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.

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.

Why “Contribution” is So Important to a Marriage

Recently, I was asked to present an evening workshop by an association of professional women on “How to Negotiate with your Spouse”. I was pleased and surprised that they invited a divorce lawyer to present on this topic (which I call, “How to Get Along with Your Spouse”), but it actually makes great sense. Who but a divorce lawyer is in a great position to see what happens when a couple cannot get along.

The association probably found me on the web through my work in Mediation to Stay Married (also known as marital mediation). This is an emerging field of mediations. As a divorce lawyer, I can see how a couples’ interactions are leading them to divorce. I can alert them to the problems, how they lead to divorce, and help them do something about it through mediation.

When we work on divorces with our clients, our clients tell us what went wrong with the marriage. The other spouse generally has another “take” on what went wrong. When you put the two versions together (reminds me of the 1952 classic Japanese film “Rashomon”) you can get a composite view of what went wrong. From this composite view you can “reverse engineer it”, to find out what needs to go “right” in the marriage in order for marriage to succeed.

At the beginning of my presentation to the professional women, I asked them to (anonymously) each write on a 3 x 5 card, a problem in their marriage or relationship, and something they find very annoying about the significant other. The women wrote assiduously with almost 100% participation. I think no one had ever asked them these questions, and they really wanted to unburden.

I used the answers as jumping off points in my presentation. I was not at all surprised that the great proportion of the responses dealt with their feelings of lack of contribution by their spouses or significant others. The notice of “contribution” is a legal term, and is greatly relevant in divorces. Sometimes lack of contribution is reality; sometimes it a perceived lack of contribution, and is not real.

“Contribution to the marriage” is an area where most married couples and committed couples find significant discomfort. It needs to be talked about by the spouses or partners, directly, often, gently, and with humor. The discussion will reveals a treasure trove of history, gender perceptions, culture, religion and family history that will be explored as the couple talks about the issue. The hope is that this discussion will lead to greater clarity, empathy, or appreciation, and maybe some practical changes in the balancing of work needed to make a household run happily and smoothly.

© 2009 Laurie Israel.  All rights reserved.   

 

Laurie Israel,  founder of the firm Israel, Van Kooy & Days, LLC  has a tax background and an interest in what makes marriages break down. She is on the board of the Massachusetts Council on Family Mediation, and is a board member and is active in the Massachusetts Collaborative Law Council.  She writes and presents on prenuptial agreements, mediation, marriage, and collaborative law.