A Divorce Lawyer’s Holiday Engagement “Wish List”
Next week will mark this writer’s 42 year of admission to the Pennsylvania Bar. For forty of those years, I practiced domestic relations law. In olden times (circa 1980-1990) this was kind of a divorce lawyer’s holiday. Back then people who were unhappy at home usually decided that if they did not file by November 1, it was best to tamp matters down for the holidays and call the lawyer on January 2. In recent years, we have seen clients calling for consults during Christmas week; holiday tranquility be damned.
But it is also the season for engagements and plans for marriage. Marriage is back in a small way. In 2021 we saw just over 70,000 marriages in the Commonwealth and those numbers appear to be holding firm after a dip in 2019 and the pandemic experience of 2020.
Some things have changed according to Harris polls. A dozen years ago only about 3% of people who were engaged or married reported having a prenuptial agreement. In 2022, that number was 15%.
For first marriages in particular prenuptial agreements make for a dicey topic. Young people marrying for the first time view them as cold instruments that appear to monetize a relationship intended to be romantic and loving. They have a point. But ……accidents happen so we had 30,000 divorces in 2021.
I have long told clients that I don’t recommend prenuptials any more than I recommend divorce. The question is far too personal and sound legal advice should try to steer clear of becoming personal. But here are three topics upon which almost any reasonable people could agree before getting married; but there seem to be lots of problems with when a relationship goes South.
- College for the kids. Pennsylvania law says that once a kid finishes high school he or she is no longer eligible for any form of support unless the child is disabled. So, college is technically “off the table.” Meanwhile content couples regularly tell their children they will be helping them with or underwriting college when the times arrives. Some even set up UTMA or 529 accounts for that very purpose. Then separation occurs and often one spouse dives for the exit, leaving the other spouse holding the collegiate bag. The client sits across from the lawyer and says: “My husband said we would pay for our kids’ college and we even put money away. But now he says he can’t afford it.”
College is expensive. It averages just over $100,000 for a four year degree. But isn’t this something that should be discussed before people have kids and imply to them that they will contribute. Perhaps the sum should be capped as in: “We will contribute but not more than 20% of prior year’s net income.” It is sad to sit in a room with a couple getting divorced, both of whom have graduate degrees while one parent says he or she can’t or won’t help the next generation.
2. Spousal support. These are challenging times. We just had a client making an immense amount of money working for a health insurer who was told; “Sorry, we don’t need you any more.” In that case there was a substantial severance but lots of people whether making lots or just a little suddenly find themselves “unneeded.” This is a major blow to any employee but the data show that adult men are having real problems with unforeseen layoffs such as we see today at Twitter, Amazon and a dozen other companies. I raise the issue when it comes to men because recent data show that despite low unemployment rates (3.7%; lowest since before the pandemic and a 20 year low then) male labor force participation keeps declining. That’s a fancy way of saying that a lot of men without jobs are not even looking. And that produces a lot of unhappiness at home for both parties to a marriage. One of the things a divorce lawyer has to tell a spouse who makes $70,000 a year and whose mate was laid off a year ago from a job with equal pay is that the employed spouse will have to pay support to the unemployed one. It’s like lighting a rocket inside a law office. “WHAT, he hasn’t even LOOKED for anything at less than his old wage rate in the past year even though his company closed shop and there are a dozen of his co-workers in the same jam. I’d rather go to jail than pay him. Better yet, I’ll quit my job and we can both be unemployed.”
It doesn’t work that way. In olden days the spouse with the job could argue earning capacity of the one sitting at home. Legally, it’s still possible. But if you talk to lawyers who actually litigate support cases, they will tell you that if you want to win an earning capacity case, you probably need to show the hearing officer the address of the place where the job is and an ad for what they are willing to pay. There’s a reason for this change that has to do with federal child support policy. But the reason is boring and not worth writing about. Not to mention that the spouse who will be stuck paying support to Mr. or Ms. Donothing isn’t really interest in federal child support policy. Until 1957 85% of adult males were either working or actively seeking employment. In February 2020 (before Covid) it was 69%. By April it was 66%. Today 68%.
The point? How about a prenuptial that says neither spouse seeks support from the other without proof to a court’s satisfaction that he or she cannot work. Sounds harsh but so is supporting someone who can but chooses not to work.
3. Sell the house. 65% of Americans own a home. Today that is often because both spouses or roommates are contributing to the costs. If one of them goes down, by reason of health or unemployment an instant crisis emerges. Unless they find the money to meet the expenses there will be a default and that will impact credit histories and may result in bankruptcy or foreclosure or both. Unfortunately, the spouse who lost the job often becomes stubbornly unrealistic about prospects to right the financial ship turned upside down by loss of the income/job. The family hurtles into crisis while waiting for the new job to be found. This is a pretty frequent theme in divorce consultations. So why not agree before there is a marriage and before there is a house that if one partner loses his or her job, the still employed partner gets to decide whether to try to keep the house or sell it. That spouse has a very clear vision of whether “sticking it out” while awaiting a new job makes sense and the employed spouse is actually stepping into the breach if he or she is trying to cover the expenses without the second income.
These are easy issues to discuss before unemployment or a divorce occur. But when the discussion is deferred to the moment of crisis clearer heads often begin to cloud. And by the way, these agreements can be written by the happily married just as easily as the newly betrothed.