THE BLOG
10/22/2014 03:05 pm ET Updated Dec 22, 2014

Divorce Doesn't Necessarily Mean Freedom

Robert Emery's op-ed in the New York Times addressing how parents who are separated or divorced lose their rights concerning children only touches upon one area of familial regulation that divorced or separated people face, which they would not have faced if they had remained married. While Professor Emery addresses the fact that parents in this situation lose rights to make decisions regarding their children, the issue is much more all-encompassing than that.

Think about the couple that while married and living together had an understanding over finances. In that not uncommon scenario even in this age, husband is the proverbial bread-winner and bill payer. He handles the family finances. He keeps an eye out for what goes out each month. He maintains control over the amount charged on the credit cards and in our hypothetical, he is a prudent investor and saver. However, when he and his wife separate, the ability to make those determinations goes out the window along with the ability to make decisions concerning his children in the way Professor Emery addresses. That is to say that the state now takes over the decision as to how much money his soon-to-be-ex spends each month in terms of spousal support. Depending on the facts of the case and the amount of money that he earns, it may be more than he spent on the entire family while this family was intact, or it may be a different amount. The issue here is that he loses control to make that decision. And in the process, he also loses the right to decide how much money he is going to spend each month, and in turn, how much money he is going to save each month because that is affected by his overall cash-flow. The flip side to this, of course, is that once he pays it, his ex decides how to spend it. It may be that his ex was never a saver and spends every penny. In the end, not only has he lost control over his finances, but his children are also impacted if no one is saving the money that they formerly saved which was going to college funds for his children.

And, similarly, the state is going to decide how much he pays in child support. Not that people shouldn't be paying child support, but the part of the equation that no one ever focuses on is where that money actually goes to and what it is used for. In this case, the spouse paying it has no control over whether it actually goes to buy food, clothing, and shelter for his children, or whether it goes to clothing purchased by his ex for herself.

The point of this is our legal system takes control away from those who were once married. And that control goes well beyond issues concerning children. In fact, it invades every aspect of the life of both people going through the divorce.

When people decide to divorce they often understand that they will have to divide up property. They often think that they are doing so in exchange for their personal freedom. But the fact is that their personal freedoms are significantly more infringed upon once they are divorced than they ever were while married. One has to question why it is, that the state has the right to dictate these decisions for someone solely because they chose to get out of a marriage, when the state does not dictate the decisions while they are in the marriage. It is an interesting question raised by Professor Emery. Having put one aspect of the issue up for discussion, we should think about all of the aspects and whether we want the state to treat people differently simply because they decide to get unmarried.