Realities of Divorce: Precedents, Cases, and Norms: Part II

In Part I, we talked about the written legal guidelines that all courts — including family courts — followed, including statutory laws and common laws (a.k.a. precedents). Now, it’s time to talk about one of the aspects of divorce law (and all law, really) that doesn’t get a lot of airtime: legal norms.

Legal Norms
As opposed to the laws, legal norms are not laws, but are still used to guide the court’s decision. They are a set of unwritten expectations that direct the behavior of the court. Legal norms are much more localized than precedents, because there is no system in place for recording them or referring to them, so they’re much more culturally influences. But because they are social in nature, they have a significant effect on how legal interactions with significant social impacts — like divorce — go down.

As an extreme example, we have coverture, or the idea that a married woman was legally the same entity as her husband, and needed (deserved) no property rights, voting rights, or other legal independence. Coverture was law centuries ago in England, made it to the US in the body of common laws we adopted from them, and was legally countermanded only in the 1960s as state after state passed some variation of the Married Woman’s Property Act.

But even after it was legally rendered irrelevant, the concept that a woman wasn’t an independent entity lingered as a legal norm for more than a decade in some areas. It was as recently as 1972 that a court allowed two women to plead not guilty to assault under the argument “our husbands ordered us to do it.” And only in 1981 did the Supreme Court formally strike down the last of the “husbands control all marital property” laws in the United States. (Thanks, Louisiana!)

Modern Legal Norms
Today’s legal norms are, as social expectations tend to be, much more reasonable-sounding to us. After all, we live in the society creating the expectations! But if you’re divorcing and you’re not aware of some of these norms, they can catch you quite off guard. For example, there are no laws or precedents supporting these ideas, but they are totally things that you can expect to hear from attorneys and judges here, today, in late-twenteens Michigan:

• Property should be divided equally, and if one party thinks they should get more than half, it’s up to that party to persuade the court that the unequal split is in fact equitable (and thus holds to the law as written.) This means that in actuality, regardless of the standard of equitability, many spouses who should get more than half don’t — for no reason other than that they didn’t know how to (or that they had to) persuade the court.
• Spousal support will generally be assigned for around 1/6th to 1/3rd of the payer’s gross income, and will generally be paid for no longer than half the duration of the marriage. Total (child+spousal) support will rarely if ever be more than half of the payer’s total income. Which means in many cases where neither spouse is particularly wealthy, it’s quite possible for one spouse to get full custody and then receive a child support check that doesn’t actually perform its intended goal of meeting the child’s needs, because it’s limited to 1/3rd of the payer’s gross income.
• Spousal support will generally be terminated by the court if the couple moves back in together, despite there being no legal basis for this action. (Child support is legally mandated in duration, so it continues regardless.)

In short, when you talk to your Michigan family attorney about what to expect during your divorce, be sure you talk about norms and precedents as well as “just” laws, or you could be in for some rude surprises. If you’d like to talk to a talented and dedicated family lawyer right here in Bingham Farms, call Gucciardo Family Law at 248-723-5190. We look forward to hearing from you!