Laurie Israel to present marital mediation workshop in Brooklyn, NY

This coming weekend, Laurie Israel will travel to Brooklyn, NY to give an all-day workshop for mediators on how to help married couples through mediation.  She has been invited to present by Mediation Works, Inc., 16 Court Street, Brooklyn.   The all day-conference will include presentations, discussion, role plays and power points.  In addition, Matt Gross is expected to make a Skype appearance to present on how to increase your mediation practive through social media techniques.

Laurie Israel presents marital mediation workshop in Brookline

On Saturday, April 23, 2011, 16 mediators gathered in the Courtyard Marriott in Brookline, Massachusetts for an all-day workshop on how to help married couples through mediation.  Discussion, role plays were part of this interactive seminar.  In addition, Matt Gross presented on how to increase your mediation practive through social media techniques.

Massachusetts’ “Almost” Alimony Law

posted March 15, 2011 in The Huffington Post.

Alimony is a highly-charged word. 

Discussions of alimony generally get the strongest reactions from both men and women when working out the terms of a divorce.   Believe it or not, it’s generally more contentious than custody disputes over children or property division.

Men (the typical gender of the alimony provider) are understandably concerned.  They are no longer entitled to receive their wife’s love or services but still must pay.  To add insult to injury, sometimes alimony is payable even when the wife had decided to end the marriage.   And men are understandably concerned about the negative effect of alimony on the wife’s future motivation to make her own living. 

On the other hand, married women have often experienced significant decreased opportunities in their careers.  They often have made (by mutual decision with their husband) their top priority to take care of the family, home, children, and husband – to be a homemaker.  That’s why some commentators view a marriage as an economic partnership, with the right to alimony payments as essentially a payment of the marital partnership’s income interest.

It is the atypical cases that capture the attention of the media. We hear about lifetime alimony paid to an “able-bodied” spouse after a very short marriage.  Or a man who is ill and penniless, but must still pay alimony.  On the other side, we hear about cases where a wife whose marriage has ended has no career or work prospects and is unable to support herself adequately because of no or insufficient spousal support.   Alimony can be seen as a good thing or a bad thing, depending on whose ox is being gored.  

Massachusetts current alimony laws.  Presently, Massachusetts has very typical alimony laws.  The issue of alimony (as is the issue of property division) is based on an analysis of many factors, among them, age, opportunity for future acquisition, length of marriage, contribution to marriage (including as a homemaker), conduct, and employability.    

http://www.malegislature.gov/Laws/GeneralLaws/PartII/TitleIII/Chapter208/Section34

 

Nothing in the Massachusetts statute defines when alimony should end.   And Massachusetts judges don’t believe the statute gives them authority to order a termination date at the time an alimony order is set.   In a recent case, Pierce v. Pierce (2009), quite surprisingly (to most lawyers) the Court denied the request of a 66 year-old retired attorney to terminate alimony.  http://ivkdlaw.com/alimony-pierce.asp

Alimony laws tend to be quite vague, Massachusetts’ present laws included.  This is due to the multiplicity of case facts and situations to be decided.  When we advise our clients, we have to rely on an amorphous set of case decisions, anecdotal reports from colleagues on non-reported cases, various guidelines and pronouncements for lawyer bar associations and law groups.  Complicating the alimony landscape in Massachusetts was a 2009 change in an administrative ruling setting the child support amounts.  In this change, the ceiling of income subject to child support was greatly increased (to provide parity to married and unmarried parents).  As a result, everyone’s concept of what was the proper amount of an alimony to be paid became very unclear and confusing.

Massachusetts previous proposals.   Over the past few years, there have been a number of proposals to amend the Massachusetts alimony laws to provide more guidance for divorcing couples, their attorneys and the Courts.    In 2009, there were 2 competing proposals, neither which was enacted into law.  One proposal, S.B. 1616, simply granted judges the additional power to determine the duration of alimony order at the time it was set.  The other, H.B. 1785, proposed an alimony law that made a priority on increasing the earning capacity of the receiver and limiting alimony payments.  Neither proposal was enacted.

H.B. 1785 is instructive, because it was thought to be unduly punitive to potential recipients.  It had been devised and promoted by an alimony reform group, led by men who believed alimony laws were unjust to payors.

 The goal articulated in H.B. 1785 was to promote self-sufficiency for the payee spouse within a “reasonable period” of time.  “Reasonable period” was defined by the statute as a period which could not exceed one half the length of the marriage, or twelve years, whichever is less.  There was an exception:  if there were children under 16 that the supported party was taking care of, then the “reasonable period” could extend until the youngest child had attained 16 years of age. 

In H.B. 1785, the amount of alimony would be automatically reduced during the second half of the alimony term by ten percent a year.  If the payee party did not exhibit “willingness and diligence” to seek employment counseling and training, she would be punished by reducing the duration or amount (or both) of the alimony order.

H.B. 1785 sought to eliminate other important factors in the Massachusetts alimony statute, including conduct, employability, station (which means the lifestyles of the parties), the needs of a party, and opportunity of future acquisition.  These factors were struck in their entirety.  The result could be devastating for a wife who had foregone employment opportunities to create a family and maintain a home life. 

The new proposed Massachusetts Alimony Reform Act.  

In January, 2011, a new alimony bill was filed with the Massachusetts Senate entitled “An Act To Reform And Improve Alimony” to be known as the “Alimony Reform Act of 2011.

http://www.ivkdlaw.com/Massachusetts-Alimony-Reform-Act.asp

 It is quite thoughtful, and seeks to try to take out the uncertainty and unfairness in present alimony laws.  The Act seeks to balance concern for the well-being of the spouse needing support, with equity for the paying spouse.   The proposed law is quite unique, and may have a ripple effect on other states’ alimony laws if enacted.    The proposed Act has been supported by both the Massachusetts Bar Association and the Women’s Bar Association of Massachusetts, which means it may have an excellent chance of passing into law.

Here are some basic elements of the proposed Massachusetts Alimony Reform Act.

Durational Limits.  The duration of alimony under the Act depends on the length of the marriage.  It can be no greater than  50% of length of the marriage if the duration was 5 years or less;  60% if 10 years or less, but more than 5 years;   70% if 15 years or less, but more than 10 years; and 80% if 20 years or less but more than 15 years.  In a marriage which is 20+ years, the court may order alimony for “an indefinite length of time” but is not required to.  All these parameters can be modified if required “in the interests of justice”.   These durational parameters are similar to those that have been suggested by guidelines issued by American Academy of Matrimonial Lawyers, and by rulings of Massachusetts judges.

Termination at Remarriage and Cohabitation.  Under the Act, alimony ends at remarriage of the recipient (unless the parties specifically agree otherwise).  It should be noted that termination upon remarriage is not required by the Internal Revenue Code (to permit deduction of alimony payments), nor is it currently required under Massachusetts laws.  Under the partnership view of marriage as creating an income interest in a spouse’s (greater) earnings, this seems to be unfair as a blanket rule.   I have often suggested to people negotiating divorces that a modification of the blanket termination rule (such alimony as reduced by 50% upon remarriage) is a good thing for both parties.  It might encourage the remarriage of a spouse whose economic self-preservation would lead to a decision not to remarry.

The Act provides for suspension, reduction or termination upon cohabitation of the recipient spouse, with someone with home sharing a “common household” after at least 3 months of cohabitation.  Thus the Act seems to encourage cohabitation rather than remarriage.

Termination at Full Retirement Age.   To address the concerns raised in the Pierce case,

http://ivkdlaw.com/alimony-pierce.asp

the Act provides that alimony orders will end when the payor reaches full retirement age for social security.  This court can deviate from this rule for good cause.  An example that might result in deviation might be a “later-in-life” divorce when the parties are their 50s or 60s, with inadequate retirement savings and a payor who had intended to work past normal retirement age.   There also might be post-divorce extension for “good cause”, such as a material change in circumstances which might render the termination inequitable.

Amount of Alimony.    Many of the factors in the present Massachusetts alimony statute http://www.malegislature.gov/Laws/GeneralLaws/PartII/TitleIII/Chapter208/Section34

are included in determining the amount to be paid (and also the duration) of alimony under the Act. These include length of marriage, age of parties, economic and non-economic contribution to the marriage.  The term “station” has been changed to “ability of each party to maintain the marital lifestyle”.  Note the word “each” in that factor.  A recipient should not be entitled to a higher lifestyle than the payor.  (This is actually embedded in case law under Massachusetts’ current statute.)

The concept of marital post-divorce partnership is now newly reflected in a new factor termed “lost economic opportunity as a result of the marriage”.  Employment and employability, “including employability through reasonable diligence and additional training, if necessary”, harkening back to H.B. 1785, is now included as a factor.  Those mythical ex-wives who wish to sit in front of the TV watching Oprah and eating chocolates are now forewarned. 

Another guideline is established with respect to amount.  It is generally not to exceed “the recipient’s need” or 30 – 35 percent of the difference between the parties’ gross incomes at the time of the divorce.  (This comports with current Massachusetts alimony practice.)  Income subject to child support is deducted from the gross income of a party.  It is unclear as to what happens to an alimony order when children are emancipated.

Existing Alimony Orders.   Under The Alimony Reform Act of 2011, an ex-spouse in a case decided prior to enactment can never file on the basis of material change of circumstances to reduce or increase the amount of an existing alimony orders. But the Act itself is a “change of circumstances” that may entitle an ex- spouse to vary the duration of alimony in an existing order.  However,  if a couple had initially agreed that the alimony terms in their separation agreement were to be non-modifiable (this is often done with mutual advantage to each of the spouses), the duration cannot be changed after the Act is passed.

Massachusetts again a Beacon.   After many years of discussion, Court decisions, theorizing, and uncertainty, Massachusetts may be closer now to an alimony system that works better, is fairer to both parties, and reflects equity.

As with its leadership in free public education, abolition of slavery, enactment of same-sex marriage and health care reform, Massachusetts may once again serve as a beacon to the country. It is poised to do just that in the formulation and anticipated enactment of “An Act to Reform and Improve Alimony”.

http://www.yourfamilymatterslawblog.com/massachusetts-alimony-reform-act-of-2011/

© 2011 Laurie Israel.

Massachusetts Alimony Reform Act of 2011

AN ACT TO REFORM AND IMPROVE ALIMONY

HOUSE DOCKET, NO. 03926         FILED ON: 07/20/2011 HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 03617               Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows: SECTION 1. This act shall be known as the Alimony Reform Act of 2011. SECTION 2. Section 34 of chapter 208 of the General Laws, as appearing in the 2008 Official Edition, is hereby amended by inserting after the word “other”, in line 5,  the following words:- in accordance with sections 48 to 55, inclusive. SECTION 3. Said section 34 of said chapter 208, as so appearing, is hereby further amended by striking out the third sentence and inserting in the place thereof the following sentence:- In fixing the nature and value of the property, if any, to be so assigned, the court, after hearing the witnesses, if any, of each of the parties, shall consider the length of the marriage, the conduct of the parties during the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties, the opportunity of each for future acquisition of capital assets and income, and the amount and duration of alimony, if any, awarded under sections 48 to 55, inclusive. SECTION 4. Said chapter 208 is hereby further amended by adding the following 8 sections:- Section 48. As used in sections 49 to 55, inclusive, the following words shall, unless the context requires otherwise, have the following meanings:- “Alimony”, the payment of support from one spouse to another for a reasonable length of time, pursuant to a court order and for the purpose of providing a spouse in need of support periodic payments from a spouse who has the ability to pay it. “General term alimony”, the periodic payment of support to a recipient spouse who is economically dependent. “Rehabilitative alimony”, the periodic payment of support to a recipient spouse who is expected to become economically self-sufficient by a predicted time, such as, without limitation, reemployment; completion of job training; or receipt of a sum due from the payor spouse pursuant to a judgment. “Reimbursement alimony”, the periodic or one-time payment of support to a recipient spouse after a marriage of not more than 5 years and for the purpose of compensating the recipient for economic or noneconomic contribution to the financial resources of the payor spouse, such as enabling the payor spouse to complete an education or job training. “Transitional alimony”, the periodic or one-time payment of support to a recipient spouse after a marriage of not more than 5 years and for the purpose of transitioning the recipient to an adjusted lifestyle or location as a result of the divorce. “Duration of marriage”, the number of months from the date of legal marriage to the date of service of a complaint or petition for divorce or separate support duly filed in a court of the commonwealth or another court with jurisdiction to terminate the marriage. The court shall have discretion to increase the duration of marriage where there is evidence that the parties’ economic marital partnership began during their cohabitation period prior to the marriage. “Full retirement age”, the payor’s usual or ordinary retirement age for United States old-age social security benefits. It shall not mean “early retirement age” if early retirement is available to the payor or “maximum benefit retirement age” if additional benefits are available as a result of delayed retirement. Section 49. (a) General term alimony shall terminate upon the remarriage of the recipient or the death of either spouse; provided, however, that the court may require the payor spouse to provide life insurance or another form of reasonable security for payment of sums due to the recipient in the event of the payor’s death during the alimony term. (b) Except upon a court finding that deviation beyond the time limits of this section are required in the interests of justice, where the duration of marriage is 20 years or less, general term alimony shall terminate no later than a date certain in accordance with durational limits set forth below:    (1) If the duration of marriage is 5 years or less, general term alimony shall be no greater than one-half the number of months of the marriage.    (2) If the duration of marriage is 10 years or less, but more than 5 years, general term alimony shall be no greater than 60 per cent of the number of months of the marriage.    (3) If the duration of marriage is 15 years or less, but more than 10 years, general term alimony shall be no greater than 70 per cent of the number of months of the marriage.    (4) If the duration of marriage is 20 years or less, but more than 15 years, general term alimony shall be no greater than 80 per cent of the number of months of the marriage. (c) The court shall have discretion to order alimony for an indefinite length of time for marriages longer than 20 years. (d) General term alimony shall be suspended, reduced or terminated upon the cohabitation of the recipient spouse when the payor shows that the recipient has maintained a common household, as defined below, with another person for a continuous period of at least 3 months.    (1) Persons are deemed to maintain a common household when they share a primary residence together with or without others. In determining whether the recipient is maintaining a common household, the court may consider any of the following factors:      (i) oral or written statements or representations made to third parties regarding the relationship of the cohabitants;      (ii) the economic interdependence of the couple or economic dependence of 1 party on the other;      (iii) the common household couple engaging in conduct and collaborative roles in furtherance of their life together;      (iv) the benefit in the life of either or both of the common household parties from their relationship;      (v) the community reputation of the parties as a couple; or      (vi) other relevant and material factors.    (2) An alimony obligation suspended, reduced or terminated under this provision may be reinstated upon termination of the recipient’s common household relationship; but, if reinstated, it shall not extend beyond the termination date of the original order. (e) Unless the payor and recipient agree otherwise, general term alimony may be modified in duration or amount upon a material change of circumstances warranting modification. Modification may be permanent, indefinite, or for a finite duration, as may be appropriate under the circumstances before the court. Nothing in this section shall be construed to permit alimony reinstatement after the recipient’s remarriage, except by the parties’ express written agreement. (f) Once issued, general term alimony orders shall terminate upon the payor attaining the full retirement age when he or she is eligible for the old-age retirement benefit under the United States Old-Age, Disability, and Survivors Insurance Act, 42 U.S.C. 416, as amended and as may be amended in the future. The payor’s ability to work beyond said age shall not be a reason to extend alimony, provided that:    (1) When the court enters an initial alimony judgment, the court may set a different alimony termination date for good cause shown. In granting deviation, the court shall enter written findings of the reasons for deviation.    (2) The court may grant a recipient an extension of an existing alimony order for good cause shown. In granting an extension, the court shall enter written findings of:      (i) a material change of circumstance that occurred after entry of the alimony judgment; and      (ii) reasons for the extension that are supported by clear and convincing evidence. Section 50. (a) Rehabilitative alimony shall terminate upon the remarriage of the recipient, or the occurrence of a specific event in the future, or the death of either spouse; provided, however, that the court may require the payor to provide reasonable security for payment of sums due to the recipient in the event of the payor’s death during the alimony term. (b) The alimony term for rehabilitative alimony shall be no more than 5 years. Unless the recipient has remarried, the rehabilitative alimony may be extended on a complaint for modification upon a showing of compelling circumstances in the event that:    (1) unforeseen events prevent the recipient spouse from being self-supporting at the end of the term with due consideration to the length of the marriage;    (2) the court finds that the recipient endeavored to become self-supporting; and    (3) the payor has continuing ability to pay and no undue burden. (c) The court shall have discretion to modify the amount of periodic rehabilitative alimony based upon material change of circumstance within the rehabilitative period. Section 51.(a) Reimbursement alimony shall terminate upon the death of the recipient or a date certain. (b) Reimbursement alimony may not be modified by either party. (c) Income guidelines set forth in subsection (b) of section 53 shall not apply to reimbursement alimony. Section 52. (a) Transitional alimony shall terminate upon the death of the recipient or a date certain that is not longer than 3 years from the date of the parties’ divorce; provided, however, that the court may require the payor to provide reasonable security for payment of sums due to the recipient in the event of the payor’s death during the alimony term. (b) Transitional alimony may not be modified, extended or replaced by another form of alimony. Section 53. (a) In determining the appropriate form of alimony and in setting the amount and duration of support, a court shall consider: the length of the marriage; age of the parties; health of the parties; both parties’ income, employment and employability, including employability through reasonable diligence and additional training, if necessary; economic and non-economic contribution to the marriage; marital lifestyle; ability of each party to maintain the marital lifestyle; lost economic opportunity as a result of the marriage; and such other factors as the court may deem relevant and material. (b) Except for reimbursement alimony or circumstances warranting deviation for other forms of alimony, the amount of alimony should generally not exceed the recipient’s need or 30 per cent to 35 per cent of the difference between the parties’ gross incomes established at the time of the order being issued. Subject to subsection (c), income shall be defined as set forth in the Massachusetts child support guidelines, as they may be amended from time-to-time. (c) For purposes of setting an alimony order, the court shall exclude from its income calculation:    (1) capital gain income and dividend and interest income which derives from assets equitably divided between the parties under section 34; and    (2) gross income which the court has already considered for setting a child support order whether pursuant to the Massachusetts child support guidelines or otherwise; provided, however, that nothing in this section shall limit the court’s discretion to cast a presumptive child support order under the child support guidelines in terms of unallocated or undifferentiated alimony and child support. (d) In setting an initial alimony order, or in modifying an existing order, the court may deviate from duration and amount limits for general term alimony and rehabilitative alimony upon written findings that deviation is necessary. Grounds for deviation may include:    (1) advanced age; chronic illness; or unusual health circumstances of either party;    (2) tax considerations applicable to the parties;    (3) whether the payor spouse is providing health insurance and the cost of health insurance for the recipient spouse;    (4) whether the payor spouse has been ordered to secure life insurance for the benefit of the recipient spouse and the cost of such insurance;    (5) sources and amounts of unearned income, including capital gains, interest and dividends, annuity and investment income from assets that were not allocated in the parties divorce;    (6) significant premarital cohabitation that included economic partnership or marital separation of significant duration, each of which the court may consider in determining the length of the marriage;    (7) a party’s inability to provide for his or her own support by reason of physical or mental abuse by the payor;    (8) a party’s inability to provide for his or her own support by reason of a party’s deficiency of property, maintenance or employment opportunity; and    (9) upon written findings, any other factor that the court deems relevant and material. (e) In determining the incomes of parties with respect to the issue of alimony, the court may attribute income to a party who is unemployed or underemployed. (f) Where the court orders alimony concurrent with or subsequent to a child support order, the combined duration of alimony and child support shall not exceed the longer of: (i) the alimony duration available at the time of divorce; or (ii) rehabilitative alimony commencing upon the termination of child support. Section 54. (a) Sections 48 to 55, inclusive, shall not be deemed a material change of circumstance that warrants modification of the amount of existing alimony judgments; provided, however, that existing alimony judgments that exceed the durational limits set forth in section 49 shall be deemed a material change of circumstance that warrant modification.  Existing alimony awards shall be deemed general term alimony, and shall be modified upon a complaint for modification without additional material change of circumstance, unless the court finds that deviation from the durational limits is warranted.   (b) Under no circumstances shall sections 48 to 55, inclusive, provide a right to seek or receive modification of an existing alimony judgment in which the parties have agreed that their alimony judgment is not modifiable, or in which the parties have expressed their intention that their agreed alimony provisions survive the judgment and therefore are not modifiable. (c) In the event of the payor’s remarriage, income and assets of the payor’s spouse shall not be considered in a redetermination of alimony in a modification action. (d) Income from a second job or overtime work shall be presumed immaterial to alimony modification if:    (1) a party works more than a single full-time equivalent position; and    (2) the second job or overtime commenced after entry of the initial order. Section 55. (a) The court may require reasonable security for alimony in the event of the payor’s death during the alimony period. Security may include, but not be limited to, maintenance of life insurance. (b) Orders to maintain life insurance shall be based upon due consideration of the following factors: age and insurability of the payor; cost of insurance; amount of the judgment; policies carried during the marriage; duration of the alimony order; prevailing interest rates at the time of the order and other obligations of the payor. (c) Orders to maintain security shall be modifiable upon a material change of circumstance. SECTION 5.    Section 49 of chapter 208 of the General Laws shall be prospective, such that alimony judgments entered before March 1, 2012 shall terminate only as set forth in subsection (b) of said section 49. SECTION 6.  Any complaint for modification filed by a payor pursuant to section 54 of chapter 208 of the General Laws solely because the existing alimony judgment exceeds the durational limits set forth in section 49 of said chapter 208, may only be filed pursuant to the following:    (1) Payors who were married to the alimony recipient 5 years or less, may file a modification action on or after March 1, 2013.     (2) Payors who were married to the alimony recipient 10 years or less, but more than 5 years, may file a modification action on or after March 1, 2014 .      (3) Payors who were married to the alimony recipient 15 years or less, but more than 10 years, may file a modification action on or after March 1, 2015.    (4) Payors who were married to the alimony recipient 20 years or less, but more than 15 years, may file a modification action on or after September 1, 2015. SECTION 7.  Notwithstanding the provisions of clauses (1) to (4) of section 6 of this act, any payor who is eligible for the full old-age benefit under the United States Old Age, Disability, and Survivor Insurance Act, 42 U.S.C. 416, or who will become eligible for said benefit on or before March 1, 2015 may file a complaint for modification on or after March 1, 2013. SECTION 8. Sections 1 to 7, inclusive, shall take effect on March 1, 2012 .”

 

Are California Divorce Laws Bad for Marital Health?

Published in Huffington Post, 2/10/11.

In the US, every state has a different set of divorce laws about distributing assets between ex-husband and ex-wife.  So if you get divorced in California you may end up with a very different financial settlement than if you had divorced in Massachusetts.

“Community Property”  laws v. “Equitable Property” jurisdictions
California and 7 other states (Arizona, Idaho, Nevada, Texas, New Mexico, Louisiana, Washington, and Wisconsin) are so-called “community property” states, having adopted community property laws.  Two other jurisdictions, Alaska and Puerto Rico, are “opt in” states, whereby spouses can elect into community property treatment. The community property states are primarily in the West and are based on the Mexican legal system, which was derived from Spanish law. 

Simply stated, in community property states, all income earned (and debts accrued) during the marriage are considered “community property” – property belonging to both spouses.  Community property includes the portion of retirement accounts accruing during marriage, and all property acquired during the marriage.

In a community property jurisdiction, premarital property and property gifted to a spouse or inherited will be considered “separate property”.  This separate property stays with the spouse in whose name it is titled if there is a divorce.  Alimony rules may soften these community property rules if the result is harsh.

Generally “community property” is divided equally upon divorce.  In some community property states, such as Texas, a court has the authority to decree an “equitable” distribution of community property which might be unequal.

Divorce in the other states generally falls under the “equitable property” regime.  Under this system, all property is divided on equitable principles, such as length of the marriage, opportunity for future acquisition, earnings potential, and other factors.  Premarital, gifted, or inherited property may also be included depending on the facts of each situation.  In other words, a Court has the discretion to do what it decides is fair. 

Differences in Divorce Rates
I have been intrigued by the reports of high divorce rates in certain states and low divorce rates in others.  In recent reports on the divorce rate [http://maritalmediation.com/2011/02/divorce-rates-according-to-the-wall-street-journal-and-cdc] among the states with the highest divorce rates are Nevada, Wyoming, and Idaho, three community property states.  California was not included in that study because it no longer provides public divorce statistics. However, earlier data and anecdotal information indicates that California also has a very high divorce rate and southern California may be the highest in the country.

The lowest divorce rates are in Massachusetts followed by the District of Columbia, Pennsylvania, New Jersey, Iowa and Illinois. These are all equitable distribution states.

Texas is a community property state with a medium divorce rate.  One distinctive aspect of Texas is its extremely restrictive rules on spousal support.  In Texas, no matter how long a couple is married, the party receiving alimony is limited to a maximum order of $2,500 per month for a three year duration and only if the marriage was 10 years or longer.  The courts limit the spousal support to the shortest possible time for the spouse to begin employment to provide for his or her “minimal reasonable needs”.

Although the equitable division of community property can sometimes mitigate the harsh application of this law, Texas may be the state which best personifies Tammy Wynette’s famous song, “Stand by Your Man” as a marriage principle for many women.  http://www.youtube.com/watch?v=DwBirf4BWew.

Do elimination of  “transaction costs”  increase incidence of divorce?
It makes one wonder why community property states tend to have high divorce rates, and why equitable distribution states tend to have lower divorce rates.

One of the reasons may be the “transaction costs” in divorce.  If divorce is very easy, divorce becomes more frequent.  If people know that they don’t have to share property, divorce is easier. 

Take, for example, a marriage in a community property state where one spouse owns a lot of premarital property or inherited property.  This wealthier spouse knows that they can leave the relationship with no personal financial impact because it’s separate property.  Maybe that’s why community property states tend to have higher divorce rates.

Consider the multiple marriages and divorces of many celebrities.  There may be huge transaction costs in their divorces, but they have enough money to start over in a new relationship without being financially hurt.  So a celebrity can leave their marriage easily, while someone less affluent may be stuck working it out with their spouse.  The less affluent couple may end up in a very good long-term marriage like the one Huey Lewis and The News sang about in the song, “Happy to be Stuck With You”.  http://www.youtube.com/watch?v=7Re30H83sIQ  . 

As the lyrics say:

And we’ve had our ins and outs, but that’s the way it’s supposed to be
We thought about giving up, but we could never stay away
Thought about breaking up, but now we know it’s much too late

Perhaps “being bound by all the rest, like the same phone number, all the same friends, and the same address” as Huey Lewis sings, is not enough to make for a viable marriage.  However, a marriage bound up with the familiarity of time, commitment, and affection is something worthy of aspiration.  That is not to say that long-term marriage is the most moral option, but that it can be valuable and enjoyable.   If there’s no easy way out, spouses may be willing to overcome the inevitable obstacles in a marriage.

Which takes us to prenuptial agreements. 

As a lawyer and mediator, I have worked on many of these.  And I have come to believe that they are usually unnecessary and often serve to weaken the marriage at the outset.  A person with a prenup has been given a preset path to divorce with no transaction costs.

While some attorneys and financial advisors recommend prenuptial agreements in order to reduce the financial risk if the couple divorces, a prenuptial can actually serve to increase the divorce risk of the couple.  Why should someone stay and work things out when the exit path is so easy?

Financial convenience, though certainly not a reason to stay married by itself, can take a marriage through a rough period so that the couple can grow and the marriage can flourish again.  Divorce factors that may contribute to divorce,  like prenups, celebrity wealth, or residing in a community property state may lessen the chances of making it through a long-term marriage. 

© 2011 Laurie Israel.  All rights reserved.

“Divorce Tourism” – American Style

In India, only one out of every hundred marriages fails.  But the divorce rate is rising, especially in big cities, due to changing lifestyles, urbanization, women’s economic independence, and growing prevalence of “western” attitudes towards marriage.  Though the divorce rate is low compared to most developed countries, it has reportedly doubled in the past five years.   At the same time, traditional Indian culture views divorce as shameful, and marital counseling is only just beginning to gain acceptance. 

 “Divorce Tourism” is the invention of Vijesh Thakkar, owner of a Mumbai tour company, KV Tours and Travel.  After watching his best friend’s marriage disintegrate, Thakkar wondered if he could help other married couples heading for divorce. http://www.time.com/time/world/article/0,8599,1941208,00.html 

With this impetus in mind, he launched “divorce tourism” packages in 2009 to help couples who are heading towards divorce.  The idea is that the couple embarks on a week-long stay in a resort with time and leisure to heal their relationship. 

At first, Thakkar thought that a relaxing vacation in a quiet destination could regenerate a marriage. But   couples having marital problems often continue fighting during a vacation.  A couple could not identify and resolve their communication difficulties, even in the relaxing atmosphere of a vacation. 

Then Thakkar’s inspiration was to add the option of including a “tour guide” with the couple, who is a marital counselor.  Sometime this tour guide was introduced to the couple as a marital counselor.  But due to the stigma of divorce and resistance to psychotherapy in India, sometimes the vacation and tour guide had been secretly arranged by a concerned friend or parent.  In this case, the tour guide traveled incognito.  As the vacation unfolded, the tour guide would discretely help the couple resolve communication difficulties without revealing his true identity. 

The recent Hollywood comedy “Couples Retreat:  Return to Eden” is a lamehearted comedy about four couples who attempt to improve their marriages by undergoing counseling on a tropical island.  

If we’re to take this concept seriously, we should imagine a vacation involving one couple and one “tour guide”  –  a professional who deals with marital problems.   In societies where therapy is widely accepted, this could be conducted openly and could be a sound approach for marital therapists and other professionals to address marital problems.  In fact, it might be much more conducive to constructive thinking and conversation than the typical therapy session sitting on chairs in a drab office.

The “tour guide” could either be a marital counselor, or another professional who deals with marital problems, such as a marital mediator.  In marital mediation, a mediator works with a couple using mediation techniques to identify and understand communication problems.  While there is some overlap between marital counseling and marital mediation, either approach can be very helpful to a couple whose marriage is in trouble.  http://www.maritalmediation.com.

The advantage of taking a vacation with a “tour guide” is that there is plenty of time to view the couple’s interactions in real time, not bounded by an hour therapy or mediation session.  It is intensive.  The “tour guide” can take notes on the spouses’ verbal interactions, sometimes combined with audio recording.  That way, exactly what was said could be analyzed with the “tour guide” and the couple.   Negative communications and misunderstandings can be revealed.  The couple can be helped with ways to address and minimize corrosive interchanges. 

Often struggling couples will fight quite viciously about trivial matters. The “tour guide” can point out what the couple does not see – they are arguing at times about nothing important.  When the couple sees actual data about their arguments, they sometimes can let go of some thought patterns and bickering that are causing corrosiveness in the marriage.  When a marriage starts to improve, the trajectory for further improvement is set, and things can gradually get better. 

Of course, “Divorce Tourism” would be expensive, based on cost of a vacation for three plus the professional fees of the “tour guide”.  But if it could increase the chance of saving the marriage, it’s certainly worth considering.

While “Divorce Tourism” will not always be successful in forestalling a divorce, in many cases it could be a powerful tool in setting a couple back on a fulfilling marital path.  If two people wish to remain married, but cannot figure out how because of incessant conflict, it may be a creative opportunity for them to get to the bottom of what is destroying their marriage.  

Most marriages are killed by a litany of petty unresolved arguments, unrealistic expectations, and overemphasis on unimportant disputes.    For these spouses, “Divorce Tourism” may be a fruitful alternative to a visit to a divorce attorney’s office.

© Laurie Israel 2011.

What We Can Learn from the Top 10 Celebrity Divorces of 2010

Do celebrity divorces provide entertainment? Yes, but maybe we can learn something from them too.

Courteney Cox and David Arquette
Courteney Cox and David Arquette are in a trial separation and contemplating divorce.  They say they have “grown apart” during their marriage and that was confirmed when we all heard David talking about his sex life on Howard Stern’s radio show.  Honesty is a virtue, but one’s new single sex life is better left unsaid if you hope to reunite with your ex.  To David’s credit, he tweeted an apology.  Could the impetus of the separation have been California’s divorce law, which likely would increase Courteney’s spousal support obligation at the 10-year point?

Lesson:  Keep your single sex life to yourself during your trial separation.       

Tiger Woods and Elin Nordegren
Some couples can rebuild trust in their marriage and heal from an instance (or two) of infidelity.  Tiger Woods’ obsessive interest in sex outside the marriage turned out to be fatal to his marriage with Elin Nordegren. 

They conducted their divorce, however with great dignity and relative civility (except for the golf club incident, which was totally understandable).  And Tiger’s attempt toward self-improvement included a treatment facility to try to cure his sex addiction.  Few divorcing people own up to their own deficits and act responsibly so we offer our best to Tiger and Elin for showing people the way to a dignified divorce under extenuating circumstances.

Lesson:  A marriage can survive a single affair if there’s a great commitment of patience and forgiveness.  A marriage will rarely survive multiple affairs.  In the case of sex addiction, probably best to end it with dignity.

Jennifer Jason Leigh and Noah Baumbach
Sometimes when complicated people get married they have, well, complicated marriages.  Leigh and Baumbach are that kind of couple as seen through Leigh’s acting persona and Baumbach’s writing.  Their 5 year marriage has come to an end, with an infant son born just seven months ago.   

Both Baumbach and Leigh came from artistic families with great professional success.   They share something else in common which is a family history of divorce.  Leigh’s parents divorced when she was two years old and Baumbach’s when he was a teenager.  In fact, his breakout film, “The Squid and the Whale” (2005) was based on memories of his parents’ breakup.    While some children of divorce work harder, others follow their parents’ pattern and cannot achieve a high level of commitment.

Hopefully Baumbach and Leigh’s professional collaboration, which included “Margot at the Wedding” (2007) and “Greenberg” (2010), will survive the demise of their marriage.

Lesson:  Know your risk factors.  Two artistic and career-focused people from divorced childhoods will probably need to work harder on their marriage than the average couple.

Al and Tipper Gore
Al and Tipper Gore announced that they were getting divorced after 40 years of marriage, citing a divergence of paths.   Since meeting in high school, they persevered through the near fatal car accident of their son in 1989, Tipper’s clinical depression, 8 years of vice-presidency, a court-decided loss of the 2000 presidency, and Al’s rebound on the world stage as an environmental activist.  Did their previous common purpose in times of struggle become weaker after the challenge had gone?

 Lesson:  People change over time.  Sometimes a deep sense of common purpose is required to make a marriage last over decades.

Frank and Jamie McCourt
The McCourts’ divorce was widely reported this year, due to litigation involving a postnuptial agreement signed in 2004.  The couple was married 30 years and has 4 grown sons.  After their purchase of the Los Angeles Dodgers and their move to Los Angeles, the marriage unraveled, at least partly due to the bungled postnup,  which was identified as a problem when they went to an estate planner to develop a joint estate plan in 2008. 

Postnups can be very helpful to mature marriages, by addressing and clarifying financial issues.  This one was not, and caused many  problems.  It may have caused the end of the marriage, while running over $20 million in legal fees, making it one of the most expensive divorce lawsuits in California history. 

Lesson:  Anyone considering a postnup can learn from the McCourts’ mistakes by working out an agreement that preserves and strengthens the marriage, rather than weakening it.

Cameron Crow and Nancy Wilson
Cameron Crowe and Nancy Wilson divorced after a 24-year marriage.   Like Robin Williams and his wife, Marcia Garces, they chose to end their marriage through a process called a collaborative divorce, pledging to be “honest, cooperative and respectful” and to put their children’s interests first.

Cameron and Wilson worked out all issues (including joint custody and spousal support) through face-to-face meetings with their attorneys and themselves.  As part of the process, they agreed not to litigate using their current attorneys.  This gave the Cameron and Wilson benefit of legal counsel and a safe place to work out the terms of their divorce, in private.  This can only help their 10-year-old twins while they grow up with divorced co-parents.

Lesson:  If you’re going to split, do it respectfully and avoid litigation if at all possible.

Heidi Montag and Spencer Pratt
Heidi Montag and Spencer Pratt’s marriage was reported to be on the rocks and their lives became a reality show until the divorce announcement turned out to be a hoax.   Apparently the “divorce” was merely a publicity stunt to restart her career.

Heidi and Spencer are both very young. (Heidi was born in ‘86 and Spencer in ’83.)    Their wedding ceremony was in Mexico with no family members present and lasted 15 minutes.

No doubt,  Heidi and Spencer do have some marital problems.  Spencer is a self-identified “fame whore” who wants any kind of press, even negative while Heidi doesn’t like bad press. 

Lesson:  During the hoax, Spencer stated his love for fame and her love for puppies were incompatible.  As a divorce lawyer, I thought I heard just about every reason for divorce, but apparently, not this one.  There are no lessons to be learned here.

Scarlett Johansson and Ryan Reynolds
Ever heard of the saying “absence makes the heart grow fonder”?  Don’t believe it when it comes to marriage.

The Johannson/Reynolds marriage has ended after just two years.  It has been blamed on their conflicting work schedules with much business travel.  The spark is extinguished (for now), but, according to them, they remain best friends.  Both appear poised for a rebound.  They are young and beautiful and every first-timer has the right to a “marriage mulligan”, don‘t they? 

Lesson:  If you consistently put your career before marriage, you are not helping your odds of a long-term successful marriage.

Kelsey and Camille Grammer
The demise of the Grammers’ 13-year marriage came after Kelsey spent time in New York City for a gig as Georges in the play “Cage Aux Folles”.  Kelsey seemed to enjoy the single life and did not want to return to his marriage, which was apparently already in trouble.  Would it have lasted had he stayed in L.A.?

Lesson:  Again, a heavy work schedule involving lots of travel is not the recipe for marital success.  Sometimes work does need to come first, but be aware of the marital strain you are creating.

Billy Ray Cyrus and Tish Cyrus (parents of Miley Cyrus)
After 17 years of marriage and 5 children, the famous parents of the “Hannah Montana” star have filed for divorce.  The gossip rags claim it was jealousy over Billy Ray’s “Achy Breaky Heart” groupies but perhaps more insightful is this 2004 quote from Billy: “You know what, this train may come off the tracks, but I’m going to be a dad. I’m going to be a husband, and try to have something in my life that is right.”  It sounds like he’s had doubts all along.

Lesson:  Part of marriage success is the simple fact of believing in the marriage.  If you want your marriage to success, you have to ignore the short-term distractions of groupies, fame, and money.

© 2011 Laurie Israel.

How Mediation Can Help an Elder

Mediation, a form of out-of-court dispute resolution, is very much in the news these days.

Everyone’s heard about divorce mediation, and maybe you have a friend or family member who has used it for his or her divorce.  A new field of mediation, marital mediation, is now emerging.  In marital mediation, a mediator helps a couple who wants to stay married resolve their conflicts.  It is an alternative to marital counseling, and sometimes it works when marital counseling does not. 

In mediation, a neutral person (often a lawyer, sometimes another professional) leads the disputing parties through decision-making by facilitating their discussions.  A very important part of mediation is to help people actually express their needs, rather than their positions.  Often, they find out that their needs are compatible, and they were just taking adverse positions, which resulted in an apparent (but not a real) conflict.  

In Massachusetts, there is a 200-plus member organization of family mediators called the Massachusetts Council on Family Mediation.  www.mcfm.org.  There is a trove of useful information on their website describing the different kinds of mediation available.  Some of these types might be of special interest to elders:  

Are you having difficulty discussing your estate plan with your grown children?  A neutral mediator can lead that discussion and help you and your children come to clarity.

Are you and your children having conflict over your plans for the future?  A mediator is trained to level the playing field, so that your feelings and aims will be heard by your children. 

Is there a family business that you would like to transfer to the next generation but it is very complicated, and you wish to achieve your goals?  Mediators can help lead that discussion and get and help you evaluate the professional help that might be needed in putting the plan into effect. 

Are you having a dispute with someone where you reside?  Use of a neutral mediator to lead that discussion might be very helpful. 

Are you having marital problems?  Marital mediation is a very useful and productive way to address disputes, especially in “mature” (long) marriages. 

Are you getting married and feel you need to have a prenuptial agreement?  Formulating a prenuptial agreement with your intended spouse through mediation is a wonderful way to do this.

Do you want to explore having a postnuptial agreement?  These agreements made between you and your spouse after your marriage to try to “fix” something that is of concern to both of you.  This can be handled very well in mediation sessions.  

Do you or someone you know have a dispute regarding the probate of an estate?  Family conflict can sometimes be addressed and eliminated (or lessened) in mediation.  

All these types of issues can respond quite well to the mediation process.  So if you have an issue or conflict that is not going away, you might want to give mediation a try. 

© 2011 Laurie Israel.

Batting Zero: Did the McCourt Postnup Destroy Their Marriage?

As published on the Huffington Post, divorce section, 12/23/10.

If you don’t follow baseball news, the McCourt case is the epic divorce battle for ownership of the $800 million Los Angeles Dodgers after a 30 year marriage. After wading through the 100 page court opinion of the case^*, I’ve come to some surprising conclusions about postnuptial agreements. The key point is that Frank and Jamie McCourt signed a postnuptial agreement in 2004 which was found to be invalid.

If the court had come to the opposite conclusion, a 30 year marriage would have ended with the wife owning 15% of assets while the husband received 85%. Does that seem fair? In fact, it almost happened, so let’s review the facts of the case.

The couple drafted the postnuptial agreement when Frank purchased the Dodgers in early 2004. After the purchase, the couple planned a move to California from Massachusetts with their four grown sons.

In Massachusetts, the McCourts had previously arranged their multi-millions in real estate under separate titles to protect the assets. That means if they had gotten divorced in Massachusetts, the separate titles would not have mattered because marital property is presumed to be jointly owned. By contrast, once they moved to California, they were in a “community property” state where separate titles have legal ramifications.

There is dispute over what happened during the chaotic process of drafting the postnuptial agreement. Jamie claims that she signed the postnup for asset protection, and had no intention of changing her equal rights to the Dodgers or any other assets titled in Frank’s name. However Frank says that Jamie was risk-adverse and traded away her risky Dodger’s stake for safer ownership in the couple’s residential properties.

Soon after the postnup was signed, the McCourts moved to California and started running the Los Angeles Dodgers with Jamie as CEO. They seemingly forgot they had signed anything.

But in 2007, Jamie and Frank jointly consulted with a California estate-planning lawyer to discuss a living trust. Jamie came to understand that if they divorced, the previous postnup could lead to Frank gaining sole rights to the Dodgers.

Jamie instructed the estate planning attorney to use the living trust agreement to fix the situation. Frank reviewed this revised living trust agreement and apparently agreed to make the Dodgers into community property.

But then Frank refused to sign.

The estate planning attorney told Jamie she had two stark choices, have a “civil conversation with Frank or a nuclear bomb”. The attorney sensed that if the McCourts didn’t start talking, their marriage would explode. They didn’t talk, and the explosion happened.

Frank abruptly fired Jamie as the Dodgers’ CEO. Five days later Jamie filed for divorce and litigation followed.

During contentious and conflicting testimony, the court had to consider many factors about the postnup: Did Jamie and Frank have the same intentions? Had Frank met his fiduciary duty to take care of his wife? Was a lawyer’s word processing mistake serious enough to throw out the agreement?

Some of the facts read like a comedy of errors, except that it’s sad. Jamie and Frank received so many postnup drafts that they barely looked at them. The lawyer never asked if they intended to change their rights of equitable distribution under Massachusetts law. Neither spouse seemed to understand what the postup said.

A good postnup can help a marriage, but in the case of the McCourts, it may have contributed to the McCourt’s marital breakdown.

Postnuptial agreements are not always bad, in fact, they can often make a marriage stronger. Here are some lessons from the McCourts’ blunders during their postnup process:

Use a family lawyer, not a business lawyer. Family lawyers usually focus on families, while business lawyers and estate planning lawyers generally focus on assets. A postnuptial agreement should be primarily focused on maintaining marital connection.

Sit down and talk. The McCourt’s never discussed if they wanted to shift millions of dollars in property rights which was the central implication of the agreement.

Read it carefully, and read it again. Legal documents can be mind-numbing and mistakes get made. Take your time and read every word.

Make sure the agreement is drafted to meet narrow aims. Strip out any unnecessary terms and focus on the matter at hand.

Don’t be greedy. A one-sided postnup is not just mean, it’s very likely to be ruled invalid.

Be fair. A postnup is supposed to help your marriage. An unfair postnup will always backfire.

^*McCourt v. McCourt, Los Angeles County Superior Court # BD514309 (Dec. 7, 2010). If you want to dig deeper, here’s more about postnuptial agreements

© Laurie Israel 2010

Driving Your Spouse Crazy… Literally!

As published in TheHuffington Post, in the Living section on 12/20/10.  

Almost every married couple I know experiences conflict when driving in the car. One of them is a backseat driver. One of them drives too fast, or too slow, or too dangerously, or just plain badly. Nerves get frayed. Tension rises. The relationship in the car may reflect the darkest side of the marriage.
Driving raises basic issues about control, acknowledgment, values and capabilities that play out in marriages. Here are some of the common issues that arise on the road, how they relate to marriage, and some thoughts about how to cope.

1.   What’s the best route to take.   She tells him to go on the highway and across town. He takes a supposed shortcut that takes them straight into a traffic jam. She says, “I told you so.”

Analysis:   In a marriage, spouses often have different ways of doing things. Usually, it’s not that important because both choices will lead to an acceptable result. In the car, there is less patience for sub-optimal decisions because there isn’t time to discuss and both partners are trapped in an enclosed space.

Advice:   It’s almost never important if you take the longer route, and you may see something unexpected.

2.   Changing lanes.   Your spouse is about to change lanes to exit but doesn’t look through the side window. You see the car next to you speeding up. You shout, “Watch out!” Your spouse pulls back but misses the turn and you’re stuck until the next exit.

Analysis:   Most spouses resent being put in danger by the other spouse. But when driving in a car going 65 mph, the reality is that you’re both in danger all the time.

Advice:  There is a 99% chance your spouse would have seen the car in time even if you hadn’t shouted. And if you do crash, you get to bring it up for the next 10 years.

3.  Tailgating.  You are driving in slow traffic. Your spouse doesn’t like the speed at which the car in front of you is driving and tries to speed them up. Your front bumper looks like it’s attached to the car in front.

Analysis:   Anger and frustration are part of being human. We need to understand that our spouse may have different anger points than we do. As married people, we need to respect and tolerate our differences, and even appreciate them.

Advice:   If the tailgating is genuinely dangerous, you should bring it up calmly. If your spouse doesn’t change their behavior, continue to bring it up again, but stay calm.

4. Driving Aggressively.  Your spouse is changing lanes, passing cars, and seems very frustrated to be contained by traffic. This is unusual driving behavior for your spouse. You are getting increasingly uncomfortable and fearful.

Analysis:   Most married couples have a sense when their significant other is troubled by something. Usually your instincts will be right about this.

Advice:   Ask your spouse openly if something is bothering them. Don’t give them a hard time about the aggressive driving. If your spouse can talk about it, their aggressive driving will probably stop.

5.   Signaling Every Turn.   You are driving on a deserted side street; there is no one behind you. You don’t bother to signal, but your spouse says, “Put the left signal on!” You get angry because it seems silly to signal when no one can see it.

Analysis:   People in relationships have some different values. For one, following the rules may be very important. You should appreciate that your spouse has stricter standards of behavior, and this may actually be a good quality overall.

Advice:   If it does you no harm, and makes your spouse happy, why not use the signal?

6.  Parallel Parking.  You learned to drive in a big city. Parallel parking was part of your life. However, your spouse came from farm country and needs 50 open yards to successfully parallel park a car.

Analysis:   Marriage is affected by each person’s different cultural, religious, geographic, and economic background. By appreciating and absorbing elements of their different background, you can become a better person.

Advice: Appreciate the unique qualities of your spouse on each of their 10 attempts to parallel park. Don’t tell them you can do it better. Remember, your spouse is better at plenty of other things than you are.

7.  Backing Up the Car. Your spouse zooms backward out of the driveway with great energy. You are petrified. Luckily no cars are coming.

Analysis:   Sometimes you just have to trust your spouse to do the right thing. While your spouse may not always make the right decision, overall your spouse has good judgment.

Advice:  Be rational. When was the last time your spouse had an accident? Was it a major accident? Assume your spouse knows what your spouse is doing and is just as interested in protecting your lives and your car as you are.

© 2010 Laurie Israel. All rights reserved.

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