Posts Tagged ‘Property Division’
I have been writing haiku for fun and to annoy my fellow man since I learned of the medium in middle school. A few weeks ago I wrote up a few legal haikus in response to a contest hosted by the Texas Bar Appellate Law Section. I am proud to say that my poetic and legal creative powers have now received their due recognition. I didn’t win anything tangible, but receiving an honorable mention from a group of people I mostly don’t know, in a state bar section to which I don’t belong, in an area of law I have never practiced, is all the victory I need. At least where legal haiku is concerned.
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.
Last week, I talked about the first of two things you should know about divorce: that a divorce is a lawsuit just like any other lawsuit, with lawyers, judges, document review and (if you’re on television) dramatic background music. Now let’s move on to the second thing you should understand about divorce: that it is unlike any other kind of lawsuit under the sun.
In a typical civil lawsuit, after a trial there is a clear winner and loser: person A sues person B for breaching a contract, and the jury finds for person A and awards him/her damages. In a suit for divorce and/or child custody, there are too many issues and too many “shades of gray” for a simple winner/loser analogy. Suppose a wife and mother “wins” custody of her children, but the husband/father is ordered to pay ½ the amount of child support that she had requested? Suppose each spouse wants the house awarded to them, and a judge orders the house sold and the proceeds split 50/50?
When filing a lawsuit, a lawyer (or plaintiff) must state claims for which a court is allowed to provide a remedy—this could include breach of contract, negligence, assault & battery , and so on. A divorce suit can include claims such as these, such as fraud or assault, but most of the time they present completely different sorts of questions: how to divide the assets (made even more complicated in community property states like Texas), and how to deal with the task of parenting children post-divorce. These issues are very different from those found in any other type of lawsuit.
Another difference involves the parties to the suit themselves—in a suit for, say assault & battery, once the lawsuit is resolved, it is unlikely that the two parties would want anything to do with each other, and there is often no reason to think they would need to see one another again. After a divorce, it may be inevitable that the now-ex-spouses will continue to see one another for some time, especially if there are children involved. If parents of an infant go through a nasty divorce, they still have 18 or more years of interacting with one another in order to raise the child (this of course assumes both parents want a role in raising the child, but courts usually don’t give a parent an out on this issue, and I like to believe that parents will stick around for their kids in some form or another.) The sort of animosity usually developed in a lawsuit does not serve the parties to a divorce well.
In many, but not all, non-divorce lawsuits, a court is being asked to make a decision based on past events, reviewing whether one party is entitled to compensation in some form for a past act. Divorce undoubtedly involves acts and events from the past, but there is a key component that solely involves the future—in particular, the future of the spouses’ care for the child(ren). By taking a divorce and/or child custody dispute before a judge, spouses/parents are asking a stranger, who has never met these people before and may never see them again, to make decisions affecting huge parts of their lives and their child(ren)’s lives. My particular county, Travis County, Texas, has a central docket system , meaning that you may not know for certain who your judge will be until the day of your trial. It is one thing to ask a judge you have never met to decide whether events occurring a year ago constitute a breach of contract. It is quite another thing to ask that judge to decide how best to handle your child’s future summer vacations.
So how can a divorce be handled differently?
I am not arguing that every divorce case should be handled outside of the litigation model. For example, cases of abuse, fraud, or extreme emotional volatility are best handled within the court system.
Collaborative law allows spouses to work out the issues of a divorce in an environment specifically designed to facilitate communication, as opposed to the lawsuit environment. Even in a mediation or settlement conference in a regular divorce lawsuit, the implicit threat of a court hearing is always just below the surface. Collaborative law involves a commitment to conflict resolution—only the spouses and the professionals they have chosen to assist them are involved in the process. Ideally, by the end of the divorce itself, the spouses can still work together on any matters requiring their attention, most obviously their children.
Make no mistake: divorce is an unhappy, emotional process. In the absence of serious conflict, it does not have to be war.
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.