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Agreement to Divide Future Social Security Void

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)

Can Bernie Madoff Ruin Your Divorce?

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 Simkin’s 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 Madoff’s 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)

Pierce Redux

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 spouse’s 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-husband’s complaint and the ex-wife appealed, asserting in her appeal that the judge’s order was inconsistent with Pierce. The Appeals Court affirmed, noting that the judge properly based her decision on an analysis of the recipient’s need and the payor’s ability to pay and not solely on the fact of the ex-husband’s retirement. Importantly, the court also noted that the ex-husband’s retirement was in “good faith” and at the “customary retirement age of 65.”

Ross v. Ross, 2011 Mass. Unpub. LEXIS 434 (April 6, 2011)

Can Estate Planning Prevent Divorce?

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.

Wife’s Misconduct Results in a Disproportionate Asset Split or Conduct Counts if it’s Really, Really Bad

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).

“Marriage Comes and Goes, But Divorce is Forever”?

The day after Thanksgiving, The New York Times reported on one of The Huffington Post’s latest sections: Divorce News.

Conceived over coffee, friends Arianna Huffington and Nora Ephron agreed, “people love it when anyone is willing to be vulnerable about their own life.”  Both women have been candid about their own experience with divorce; Huffington has spoken about her parents’, while Ephron has written books about her own.

The goal of the section is not only to highlight high-profile divorce but to shine a light on situations, good, bad and ugly, for people who are involved in one.  Personalized accounts of divorce laws, custody battles, prenuptial agreements, and so on, are a great resource for subjective readers to gain some objectivity, or camaraderie.

Ephron mused, “Who knows? Maybe just reading all about [divorce] will scare people away.”

The divorce section, like the wedding section in most conventional news sources, simply makes divorce more public.  Divorce is a private matter, but publicizing in a forum that waives the standard “pretense of perfection,” as Huffington put it, may have surprisingly positive side-effects.

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