Divorce Curves Ahead: Top Ten Warning Signs
There are no shortages of Top Ten lists of things we all think we know: in divorce, however, the problem is often the need for a list of things you wish you had known. But rear view mirrors are not very useful in evaluating the accidents of divorce: courts are reluctant to go back into the emotional quagmire of a final divorce decree.
Better navigation of a divorce’s potential legal curves has enormous benefits for both divorcing parties. Unfortunately, most courts don’t take full measure of a person’s need to know about potentially unexpected legal arguments and analysis.
This article will focus on decreasing anxiety by noting a veritable Top Ten of the more “commonly unexpected” legal turns. Increasing understanding of the often unknown may make for a better, rather than bitter, divorce.
Once the dust has settled and the ink has dried on a divorce, many couples look back, sadder and wiser…and often, poorer than they need to be. So what’s a ‘better’ divorce? One where the parties reach fair agreements outside of a court order—where the loss of money, time, privacy and emotion are decreased.
Warning signs apply at different times of the process, and to varied degrees of your attorney’s skills. Studies often indicate that ‘surprises’ come from some consistent places.
The Top Ten Warning Signs
- The role of the economy in a divorce.
- Visitation and custody evidence.
- Tax and bankruptcy laws.
- Effects on public benefits eligibility.
- Credit issues.
- Self-help services.
- State enforcement powers for support payments.
- Extension of equity rules.
- Subsequent relationships.
- Marital property redistribution rules.
1. It’s the Economy, again
There’s virtually no headline these days without the economy being mentioned. And few decisions can so instantly, radically change our financial and emotional well being as a divorce.
Conventional wisdom holds that as the economy drops, divorce rates rise.
But conventional wisdom may be surprisingly wrong: some experts think divorce rates actually decrease during economic troubles. A troubled economy adds uncertainty and unnecessary risks to a divorce, so people hold back filing. The economy is a powerful factor: in fact, once an economic recovery begins, divorce rates may almost explode with pent-up demand. A spokesman for the American Association of Matrimonial Lawyers believes complexity has a lot to do with the contradictory lower rate of divorce in tough times.
Yes, some practitioners dispute a lowered divorce rate. They site divorce rate upticks in urban counties as examples. What’s clearly notable, however, is that national divorce figures (including more than urban numbers) indicate the recession of 2008-09 may be unlike any other downturn in the last thirty years…and people’s divorce behavior may be imitating the uncertainty.
Whatever the emotional state of the domestic union, common economic interests may surprisingly dictate the relative speed of the divorce. In the most acrimonious of marriages, economic climate could be a powerful weapon used by a spouse, forcing or delaying a settlement based on the financial consequences to the opponent. In short order, one vengeful spouse may engage in economic hara kiri.
2. Where the Heart Is
Though clearly trending downward, 90% of all custody arrangements are negotiated outside of the court.
The misunderstandings of law associated with child custody probably reflect the emotionally divisive nature of custody orders. Custody fights are also getting nastier, and reflecting seismic shifts in parenting models. One study suggests that the rate of false sexual abuse allegations in divorce are soaring: now, 33% of all contested cases.
Joint custody has also become the stated goal of many courts since the 1980’s. This opens the way for more ongoing contact between divorcing spouses: and more lingering resentments.
Polls suggest men and women are also from different planets when it comes to divorce goals…in a surprising way. Women have stressed stability and financial security as primary objectives; men named emotional issues as priorities. And in another surprise, men were ten times more likely to commit suicide after divorce.
Many people are also confronting another emotional loss in divorce: a pet custody dispute. Most states still regard pets as property…but are increasingly using exactly the same criteria as awarding child custody.
3. For Poorer, For Worse: Bankruptcy Surprises
Bankruptcy and tax codes are constantly being rewritten and many lawyers specializing in divorce also become somewhat expert in the effects of tax and bankruptcy laws on their clients.
With higher foreclosure rates, houses are becoming lodestones on remarried spouses. One surprise scenario is emerging to snare ex-spouses who remain on a prior mortgage. While payments for a prior mortgage may be split between the two parties, one ex-spouse may complicate life by filing for bankruptcy.
The bankruptcy of the ex-spouse entangles the non-bankrupting former spouse, too. They share a mortgage; they share that part of the bankruptcy. The way out from this potential ‘gotcha’ varies widely from state-to-state, and will also reflect the realities of the housing market.
But if there are major differences in how to accommodate bankruptcy debt from state-to-state, bankruptcy laws have changed radically since 2005. In that year, federal bankruptcy laws were rewritten (the BAPCPA) to stop many discharges of family debts acquired during a marriage. So while the marriage may end, many of the debts are indeed “for better or for worse, as long as you do both live.”
4. Effects on public benefits eligibility
Few factors are more associated with needing public benefits than single parenting. Nor is reliance on benefits likely to diminish in importance: Missouri, for example, now has 20% of its total population receiving food stamps, and the average payment for a family of three is scheduled to rise to $500 a month…a sum worth fighting for in difficult times.
One of the surprise problems in calculating public benefits has been an accurate accounting of the duration of marriage. The typical period required for the duration of a qualifying marriage, under their spouse’s Social Security insurance (SSI) benefits, is ten years.
There are a lot of wrinkles in calculating SSI benefits. For example, a couple who lived together in what most people call a “common law” marriage will generally satisfy the SSI rule.
A more unpleasant surprise occurs when a couple, who has been married more than ten years, gets a divorce. The man may change or alter his name, and perhaps even have a second social security number. As time passes, records and contact information are lost…the former spouse and their children may be entitled to benefits, but can’t prove their relationship to the altered name.
No matter what the situation, record keeping is often the trump card in establishing a superior claim to benefits. Minimizing surprises includes getting copies of the opposing spouses vital records, too.
5. Credit issues
The issue of credit impact is one of the most conflicted issues in the top ten.
For example, courts are increasingly becoming embroiled in orders regarding spousal identity theft. The problems are especially intractable, since there is virtually no way to distinguish when consent and benefits between the parties stopped in the use of credit.
In a society as mobile as America, credit monitoring remains almost a necessity to avoid surprises for divorcing spouses.
The impact of divorce on credit will also vary widely from state to state. Consider a “worse case” scenario involving an automobile purchase. The car was recently purchased for the wife, yet both spouses signed the loan documents. The puzzle who pays for the car is complicated: for example, whether the divorce occurs in a community property state or not. In Arkansas (a non-community property state), if both divorcing parties signed the documents, the financing company can pursue both parties. The surprise to most people is that a divorce will not always shield one party from creditor’s claims.
Since most creditors are not parties to a divorce, they are not impeded from pursuing—and reporting—both parties as defaulting on a credit agreement.
6. Self-help services
Few areas of the law have more treacherous road conditions than a drive-through divorce.
The increasing ability to use affordable, fingertip technology is having an enormous affect on divorces…leading tens of thousands of people to design their own divorce. Unfortunately, people who use the service only to save money often end up losing it.
This is why more and more divorces, apparently simple, are becoming the source for unpleasant surprises. It may be safe to say the number one cause of new, big messes in divorces are as a result of having to hire an attorney after any simplicity has been sucked out of the process by costly ‘self-help’ errors. And unlike many tax problems, there’s less chance for a successful do-over in divorce.
Finally, the risks of an unenforceable agreement have to be weighed. While most courts won’t open a final divorce decree easily, there are occasions of fraud where courts act as chief enforcers. The likelihood of more and more do-it-yourself marriages (owing to the economy and Web tools) also suggests the potential for more and more occasions of fraud and subsequent uncovering of the deceptions.
7. State enforcement powers for support
As state budgets go through contraction, more state employees are hired for support enforcement. The laws of child support are probably the most exacting, specific, and severe (in terms of flexibility) laws on the books. The reality of collecting support, of course, is remarkably different than merely hiring state caseworkers.
Almost 62% of all custodial mothers do not receive court ordered support (reliable statistics on custodial fathers were not available).
The biggest surprise to most people is how hard it is to enforce court orders resulting from a divorce. If you’re on the beneficial side (receiving support), you’ll be shocked to find how little or how inconsistently your support may come. If you are on the detriment side (paying support0, you’ll be flummoxed by your inability to get ahead.
New Jersey recently announced a sweeping approach to solving crime—arresting 1,600 people in June 2008. The June effort is part of a new biannual crime sweep policy: and people in arrears on child support will be included in the arrests. One arrestee was the New Jersey man, who was two months behind on support, owing $3,000.
8. Extension of equity rules: Fair Weigh
Not all courts in America play by the same rules. For that matter, approaches to what is “fair” can and do vary greatly from county court to county court.
The core surprise to most divorcing couples is just how “local” the divorce is. The attorneys are likely to know the judge, often in a social context, and most divorce rulings are not appealed or over-ruled. There’s often pressure to move quickly through a divorce, which means local, busy courts may try a cookie-cutter approach—assuming the problems and facts in your case have “all been heard before.”
The bottom line is that a divorce court is also a “court of equity.” This translates into judges knowing they have wide latitude: and the more secure the judge is in his position, the more likely s/he is to use that latitude. A seasoned local attorney will be keenly aware of these prejudices and local practices. You may not really think you want to know what surprises a local judge can spring on you…but you should ask your lawyer.
9. Subsequent relationships
The country is going from “I do,” to “I might.”
With a drift from traditional living arrangements called “marriage,” the odds are that most people will enter or leave at least one marriage with some aspect of separate property and multiple title(s) to property. Invariably, subsequent relationships (especially involving children) will muddy ownership claims.
Virtually all states have shifted to no-fault divorces since the 1970’s, and generally don’t care if adultery was the precipitant cause of divorce. Yet, this may in some degree change. The emerging trend in more conservative states, as to the role of ‘fidelity,’ is a return to a view of more sanctified marriages…to some extent, the world before no-fault.
The most conservative trendsetters in this regard are Arizona, Arkansas, and Louisiana. Louisiana has enacted voluntary “covenant marriages” to try and decrease divorce rates.
Additionally, laws relating to abuse allegations are being extended to overcome traditional statutes of limitations. Some couples are even being confronted by abuse allegations and support claims that are literally decades old…essentially predating their memory of life together.
Finally, it’s not only future potential romantic relations that become entangled in past divorce. Your most trusted friendships may create unexpected collisions. Invariably, the surprises of changing allegiances provide some of the most shocking surprises of all in a divorce.
10. Marital property redistribution rules
More and more frequently, state legislatures are passing rules to try and tie the hands of judges. Since many states restrict a divorce judge’s ability to order a title transfer of real estate (such as in Maryland), judges lean towards a flat monetary award. And in what seems to be the endless cycle of the law, there’s yet another typical ten points a judge will consider in making redistribution as a monetary award:
I. Contributions by the spouses (including non-monetary calculations); II. Value of all property interests; III. Economic circumstances of the parties; IV. Circumstances leading to the estrangement; V. duration of the marriage; VI. Age of the parties; VII. Physical and mental conditions of the parties; VIII. How and when the properties were acquired; IX. Contribution by the parties to a specific property; X. any alimony awarded.
In addition to the above ten items, almost all courts use the magic phrase “any other factor that the court considers necessary.” Judges, with keen legal practice, are more and more frequently looking for ways to do what they think is “fair.” And this, naturally gets us right back to ‘equitable distribution.’
Decades ago, before it was acceptable practice, many judges began creating implied trusts in order to make more “equitable” awards to unmarried couples. Eventually, state legislatures adopted the practice. The reality is that judges and legislators are not in separate universes: they essentially collaborate, and the results can be startling if a political consensus is beginning to coalesce.
No matter how much your lawyer knows, or even how early you develop your own “Top Ten” list, there is risk to divorce. You need to know the relative strengths and weakness on the other side—the other party’s Top Ten list. In the friendliest of divorces, this task becomes easier, but no less necessary. So regardless of the relative amicability of a divorce, it’s worthwhile to compare (with or without the other spouse) a liberal list of risks between the parties.
There’s always an element of disbelief, in a divorce. Psychologically, this condition of denial even has a name (anosognosia). Others might compare it to the Stockholm Syndrome. The bottom line is a handful of states (including California, Massachusetts, Minnesota, Wisconsin and New York) will maintain their tradition as trend-setting states: and people in these states will get more frequent ‘surprises’ in divorce results than virtually anywhere else.
The good news is that with aggressive risk assessment, you can usually read the divorce risk signs from a much safer distance.
– Jack Howard