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Thursday, July 20, 1995 - Page updated at 12:00 AM

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Couples Find Living Apart Less Painful Than Divorce

Chicago Tribune

Divorce ranks right up there with a death in the family and job loss as one of life's most traumatic events. So it should come as no surprise that some people are opting out of the experience entirely.

That is not to say that they are staying married. They are just not getting divorced.

They are MBLAs - or Married But Living Apart - the latest acronym for a marital status in which the knot is untied personally but not legally. And while much has been written about couples who live together without sanction of marriage far less is known about people who are married but live separately.

The MBLA concept is hardly new. The British monarchy has been doing it for centuries, Prince Charles and Princess Diana being the most recent examples. Hollywood royalty, too, has had plenty of couples with "an understanding."

Shirley MacLaine has been separated from her husband for more than two decades. Spencer Tracy may have trysted with Katharine Hepburn, but he never left his wife. Neither did Maurice Tempelsman, who squired around Jackie Kennedy Onassis for 10 years.

But in the past, staying married in name only has been primarily for religious and social reasons. Today, the motivation is different: Many choose to be an MBLA as an alternative to what many see as prohibitive lawyers fees and adversarial court proceedings.

Numbers are hard to come by, since being an MBLA requires no more legal action than moving out, lawyers said.

And therein lies its appeal. There is a tremendous amount of mistrust of our legal system in general and lawyers in particular, said Marilyn Carlstead, a Homewood, Ill., counselor trained in divorce mediation.

"If people can find a different way," she said, "they often will."

While feuding couples still overwhelmingly divorce - 1,187,000 American marriages dissolved in 1993 - the idea of matrimonial ambiguity is picking up steam, said Jerry Miller, a Beverly Hills lawyer who said he has noticed an increase in MBLA arrangements during the last few years, particularly in longtime marriages. As opposed to a legal separation, those agreements are purely between the spouses.

"Typically, younger people are more motivated to find a new mate, to start a family, to move on," said Miller, who has been practicing divorce law for more than 30 years. "But for older people, in the right circumstances, it can make sense."

Those circumstances are intertwined mostly with financial matters, such as taxes (MBLAs can still file jointly), health insurance and retirement benefits, one of the largest assets in many marriages in which the parties are older than 40.

All those were considerations for Gil Oden, 63, of La Grange, Ill., who lived apart from his wife for 20 years before getting a divorce last year. Maintaining health insurance for his wife played a high priority in his decision, as did his own finances.

"When we separated, I was not in a position to set up a second household," said Oden, a retired middle manager for General Motors. "Then, when lawyers started quoting me fees, that clinched it. . . . I was just overwhelmed. It was far less expensive to just move out. Besides, divorce is so painful that if you can break it down to manageable bits, you should do it."

A 64-year-old Chicago woman recalled where she was at the precise moment she came to the same realization: in the lawyer's office. The lawyer said that since her husband earned the pension, she would need to be awarded some other assets of about equal value.

"I felt as if I was at a horse trade," said the woman, who raised three children but never worked outside the home during their 38-year marriage. "Then it hit me like a bolt. . . . We could accomplish the exact same results if I moved to our cottage in New Buffalo (Michigan) and save a lot of money in the process. That was six years ago, and we've been living this way ever since."

As courts and legislatures across the country take a closer look at fathers' rights, one woman said it was not the right climate to dissolve a marriage. She based her skittishness on the recent custody battles of California prosecutor Marcia Clark and a 1994 Michigan case in which a judge awarded custody to the father because the mother was attending college and would need to put her child in day care.

"Since I am the major breadwinner, I could wind up paying him alimony," said the woman, who has a 6-year-old son and works in publishing. "And because (her husband is) home more, I'm paralyzed that he will be seen as the more nurturing parent."

The odds of that happening are still slim. According to a study released last month by the National Center for Health Statistics, in 71 percent of custody cases, the children go to the mother, while 9 percent of the fathers get custody (In the remaining cases, parents share custody, or custody is awarded to relatives).

But even if the mother remains the custodial parent, a divorce means more strings are attached. In New York, for example, in many circumstances, if a parent needs to relocate for a job, he or she would have to relinquish custody unless the spouse approved of the move. In Illinois, as well as in Virginia, Missouri and Texas, interference with visitation has been seen as a petty offense since 1994.

Not surprisingly, lawyers are overwhelmingly against such arrangements. And, they warned, being an MBLA is anything but risk-free. Although you have stopped the clock on your marriage, it is still ticking when it comes to building marital assets - such as IRAs, pension plans, wills - to which the other party still would have a claim, said legal experts.

Also, if a marriage is not legally dissolved, you can find yourself responsible for each other's debts and medical expenses.

There are other choices. In recent years, more couples are considering mediation - that is, a mediator helps them reach a compromise on dividing property and determining custody - rather than hiring two lawyers who slug it out with their clients. The potential benefits are lower legal bills. A divorce can run more than $100,000, if there is a large amount of assets and the litigation is very acrimonious, while mediation can cost $3,000.

"I believe there are more people that don't want to fight," said Forrest Bayard, a Chicago lawyer and a believer in mediation.

Mediation is not for everybody, of course. It is a poor choice for a couple who seek revenge. And it may be unfair if there is a power imbalance in which one partner is financially astute or intimidating, and the other has a difficult time asserting himself or herself.

And it will not work if parties are unwilling to lay all their assets on the table, because mediation does not allow for subpeonas or other forms of forced disclosure.

Experts said that the one non-negotiable factor in mediation is trust, which is at odds with the adversarial system most lawyers are trained in.

And then, there are reasons that cannot be explained on a cut-and-dried list of marital assets. After Catherine Watson's marriage soured, she purchased the same house she owned when she was single, while her husband bought a house in his old neighborhood.

"All of a sudden, things were back to normal. . . . There was no urgency to press ahead," said Watson, 50, an editor at the Minneapolis Star Tribune.

She eventually got a divorce, but only when she started considering dating again. She said she still would recommend being an MBLA as a way of diffusing anger.

"Besides," she said, "we had all this shared history. It was just too hard to cut every thread."

Copyright (c) 1995 Seattle Times Company, All Rights Reserved.

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