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Holiday Eggnog Debates: "Cousin Timmy just got divorced"

Everything you need to know to destroy your drunk uncle.


Hot (factually incorrect) gossip is a cornerstone of any holiday party.


Of all the gossip, messy divorces tend to be the fan-favorite.


The problem is that most lamen knowledge of the realities of divorce (or marriage) is entirely incorrect.


Plus, and this is me speculating, those that are most prone to comment on such unfortunate events are projecting the likely demise of their own marriage.


That leads us to your Drunk Uncle who hasn't stopped fighting with his wife since they arrived.


Signs that this conversation is coming typically are discussions of recent weddings, money problems, and room-chilling drunk outbursts from spouses (or, even better, sharply passive-aggressive comments over the dinner table).


Your only legitimate options are to brace for impact, attempt to shift focus to your Drunk Uncle's marriage, or attempt a dramatic teary-eyed performance that ends with you "needing to get some air" (it takes a real pro to pull this one-off).


I'm going to assume you are going with the first option (since it is really cold outside and you are having the party at a house far too small to be hosting because "it's tradition").


You will take the stance that divorce is a fairly common legal occurrence in 2020, that a 50/50 split of all assets accrued during the marriage is the likely outcome, and that child support & alimony laws carry no inherent female bias.


Your Drunk Uncle will take the stance that no one should ever get divorced (based on some arbitrary religious doctrine), that he was probably cheating so she is going to get all of his/their assets, and that he (as a man) is going to get crushed with alimony and child support.

Let's work through the debate.


You: "This situation is not uncommon and does not have to be financially painful for Cousin Timmy if properly handled (arbitrated/mediated)"


Drunk Uncle: "Cousin Timmy is going to get stiffed in this divorce"


Argument


The divorce rate in the United States as of 2020 is 50%.


60% of second marriages and 73% of third marriages end in divorce.


The average age of couples filing for divorce is 30.


Couples 20-25 have a 60% divorce rate while couples married after the age of 25 are 24% less likely to divorce.


Stated simply, divorce is actually a more likely outcome than a successful marriage.


The occurrence of "no-fault" divorce requirements in the '70s has played an important role in these numbers. Prior to this revision in law, couples had to prove "fault" (a spouse doing something, such as an affair, the warrants a divorce).


As an important aside, many fail to understand the difference between an annulment of a marriage and a divorce.


An annulment is when a marriage is declared null and void by a court of law. If a marriage is annulled, then the marriage technically never existed and zero obligation is created for either participating party (the folks who got married).


There is no maximum time limit to obtain an annulment (many believe it has to happen in the first year).


A divorce is when a marriage is terminated. Because the marriage technically existed before the termination, obligations can be/are created between participating parties.


Obligations can be entirely determined by the mutual agreement of both parties in the marriage.


Obligations, for the sake of this argument, include assets (money, property, debt), alimony, child support, and potentially insurance for the benefit of one of the spouses.


If a simple discussion between the newly divorced couple is unable to reach a consensus on the asset divide, the courts take control and allocate amounts by using the community property or equitable distribution scheme (depending on the state of residence).


Community property is used in Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.


Equitable distribution is used in all other states.


Community property outcomes are primarily based on the assets accumulated by either party during the marriage (community property) and those accumulated before or afterward (separate property). Importantly, "separate property" also includes any inheritance or gifts received by either spouse at any time during the marriage.


At divorce, community property is split 50/50 and each spouse keeps 100% of their separate property.


Community property includes:

- income by either spouse;

- the marital house or rental properties;

- furniture, appliances, cars, boats, artwork;

- bank accounts, stocks, bonds;

- mortgages and loans;

- gifts from one spouse to the other.

- In addition, marital property includes all vested and nonvested pension, retirement, and other deferred compensation rights as well as vested and nonvested military pensions eligible under the federal Uniformed Services Former Spouses’ Protection Act.


Equitable distribution outcomes are based on assets being split "fairly". This is starkly different from the community property scheme in a few ways.


1. "Fairly" does not mean equal. Fairly is determined by the judge.

2. Separate property is in play. The judge can discern that to "fairly" split assets, one party must give some or all of their separate property to their spouse.


As referenced before, the removal of "fault" requirements also plays a strong role in the likely outcome of "fair" resolutions.


Prior to the no-fault era, a spouse having an affair may have been punished by the courts - meaning the assets would be split in favor of the faithful spouse.


A common misconception is that this still exists.


It does not.


"Fair" equitable distribution outcomes are primarily driven by:

- The duration of the marriage and the age and physical and mental health of both parties.

- The needs of a parent with custody of a child or children of the marriage to occupy or own the marital residence and to use or own its household effects.

- Any direct or indirect contribution made by one spouse to help educate or develop the career potential of the other spouse.

- Any direct contribution to an increase in value of separate property which occurs during the course of the marriage.

- Acts of either party to maintain, preserve, develop, or expand; or to waste, neglect, devalue or convert the marital property or divisible property, or both, during the period after separation of the parties and before the time of distribution.

- Any other factor which the court finds to be just and proper.


Shifting gears.


If the divorced couple has kids, a few extra pieces need to be sorted out.


Alimony is money paid by one spouse to another for a specified or indefinite period of time.


Alimony is not awarded in every divorce.


Alimony is only meant to equalize the financial situation of the parties and is unlikely to occur unless there is a significant discrepancy between the incomes of each party.


Relevant factors are the current financial position of the couple, the standard of living during the marriage, the length of the marriage, age, and health of the parties.


Marriage length is likely the most important factor. If a marriage has lasted longer than 25 years, courts will attempt to construct a situation where both parties have equal economic standing for the rest of their lives. For marriages lasting less than 10 years, the primary objective is to place each party in the financial situation that would have likely occurred if the marriage had never taken place.


Employment is relevant but not grounds for rejection of an alimony request.


Importantly, how the assets were divided in the divorce procedure will play a role in the determination of required maintenance.


If an alimony obligation is not created at the time of divorce, the decree cannot be modified to require it later.


Child support is the last major factor involved in a divorce.


The amount of child support required upon divorce is based on a statutory formula.


The outcome is primarily based on the net income of both parents, the number of children who need support, and the custody arrangement.


Stated differently, there is zero gender bias to child support.


Courts have the ability to impute income if the non-custodial parent decides to become unemployed (does not make the required payments).


Joint custody typically results in a split based on time of care (what % of the year you have the child).


Courts also do not mess around when it comes to child support (and rightly so) - nonpayment can result in:

- Property seizure

- Suspension of your business license

- Suspension of your driver’s license

- Tax refund interception

- Wage garnishment

- Arrest and time in jail


In conclusion, divorce is the most likely outcome of marriage in the United States in 2020. In the case of young couples (the highest divorce rate aside from 3rd marriages), alimony is a very unlikely outcome unless extreme scenarios exist. The current child support system carries zero gender bias and is entirely constructed to ensure the caregiver (custodial parent) has sufficient funds to provide for the children.


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