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The History of Support and Property to Help You Understand Your Case
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The American Quagmire of Support and Property Awards

Excerpted From Margorie Engelís Divorce Help Sourcebook

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A major piece of business was left on the table when no-fault divorce swept the nation beginning in California in 1970. Spouses were free to leave their marriages virtually at will, with the marital property awarded (in most states) "equitably" or (in a very few) equally. Support awards concentrated on children; spousal support (or alimony) was relegated to the judicial back burner under the pretense that the women's movement had opened up lucrative jobs for all divorcing homemakers regardless of age, training, or experience.

It would be 10 years before sociologists such as Lenore Weitzman, Ph.D. ("The Divorce Revolution", 1985) and Judith Wallerstein, Ph.D. ("Second Chances", 1989) could gather the data to sound the alarm: women and children were economically damaged by the reforms of the 1970s -- not because of no-fault, per se -- but because the reformers failed to modernize property and support laws at the time they discarded legal enforcement of lifetime marriage vows.

No-Fault Divorce

In recent divorce history, the laws based entirely on the concept of blame and consequences have been replaced by some variation of no-fault divorce. This ranges from equal halves of the marital financial pot to "equitable distribution" determined as fair by a judge. The intent of the new laws is admirable, but their execution has caused at least as many problems as they have solved. However, the law does allow you and your marriage partner to develop a better fitting set of rules with a carefully drafted contract. This is not a do-it-yourself project. You need professional help to get it right.

Property Laws

The result of legislative changes is a patchwork quilt of laws, fueling the sense of outrage and injustice millions of divorce veterans feel in the face of the singularly most important involvement most will ever have with the American judicial system. In some states, all of the property of either spouse can be divided upon the divorce. In others, only that property acquired during the marriage may be divided. A handful of states will even divide inherited property. A majority of states divide the pension but not in the same way. Some states delay the sale of the family home until the children are grown, while others order it sold immediately.

Intangible property, long recognized as valuable when business partnerships break up, is recognized in a few states, but even those states do not agree among themselves on which intangibles to recognize. Valuable properties such as royalties, copyrights, patents, license, business goodwill, professional educations and, most important, the future earning power of the higher-earning spouse, generally walk out of the marriage in the possession of the spouse deemed the "owner" under the laws of the particular state. In most cases, that person is the husband.

It matters little whether lip-service is given to equal or equitable division of the marital assets in a particular jurisdiction, if what is divided equally or equitably is just a fraction of the true marital worth. The remedy? Leave the definition of property to the parties involved. Let them identify and place a value on anything they own, then negotiate their settlement under the broad equitable or equal guidelines used by their state. There is no reason in justice to deny marital partners the right to value their assets in the same way the law has always permitted business partners to do.

Support Laws

If marital property laws are a mishmash, support laws are no better. Each state decides for itself what level of support is reasonable, for how long, and how actively the state will enforce support orders. In all states, spousal support takes a back seat to child support, leaving the midlife or older homemaker out in the cold in too many cases. Even if she obtains a support award, it is likely to be temporary and unenforceable if her former husband chooses to ignore it.

Spousal support has been de-emphasized in this country partly because it is seen as the old alimony model a wife forever dependent on her former husband. Weitzman proposed new theories to justify support in appropriate situations, for example the long-time homemaker. Among these are unemployment insurance (for her lost job), delayed compensation (for her years of unpaid effort), and opportunity cost (for years lost from building a career).

Property awards are a right; spousal support awards are not. Support depends on the needs of one spouse and the ability of the other. If the needs change (remarriage, perhaps, or a job), or if the ability changes (unemployment, illness, a new family), the support award is likely to change as well. This dictates certain strategies; for example, future pension income could be characterized as property or awarded as support. The former is usually a wiser path for the one without the pension, since as a property award, it is not modifiable later regardless of the changing needs and abilities of the parties.

Fifteen years after launching the no-fault revolution, the California senate recognized the growing economic problems for women and children resulting from the failure to also reform property and support awards.

Legislatures unintentionally harmed custodial moms and their college-bound kids when they lowered the age of majority from 21 to 18. This meant child support stopped on the 18th birthday, leaving the cost of college to the mother and the student. The result, as Wallerstein documented, was a downward economic status for the children of divorced professional parents, as their college hopes were scaled back or scuttled altogether. Responsible support planning should secure a pledge of support through college for the children at the time of the divorce, or the settlement of funds in their names for educational or training purposes.

Fifteen years after launching the no-fault revolution, the California senate recognized the growing economic problems for women and children resulting from the failure to also reform property and support awards. The California Senate Task Force on Family Equity found a "direct relationship" between inadequate and poorly enforced support and property awards, and the growing poverty of women and children in that state. Now, more than 20 years following the revolution, the time has more than come to finish the job to make the ending of a marriage as fair as it possibly can be to all parties, including the children.

About the Author

Frances Leonard, Esq., is a California lawyer who writes on legal and financial issues. She is the author of Women and Money and Money and the Mature Woman. Her work has appeared in such publications as Money Magazine, Medical Economics, New Choices, and the American Association of Retired Persons' Modern Maturity. Frances' monthly financial column appears in Lifetimes, a newspaper for Illinois Blue Cross/Blue Shield subscribers. She is public policy consultant to the Older Women's League (OWL), headquartered in Washington, DC, and served as OWL legal counsel for eight years. From Margorie Engelís "Divorce Help Sourcebook".

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