Jan L. Warner & Jan Collins
Question: After 40 years of marriage and two grown children, I have had all I can take. My husband comes home at 7 P.M. five nights a week after having several drinks at the office, eats supper, sits in his chair, goes to sleep, gets up the next morning, and goes to work. On Saturday and Sunday, he plays golf and leaves me alone. We haven’t had a meaningful conversation in five years.
I am 65, in good health, and have a college degree, but I have not worked outside the home in 20 years. He is a professional, five years my junior, whom I helped put through school. We have a nice home, nice cars, and investments. He has a retirement plan; I don’t. Ten years ago, I inherited some land and money from my mother which I put into my husband’s name and mine at his insistence. I have been thinking about leaving for a couple of years, but don’t know where I would go. I have tried a counselor, but he refuses to go. I have been told that if I leave, I will be deserting him. He has handled all of the finances throughout our marriage. What are my options?
Answer: Although the legal answer to your question will depend on the law of the state in which you reside, the practical answer is the same in all 50: Unless there is physical abuse that makes staying in the home a danger to you, before you walk out the door, make sure you have a plan in place.
In some states, you must be able to prove a ground for divorce or good reason for leaving in order to avoid a charge of desertion, while in others, you may have grounds for divorce or separation based on “irreconcilable differences.” Regardless, it appears to us that if the marriage is over, you should not make the drastic decision to leave home until you have gotten your economic house in order.
First of all, since you put your inheritance into your joint names, you have transmuted a separate asset into a marital asset. Second, your husband’s professional practice or business will have to be valued. Third, you should determine exactly what it will cost you to live by yourself. Go to a realtor and become familiar with the cost of various apartment, condominium, and housing alternatives. Make yourself a budget. Find out how you will handle the cost of your medical bills which are not covered by Medicare. And what about long-term care?
Contact a financial planner who may be able to help you develop an outline of what you and your husband own and what kind of income you can derive from your assets. And remember: If you purchase a home or automobile, you will have less money that can be invested and earn for you.
While we understand that you feel you need to leave, these decisions are not to be taken lightly, especially if you are not prepared financially to make the move.
Question: I am 67, and my wife is 58. I am retired and receive income from both Social Security and my pension. My wife is unemployed. After 35 years of marriage, she has left home and plans to sue me for property division and alimony. Will the court consider my monthly Social Security check in giving her support? In dividing property?
Answer: Although The Social Security Act says that payments are not subject to garnishment, attachment, and other legal processes, there is an exception to this rule when it comes to payment of child support and alimony obligations. “Child support and alimony obligations” have been defined to include attorney's fees, interest and court costs depending on the wording of a decree issued by a court with jurisdiction. Therefore, your Social Security payments will be considered to be income to you when it comes to your wife’s claim for alimony. And for those of our readers who have children, most child support guidelines include Social Security as a source of income in making the calculations.
On the other hand, the general rule is that Social Security benefits are not considered to be includable in the marital estate for the purpose of property division.