divorce

Older Couples Avoiding Marriage For Financial Reasons

One of the themes I will bring up often is how legal marriage has been manipulated by legislatures who seem to want to promote it, then set up financial disincentives because in most of the tax and welfare policies they promote, they want to appear “progressive” — in other words, tax at a higher rate for the well-off, and remove social subsidies from people whose incomes go up. As a result, two income couples must seriously consider whether it is worth the legal protections of marriage when their taxes may rise and their subsidies fall. For older couples with children from previous marriages, legislatures have often taken away their freedom to give their estate away as they wish, requiring certain percentages to the surviving spouse. Even with complex prenups, courts may not follow their wishes, and so it is safer and cheaper to forgo legal marriage and try to get what protection they can from medical and financial powers of attorney and trusts. Which are also expensive to draft.

The New York Times covers this here.

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Marriage Contracts: Give People More Legal Options

[from 2004] Marriage throughout history has been a contract between two people to bind themselves, their families, and their property into a contractual arrangement to provide for children, a home, and often support for aged relatives. It’s only in the last few hundred years that longer lives and greater security made marriage for love a common ideal, and in many places it’s still a rarity.

Like many other social arrangements codified in law, long before it occurred to legislatures to address the subject, and before churches consecrated the marriage by ceremony, people were getting married. Ceremonies were more or less elaborate, but the magistrates of every era recognized a body of common law which allowed enforcement of the basic contract.

In the modern era, legislators have codified and regulated marriage, and other family law, to promote majority social goals and express popular prejudice. As with most government efforts, one size is expected to fit all, and the laws are created with a stereotyped model family in mind: once a breadwinner husband, homemaking wife, and 3.5 kids, and now working husband and wife and 2.1 kids. Subsidies to marriage for childrearing are embedded throughout the tax code, Social Security benefits, and social services.

Now in a society where people generally live 40 years longer than they did when marriage evolved, there is a need for a form of coupled association that recognizes that childrearing couples — defined as two people raising children below the age of 21 — are now a minority of couples. While the legal form of marriage for childrearing purposes may deal reasonably well with the contractual arrangements most people intend for that purpose, it is not particularly well tailored for most gay couples, or for that matter many straight couples who don’t intend to have children and don’t want to pledge a lifelong commitment, yet see a need for some mutual obligation. Thus the recognition of common-law marriage rights (where the rights and duties of formal marriage are extended to those who have gradually become married by their actions rather than by ceremony), and the movement to provide domestic partnership for gay couples (and in some states, e.g. France, to less-committed straight couples.)

Ideally every couple would draft a contract of what they want their relationship to entail. Since this process would (under the current legal system) involve custom drafting by attorneys and probably cost $10K or more and weeks of work by all involved, only the wealthy can afford it, and even this cannot award the benefits conferred by legislation to married couples, especially in the Social Security benefits and dual parental status. In situations like this (wide universe of possible contracts, prohibitive legal costs, and varying needs), the solution is often codification of several alternative arrangements — the legislative and executive branches research the problems, come up with several carefully-drafted legal arrangements, codify them in law, and offer a choice between them for those who wish to enter into a contract which will be understood more easily by all parties even if not perfectly suited to each user. The contracts are designed to cover almost all needs, with side arrangements (options) for custom tailoring. We see this in things like insurance, where car insurance is offered in various types and coverages, with optional deductibles, or in real estate, where standard contracts are ruled on often enough to have a body of law covering them.

What would really be ideal for marriage is a similar spectrum of different arrangements, prefab versions of the detailed legal arrangements that wealthier couples often enter into today under prenuptial agreements, which allow easy choice between alternatives which all understand, and which can be enforced via less complex and expensive dispute resolution systems than family courts.

With all that in mind, Gavin Newsom, the new Mayor of San Francisco, directed the City to begin issuing marriage licenses to gay couples. I took the pictures below outside City Hall, where thousands of people came during Valentine’s Day weekend of 2004 to get their marriage licenses. The atmosphere was festive, passing motorists honked their horns in support, and some beautiful couples did their bit to overturn the unfair restriction of marriage to opposite-sex couples.

And some interesting bystanders:

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The High Cost of Divorce

Reason Magazine has a story about Divorce Corp, an upcoming book and movie about the divorce industry and its unnecessarily expensive and complicated procedures. Reform is badly needed–one of the reasons for the declining marriage rate is the spreading knowledge that a divorce can bankrupt both parties and ruin their lives. Why take a chance on a binding contract that often costs $25-50,000 to get out of? And it’s not necessary; there’s no reason why all marriages have to be dissolved by a complex court proceeding. It might be cynical to note that streamlining costly and slow procedures is very difficult when state legislators are primarily lawyers and lawyers are the main beneficiaries of a complex and costly process.

“To get divorced, you can’t just simply fill out a form that says ‘I’m divorced.’ You have to go to court and a judge has to approve the divorce,” says Divorce Corp’s Joe Sorge. “Breaking up is traumatic on its own, nevermind having to go to court and appear before a judge.”

Sorge argues that because the legal code to get a divorce is so complex, nearly all respective parties have to hire expensive lawyers and pay legal fees that make the average non-contested divorce cost between $10,000 and $20,000. A contested divorce can run well over $50,000.

“It’s the fourth most common cause of bankruptcy in the United States,” says Sorge.

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The Social Decay of Black Neighborhoods (And Yours!)
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Real-Life “Hunger Games”: Soft Oppression Destroys the Poor
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Why Did Black Crime Syndicates Fail to Go Legit?
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Feminism’s Heritage: Freedom vs. Special Protections
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“Why Are Great Husbands Being Abandoned?”
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Gaming and Science Fiction: Social Justice Warriors Strike Again
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Student Loan Debt: Problems in Divorce

One of the new problems for couples to consider before marriage concerns the much-larger student debt that is now common. Don’t assume that if you are heavily indebted and marry someone who has high earnings that your partner will be responsible for any of your debt if you divorce; this is a new topic that needs to be addressed by your prenup if you want to understand what will happen and agree on a fair division of responsibility before marriage.

The Wall Street Journal has a thorough story on the topic (which may not be available outside their paywall for long, so I’m excerpting here):

In many states, divorce courts have the discretion to divide marital property in a holistic way. That means that if the educational debt is considered marital property, they have the option of taking into account contextual issues, such as each spouse’s ability to pay it off, Ms. Carbone says.

So while student loans generally will go to the person who incurred them, there may be exceptions, she says.

For example, if it seems like one spouse will have high income after a divorce and another will struggle to make debt payments, the higher earner may end up having to fork over some temporary spousal support to cover the ex’s debt payments.

But debt division is complicated and can vary, depending on whether the state applies equitable-distribution, community-property or marital-property rules, Ms. Carbone says. As such, student loans in some circumstances could be split down the middle, even if one spouse has a much different financial situation than the other after divorce.

In a related issue, in a few jurisdictions such as New York, a professional degree earned during the marriage can be considered marital property, says Rachel Rebouché, an associate professor who teaches family law at Temple University Beasley School of Law.

That can lead to situations where the degree earner has to compensate a spouse for supporting his or her educational pursuits. Support for a spouse could mean time spent cooking meals, driving the degree earner to campus or even the supporter delaying his or her own educational pursuits, Ms. Rebouché says. In some cases, courts have awarded more property to the supporter to offset the value of a partner’s degree, she says.

Those in the field say couples can take two basic steps to avoid surprises related to college debt.

First: Get a prenuptial agreement and make sure it clearly specifies how you and your partner want to allocate any student debt accrued during a marriage in a divorce, says Naomi Cahn, a professor who researches family law at George Washington University.

Second: Ask a partner about the extent of his or her debt and be honest about yours. When discussing finances, couples tend to “focus so much on the assets, but they forget that there’s often a lot of debt,” Ms. Cahn says.

More on Divorce, Marriage, and Mateseeking

Jeb Kinnison

Writing About Life and Love

divorce

Older Couples Avoiding Marriage For Financial Reasons

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Marriage Contracts: Give People More Legal Options

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Student Loan Debt: Problems in Divorce

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