Life is just like Business, according an article by Howard H. Irving, PhD, author and family mediator. So why not choose to make logical decisions based on experience, like you do for your business, when you and your spouse decide it’s time for a divorce? Sounds simple, doesn’t it?
Some couples are inclined to do it; these couples should absolutely consider divorce mediation. Divorce mediation in Massachusetts, for example, is making extraordinary progress, because it’s beneficial for spouses who can agree what they want from the divorce. Mediated divorce is a voluntary process run by an impartial third party, called a Neutral. Both parties have a divorce attorney, but the divorce is handled out of court.
Litigation, on the other hand, is beneficial for couples who don’t know what they want from their divorce, who are dealing with complex issues that they can’t agree on, or who are extremely angry with each other. There are exceptions and divorcing couples who fall between the two (very simplified) categories.
No matter whether you choose traditional divorce litigation or divorce mediation, it is important that your children aren’t considered “business assets” that can be divided. Handling your family’s complex problems logically is an excellent idea, but not all business models are sound.
Continuing the senior-citizen theme, a recent Colorado decision about social security piqued my interest. A divorce judgment incorporating an agreement of the parties required the husband to pay a portion of his future Social Security benefits to the wife as part of a property division. The husband later moved to set aside this provision of the judgment, the motion was denied, and the husband appealed. The appellate court reversed, setting aside the provision and finding that it violated the anti-assignment clause of the Social Security Act. The court also noted that the anti-assignment clause does not prohibit payments for child support and alimony meaning that better research and creative drafting could have prevented the problem.
In re Anderson, Colo. Ct. App. No. 09CA2592 (December 23, 2010)
Steve Simkin might have thought it shrewd to keep the Madoff investments in his divorce from Laura Blank (after all, where else do you get that kind of interest?) After the Ponzi king confessed his sins, however, and Mr. Simkin discovered his assets were worthless, he asked the New York trial court to set aside the property division. The trial court denied Simkins petition and he appealed. The appellate court reversed the denial. At the appellate court, Ms. Blank argued that he could have redeemed what he believed to be his account in excess of its supposed value as of the 2004 valuation date the parties had chosen. The court was unpersuaded pointing out that Mr. Simkin never had an account with Madoff. Indeed, by Madoffs own admission, there were no accounts within which trades were made on behalf of investors. Poor Simkin. Next time he gets divorced, I bet he bargains to keep the marital home.
Simkin v. Blank, N.Y. App.Div. No 3016101501/09 (January 4, 2011)
While we’re all waiting for the Legislature to act on the new alimony bill, it pays to remember that Pierce is still good law. The controversial 2009 decision held that a modification or termination of alimony should not be solely premised on a supporting spouses retirement. A recent appellate decision clarifies Pierce further. A sixty-five year old ex- husband filed a complaint to terminate his alimony because he had retired. The Probate judge allowed the ex-husbands complaint and the ex-wife appealed, asserting in her appeal that the judges order was inconsistent with Pierce. The Appeals Court affirmed, noting that the judge properly based her decision on an analysis of the recipients need and the payors ability to pay and not solely on the fact of the ex-husbands retirement. Importantly, the court also noted that the ex-husbands retirement was in good faith and at the customary retirement age of 65.
Ross v. Ross, 2011 Mass. Unpub. LEXIS 434 (April 6, 2011)
The number of Americans over 65 who are divorced has radically increased in the last 15 years and elder law attorneys believe that money is partly to blame. The amount of couples over 65 that are divorced has risen nearly 60% since 1990 whereas the overall amount of couples divorced has risen only 8%. The issue of fighting over money causing divorce isn’t news, but in the case of couples 65 and older divorce is in fact conducted to preserve the money.
One of the common factors between many of the older couples getting divorced is that one of the spouses needs long term care and nursing home stays. Medicare, the government insurance program for people over 65, does not cover such long term care options. Medicaid, the Government program for low-income individuals does cover such programs; however, it can’t be used until a person exhausts all his resources. When one of the spouses gets sick, many married couples have to decrease most of their assets to qualify for Medicaid, leaving little money for the healthy spouse. If the couple divorces, the healthy spouse may be able to preserve many of her assets. Elder Law attorneys suspect that this proposition is the main reason why the amount of older couples divorcing has sharply risen.
In addition to money leading to elder divorce, Barbara Waxman, an executive and life coach in San Francisco, states that “many people, especially women, emerge from busy child bearing years with time to re-evaluate their lives and their partners, and decide that they want a relationship that works.” Mediated divorces are usually the perfect choice for these older couples because there is usually no hostility in the split, and often the split is actually commenced to help the other spouse preserve their assets.
The desire to preserve assets for the healthy spouse is still the greatest cause of divorce in aging couples. There is another way to preserve assets, however, and that’s to carry out proper estate planning. An experienced estate planning attorney can help couples properly plan for the costs and decisions involved in a long term care situation and can reduce the need for divorce as the only means to preserve assets. Estate planning is essential in order to properly plan for illness and aging so that the best option is not divorce or reducing the couples assets so they can qualify for Medicaid.
Conventional wisdom has it that bad conduct doesn’t really matter in an equitable division case except to the extent that it has a financial impact. Tell that to Donna Wolcott.
One night in 2006, while Mr. Wolcott was ill and in a “weakened state,” Mrs. Wolcott plied her usually-abstinent husband with alcohol, causing him to fall off a boat. Mr. Wolcott had to swim a mile to shore and walk for several hours before he got help. The fall caused him severe injuries – a broken nose, upper jaw and wrist, four broken teeth, and a “blown-out knee.” Then, when he returned home, Mrs. Wolcott forced her injured husband to sleep on the couch because his “breathing” bothered her. Shortly afterwards, while he was still recovering, Mrs. Wolcott asked him to move out of the house.
Mrs. Wolcott’s next action suggests that, even though her husband was now out of the house, she was still bothered by his breathing. In fact, she proceeded to solicit his murder, telling a cousin she wanted Mr. Wolcott to “disappear” and asking him if he knew anyone in the Mafia. Luckily for Mr. Wolcott, the cousin demurred. The husband was spared the bullet.
Mrs. Wolcott’s lesser offenses – an adulterous “sexual affair,” a “foolhardy landscaping plan,” and $24,000 worth of unnecessary plastic surgery.
Not surprisingly, the judge wasn’t enamored with the sociopathic Mrs. Wolcott and awarded her only 10% of the marital estate. She appealed and the Appeals Court affirmed the decision. Wolcott v. Wolcott, 2011 Mass.App LEXIS 16 (January 6, 2011).
Under Jewish law, to remarry in an Orthodox or Conservative synagogue, you need a Jewish divorce – a “get.” The problem is that, with narrow exceptions, the man’s permission is required. So, even when a woman is legally divorced in the eyes of the state, she cannot remarry in her faith when the ex-husband refuses a get. She is, under Jewish law, an “agunah” — a “chained woman.”
According to the New York Times article Religious Divorce Dispute Leads to Secular Protest, Aharon Friedman, a 34-year-old tax counsel for the Republicans on the House Ways and Means Committee refuses to give a get to his ex-wife Tamar Epstein. The two were civilly divorced by a Maryland court in April and the husband has been upset with the court-ordered parenting schedule. Ms. Epstein claims that he is withholding consent in order to renegotiate the schedule.
Mr. Friedman’s obstinacy has sparked angry protests outside his home that have been spearheaded by the Organization for the Resolution of Agunot (ORA) — an agunah advocacy group. He’s also been condemned by the local Jewish press. A recent editorial in a D.C.-area Jewish paper, headlined “Unchain this Woman,” implored Friedman to be a “mensch” and give his ex-wife the divorce.
Ms. Epstein’s problem may have been preventable, however. An observant Jewish couple should sign a prenuptial agreement requiring the husband to provide a get in the event of a civil divorce. An observant married couple might consider a postnuptial agreement, now explicitly permitted in Massachusetts provided certain requirements are met. In either event, each spouse or prospective spouse needs to retain separate lawyers before signing any such agreement. This is not a do-it-yourself project.
Although canned agreements are available online, most would not be enforceable in Massachusetts.
Divorcing couples tempted to break into their spouse’s e-mail may wish to reconsider. A Michigan man going through a divorce used his wife’s password to access her e-mail account through a home computer they shared. He then attempted to use some of those e-mails in the divorce proceeding. The local D.A. pressed charges under a state privacy statute and, if convicted, the man could face five years in prison. Certainly, one lesson here is that curious spouses should not hack into their spouse’s email. The other lesson: divorcing couples should change passwords and, if possible, limit use of a shared computer. Check out the story at http://www.msnbc.msn.com/id/40820892/ns/technology_and_science-security/
In an earlier post, I noted a recent poll that reflects changing American attitudes toward marriage and, in particular, reflects a marked increase in cohabitation. The other day I happened upon a Time magazine piece, “Marriage: What’s it Good For?”, which further detailed the poll. And since the ability to synthesize those results with a thoughtful analysis eludes me right now, I’ll just lay out the other findings that interested me (in no particular order):
As I noted in the previous post, cohabitation is sharply on the rise. I hadn’t realized, however, that from 2009 to 2010, pollsters found a 13 % increase in couples living together outside of marriage.
Because cohabitation is increasingly viewed as a viable option, I suppose that it shouldn’t surprise us that Americans keep waiting longer and longer to get married. The median age for men and women getting married for the first time is 28 and 26 respectively. These numbers, the poll tells us, have increased about a year for each decade since the 1960’s.
Just to situate the American trend toward cohabitation in a larger perspective, it is worth noting that, according to the poll, Americans have a rate of marriage (and remarriage) that is among the highest in the Western world.
Correspondingly, although the American divorce rate has declined substantially since 1978, it is still among the highest in the Western world.
The poll underscored the socioeconomic predictors of both marriage and divorce in some interesting ways.
It noted a strong correlation between a person’s wealth and education and the likelihood of marriage. Put simply, in the United States, the richer and more educated you are, the more likely you are to marry.
Interestingly, the poll evidenced the same correlation to the likelihood of divorce. The richer and more educated you are, the more likely you are to divorce. This is presumably why Massachusetts, a state with an educated and affluent population, consistently has the lowest divorce rate in the United States.
Most Americans, according to the poll, believe that the “best kind of marriage” is one in which both spouses work outside the home. Not surprisingly, this belief reflects the reality that, in an increasing number of marriages, both spouses do work outside the home. Of course, this figure has increased steadily over the last several decades.
Finally, the poll confirms what most divorce researchers have known for some time. Women initiate American divorce proceedings about 66% of the time. This rate, I believe, has been constant for several decades.
The most unusual finding:
The proportion of American marriages in which the woman was taller than the man increased by 10%.