wife from loans she provided him (as Wife claimed) but had been used to help finance these properties. Based on this, the Court of Appeals affirmed the finding that these were marital properties.

Wife further argued that the marital estate should not have been divided equally. The marriage was short duration–less than four years from the date of marriage to the date of filing. Wife made numerous arguments as to why she should receive the majority of the marital estate. At least a few of her arguments appear to be contradicted by the documentary evidence she provided in discovery or at trial. The Court of Appeals found no error in the equal division.

However, the Court of Appeals modified the family court’s award of fees to Husband. The family court had made Wife pay all of Husband’s fees. The Court of Appeals reduced this award from $27,561.29 to $15,000. While agreeing with the family court that Husband was the prevailing party, the Court of Appeals noted that Wife was successful on some of the issues. It further noted each party had an equal ability to pay fees and that, at the time of trial, Husband’s income was greater than Wife’s. Given these circumstances, the Court of Appeals did not believe Wife should pay all of Husband’s fees.

There are two, not necessarily exclusive, possibilities. Wife may have been lying about the parties’ acquisition of marital assets and debts and Husband’s heavy alcohol use. Wife may have had corroborating evidence of her claims but failed to provide it at trial. If Wife was simply lying (or exaggerating), it’s hard to see this resolution as unjust. However if Wife was merely disbelieved due to inconsistent or inadequate documentation, this represents a failure by her and/or her trial attorney.

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A friend and colleague of mine suggested I blog about Angelina Jolie’s recent filing for divorce from Brad Pitt on the ground of “irreconcilable differences,” noting that South Carolina does not allow divorce on that ground. Instead, South Carolina allows a “no fault” divorce after one year’s continuous separation along with three fault grounds for divorce (there is actually a fourth fault ground, one year’s desertion, that fell into disuse after South Carolina reduced the waiting period for a no-fault divorce from three years to one year).

Many states have a divorce ground of irreconcilable differences. One assumes legislators from these states believe that if spouses cannot reconcile their differences they should be allowed to divorce. The culture, especially the therapeutic culture, believes that all differences are reconcilable through mutual understanding and compromise. Thus, if differences cannot be reconciled, spouses must be incompatible.

That belief is mistaken. For a marriage to succeed many differences must be finessed or ignored rather than reconciled. Perhaps a wife overlooks a husband’s occasional crazy boys-night-out and a husband overlooks a wife’s occasional “unnecessary” shoe purchase. Neither has to like–let alone approve of–the other’s behavior, they merely need to tolerate it.

Most folks enter marriage with the belief that, if they are truly in love and their marriage is meant-to-be, they will be able to resolve all their differences. Many folks enter marriage with a list of “intolerables,” things they simply cannot accept in their spouse. “I cannot stay with him if he resumes smoking marijuana.” “I cannot stay with her if she cannot stay within the budget.” Within a few years most marriages have shredded that list. We learn to tolerate what we didn’t believe we could tolerate. Some of us even manage to forgive the occasional adultery or domestic violence.

Perhaps the most common irreconcilable difference regards sex. So long as couples have mismatched libidos, and so long as the culture sees monogamy as a defining feature of marriage, there will be conflicts over sexual frequency within marriage. The counseling industry would have folks believe such conflicts can be resolved through compassion and compromise. They’re half right. Compassion can ameliorate the problem. Compromise cannot resolve it–often it can exacerbate it. Asking the low desire spouse to have sex more often than he or she feels desire leaves neither partner happy. The low desire spouse now sees sex as a chore–something to be avoided. Unless the high desire spouse is oblivious, he or she cannot help but see that his or her partner is coming to the marital bed less-than-enthusiastically–which, in itself, can be a real libido killer.

The irreconcilable difference of sexual desire is a paradox to be managed, not a problem to be solved. A low desire spouse might ignore his or her partner’s mastabatory habits. The high desire partner might remember to clear the browser history. The low desire partner might approach the other when he or she isn’t in the mood and make an effort to be fully present. The high desire partner might appreciate such effort rather than focus on the low desire partner’s lack of response.

A culture that tells us that a successful marriage will resolve all differences is a culture that is lying to married couples. Marriage is unsustainable if all differences must be reconciled. Living with irreconcilable differences is the gravamen of successful marriage. This may be a paradox but it remains a truth.

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I spend a bit of time talking folks in long-term marriages out of separating from a spouse with whom they are unhappy. It’s amazing how many people come to me expecting that ending their long-term marriage will be relatively painless. Instead I liken it to an amputation: expect serious, permanent loss as part of a best-case scenario.

If there are still minor children living in the home at the time separation is contemplated, both spouses will lose time with the children. As children grow older they spend less time with their parents but, until they fledge, they spend most nights at home. When parents have separate homes, each parent has less time with the children in his or her home. Occasionally going a few days without seeing one’s children (because they are in camp or visiting friends or relatives) can be a welcome respite. Having such breaks from the children become a common occurrence is a loss.

Further these children may now be in the awkward position of having loyalties divided between their parents. Mindful divorcing couples work hard to insure the children don’t have this pressure. However, the awkwardness of where and with whom adult children will spend holidays and vacations can be reduced by staying married.

Even if there are no minor children, the ending of a long-term marriage will involve financial loss for both spouses. In a long-term marriage the court is likely to divide the parties’ property and debt on a close-to-equal basis. Assuming spouses could cooperate financially, having full control of half the marital estate is not as valuable as having joint control of the full marital estate.

Marriage provides certain economies that spouses tend, after a while, to take for granted. One $400,000 home is typically nicer than two $200,000 homes. Hotel rooms cost the same for one guest or two. It takes little more gas for a car to transport one’s spouse too. Even something as small and mundane as milk is less expensive per ounce if one can purchase a bigger size because more household members are drinking it. While having half the marital estate go to one’s spouse doesn’t reduce one’s usable wealth by 50%, it does negatively impact one’s lifestyle.

Further, there’s spousal support. Unless the supported spouse is committing adultery, the supporting spouse is likely to pay alimony–and South Carolina law strongly favors permanent periodic alimony. However, such alimony is rarely sufficient to leave the supported spouse with the same lifestyle. Supported spouses need to get more ambitious with earning money, find ways to economize, or, most often, do both. Meanwhile supporting spouses will find a significant portion of their earnings going to their ex, while their expenses have not decreased in a commensurate amount. Except in situations where one spouse completely mishandles money, both spouses are typically worse off financially, at least initially, after the divorce.

Finally, the shared experiences that make up a marriage and bind a couple to family, friends and community are frayed by the divorce process. Milestones that were previously recalled fondly may now be tinged with ambivalence and regret. The culture for middle-aged, middle-class Americans is very couple-centric. It can be awkward for divorced or separated spouses to attend events in which most adults are part of a couple. Couples often socialize with other couples and when one uncouples one can feel like a third wheel when socializing with such friends. One or both spouses often feel isolated as they separate. Both will need to rebuild or find new familial and peer relationships.

This doesn’t mean folks should never seek divorce. For short marriages that produced no children but much unhappiness, divorce can be liberating and relatively pain free. There are some long-term marriages in which one spouse simply needs to be freed from obligations to the other. Living with a spouse who is physically abusive, habitually demeaning, substance abusing, or spends recklessly can be intolerable. Sometimes the other spouse is simply not committed to the marriage and unwilling to recommit. In these circumstances undergoing the financial and emotional pain of divorce is necessary if one hopes to achieve happiness and/or stability.

Ending a long-term marriage is akin to amputation. One wouldn’t consider amputation except to prevent a larger and significant harm. Unless one is willing to undergo great loss to be free of one’s spouse, one is not ready to end a long-term marriage. Beware the family law attorney who promises the pain-free ending of a lengthy marriage.

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Folks who have filed for divorce often wonder why it takes so long for them to get divorced. S.C. Code § 20-3-80 sets “Required delays before reference and final decree.” It requires that hearings on a divorce based on physical cruelty, adultery or habitual intoxication not take place until two months after the date the divorce action was filed and that a divorce not be granted (filed with the clerk’s office) until three months after filing. The rationale behind this requirement is to give the aggrieved spouse a “cooling off” period to consider whether he or she really wants to end the marriage.

For divorces on the grounds of one year’s continuous separation or one year’s desertion both the divorce hearing and the filing of the decree can take place as soon as the responsive pleadings have been filed or after the respondent has been adjudged to be in default. If the parties cooperate and find a willing judge, such divorces can be granted on the day of filing.

However the court will typically not allow a hearing on a request for divorce until the parties have resolved all issues stemming from the dissolution of the marriage, specifically spousal support and equitable distribution of marital property and debt. In cases where the parties have minor children together, or in which the wife is pregnant at the time of filing, the court will want issues regarding the child(ren)’s custody, visitation and support resolved before it grants the divorce. If the parties cannot reach an agreement, then they will not have their divorce hearing until trial.

The court can bifurcate the case to grant the divorce before the parties resolve their remaining issues. In practice this is rarely done. The court’s thinking is that by not allowing the divorce to go forward until the parties have a full agreement or are ready for trial, it encourages the parties to resolve issues stemming from the dissolution of their marriage. I have heard of the court allowing it to allow a wife to remarry and legitimate a child who is not the husband’s child. In my own experience the court allowed it once when trial was delayed due to an opposing counsel’s acute medical problem.

Before May 9, 2006, cases that were not resolved could be left in a legal limbo, with the cases struck from the active roster and not dismissed. Thus, prohibiting bifurcation was a method of discouraging parties from leaving their cases unresolved. Since May 9, 2006 cases that are not resolved within 365 days are subject to dismissal. The ability of parties to leave their dispute unresolved if granted the divorce is greatly reduced under this new system. However the family court judges do not seem to be reconsidering their standard opposition to bifurcation.

Thus, cooperative parties can get a divorce within 90 days of filing if based on typical fault grounds, and as soon as possible if based on one year’s continuous separation grounds. However, parties who cannot reach an agreement on all issues stemming from the dissolution of their marriage need to wait for trial to get divorced.

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I get frequent calls or emails inquiring how long one can live with a romantic companion before one is common-law married. Often these folks believe there is a set time period (typically seven or ten years) after which cohabitation is presumed to become a common-law marriage. These folks are mistaken. While cohabitation (living together) is a requirement for becoming married at common law, the time period can be as short as a day. Further one can cohabit for decades without becoming common-law married. The determining factor isn’t the length of the cohabitation but the manner in which the couple holds themselves out. The following are suggestions for preventing an intended cohabitation from turning into an unwitting common-law marriage:

• Don’t file joint taxes returns. This is a biggie. It’s pretty hard to claim one didn’t intend to be married when one would be guilty of tax fraud by making that claim.
• Don’t list the cohabitant as a “spouse” for purpose of employee benefits. Another biggie. Defrauding an employer isn’t as bad as defrauding the government but it still is hard to explain away. I have had clients unwittingly married because they wanted to put their baby-mama on their employer’s health insurance.
• Don’t file any official paperwork in which the cohabitant is listed as a spouse. While tax returns and employee benefits are the two most common ways folks list a cohabitant as a spouse, filing any such documents listing the other as a spouse or claiming spousal benefits is an excellent way to end up common-law married.
• Don’t introduce the cohabitant as a one’s spouse, husband or wife. The third big no-no. It’s pretty hard to claim that one didn’t hold oneself out as married when one introduces that person as your spouse. Introduce the cohabitant as a cohabitant, boyfriend/girlfriend, roommate, paramour, concubine, my-old-lady/mu-old-man, or friend-with-benefits if labels are needed. Just avoid terms that imply marriage.
• Don’t hold the cohabitant out as one’s spouse or hold oneself out as being married to the cohabitant. The final big no-no. Obviously it is hard to deny one intended to be married if one is holding oneself out as married. I have seen cases in which folks issued anniversary announcements in a local newspaper and in which one party later claimed he lacked an intention to marry. The family court did not find him convincing.
• Correct one’s cohabitant if he or she claims to be one’s spouse. Allowing other to believe one is married when one intends to merely cohabit can create a “reputation” of marriage. Failing to correct one’s cohabitant on the claim that one is married allows others to believe one is married. It further allows the cohabitant to believe one intends to be married.
• Correct others when they assume the cohabitant is one’s spouse. Again, allowing others to believe one is married when one intends to merely cohabit can create a “reputation” of marriage.
• Don’t title property or enter debts jointly using the same last name [this assumes the cohabitants don’t already have the same last name]. It is perfectly fine to have joint assets or debts with a cohabitant (although division of these assets and debts later on can cause problems). However, when one titles these assets or debts in the same last name it demonstrates an intention to act as spouses.
• Don’t take on the other’s last name (if one is female) or allow the other to take on one’s last name (if one is male). Checking into a hotel as Mr. & Mrs. Smith is strong evidence of an intent to be married if the man’s last name is Smith and strong evidence of a lack of intent to be married if the man’s last name is Brown.

Following the above advice is not a guarantee that cohabitation will not be misconstrued as common-law marriage. However, it greatly reduces the likelihood of that happening.

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I would like to thank Professor Roy T. Stuckey for making me aware of the February 18, 2015 Court of Appeals opinion in Thomas v. 5 Star Transportation, 412 S.C. 1, 770 S.E.2d 183 (Ct. App. 2015). Evidently there is now a third way for folks to become married in South Carolina.

Thomas was a workers’ compensation case in which Emily Thomas attempted to obtain surviving spouse benefits after George Thomas died while working as a tour bus driver. One issue on appeal was whether George’s death was a result of his employment. The other issue on appeal was whether Emily was a surviving spouse.

George married one Cynthia Whaley on February 9, 1995. George and Emily met in 1999 and lived together for about eight years prior to his death. On September 20, 2006, George and Emily had a marriage ceremony. George told Emily a day or two before the ceremony he and Cynthia were divorced. However, George and Cynthia’s divorce was not final until February 9, 2007. Emily did not learn about the timing of the divorce until after George’s death.

George and Emily’s ceremonial marriage was not valid because he was still married to Cynthia at the time of the ceremony. However the Workers’ Compensation Appellate Panel granted Emily survivor benefits by finding Emily was George’s common law or putative spouse. While this matter was on appeal, the South Carolina Supreme Court, “decline[d] to adopt the putative spouse doctrine, as it is contrary to South Carolina’s statutory law and marital jurisprudence.” Hill v. Bert Bell/Pete Rozelle NFL Player Retirement Plan, 405 S.C. 423, 426, 747 S.E.2d 791, 792-93 (2013).

The Court of Appeal further found that George and Emily did not enter a valid common law marriage after George’s divorce from Cynthia. Prior case law notes that the removal of an impediment to a marriage contract [in this case George’s divorce from Cynthia] does not convert an illegal bigamous marriage into a common law legal marriage. After the barrier to marriage has been removed, there must be a new mutual agreement, either by way of civil ceremony or by way of a recognition of the illicit relation and a new agreement to enter into a common law marriage arrangement. The Court of Appeals determined that because Emily did not know of the impediment to marriage, she could not recognize it and agree to continue the relationship once it was removed. Accordingly no common law marriage existed.

Despite finding no common law marriage, the Court of Appeals still granted Emily surviving spouse benefits under a “good faith exception.” Citing the case of Davis v. Whitlock, 90 S.C. 233, 246, 73 S.E. 171, 175 (1911), the Court of Appeals noted:

[I]f a man and woman enter into a contract of marriage believing in good faith that they are capable of entering into the relation notwithstanding a former marriage, when, in fact, the marriage is still of force, and after the removal of the obstacle of the former marriage the parties continue the relation and hold themselves out as man and wife, such action constitutes them man and wife from the date of the removal of the obstacle.

The Court of Appeals found that George did not know he could not marry when he and Emily had their marriage ceremony. Additionally, George and Emily continued to act as husband and wife after the impediment was removed. Accordingly, the Court of Appeals found Emily was George’s surviving spouse because she and George married in good faith.

This good faith exception looks a lot like a common law marriage to me. However the Court of Appeals explicitly found George and Emily did not enter a common law marriage. Further no one disputes that their ceremonial marriage was not valid. It appears there is now a third, “good faith,” method to become married in South Carolina. Evidently too few South Carolina residents were becoming unwittingly married from common law marriage alone.

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