Understanding Divorce Makes Marriage Happier - 3 Principles from Harvard Law Professor

Divorce divorce marriage family law 11월 24, 2025 hotclipfolio 10 min read

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Understanding Divorce Makes Marriage Happier—3 Principles from Harvard Law Professor
Summary
Harvard family law professor Jeannie Suk Gersen presents a paradoxical truth: considering divorce from marriage start creates healthier, happier marriages. Three core principles: (1) Sacrifice should be fair exchange – career, education, relocation sacrifices need clear compensation and terms, (2) There’s no free childcare – when one quits work for childcare, that value must be recognized and compensated, (3) What’s yours becomes ours – pre-marital inheritance assets can become divisible in divorce if used for joint living. Pre-agreeing and documenting these principles prevents unfair sacrifice and later resentment, enabling fair resolution even in divorce.

1. Jeannie Suk Gersen – Harvard’s Family Law Authority

Jeannie Suk Gersen is a Harvard Law School family law professor researching and teaching legal aspects of marriage, divorce, property division, and custody.

  • Education: Yale Law School graduate, Harvard Law professor
  • Expertise: Family law, criminal law, women’s studies
  • Book: “At Home in the Law: How the Domestic Violence Revolution Is Transforming Privacy”
  • Teaching: One of Harvard’s most popular family law courses
  • Perspective: Legal realism – practical approach over romantic fantasy

“Not thinking about divorce when marrying is like not getting fire insurance when buying a house. You don’t want a fire, but preparing for it is wise.”

2. Why Consider Divorce in Advance

Divorce Rate Reality

  • US: About 40-50% of first marriages end in divorce
  • Remarriage: 60-67% divorce rate, higher than first marriages
  • Duration: Average 8-10 years before divorce

Benefits of Considering Divorce

  • Realistic expectations: Understanding marriage doesn’t solve all problems
  • Fair agreements: Cold-headed agreements possible when love is hot
  • Protection mechanism: Prenup and clear role division protecting both sides
  • Enhanced communication: Developing ability to discuss difficult topics in advance
  • Trust building: Relationship based on transparency and honesty
🔬 Research Evidence: Prenup and Divorce Rate

Many believe prenups encourage divorce, but Journal of Family Psychology 2013 study reported couples with prenups show lower divorce rates and higher marital satisfaction. Reason: prenup creation process involves honest conversations about finances, expectations, roles, resolving misunderstandings in advance.

3. Principle 1: Sacrifice Should Be Fair Exchange

“Sacrifice” is inevitable in marriage. But Gersen argues sacrifice should be viewed not as unilateral loss but as fair exchange.

Common Sacrifice Types

① Career Sacrifice

  • Relocating to different city for spouse’s job → own career interrupted
  • Giving up own job for spouse’s promotion/overseas assignment
  • Postponing own dreams to earn living while spouse starts business

② Education Sacrifice

  • Postponing own studies to support spouse’s grad school/MBA/medical school
  • Taking financial responsibility while spouse studies
  • Giving up own professional development opportunities

Why ‘Sacrifice‘ Becomes Problem

  • Accumulated resentment: “I sacrificed this much, what about you?”
  • Perceived imbalance: Feeling one side sacrificed too much
  • Economic vulnerability: Career-abandoning side economically defenseless in divorce
  • Lowered self-esteem: Regret of “I gave up my life”

Fair Exchange Principles

① Prior Conversation

  • Who sacrifices what? Clearly recognize
  • Why is this sacrifice necessary? Confirm it’s for mutual benefit
  • What’s the compensation? Agree on rewards for sacrifice
  • Duration? Anticipate how long sacrifice lasts

② Documentation

  • Specify in prenup or postnup (post-marriage contract)
  • “While spouse A supports B’s MBA, B prioritizes A’s career development after graduation”
  • “A’s career loss from relocation compensated through marital property“
Case 1: MBA Support
Wife A fully supported husband B’s 2-year MBA tuition and living expenses. B’s salary tripled after graduation but requested divorce 5 years later. A received almost no benefit from B’s high income without prenup and missed own career development opportunities. Court recognized A’s “investment” but compensation was limited without clear prior agreement.

4. Principle 2: There’s No Free Childcare

Many couples have one side (usually women) quit work for childcare after children are born. Gersen warns against mistaking this as “free childcare.”

Actual Value of Childcare

Converting services provided by stay-at-home parent to market prices:

  • Childcare teacher: $30,000-40,000/year (US basis)
  • Housekeeper: $25,000-35,000/year
  • Chef: $20,000-30,000/year
  • Driver: $15,000-25,000/year
  • Teacher/tutor: $20,000-40,000/year
  • Nurse: $30,000-50,000/year (caring for sick children)

Total: $140,000-220,000/year

Opportunity Cost

  • Salary loss: Total salary loss of hundreds of millions for 5-year childcare
  • Promotion opportunities: Lifetime income decrease about 30-40% from career gap
  • Pension: Non-contribution to national/retirement pension
  • Expertise: Skills/knowledge obsolescence, network loss
  • Economic independence: Reemployment difficulty, negotiation power loss

Solution: Recognizing and Compensating Childcare Value

① Prior Agreement

Specify in prenup or childcare contract:

  • “If spouse A quits work for childcare, B deposits $X monthly into A’s separate account”
  • “A’s career interruption period considered in divorce property division“
  • “B financially supports A’s re-education/reemployment after children enter school”

② Maintaining Economic Independence

  • Personal account: Stay-at-home parent also owns assets in own name
  • Regular deposits: Working spouse deposits “salary” into stay-at-home parent account
  • Pension: Personal pension enrollment in stay-at-home parent’s name
  • Property title: Some real estate/investments in stay-at-home parent’s name
Case: Divorce After 10 Years Childcare
Wife E lived as full-time homemaker for 10 years after twin birth. Husband F’s salary tripled over 10 years, but E had no career. At divorce, F claimed “E lived comfortably without working for 10 years,” E countered “I did 10 years unpaid labor.” Court ordered alimony to E but didn’t sufficiently reflect E’s actual contribution (childcare/housework) and opportunity cost. If prenup specified “E’s childcare valued at $50,000 annually, reflected in divorce property division,” E would have received additional $500,000 compensation.
🔬 Research Evidence: Economic Impact of Career Interruption

American Economic Review 2016 study reports 5-year career interruption reduces lifetime income by average 39%. Reduction especially larger for highly educated women. Journal of Marriage and Family 2018 study found poverty rate for women with career interruption from childcare is 3 times higher than general women after divorce.

5. Principle 3: What’s Yours Becomes Ours

Many believe pre-marital property remains “mine,” but Gersen warns reality is much more complex.

Property Types

① Separate Property

  • Property acquired before marriage
  • Property inherited or gifted during marriage
  • Items designated as separate property in prenup

② Marital Property

  • Income earned together by couple after marriage
  • All property acquired during marriage (real estate, cars, investments)
  • Business value increase during marriage

Paths Where ‘Mine’ Becomes ‘Ours’

① Commingling

Mixing separate property with marital property eliminates separate property character:

  • Example: Depositing $100,000 inherited before marriage into joint account
  • Result: This money can now be considered marital property
  • At divorce: Difficult to prove originally “my money”

② Improvement with Marital Property

  • Example: Remodeling house owned by A before marriage with joint income
  • Result: House value increase from remodeling is marital property
  • At divorce: Must divide house value increase
Case 1: Mixed Inheritance Property
Husband G inherited apartment from parents before marriage. After marriage, couple lived in this apartment, repaying mortgage, remodeling, paying property taxes with joint income. At divorce 10 years later, wife H demanded 50% of apartment. Court ruled “Although G was original owner, it became marital property through joint management/improvement.” G claimed “house I inherited” but lost case without evidence (separate account maintenance, joint income separation, etc.).

How to Maintain Separate Property

① Clearly Designate with Prenup

  • “A’s inheritance property (real estate address, account number specified) remains A’s separate property after marriage“
  • “A’s business (company name, equity ratio specified) is A’s separate property, value increase during marriage also considered separate property”

② Maintain Property Separation

  • Separate account: Keep inheritance, gifts in separate personal account
  • Sole ownership: Maintain real estate, investments in own name only
  • No mixing: Don’t mix separate property with marital property
🔬 Research Evidence: Property Disputes

American Bar Association 2019 report shows about 60% of divorce litigation is prolonged by property division disputes. “Mine vs ours” debates are most intense, with average litigation costs reaching $30,000-50,000. With prenup, property disputes decrease 70% and litigation period shortens by average 6 months.

6. Why Considering Divorce Strengthens Marriage

Realistic Expectations

  • Understanding marriage doesn’t solve all problems
  • Accepting no perfect partner exists
  • Recognizing relationships require continuous effort

Communication Skill Development

Prenup creation process practices discussing difficult topics:

  • Money, career, childcare, family – sensitive subjects
  • Conflict resolution ability development
  • Understanding each other’s values and priorities

Transparency and Trust

  • Complete financial disclosure creating relationship without secrets
  • Courage not avoiding prenup discussion
  • Building relationship that “can have difficult conversations”

“Preparing for divorce isn’t giving up on marriage. It’s taking marriage seriously.”

Practical Q&A

Q: Won’t requesting prenup offend my partner?
Many worry about this, but there are ways: (1) Timing – Propose with sufficient time after marriage decision (worst right before wedding), (2) Framing – Emphasize “to protect both of us,” “let’s create one that fits us, not state-mandated default prenup,” (3) Together – Present as “planning our future” not “protecting my assets.” If partner refuses prenup discussion itself, that’s an important signal about their attitude toward financial transparency and communication.
Q: Already married without prenup, what can I do?
Can create postnup (post-marriage contract). Especially useful at these points: (1) When one starts career sacrifice, (2) When one quits work for childcare, (3) Large inheritance or business start, (4) Relationship rebuilding after marital conflict. Postnup has legal effect in most states and can include same content as prenup. High chance of court recognition if both hire independent lawyers and make complete financial disclosure.
Q: Doing full-time childcare, can I still prepare for economic independence?
Yes, possible: (1) Personal account – Agree with spouse to deposit fixed amount monthly into your account, (2) Pension – Personal pension or register as beneficiary on spouse’s pension, (3) Property title – Change house, car etc. to joint ownership, (4) Skill maintenance – Online courses, certifications, freelancing to maintain career, (5) Network – Keep contact with former workplace/school alumni, (6) Postnup – Document “my childcare contribution reflected in divorce property division.” Most important: honest conversation with spouse. Say “I’m dedicated to childcare, but need economic safety net for just-in-case.”

5 Action Rules

  • Create Prenup/Postnup: Document clear rules about sacrifice, childcare, property
  • Sacrifice as fair exchange: Agree on compensation and terms for career, education sacrifice
  • Recognize childcare value: Evaluate and compensate full-time childcare at economic value
  • Maintain property separation: Manage inheritance/gift property in separate accounts/titles
  • Honest conversations: Discuss difficult topics (money, career, childcare) in advance

Conclusion

Jeannie Suk Gersen‘s message is paradoxical yet profound: thinking about divorce when marrying doesn’t destroy marriage but protects it.

Three core principles – (1) sacrifice as fair exchange, (2) no free childcare, (3) what’s yours becomes ours – preemptively resolve most common conflict causes in marriage. Documenting these in prenup or postnup prevents unfair sacrifice and later resentment.

Many consider prenup “ominous” or “absence of love,” but research shows opposite. Couples with prenups show lower divorce rates and higher marital satisfaction. Reason: prenup creation process involves honest conversations about money, career, childcare, property – sensitive topics – clarifying mutual expectations.

Gersen’s most important message: “Thinking about divorce doesn’t destroy marriage. Not thinking about divorce destroys marriage.” Because without preparation, when problems arise, you make worst decisions in worst situations.

Marriage isn’t sufficient with love alone. It’s also partnership, economic cooperation, legal contract. When taking all these aspects seriously and planning wisely, marriage can become truly happy and sustainable relationship.