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.

Don’t Let Your Attorney Hijack Your Divorce

As published in Huffington Post, 11/30/2010. 

You have embarked on a divorce, selected a lawyer, and now are ready to begin the process.  Be careful of the many pitfalls as you work with your attorney.  Here are some things to avoid as your divorce wends its way through the legal process:
 
1.  The Letter.  The divorce usually starts with your lawyer sending a letter to your spouse telling him or her of your intention to divorce.  Your story, as told to your lawyer, may become unrecognizable in the letter sent to your spouse.   The tone may be cranky, nasty, aggressive, accusative, or all of the above.  It may distort facts or contains information you did not want to express to your spouse.  Your attorney may have sent it without your approval.  You are mortified, regretful and embarrassed.    The letter is the opening salvo, sets the tone for the entire divorce, and is never forgotten. 
 
2.  The Filing.  Many divorce attorneys believe that it is correct operating procedure to file a divorce first, and ask questions later.  Filing a divorce sets court calendars in motion, and the timing is no longer yours to choose. The non-filing spouse may have to be served by a constable appearing at their door or place of work.  Litigation is war — there is no other way to describe it.  So what began as a magical, loving association ends with a war.  War is nasty by definition, and people get injured.  Innocent bystanders are harmed.  The divorce lawsuit will never be forgotten.  Granted, sometimes filing is a necessary way to start the divorce, but often it is not.  A divorce process can be started by face-to-face meetings with your spouse and your attorneys or with a mediator.  These methods set a very different tone than a constable at the door.
 
3.  Are You Really Ready for Divorce?  You may have hit bottom in your marriage, and believe the only thing to do is to get divorced.   Upon your first visit to an attorney, beware that many attorneys will go into full-force fighting gear and start the divorce process without considering that you may need more time to think about it.    Attorneys are sometimes like plumbers — they see a problem and take the steps to “fix” it without considering that a person who is contemplating divorce may be just thinking, envisioning, and fact-finding.  If your divorce attorney takes a zealous role, you won’t have time to consider whether you really want to divorce.   In fact, hitting bottom can be a wake-up call towards reclaiming and revitalizing your marriage.  You won’t find the space to do that if you visit an overly aggressive divorce attorney who starts the process right away.
 
4. Money Issues Distort the Process.  Yes, money issues in divorce are very significant.  When separating a family into two households, there is almost always economic scarcity.  Divorce lawyers tend to do money division very aggressively.  Remember, a litigated divorce is a war in which the lawyers view more money as a win, and less money as a loss.  But divorce trials will always create harsh feelings, and very often will produce unfair results.  If there are children, the corrosiveness caused by fighting over money will spill over into the children’s emotional well-being for their entire lives.  Children see and hear very clearly and will know what’s going on.  Spouses who work through money issues directly (or through a four-way process with their lawyers, or through mediation) almost always can come to terms which are reasonable and workable.  The spouses feel better because they, and not their attorneys, are in control and their needs are fully expressed and acknowledged.  The bitterness that comes with winning and losing in Court can be eliminated by working through the financial problem together.  In a sense, working on money issues together can be the last act of the marriage.  And it can be a loving and respectful one.

© Copyright 2010 Laurie Israel.

 

Happy Life, Happy Wife

Did you ever hear the expression “Happy Wife, Happy Life”?  This overused adage seems to help some people (generally husbands) focus on their wife’s happiness in order to secure a peaceful, happy marriage.  It seems quite manipulative.  What about the man’s happiness?  It’s interesting that the opposite “Happy Husband, Happy Life” is not used.  Studies show that divorces are more often initiated by wives, so perhaps there tends to be an inequality in marital contentment, weighed towards the husbands’ side.

 I originally thought the expression “Happy Wife, Happy Life” was of Oriental origin, because it seemed like the kind of thing you’d find in a fortune cookie.  However, my Google search on the term brought up no Oriental sources.  

 The search for “Happy Wife, Happy Life” did in fact bring up a website www.happywife.com, the work of Rabbi Aryeh Pamensky, who offers many marriage improvement resources (including his own books, tapes, seminars, etc.) on the site.   The term, however, does not seem to be derived from Rabbinic literature, and according to Pamensky, his courses and materials are used by people of difference faiths other than the Jewish, and also by secular couples.

The adage is confirmed by a 2009 German study of Australian divorces that notes where there is a disparity on satisfaction of the husband and the wife, divorce is much more likely, especially if the relative dissatisfaction is experienced by the wife.  http://economix.blogs.nytimes.com/2010/01/29/dont-become-happier-than-your-wife/

Then there’s www.yourhappywife.com.  This site seeks to assist husbands in making their wives happy by helping them choose presents for their wives, which can be conveniently ordered on the website.  Actually, the wares are quite attractive, including eco-soap and herbal teas. These might certainly pave the way for a clueless husband seeking to make his wife happy.  In addition, the husband needing further help can email the site and pose his marital question or problem. “Within 24 hours or sooner”, the person(s) operating the site will respond with the best advice they can give.  The site notes that all emails will be kept confidential and, in order to receive the best advice possible, that honesty is expected from the husband seeking advice.  (I’d like to be a fly on that wall!)

As Rabbi Pamensky says on his site, “A happy wife is a happy life.  It’s just that simple.” 

 But is it?

 George Pransky, a psychologist in Washington State has another theory of marital dysfunction.

His theory is that a person’s own mental/emotional state is the biggest indicator of whether the marriage will work well.  If two people have a low mental or emotional state, Pransky says, marriage enrichment or marital therapy is like spraying for mildew in a damp basement. It never works as a long-term cure.  In his marital counseling, Pransky tries to elevate the couple from the damp basement into an environment of good mental health.  It is only then,  Pransky says, that people can truly work on their marriage to make it  thrive and survive.  Prasky’s book, “The Relationship Handbook”, is a great resource for those couples who want to elevate  their mental state and start working on their relationship.  You can order a copy through www.amazon.com.

 So perhaps the more accurate stating of the adage is “Happy Life, Happy Wife.”  Or even “Happy Life, Happy Husband.”

Tiger Woods – Throw that Prenuptial Agreement Away!

by Laurie Israel.   I’ve been hearing the sorry tale of Tiger Woods’ alleged deficits as a faithful husband to his beautiful Swedish wife, Elin Nordegren.  It is just a more publicized and extreme version of what I see in my law practice where I spend my days as a divorce lawyer.  In youthful marriages (Tiger is 33, Elin is 29, and have been married for 5 years), the pledge of fidelity is often a difficult one to maintain. 

According to Forbes Magazine, Tiger’s net worth from his work as a professional golfer is about a $600 million dollars.  (The $1 billion figure in the news is his lifetime earnings, not net worth.) 

Tiger actually fits the profile of having a good chance of having a marriage that lasted.  He met his wife four years before they were married.  Tiger’s parents remained married until his father’s death in 2006. When a child’s parents remain married, the child generally has a better chance of having a lifelong relationship.

 However, there were three strikes against him.  Tiger had become a very wealthy man at a very young age through his own efforts at his profession.  He has been a celebrity in the public light for a long time. These two factors alone can cause several personal and identity problems. And the third (probably the worst) problem is that Tiger (presumably advised by his attorneys) made sure that he entered into a Prenuptial Agreement with Elin prior to their marriage in 2004. This provided that Elin would get $20 million if she remained married to him for 10 years.

 Now, it appears that Tiger and his wife are compounding the error by renegotiating the Prenuptial Agreement, rather than just trashing it.

 Tiger’s first offer was to add another $5 million to the $20 million Elin would have received under the original terms of the Prenuptial Agreement.  Now, according to news reports, he is offering her another $80 million to remain with him another six years.  (Hmm, how much is that a year?)  Even $80 million for a man with $600 million is small change to buy Elin’s willingness to give Tiger another chance to recommit to his marriage.  So the message is, “You stay with me for another six years, and I will throw a little more money at you if we divorce.”  It doesn’t show very much commitment on Tiger’s part.

 The sad truth is that most fundamental problem in the Tiger Woods marriage may be that they had a Prenuptial Agreement in the first place.  It allowed Tiger to have one foot in the marriage and one foot out of the marriage.  It allowed Tiger (and Elin) to contemplate a divorce and the terms of the divorce even before they took their vows.  It allowed Elin (who was 24 years old at the time of the marriage) to make decisions with a huge impact about the financial implications of the institution of marriage before which she really knew what marriage was about.  It probably made Elin feel abused and probably made Tiger feel cruel and heartless.  Not a good way to begin a marriage.

 So when Tiger and Elin got married, they did not make the 100% commitment that most other married people make on their wedding day.  They had wedding vows, but if they said  “I marry you with this ring, with all that I have and all that I am, for better or worse, for richer or poorer … ” they were not telling the truth.  Tiger and his attorneys were manipulating the terms of a very real institution that has been developed throughout the thousands of years that humans have been creating supportive, monogamous relationships.  By manipulating it with a Prenuptial Agreement, they were weakening it, not strengthening it.  It’s not surprising that Tiger may have found it relatively easy to depart from his marital vows.  He had made another (contractual) vow that conflicted with the marital vows. 

 As a result, Tiger and Elin were only half married.  Marriage requires total commitment.  A Prenuptial Agreement gives a person a “way out” of the marriage.  Without that total commitment there are bound to be marital problems and divorce.  It’s not surprising that Tiger and Elin ran into problems. Couples that depend on each other financially do not have the latitude to think about straying from the marriage.  It is actually a blessing in a marriage not to have “too much” money.

 What if Elin said to Tiger, “Yes, I will stay married to you, but only if we rip up the Prenuptial Agreement and be like real married couples.”  Yes, they would have risk and uncertainly if there is divorce. Maybe that’s a good thing.  If Tiger finally said “Yes, I will be married to you, completely”, then Elin and Tiger could start to be truly committed to their marriage without money getting in the way.  They would both be following the marriage vows, and their marriage could truly restart. 

 So Elin and Tiger, think for a moment about tearing up that Prenuptial Agreement and starting a real marriage now.  Say to each other (finally) “I marry you with all that I have and all that I am.”

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.