“You have to pay her how much alimony? What about our ‘business trip’ to the Bahamas?”
“Billy, why don’t you bring the children over for a nice, long weekend with Grandma? Who cares if it’s Susan’s weekend? What is she, still your wife?”
“How can the court make you give that ring to her if you give it to me first?”
Sound familiar? If you are dealing with other women, be they girlfriends or second wives, grandmas or aunts, sisters or mothers, you have probably heard statements like these. These women are excellent at giving advice, helping you deal with your family dissolution, and comforting you when you are down.
But beware. They look and talk like angels, but they may be devils in disguise. Whether you are in the midst of a family dissolution or your family dissolved years ago, the other women in your life will affect your family harmony – and possibly your legal rights.
Lovers and Finances
Divorce attorneys often hear the question, “Will my child support increase if my new wife gets a pay raise?” or a variant thereto. My favorite was the client who asked whether the divorce court would order him to give the diamond bracelet he bought for his 20-something girlfriend (and the reason his wife filed for divorce) to his soon-to-be-ex. “I don’t think she’ll go for it,” he said. “They, I mean. My girlfriend won’t understand, and my wife will probably strangle me with it. She has the same one.”
The short answer is usually no. First, unless your rights have been suspended or terminated, only you are responsible for supporting your children. Therefore, the court will consider your resources (and your ex’s) when calculating child support, but not the resources of lovers, mothers, aunts, sisters, etc., none of whom are legally responsible for your children. Second, the property and debt you acquired during your marriage (and sometimes before) are game for property division, but not that of third parties, who are not parties to and have acquired no rights under your marriage.
There are exceptions.
Take the case of Mr. Irvin in Irvin v Irvin, 47 Ark App 48; 883 SW2d 862 (1994), as an example. Mr. Irvin and his wife had two children, twin boys. In their consent divorce decree, the Irvins agreed that Mr. Irvin would pay $250 monthly child support. Less than three months later, Ms. Irvin petitioned the divorce court for a support increase. Mr. Irvin failed to appear at the hearing. Based on testimony from Ms. Irvin, the divorce court concluded Mr. Irvin had an income of or was capable of earning $25,000, even though he had no job, and increased his support obligation to $505 a month.
On review from Mr. Irvin’s objection, Mr. Irvin’s real income came to light. Although he never held a job during their marriage, Ms. Irvin testified that Mr. Irvin always had money to spend. He paid cash for all purchases. The purchases included a $7,500 Firebird, an $18,000 Nissan, a $13,000 mobile home, a $2,000 air conditioner, living room furniture, kitchen appliances, entertainment systems, clothes, and a diamond ring for his girlfriend. He boasted about the ring. (Although he never revealed his occupation, Mr. Irvin was charged with conspiracy to manufacture marijuana.)
On appeal, the Arkansas appellate court upheld the divorce court’s award. The court noted, “In this case, the chancellor had evidence before him that the needs of the children had increased since the entry of the divorce, as well as evidence demonstrating that [Mr. Irvin] maintained the ability to provide for his children even though it would appear that he was not employed.” Accordingly, because “when calculating income, it is appropriate to consider the amount a payor is capable of earning or a net-worth approach based on property, lifestyle, etc. . . under the particular circumstances of this case, there was no abuse of discretion in setting the amount of support at $ 505 by imputing income of $ 25,000 based on the evidence of [Mr. Irvin]’s spending habits.”
Gifts to lovers do not open the floodgates for a nasty trial on every sordid detail of a date, however.
Take the case of Ms. Joldersma in In re Joldersma, 370 So 2d 80; 1979 Fla App LEXIS 14504 (1979), as an example. Ms. Joldersma was the young fling who stole Ms. Stewart’s doctor husband away. He admitted that he was able to pay alimony. Nevertheless, Ms. Stewart’s attorney subpoenaed Ms. Joldersma for a deposition. Among the questions, Ms. Stewart asked how many times she and Mr. Stewart had intercourse, whether they went on vacations, how long they lived together, and other sordid questions, all of which Ms. Joldersma refused to answer. At a contempt hearing, the divorce court held, rightfully, that a party is entitled to discovery from a lover to the extent the discovery is “reasonably calculated to obtain information” about the other party’s ability to pay support. These questions were not.
If you are concerned about the financial outcome in your case, be sure to document your income and spending. Keep receipts. Provide your attorney with copies. Back up copies on your computer. Explain what you receive, what you spend and why. Discuss the support laws with your attorney and how they apply to your income and expenses. Rationalize your attempt to reduce your support obligation or avoid paying support within the parameters of the law. A well-prepared case is more likely a winner.
Most of all, forgo that trip to the Bahamas, lest you give the divorce court the impression that you have or can earn more than you do.
Demanding Relatives and Child Custody
If you feel like your life is a scene from Everybody Loves Raymond, you are not alone. When a family dissolves, strained emotions are inevitable. So too are crazy outbursts we would not usually make – such as the demand to your attorney to “spend whatever it takes” just to get back your tools or the “With Sympathy For Your Loss” funeral card your spiteful mother sends to your ex-wife as a dig when your divorce is final.
These things happen, and most divorce statutes are built to accommodate them. Custody statutes require the court to consider “the totality of the circumstances,” as opposed to an isolated night of yelling in front of your children. Child support and alimony are based on income and earning capacities, as opposed to who is the “smarter” or “crazier” spouse.
But beware overbearing relatives.
Take the case of Ms. Ward in Ward v Ward, 2006 Ohio 851; 2006 Ohio App LEXIS 738 (2006), as an example. Ms. Ward had an overbearing mother, the Marie Barone type. She was present at custody exchanges, she dictated how Ms. Ward cared for her child, she even established herself as the child’s first-preferred caregiver, preferred even over Ms. Ward and Mr. Ward. Mr. Ward received primary physical custody, partly because his mother-in-law was too controlling and would continue to isolate him from his child. On appeal, Ms. Ward argued, inter alia, that he mother was not so controlling. However, two psychologists testified otherwise, and Ms. Ward readily admitted that “in the hierarchy of caregiving, her mother came first, then her, then Mr. Ward.” The appellate court affirmed the divorce court’s award of primary physical custody to Mr. Ward, finding its conclusions that Ms. Ward’s mother was overbearing and would continue to isolate him and the child were not against the weight of the evidence.
If you are concerned about your family members’ impact on your custody rights, be sure to confront them early and often. Remind them that their behaviors could impact your court’s custody decision. Tell them you appreciate their concerns, but as the parent you have the right – the constitutional right – before them to decide how to raise your child. Note their involvement with your child in a parenting time journal to refresh your memory and undercut your opponent’s allegations that they are always around or dictate your time. Plan play dates and special occasions for their visits, but spend more time with your child doing one-on-one activities. Be sure to discuss your concerns with your attorney to plan the best strategy.
Most of all, remember that when your custody rights are at stake is not the time to cave in to your own Mother Marie’s demands.
Insiders and Property Division
Faced with a sizable loss if forced to divide an investment account, sell a vacation home or otherwise divide property acquired during the marriage, some spouses divert their assets to friends and family. They quip, “I don’t have to divide it if I don’t have it.” A blank stare, mouth open, face white, falls across them when their attorneys say the property still counts and, worse yet, they might have committed a crime.
Take the case of Mr. Wiand in Wiand v Wiand, 178 Mich App 137; 443 NW2d 464 (1989), as an example. He and Ms. Wiand acquired a sizable estate over their ten year marriage. The estate included homes, investments and Mr. Wiand’s interests in formulas, trade secrets and closely held businesses. These assets were worth, in the divorce court’s guesstimate, nearly one million dollars alone. But that was truly a guesstimate, because the court did not have the assets before it to value. Anticipating a large loss to his wife if he divorced owning them, Mr. Wiand sold them to his brother in what appeared, on paper, to be an arm’s length transaction. The divorce court found, however, that Mr. Wiand and his brother conspired to deprive Ms. Wiand of her rightful share of the marital estate. Therefore, the court awarded her one-half the value of “the brother’s” assets. The appellate court affirmed the award, holding that a court may divide property held by a third party if one spouse and the third party conspired to deprive the other spouse of it by awarding the value of the property to the innocent spouse.
Mr. Wiand had to pay his wife over $300,000 for assets he no longer owned.
If you are concerned about the effect divorce has on your property rights, be sure to discuss your rights with an attorney in your area. Discuss what rights you have while married, during divorce, and when newly single. Consult with a tax specialist to learn what tax advantages and disadvantages you face if you pay alimony or transfer property as part of a written separation instrument. Avoid extravagant purchases. Document all of your purchases and sales, and keep receipts to substantiate them. If you question your spouse’s spending, take advantage of the discovery period to subpoena third parties, obtain documents and investigate to prove a case of unexercised ability to earn, waste or fraud.
Most of all, know that if a deal sounds too good to be true – e.g., your brother will “sell back” the classic car you “sell” him (for nothing) after your divorce so you do not have to give it to your wife – it is.
As a practical matter, the outcome of each case depends on its facts and the laws in the jurisdiction. No two cases are the same, although Mr. Irvin’s, Mr. Stewart’s, Ms. Ward’s and Mr. Wiand’s might remind you of yours. You should consult a lawyer in your area to learn more about the laws applicable to your case and how other women in your life feature in them.
Nevertheless, there are some lessons (and a little humor) to gain from those who have gone before you.