Archive for the ‘Property Rights’ Category
A client once came to my office in a panic. He wanted a divorce, and he wanted one as soon as possible. It turned out that he and his spouse had separated years earlier, and that after the separation she had settled in California while he had moved around the country. He had lived in Texas for a few years at the time. There were all sorts of jurisdictional and venue issues, as it was not at all clear where the two of them had last cohabited as husband and wife. The issue for him, though, was that he wanted the divorce granted in Texas, because she wanted a divorce in California and she wanted alimony.
It struck me as odd that, after years of living apart with little to no contact, she might be able to claim alimony under California law. My understanding of alimony is that it is intended to help one spouse get on their feet after years of being supported by the other spouse. It was possible, though, that this person could be stuck with an alimony bill from someone who had been supporting herself in a different state for the better part of a decade. Is that fair to him? Also, is that fair to her? Because to award alimony to her would be to assume that, despite her years of presumed self-sufficiency, she really still needs the support of her husband. I realize she may not have seen it that way, and that as the attorney for the husband, I am not the best person to argue for her interests. Still, it troubles me that this could happen.
Alimony was recently in the news in the Arnold Schwarzenegger/Maria Shriver divorce, with the rumor mill buzzing about Arnold initially refusing to pay what was described as “alimony,” then changing his mind. This sounds to me more like a $400 million property division between two absurdly wealthy people, but the word “alimony” is being used extensively. Another way to look at it, at least hypothetically, is some form of compensation to Shriver for her husband’s infidelity. It does not make for much of an object lesson on alimony for anybody else, unfortunately.
- The parties have been married more than ten years, and one spouse either (a) has significantly lower earning capacity and cannot meet basic needs, (b) has an incapacitating physical or mental condition, or (c) has custody of a child requiring substantial care due to an incapacitating physical or mental condition; or
- One spouse has a conviction or deferral of adjudication for criminal offense involving family violence.
The two rationales for spousal maintenance in Texas would be either to support a spouse who cannot support themselves or needs extra support for a child at the time of the divorce, or to compensate a spouse for abuse during the marriage. Unless the spouse requesting maintenance can prove an ongoing disability, spousal maintenance in Texas cannot be ordered for a period exceeding three years.
California provides a long list of criteria for determining alimony or spousal support, and it appears to have the same overall rationales as Texas. Some states, such as Massachusetts, have broader criteria, but are considering scaling back. There is a movement afoot to reform so-called “permanent alimony” in favor of a system ostensibly like Texas’, which allows the payee spouse time to get on their feet, but only so much time.
So my question is this: is a system that compels one spouse to pay for the support of the other spouse after divorce for the rest of that spouse’s life in any way sexist? While the history of alimony is undoubtedly one of men paying it to women, that is not always the case anymore. As women comprise roughly half the workforce, it is not uncommon anymore for a wife to be the breadwinner of the family and to find herself owing alimony after a divorce. And women are apparently not at all happy about this:
The idea that men can receive spousal support from their wives may feel like a freakish concept, but as women have become higher earners, it’s increasingly common.
And as men set their sights on women’s earnings, women have become more protective of those dollars. In fact, according to the American Academy of Matrimonial Lawyers, 44% of attorneys included in a recent survey said they’ve seen an increase in women asking for prenuptial agreements over the last five years, where in previous decades, prenuptial agreements were almost always sought by men.
A lot of women are indignant now that the shoe is increasingly on the other foot, says Carol Ann Wilson, a certified financial divorce practitioner in Boulder, Colo. “There’s this sense of, ‘What’s yours is ours, but what’s mine is mine,’” Wilson says. “My first response to that is, ‘All these years we have been looking for equality; well, this is what it looks like.’ I think women get angrier about having to pay than men do.”
Why does an ex-wife paying alimony “feel like a freakish concept”? Because no one expects a woman to be more successful than a man–the concept of men always being the ones to pay alimony is a cultural artifact from the era of working husbands and housewives. While there are undoubtedly many cases where spousal maintenance is appropriate, e.g. a highly-paid professional married to a stay-at-home parent with a high school diploma, or an incapacitated spouse dependent on the other spouse who is the respondent in a divorce case. See also victims of domestic violence who should be entitled to some form of compensation. The statutes themselves make no mention of gender at all. Still, we assume that men are the ones to pay alimony, and it seems odd for a woman to be ordered to pay. These assumptions can harm men by forcing them to make payments long after they seem necessary or fair. They also harm women by perpetuating the false notion that women ultimately cannot take care of themselves and need a partner. Many alimony laws provide for termination of alimony payments once the recipient remarries or cohabitates with someone, since presumably now there is a new person to support the recipient. While payment of alimony may be becoming more “equal” in the sense that more women are being ordered to pay it t0 men, the whole system is still based on a rotten foundation of old-timey sexism towards women.
There are two ways to bring equality among the genders in this system. One is to start making more women pay alimony, thus spreading the misery as evenly as possible. The other is to reform the laws to limit alimony to situations where a spouse truly cannot support her/himself without support, and conditioning that support on the recipient making reasonable efforts to become self-supporting with a reasonable time limit on alimony appropriate to the specific situation. Of course, that requires thoughtful, nuanced consideration of each individual case by attorneys, mediators, judges, and spouses. Will the pain of staying in our current system of bellyaching lead us to a better, fairer solution?
Okay, that last bit was a rhetorical question.
If you are looking for radical theories of pet ownership, look no further than William Richerson of Utica, New York:
A Utica, New York man told a judge in court this week that he didn’t see anything wrong with killing the family dog by shooting it twice in the head in April because it was his dog.
William Richerson, 58, pleaded guilty in Oneida County Court to aggravated cruelty to an animal and third-degree criminal possession of a weapon, both felonies.
He faces two years in state prison when he is sentenced by Judge Barry M. Donalty.
Interestingly, the two-year state prison sentence is not for shooting his dog, but for unlawful possession of a firearm:
Since he had no license permitting him ownership of the weapons, police charged Richerson with third-degree criminal possession of a weapon, a class D violent felony.
Richerson pleaded guilty to both charges Tuesday and agreed to spend two years in state prison. Prosecuting Assistant District Attorney Kara Wilson said while the animal cruelty charge is considered a felony, it is classified under Agriculture and Markets law, not penal law, and carries the equivalent of a misdemeanor when translated to a penal law charge. It can only be punished by local jail time but the weapon possession charge will net him time in state prison, she said.
I’ve written about issues like this before. It still begs the question of what Richaerson did wrong (aside from weapons possession) if the dog was “his.” This is an area of some commotion: exactly what sort of property is a pet? The law treats pets as personal property for the most part, but clearly a pet has certain rights protected by the law that are not enjoyed by inanimate possessions. At least one legal scholar has suggested a new category, “living property,” which could take into account the fact that animals, unlike cars or kitchen tables, can feel pain and have certain rights.
Texas courts have also been conflicted as to how to treat the value of an animal. As far back as 1891, the Texas Supreme Court allowed for the possibility of some “special value” of an animal over and above its market value:
There is no evidence in this case that the dogs had a market value, but the evidence is ample showing the usefulness and services of the dogs, and that they were of special value to the owner. If the jury from the evidence should be satisfied that the dogs were serviceable and useful to the owner, they could infer their value when the owner, by evidence, fixes some amount upon which they could form a basis. Heiligmann v. Rose, 16 S.W. 931 (Tex.,1891)
So pets (or “companion animals,” if you will) have legal protections against cruelty and have at least some “special value” that courts are beginning to recognize. I don’t see how a person can legitimately claim to “own” a pet the way one owns, say, a toaster. At best, “custody” seems a better concept than “ownership,” particularly if there is a legal mechanism for a negligent or abusive pet “owner” to lose “custody” of a pet.
Here is a thought experience I came up with that might help here. The law typically recognizes three categories of property: real property (e.g. land), personal property, and intangible property (e.g. stocks and bonds or intellectual property). Take an example of each one: my house, my toaster, and a savings bond I got for my tenth birthday. I have certain legal obligations regarding each, and I have different legal rights.
- I can rip up the savings bond if I want, and it is doubtful anyone would care.
- I can take a baseball bat to the toaster, so long as I am not endangering anybody else.
- I can take a baseball bat to my house if I want, again with the restriction that I cannot endanger anyone or create a nuisance. I cannot, however, set my own house on fire without getting into serious legal trouble. Again, this relates to the extent to which I am endangering others.
Now then, I could hypothetically hit my dog with a baseball bat without endangering other people, much like I could smash my toaster. I seriously doubt any decent human being would agree that there is no difference between smashing my toaster with a bat and doing the same to my dog. Do I “own” my dog the same way I “own” my toaster? I think not. More likely, I am a guardian or custodian of my dog, with a duty to keep her reasonably safe and healthy. I owe no such duty to my toaster.
To be clear, I am not going to smash anything with a bat. Nor should anyone reading this conclude that it is okay to smash things with bats. This is a thought experiment. Seriously, people.
I hope William Richerson learns something in the next two years. I hope he realizes how and why he was wrong. I hope no one in prison treats him the way he treated his dog.
Remember the Rule Against Perpetuities? If you’ve never been to law school, then hopefully the answer to that question is no. (WARNING: this post is likely to be one giant lawyer inside joke.)
[t]he common-law rule prohibiting a grant of an estate unless the interest must vest, if at all, no later than 21 years (plus a period of gestation to cover a posthumous birth) after the death of some person alive when the interest was created.
If you did not find that definition helpful, you are not alone. The Rule Against Perpetuities has been the bane of first-year property classes throughout the ages. I learned it well enough to get a B in my property class and then promptly forgot it.
I was therefore quite surprised to learn that the Rule was recently applied in a real estate dispute that has stretched over almost a century:
Remember the rule against perpetuities? It played out in real life concerning a cantankerous Michigan lumber baron’s will, finally putting an end to a $100 million waiting game for his heirs.
Not allowed to collect their share of Wellington Burt’s fortune until 21 years after the death of his youngest grandchild in existence when the patriarch cashed in his chips, the 12 great-, great-great- and great-great-great-grandchildren among Burt’s surviving descendants are expected to see his trust open by the end of the month, the Associated Press reported. The heirs range in age from 19 to 94 years old.
Burt died in 1919.
It’s good to know that those weeks spent learning the Rule weren’t completely for naught. It provided us with hours of hair-pulling madness, and now, no matter how difficult a legal question may be, at least it’s not as bad as the Rule Against Perpetuities.
Plus, it led to at least one awesome parody:
I learned today that I may go down in the annals of local family law history. As I was sitting in the District Clerk‘s office, perusing some files, I happened to glance over at the computer terminal next to mine…and clearly saw that the people sitting there were looking at a case I handled last year. Of course I was curious as to what was causing the folks to view my case over a year after it was concluded–I might add that it was a memorable case for a variety of reasons. It turns out that they were pursuing a claim to get a court’s authority to sell real estate without the consent or signature of the person’s spouse, which is allowed in very narrow circumstances by Section 3.301 of the Texas Family Code. This was the claim I helped bring for my client last year, and the people I met today had been told by one of the clerks that such a thing had only been done once before in Travis County…in my case! So I suppose that makes me famous, sort of.
To clarify a bit, Section 3.301(a) states that:
A spouse may file a sworn petition stating the facts that make it desirable for the petitioning spouse to manage, control, and dispose of community property described or defined in the petition that would otherwise be subject to the sole or joint management, control, and disposition of the other spouse if:
(1) the other spouse has disappeared and that spouse’s location remains unknown to the petitioning spouse, unless the spouse is reported to be a prisoner of war or missing on public service;
(2) the other spouse has permanently abandoned the petitioning spouse; or
(3) the spouses are permanently separated.
A little-known and rarely-used provision of the Family Code, to be sure. I’m just enjoying my fleeting moment of minor fame.