California Divorce and Family Law

Some ex-wives have to pay 'manimony'

When Susan Harris divorced her husband of five and a half years last December, she got the apartment, extra closet space and the covers all to herself.

Her ex? He got $37,440.

That money is being doled out in 48 monthly alimony payments. Or, as it's called in some circles, "manimony."

Over the course of the couple's marriage, Harris, 31, who makes more than $100,000 working in ad sales in Alameda, California, brought in more than two-thirds of the household income, while her ex-husband (who declined to comment for this article) worked toward becoming a credentialed teacher.

The couple had no children or joint property other than a rental apartment. When things started getting rocky in the relationship around year two, Harris was loath to end things, partially because she was concerned that she'd be obligated to continue supporting him financially, even though he was employed.

Her concerns were well founded. Legally - under state laws - both women and men are entitled to alimony if there's a large discrepancy in spousal income.

However, that doesn't mean men seek alimony.

"Thirty-three percent of higher-earning spouses are women, but fewer than four percent of alimony payers are women," says Ned Holstein, president of Fathers & Families, a family-court reform organization in Boston, citing U.S. Census Bureau data.

Finances of marriage

For most of the history of marriage, money changed hands before the ceremony, often in the form of dowries. But as divorce started to become more common in the 1900s, so did post-separation monetary agreements.

"Traditionally, marriage was a financial arrangement. Joining hands in marriage meant joining bank accounts, and bank accounts were largely in the hands of men," says Roderick Phillips, a professor of history at Carleton University in Ottawa, and author of "Untying the Knot: A Short History of Divorce."

"The trend in the 20th century has been to allow women to recover what they had before the marriage and to compensate them for anything they sacrificed during the marriage," says Phillips.

The Uniform Marriage and Divorce Act of 1970 gave men as well as women the right to ask for alimony. Up until the 1980s, however, there were only a handful of cases in the U.S. in which a woman was ordered to give money to her spouse in a divorce case. However, "in recent years there's been a greater movement towards gender equality," says Phillips.

'I'm a man! I can take care of myself'

Some husbands have settled for increased custody instead of going to the mat for money, says Holstein.

"I hear a lot of men say, 'She earns way more than I do, but I wasn't going to ask for alimony because I get the kids 40 percent of the time and I don't want to rock the boat.' Then there are a lot of men who are just ashamed to ask for it."

Nancy Chemtob, a divorce attorney and a founding partner of Chemtob Moss Forman & Talbert, a New York City law firm that focuses on divorce, family and matrimonial law, agrees. "Men don't brag about it, and women aren't proud of it."

"I think men are chided for not making money and women are not. It's not even brought up if a woman in court says she is not working. Where if it is a man, it's brought up, says Chemtob. "The law is equal, but... the mentality isn't."

Mark Berlin, 45, an office manager at Office Depot in Chicago, was awarded $250 a month in alimony on top of $925 a month in child support when he divorced the mother of his two sons in 2005.

"I didn't really even want the alimony, but she made more than me and [the court] said that's what she had to pay," says Berlin. He puts the payments, which will continue through 2010, into college savings for his kids.

"I do think that there shouldn't be discrimination against one sex or the other, says Berlin. "Still, when I first realized she was going to be paying me, I felt very embarrassed. I felt like, 'I'm a man! I can take care of myself!'"

Changing times, changing attitudes

Not all women resent paying money to their exes -- and not all men feel uncomfortable being on the receiving end. As the number of alimony cases increases, attitudes are gradually beginning to change.

Jeffrey Leving, an Illinois divorce lawyer and author of the book "Fathers' Rights" attributes a rising trend in women paying spousal support in part to an increased number of fathers serving as primary caregivers.

"I also think that there are more men wanting to function as the sole parent and raise children than ever before," says Leving. "It's becoming more socially acceptable for men to be primary parents."

Chemtob says close to one-tenth of her clients are women who pay alimony to their exes. "When I first started 14 years ago, that number was zero," she says.

For the last two years Alexis Martin Neely, a family lawyer and author of the financial planning guide "Wear Clean Underwear," has paid her ex-husband between $1,300 and $2,000 a month in alimony -- in addition to child support. During their six-year marriage, he was a stay-at-home dad. Currently he is unemployed and has custody of the children half the time.

"I'm grateful to be able to support him being able to spend time with the kids," says Neely, who is 34 and lives with her two children in Hermosa Beach, California. "It's just money -- I can always make money. But I see people embroiled in conflict for years of their life, and that's something you can't ever get back."

Read it all at CNN.

Court order needed to split retirement accounts in divorce

Q: You wrote in a column that there is a one-time reprieve from early-withdrawal penalties if you cash out. I am recently divorced and my ex has his 401(k) account with about $3,000 that is mine. He tells me he can write a check, but I have to pay all the fees. How does this play into what you said about this one-time reprieve?

J.R.

A: Divorcing couples can split retirement accounts and even cash them out penalty-free as part of a settlement, but it has to be executed properly, and this is what many couples fail to do, divorce planners said.

Splitting up the 401(k) account should be done through a court-issued qualified domestic relations order, said Rita Medaglio-Barrera, a certified divorce financial analyst with Paragon Capital Management in Smithtown, N.Y.

"He can't just write her a check" and have it qualify for the penalty exemption, she said. "She's probably out of luck," because going back after your settlement and re-negotiating this is unlikely, she said.

Done properly, an ex-spouse can receive a one-time distribution from the plan without having to pay the early-withdrawal penalty of 10 percent. The income taxes due on the account still have to be paid, so that should be taken into consideration during the division of the couple's property.

If the spouse doesn't need the money right away, it can be rolled into an individual retirement account, though Medaglio-Barrera said individual employer plans often have their own rules governing how those rollovers are done, and it can involve a couple of separate administrative steps.

To be valid, the court-issued qualified domestic relations order must include (among other items) correct names and addresses of you and your soon-to-be ex, details on the division of the money and information on the retirement plan in question, the analyst said.

The professionals preparing the documents need to have the retirement plan's summary plan description, because that typically spells out the specific legal language needed in the order to be able to access the funds in the 401(k), Medaglio-Barrera said. Many plans actually contain language that must be repeated exactly in the order to be valid.

Then the retirement plan must verify the details of the order before issuing a distribution, a process that also involves several steps. In short, splitting up retirement plans shouldn't be an afterthought in a divorce. They require specific, detailed language of their own and must come directly from the employer plan, not your ex-spouse.

Finally, keep in mind that the orders cannot force an employer to perform actions that run counter to the company's summary plan description. Some plans allow couples to split the assets and then maintain two accounts in the employer plan. Others might require that funds remain in the plan until the employee retires. Many allow the immediate cash-out option, as well as the option to roll the money into an IRA, which is what most advisers recommend to help clients preserve some long-term finances as they exit a marriage.

From the Chicago Tribune.

Divorce muddies water in real-estate transaction

Question: My husband and I sold our home nearly two years ago and moved into a condominium that we own jointly. He has now left me, and he wants a divorce. I will be living in the condo until it's sold and we divide the proceeds. Will we be able to exclude capital gains on the sale of this property as our principal residence because we had just sold our home?

Answer: While individuals are allowed to exclude the capital gains generated from the sale of personal residences an unlimited number of times (up to $250,000 of gain each per sale for individuals), there must be at least two years between the sales.

If fewer than two years have passed between sales, you might be able to prorate the exclusion depending on the facts.

Because many homes are sold as a result of divorce, the law recognizes the special problems associated with divorcing couples.

In order to allow the "departed" spouse to either attain or retain the required two-year occupancy needed to qualify his or her ownership interest for the full capital-gains exclusion, the law allows the departed spouse to count the time the other spouse occupies the residence just as if the departed spouse was still living in the home.

However, it is important to remember that this "tacking" can take place only if the remaining spouse is authorized to continue occupancy pursuant to court order or marital agreement. And if one spouse purchases the interest of the other incident to a divorce, the purchasing spouse will be allowed to take advantage of the selling spouse's period of ownership. Here, we suggest that your property not be sold until at least two years have passed from your prior sale, but be sure to check with your tax adviser.

From the Orlando Sentinel.

Madonna Hires Divorce Lawyer?

Could the rumors be true? Is Madonna done with Guy Ritchie? According to UK's Holy Moly, Madge has reportedly hired Britain's toughest divorce lawyer, Nicholas Mostyn QC.

Madonna and Guy have been dodging breakup rumors for a while now so this isn't exactly shocking news but the odd twist it that the report claims Madge and Guy didn't have a pre-nup. Say what you will about Madonna, but she's one smart businesswoman. There is no way in hell she would get married without a pre-nup.

Apparently the couple has just "grown apart" over the years and "The adoption of David Banda attracted a huge wave of negative publicity, allegedly putting further strain on the relationship."

Madge met with Mostyn about 10 days ago to allegedly discuss the divorce proceedings. What do you guys think?
From Hollyscope.com.

Same-Sex Couples Face Another Growing Hurdle -- Divorce

Next week, same-sex couples across the country who want to marry will be welcomed in California. But what happens if they later want to divorce?

That is one of the many legal issues that could confront California newlyweds who return to home states where same-sex marriages are prohibited. Unlike a Massachusetts ruling a few years ago, a landmark court ruling last month allowing same-sex marriages in California will permit almost any out-of-state couples to wed there.

But that doesn't mean their lives after the wedding will be easy. Some gay and lesbian couples joined by marriage in Massachusetts or Canada, or under civil unions from, say, Vermont, contend with legal limbo in other states. Among the tricky issues, apart from divorce, that can make the honeymoon feel decidedly over are employee benefits, bankruptcy filings and inheritance rights.

John McCall Jr., a Dallas lawyer who represents gay and lesbian clients in property and custody disputes, says that thanks to the legal thicket same-sex couples can face, his clients "over and over again tell other couples considering marriage to run in the other direction."

Cassandra Ormiston and Margaret Chambers were married in Massachusetts in 2004 but tried, in vain, to divorce in Rhode Island, with the state's high court saying last year that the state defines marriage as the union of a man and a woman. Now, Ms. Ormiston is trying to establish residency in Massachusetts to divorce there.

That can add to an already difficult process. Joanna Grossman, a law professor at Hofstra University School of Law in New York who specializes in family law and sex discrimination, says she has been contacted by more than 50 people who entered Vermont civil unions and now want out. The problem, she tells them, is that you have to establish residency in the state to file for divorce.

To wind down a relationship, same-sex couples have to navigate a process that may force them to appear in three different courts, including a civil court that treats the separation as a business breakup. Says Mitchell Katine, an attorney who handles same-sex separations: "It's not fair to parties to have their relationship of 20 years treated like a breakup of two people who operated a Kinko's."

Health care and other benefits pose similar issues. In May, the Michigan Supreme Court ruled that public employers in the state can't offer health insurance to same-sex domestic partners, because of state law limiting marriage to one man and one woman. In New York last year, a state court ruled that a man couldn't recover workers' compensation death benefits after a partner, with whom he entered a Vermont civil union in 2000, was struck by a car and later died.

The law is far from settled. In February, a New York court ruled that a community college in the state had to recognize a Canadian same-sex marriage for purposes of awarding spousal health benefits. Following the decision, the New York governor's office in May ordered state agencies to recognize same-sex unions from out of state. Then a conservative religious organization sued, arguing that the governor overstepped his authority.

Another issue is health decisions. Texan Dennis Milam, who married his longtime partner last year in Canada, has legal papers authorizing him to act on his spouse's behalf. Still, Mr. Milam says he worries about emergencies. "What if something happens at 2 a.m. and you are upset and don't remember your papers?" he says.

Gay and lesbian advocacy groups, while hailing the California decision, fear the creation of "bad law," or setting unfavorable precedent, that might result if couples try to assert their new status elsewhere. The groups are expected to issue a joint statement Tuesday advising California newlyweds against filing suit in their home states. "We need to lay the groundwork by changing the climate -- convincing community leaders, moving public opinion -- before we rush into court," the statement is expected to say.

Still, a surge in litigation is likely, says Glen Lavy, a lawyer for a group that opposes gay marriage. "We are not encouraging people to bring these suits, but we are prepared to defend marriage wherever these suits occur," he said.

From the Wall Street Journal (subscription required)

Slicing Up Assets in Advance

It's one thing to write about prenups, and quite another to live through their making. Doing a prenup isn't for sissies.

There I stood, in Vera Wang's dreamy Madison Avenue shop, trying on a wedding dress. On either side, 25-year-olds, with their mothers, their bridesmaids and their 22-inch waists. In the center, me, trying to pull something white and swishy over my hips. Available wedding dates are few for brides of a certain age. You have to celebrate after your grandchildren get out of school and before your friends go away for the summer. So I'll be a June bride. I have two more weeks and am hustling to finish the paperwork.

Oy, the paperwork!

When my husband died four years ago, I hadn't expected love to come back into my life. It did, in the person of Carll and his children. Between us, we have eight. That raises the unromantic question faced by all parents who go to the altar, bringing families along. What do you do about the money?

If you do nothing, state law intervenes. When one of you dies, the other can claim a share of the assets, no matter what it says in your will. If you divorce (gulp), a court can divide the property in ways that seem fair. Couples wanting a different result have to draw up a prenuptial agreement—a legal contract defining the financial arrangement they prefer.

It's one thing to write about prenups, as I have before, and quite another to live through their making. Most decisions were easy. One, however, required us to dig into feelings that were hard to talk about. Embarrassing, even. Doing prenups isn't for sissies.

The easy things were our separate assets. Neither of us needs financial support. The prenup says that what's mine goes to my kids when I die, and what's his goes to his.

There's a twist with my retirement fund. You can leave an Individual Retirement Account to anyone you want. By law, however, some or all of your 401(k) or pension trust is earmarked for your spouse. A prenup can't change that. To free me to leave my pension trust to my kids, Carll has to sign a special waiver after we marry, not before.

So here's the nightmare (only an obsessive financial reporter could think this one up): I say "I do," waltz from the wedding ceremony to the party tent, trip on the dance floor, break my neck and breathe my last. Carll inherits the pension trust and can't give it back to the kids without paying a gift tax. They rebel. I haunt the lot of them.

There is a whole lot more from Jane Quinn in Newsweek.

Rabbinic Court head supports use of prenuptial agreements

Rabbi Eliyahu Ben-Dahan, administrative head of the Rabbinic Courts, recently expressed his support for prenuptial agreements as a potentially important remedy to the tragic situation of agunot ("chained women" - women who are denied a divorce).

Ben-Dahan also said that the Rabbinic Courts have in the past upheld prenuptial agreements.

"Prenuptials can be very helpful in expediting divorce procedures," said Ben-Dahan in a telephone interview over the weekend.

"Especially in cases where it is clear that the couple's divorce is unavoidable, but where halacha does not give the Rabbinic Court judges the power to obligate the husband to give a get [writ of divorce]."

The use of prenuptial agreements to facilitate the divorce process is a controversial issue among Rabbinic Court judges. Some rabbis oppose the use of most prenuptials, claiming the agreements make it too easy for one side to end a marriage. They are concerned that making divorce too easy will endanger the Jewish family institution.

They also argue that the use made in prenuptials of monetary incentives to encourage a recalcitrant partner to acquiesce to divorce is really a form of coercion prohibited by Jewish law.

Marriage and divorce among Jews in Israel is governed by Jewish law. As a result, rabbis and Rabbinic Court judges are responsible, respectively, for tying the knot and having it severed.

Careful to sidestep a potential confrontation with Rabbinic Court judges who oppose the use of prenuptials, Ben-Dahan made it clear that his comments expressed his personal opinion and were not to be construed as representing the official Rabbinic Court policy.

Ben-Dahan said it was not the role of the Rabbinic Courts to push for a wider use of prenuptial agreements.

"The role of the courts is to adjudicate, not to legislate," he said. "Nevertheless, from my experience with divorce cases, I can definitely see how prenuptials help shorten long, drawn-out divorce proceedings." Ben-Dahan rejected the claim by opponents of prenups that such agreements make it too easy to end a marriage.

"Although we should be concerned about rising divorce rates... I am convinced that the vast majority of couples who end up at the Rabbinic Courts for a divorce are mature adults who have resolved to end unsalvageable marriages."

Ben-Dahan also pointed out that Chief Rabbi Shlomo Amar, in a recently released volume of halachic responsa entitled "Shema Shlomo," favored the use of some prenuptial agreements.

Prenuptial agreements dictate that in a case of divorce proceedings initiated by one of the two partners in a marriage, the recalcitrant side - usually the husband - will be obligated to pay a large sum of money monthly until the marriage is dissolved.

The common amount stipulated is $1,500 or half of monthly income, whichever is higher.

This obligation normally kicks in six months after the divorce proceedings are initiated.

Ben-Dahan made his support for prenups public at a conference last week.

The conference, organized by The Council of Young Israel Rabbis in Israel, Matan, Mifnim and Yad L'isha, together with the The Rackman Center for the Advancement of the Status of Women at Bar-Ilan University, brought together rabbis, marriage professionals and lawyers and taught them the benefits of prenuptial agreements.

From the Jerusalem Post.