Question (by e-mail): For the last three of our 15 year marriage, my wife (a journalist) spent the majority of her waking hours - when she was not working - writing a book. During this time, I - and housekeepers and babysitters we paid from our incomes -- took care of our two children, cleaned house, cooked, etc. When the marriage continued to deteriorate, she left me and the children and conceded in court that the children were better off with me.
Although we tried to settle the economics, she would not agree to share the proceeds of her book, saying that it had no value because it had not sold. I know that she has an agent and feel that she will sell the book. Had she not taken the time to work on the book, the money we spent on housekeepers could have been saved or put into IRA's, etc. My lawyer tells me that although the book is definitely marital property, it has not produced any income and therefore can not be valued. I say that I should be entitled to a percentage of the income if and when it sells. He also says that our state courts have not ruled on this issue, and we will probably have to go the state supreme court to get a ruling - an expensive process. My wife has offered to give me more than 75 percent of our assets, including the home, if I will give up my claim to her book. What do you think I should do?
Answer: When it comes to intellectual properties - such as books and patents that have not produced any income, some state courts have ruled that, at divorce, a spouse can receive a percentage of future revenues. Other state courts have found that, having no tangible value, this type of asset is merely an "expectancy" which can not be divided.
You have an economic decision to make: (1) Take the sure thing: three-fourths of all property you and your wife have acquired - which is more than a court would ever give you - and let your wife keep the book, or (2) Spend two or more years and a lot of money to find out (a) if the courts of your state will rule your way and (b) if your wife will ever sell her book. The fact that your wife is not willing to negotiate about the book seems to indicate that the book may sell, but, even if it does, you still have another hurdle to cross: How will the courts rule? Like many of the more than 2 million people who divorce each year, the answer to your question comes down to whether you are willing to gamble and to see who will blink first.
Question: My husband is a personal injury lawyer whose income fluctuates each month depending on what case he settles or tries. We have been married for 16 years and have one child. I have some health problems, and my doctors say that I will never be able to work. Although we know from our tax returns how much money he made in prior years, I am sure that he is suppressing his income during our divorce case by not closing out cases. My lawyer tells me there is nothing we can do about this, but I don't think it's fair. Do you have any suggestions?
Answer: In situations where a supporting spouse had significant increases in income due to contingency fees, some state courts have (1) established a minimum award of alimony based on the income the husband said he was earning and (b) then added a percentage of any income earned over that amount as additional alimony. This is called an "escalator clause."
There are a number of arguments that can be made either way, and if your are successful, there will be the necessity for monthly accountings - which could be expensive. We suggest that you ask your lawyer to research more thoroughly before telling you it can't be done.
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Jan Collins Stucker is an award-winning writer and editor. Jan Warner is a matrimonial, elder, and tax attorney. Both are based in Columbia, South Carolina. Flying Solo is distributed nationally by Knight Ridder Tribune News Service and can be found on the Internet at http://www.flyingsolo.com.
Please send your questions to P.O.Box 11704, Columbia, S.C. 29211 or send your questions by email to janwarner@flyingsolo.com.
