A Good Reason for a Bad Idea

British courts have adopted a rule change designed to discourage divorcing couples from fighting about their divorce — a presumption that each party will pay his or her own fees. Here’s an article about the plan in The Guardian.

The stated reason for the change is to do away with the idea of “winning” and “losing” in court, so parents won’t fight so much. The article quotes a divorce lawyer who speaks favorably of the change: “Gambling over who pays legal costs will effectively end. Those who don’t keep their costs to a minimum may end up with a splitting headache when they are faced with the final bill.”

Sounds good, huh? You’d think that with all the attention I pay to the need for people to stay in control of their divorce and not depend on the judge to decide what to do about it, that I would be in favor of this too. No way, and here’s why.

When one spouse has a large income and access to lots of cash and the other has to scrape by to get enough to pay the rent, it’s crucial not to allow the higher-income spouse to starve out the lower-income spouse. Unless I misunderstand the British policy change (and I hope I do), it will shift the power in divorce negotiations dramatically, away from lower income spouses (mostly wives) and toward higher income spouses (mostly husbands).

Does this policy change make any sense? Like I say, I hope I’m wrong.

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