Women Are Seeing More Parity in Divorces

For as long as divorce has existed, men have griped about their divorce settlements, but in reality, they've typically come out far ahead financially. No longer: Today, women are closer than ever to achieving parity — and then some. Thanks to shifting cultural attitudes and a judicial sea change, courts are putting a higher price tag on what the nonworking or lower-earning spouse — usually the wife — contributes to the marriage. Judges are granting more alimony, putting more assets in play, and increasingly, requiring husbands to pay their wives' legal fees. And for men who expected something more favorable, the experience is about as comfortable as a colonoscopy. As Washington, D.C., attorney Sanford Ain observes: "The husbands are more nervous, and the women are more confident."

From the woman's side of the negotiating table, the response, understandably, is, "It's about time." Statistics have long shown that divorce is an economic catastrophe for women, especially mothers with dependent kids. Today, there's greater recognition of the economic value of stay-at-home motherhood, and of the sacrifices women make when they stop working. Women who do work outside the home still make only 74 cents for every dollar men earn, and only 12% of wives make substantially more than their husbands, the National Council on Family Relations reports. So it's no surprise that it's still the man writing the checks in most divorces. But some guys are being blindsided by how much bigger those checks have become.

The shift in split-up economics has its roots in the 1980s, when academics began focusing on the divorce "wealth gap," noting that after divorces, men's net worth typically rose while women's dropped. Such research helped push states to adopt "equitable distribution" statutes, laws that make most marital property subject to division even if it's held in the husband's name. As a younger generation of judges came to the bench, the judiciary began to embrace the idea that the existing system was unfair — and to change the rules accordingly. In past years, for example, courts would look the other way as husbands "starved out" their wives by cutting off funds, leaving them unable to pay for counsel. Judges would award women as little as $75 for legal fees — barely enough for a consultation with the cheapest attorney in the phone book. These days, wives get much more ammunition, with court-awarded fees sometimes reaching seven figures.

More important, equitable-distribution laws opened the door for courts to consider a wide range of assets — stock options, future earnings, privately held businesses — as shared marital "property." Courts have also recognized that homemakers' earning disadvantages often hurt them later in life because they contribute less to retirement plans and the Social Security system. That's why, in many contemporary cases, the biggest assets under dispute are sitting in 401(k) plans and IRAs.

In 2006, the American Academy of Matrimonial Lawyers reported that almost 80% of its members saw an increase in prenuptial agreements in the previous five years — a predictable response to ballooning divorce settlements. Prenups can often become power plays that let the richer man keep the upper hand. But the best and fairest agreements allow spouses with deep pockets to protect assets they cherish while still providing security for the one in the supporting role. It's increasingly common for prenups to stipulate that payouts increase with the length of the marriage — by which time the lesser-earning partner has proven to be more than a gold digger.

In theory, good prenups also ensure that wrangling over money won't add to the emotional strain of a divorce. For similar reasons, mediation is an increasingly popular alternative to litigation. By the end of a divorce negotiation, says Manhattan attorney William Beslow, husband and wife are "like fighters coming out for the 15th round, too arm-weary to throw another punch" — and they're happy to have some kind of contract in place to stop the fight.