The issue of “state’s rights” has been in the news a lot recently, especially given the recent Supreme Court decision making same sex marriage legal across the country and the furor over the Confederate battle flag in South Carolina.
State laws have long determined how much you spend in taxes, how your are punished for committing crime, how much you receive in welfare benefits, how much and to whom your personal property is distributed upon your death, whether you can readily get an abortion, and the list goes on.
Now that state-specific laws prohibiting same sex marriage have been swept away, some are talking about doing the same thing for laws governing divorce. The reality today is that how well people fare during a divorce has a lot to do with what state they are located in at that time.
And until today, when the Supreme Court made gay marriage legal throughout the land, where you lived also determined whether you could married. Now it’s time for our nation to ditch state-specific divorce rules too.
One of the biggest issues some married couples face when they move across state lines is how they will fare if they get divorced. (And, again, almost half will untie the knot.) The answer may be far better or far worse depending on the state and even the county in which you reside. I say “may,” because if you reach an amicable settlement, that settlement may be legally approved no matter where you live. But if you have a contested divorce and end up leaving it up to a judge, he or she will likely apply state guidelines that can be very different depending on the state. Indeed, since only a few states have formal guidelines, the guidelines are mostly those set by the local judge. These judges are, of course, influenced primarily by what other judges in their locality and state are doing.
Let me illustrate the world of divorce trouble in which you can land by picking the wrong state of residence. Take fictitious Joe and Sally, a 50 year-old couple who have been married since age 25. Most of their marriage was sheer bliss. But since their four kids left home, Joe and Sally’s relationship has gone off the rails. Whether its Joe’s drinking, Sally’s smoking, or a hundred other things that have gone wrong, both want out.
They face a big, conflict-laden question. How much should Joe pay Sally in alimony? Sally makes $30,000 a year. Joe makes $200,000. They both intend to work through age 67 (the Social Security full retirement age). Joe has a three-times larger Social Security retirement benefit coming his way, and his 401(k) is five times Sally’s. Apart from a small checking account and house equity, Joe and Sally have no other major assets.
Now suppose Joe and Sally live in Massachusetts. According to its online alimony guideline calculator, Joe will need to pay Sally $59,500 annually in alimony indefinitely, but this appears to really mean until Joe reaches 65 (17 years from now). This is the maximum alimony, which is set at 35 percent of the difference in Joe and Sally’s incomes, but can be set as low as 30 percent of the difference.
If the couple lives in Kansas, however, Sally will, based on its state alimony guidelines, receive only $38,000. That’s a third less! And she’ll only collect the $38,000 for 8.77 years. So, on the face of it, Kansas’s alimony discounting for the time value of money is less than 40 percent of the Massachusetts amount.
The question raised by critics of these differing divorce laws is why should Joe and Sally experience such wildly varying results based solely on the state or county that they reside in? Rather than allow couples to shop for the most advantageous jurisdiction for their divorce (which occurs far more often then you might think), national divorce laws could even the playing field and guarantee that couples in Massachusetts, Kansas, and South Carolina could expect similar outcomes. Though there’s no sign of the courts or Congress taking such action in the near future, the recent Supreme Court ruling raises interesting questions to consider.
Contact the Law Offices of Renee Lazar via email or phone at 978-844-4095 should you be in the midst of a divorce or contemplating a divorce to discuss the issues related to your particular situation.