In those instances where one spouse has superior knowledge and expertise about a specific subject, or has disproportionate control over other areas of married life, the divorce “playing field” may not be level due to a power imbalance. Between spouses, a power imbalance is when both spouses do not have the equal ability or the equal right to control people, things or situations. The balance of power may be disproportionately weighted toward one spouse to the detriment of the other. Power itself is neither good nor bad, just as a power imbalance is neither good nor bad. How a spouse welds power can be constructive or destructive though depending on the spouse’s intent, self-awareness and skill. The case of Hugo and Wilma illustrates this idea:
Wilma and Hugo had been married for 18 years and had two pre-teen children. Wilma had a college degree and had worked in marketing for several years before marriage but since marriage had not worked outside of the home devoting herself to maintenance of the home and children and supporting Hugo’s career. Hugo was an entrepreneur and made substantial money after starting and selling two different companies. At the time of divorce, Husband was on his third successful business venture. Wilma’s friends and family members warned that Hugo was so smart he probably had figured out how to hide money and probably planned to sell his company after the divorce so Wilma would not share in the financial gains. Wilma felt afraid and insecure believing she was at a disadvantage when it came to understanding and negotiating the financial issues in her case. She felt frozen and indecisive when, at the start of the divorce, Hugo made a financial settlement proposal that she could not understand or evaluate. Hugo then becomes frustrated and angry by Wilma’s lack of response or feedback to what he considered a generous financial proposal. In an attempt to get Wilma to accept his financial terms, Hugo threatened to “take the children” away from Wilma. The divorce case stalled.
The Wilma and Hugo situation is common—Hugo wants Wilma to trust him and to respond/negotiate believing his assertions are truthful and straightforward. He feels like his integrity is being impugned by Wilma’s lack of response. Wilma feels skeptical, cautious and bullied by Hugo’s threats and annoyance with her. She is afraid to make the wrong decision. Finding a financial “advocate” to review, explain, and advise Wilma on the couples’ finances could correct this imbalance allowing Wilma to relax and feel protected and allowing Hugo to relax and feel acknowledged for indeed making a generous financial offer.
Power imbalances are not always in the financial realm, like with Hugo and Wilma, and can result from extreme differences in personalities; education; health; professional, training, and accomplishments; or resources. A lawyer and client should determine whether any power imbalances exist. Clues to the existence of a power imbalance include when one spouse disproportionately makes decisions, controls resources or controls other areas of the marital relationship. If an imbalance exists, the lawyer and client should consider whether the imbalance jeopardizes the client’s position in the case. The power should be balanced enough to discourage or prevent one party from imposing his/her will on the other or interfering with the interests of the other. Last, if beneficial to the client, the lawyer and client need to decide the best way to remedy the imbalance. Balancing power and leveling the playing field makes it more possible to achieve a fair and reasonable outcome in the divorce case.