Question: After a 30 plus year marriage, my wife and I decided to call it quits. Unable to come to closure by working with our CPA and financial advisors, we each hired a divorce lawyer, each of whom, in turn, hired other certified public accountants and other experts. Still unable to come to an agreement, it looks like we will end up in court. Here’s my question: During the marriage, I worked for a large company and earned 95 percent of the money, made all investment decisions, contributed to all of the retirement plans, and earned all of the stock options. When she was not playing tennis or golf or traveling, my wife took care of the children, kept house, and entertained at parties.
Here’s my question: Since we live in an equitable division state --- not a community property state where assets are divided 50-50, how do my wife and her advisors justify the position that she is entitled to half of everything, including my unvested stock options? This is highway robbery as far as I am concerned, but my lawyer will not venture an opinion about how things would come out if we let the judge decide the case. "Equitable" is a far cry from "equal" – isn’t it?
Answer: In years past, the spouse who put the bacon on the table generally received the larger share of the marital estate; however, in light of the highly-publicized Wendt case which was recently decided in Connecticut, it seems that courts in equitable division states may be more willing to distribute marital assets on a 50-50 basis if justified by the facts. In that case, the wife’s theory was that the marriage began as a partnership and her contributions were made as a partner.
According to a recent survey conducted by the American Academy of Matrimonial Lawyers headquartered in Chicago, 91 percent of those who responded said that the overall trend in longer-term marriages was moving toward a 50-50 split, a clear benefit to the non-working spouse. As a part of this trend, the definition of "marital assets" has expanded to include not only retirement benefits, but also stock options, unvested options, and income from professional degrees earned during marriage. These trends are especially true where the wage earner is a corporate executive or professional.
Bottom Line: Since "Equitable" may become more synonymous with "Equal" in some longer-term marriages, it might behoove you to go back to the bargaining table one more time before you and your wife place your assets in the hands of the court.
Question: My husband and I are in the midst of divorce which, unfortunately, includes a custody struggle over our two children who are nine and seven. Although the counselor tells me that the reason my husband made custody an issue is his anger at me for leaving him, the result has been very large legal and mental health fees which I have had to borrow from my parents, not to mention the emotional stress on me and the children. The counselor told me that my husband was violating our "Children’s Bill of Rights" which I have not been able to find anywhere and about which my lawyer knows nothing. Is there such a thing and, if so, where I can get it?
Answer: In addition to a lot of other good information, The Children’s Bill of Rights is included in a booklet for divorcing parents called "Stepping Back From Anger: Protecting Your Child During Divorce." Available without cost from the American Academy of Matrimonial Lawyers, this booklet is part of the Academy’s national public awareness campaign to counter the profound effects of divorce on children. To receive your free copy, download it at www.aaml.org.
Jan Collins is an award-winning writer and editor. Jan Warner is a matrimonial, elder law, and tax attorney. Both are based in Columbia, South Carolina.
Please send your questions by e-mail to janwarner@flyingsolo.com or by mail to P.O.Box 11704, Columbia, S.C. 29211.
