The Changing Face of Marriage

Belinda Luscombe of Time Magazine writes this week about Marriage:  What’s It Good For?, pointing out that the state of marriage has shifted in unexpected ways. A couple of statistics they point to:

·         In 1960, nearly 70% of American adults were married; now only about half are.

·         In 1960, 2/3 of 20-somethings were married; in 2008, just 26% were.

·         College grads are now far more likely to marry (64%) than those with no higher education (48%).

The most interesting statistic they cite in the article is the percentage of children born to unmarried women.  In 1960, about 5% of children were born outside of marriage, compared to 41% in 2008.  And, broken down by race, in 2008, 72% of black children were born to unmarried women, compared to 53% of Hispanics and 29% of whites.

Marriage, today, practically speaking, is just not as necessary as it used to be.  40% of those surveyed believe marriage is obsolete. Now, neither men nor women need to be married to have sex or companionship or professional success or respect or even children. The largest statistical difference is that which has opened up between the rich and the poor.  In 1960, the median household income of married adults was 12% higher than that of single adults.  By 2008, the gap grew to 41%.  So, the richer and better educated you are, the more likely you are to marry or be married, says the article.

The reasons for getting married now include love, commitment, companionship, with having children and financial stability being less important reasons.  Also interesting is the effect the marriage statistics seem to be having on divorce statistics.  In recent years, the overall rate of divorce has plateaued.  The rate of divorce among college graduates has declined, which is offset by a rise in divorce among those at the lower end of the socioeconomic spectrum.  Also, 2/3 of divorces are supposedly initiated by women.

Here’s what I think: This is a very interesting article, more for the sociological comment than an indictment of marriage.  As a family law attorney in Dallas, Texas, this article only serves to confirm what we see on the ground here.

The stats about the increase of wealth of married folks beg the question of the impact of women moving into the workforce.  In 1960, only 32% of women worked outside the home.  Now, 61% of women work outside the home.  Women have also seen increases in their average level of education and income.  So, the increase in the median household income of married adults could easily be linked to the increased number of working women, without comment on the marriage rates.

In the 60’s people may have married, and married young, to have sex, have children, and, for women, have the financial stability of the working husband.  Today, women don’t need a man for any of those things.  The invention of the birth control pill combined with the increase of working women has changed the dynamic for women.  Our society’s mores have shifted, too.  So, a woman doesn’t need to get married to have sex or avoid the stigma attached to having a child without a husband.  And women’s equality in the workplace has eliminated the dependence on the working husband for financial security. 

This leaves love and companionship as the only arguments left favoring marriage.  But, our society doesn’t place importance upon having one long-term companion and increasingly accepts the concept that a person may have several, or even many, relationships over a lifetime.  In fact, I’ve heard several young people comment that they don’t believe in the idea of spending a lifetime with one person because over time your needs, wants, and desires change, resulting in a need to change partners.

I also don’t place great meaning upon the statistic that 2/3 of divorces are initiated by women.  This doesn’t equate to women making 2/3 of the decision to divorce or being 2/3 to blame for divorcing.  In fact, all this may mean is that women are more likely to act upon decisions, once made, than are men. 

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US Supreme Court Set to Hear Child Support Contempt Case

From The Nerve blog:

The nation’s top court will hear the appeal of an indigent father who contends his rights were violated because he wasn’t provided an attorney before being jailed for failing to pay child support.

The U.S. Supreme Court announced it accepted the case of Michael D. Turner v. Rebecca Price and the S.C. Department of Social Services. Oral arguments could be heard as early as March, with a ruling by the nine-member court likely by the end of June 2011, based on the court's past practice, Greenville lawyer Derek Enderlin, one of Turner’s appellate attorneys, told The Nerve on Monday.

Having an appeal accepted by the top court is a rare legal feat: Out of about 10,000 petitions the justices receive annually, only about 100 are heard during a term, which started last month.

South Carolina is one of only five states in the nation – along with Georgia, Florida, Maine and Ohio – that don’t guarantee indigent parents who owe child support the right to an attorney in civil contempt hearings that can result in jail time, according to Turner’s U.S. Supreme Court petition. That situation creates modern-day debtors’ prisons, as judges are more likely to jail indigent parents without attorneys for contempt, Turner and his supporters say in court papers.

In Texas child support courts, obligors (the person owing the child support) is generally not entitled to a court appointed lawyer if the potential punishment is "petty" -- less than 6 months total in jail and less than $500 fine total. But, if the obligor could be jailed for more than 6 months total or be ordered to pay an aggregate fine over $500, then the punishment is considered "serious" and invokes the right to an attorney.

This will be an interesting case to watch and evaluate how it will impact child support collection laws and procedures across the country.

Hat Tip to the Family Law Prof Blog for the lead on this story.

 

What is the purpose of a prenup?

I previously wrote about the rise in prenups (prenuptial agreements aka premarital agreements) across the country.  Dallas divorce attorneys are seeing similar trends as well.  Then, a client asked me, what are the most important things to put in a prenup?

Interestingly, CNBC is currently researching this topic and contacted me about being involved in a documentary they are filming.  I did the interview yesterday and the episode is expected to air in February 2011.

The most important consideration in a prenup is to think about what the goal of the document is before drafting it or even talking about it.  Is the goal to preserve an inheritance?  Or a business started before the marriage?  Is the goal to protect the financial interest of children from a prior marriage?  Or, maybe it is important to provide financially for one spouse in the event of death or divorce?  The bottom line, have a clear purpose in mind for the prenup.

Also, be upfront with your soon-to-be-spouse about the reasons you want a prenup and discuss it openly.  Many people find prenups distasteful and even disrespectful, so be open about the reasons for it.

Full disclosure of assets and liabilities by both soon-to-be-spouses is essential in a prenup.  List completely and accurately the extent of the assets that each spouse has going into the marriage, such as retirement account balances, business ownership interest, even baseball card collections if they are valuable and important to preserve.

A prenup can be used for many reasons.  It is, at its most basic, a contract between two people.  It can be used to simply define what each spouse has going into the marriage so everyone is on the same page if a divorce becomes necessary about what belongs to each outside of the marriage relationship.  Or, a prenup can be more complex in dividing up money and propery earned or acquired during the marriage.  A prenup can also preserve as separate property an asset such as a business interest that may transform or mutate during a marriage from suddenly transforming into a community property asset. For example, if a business is of one type (such as an LLC) at the beginning of the marriage, but maybe due to changes in tax laws, it becomes necessary to change the formation to something different (such as an LLP), the mutation can be defined in a prenup as to not change the characterization of the asset as one spouse's separate property.

A prenup can also address protecting the inheritance rights of children from prior relationships or how each spouse will designate beneficiaries.  I've even seen prenups that provide an amount of spousal support for one or both spouses in the event of a future divorce.

If you are thinking about getting married and think you may need a prenup, contact a lawyer to discuss how a prenup could benefit your particular situation.

 

Insupportability deciphered: the plain English of "no fault" divorce in Texas

What is “insupportabilty”? We often encounter this question from new or prospective clients. According to the Texas Family Code: "the court may grant a divorce without regard to fault if the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation.” Tex. Fam. Code §6.001. But what does this really mean?

Simply put, insupportability means unendurable, insufferable, and intolerable. Insupportability is a “no-fault” ground for divorce in Texas (meaning that a divorce can be granted without proof that one spouse was at fault for the breakup of the marriage). Insupportability is the basis upon which courts grant the vast majority of the divorces in this State. 

While the spouse seeking the divorce must prove that the marriage is insupportable, mere conclusory testimony by one spouse (usually in the form of yes / no response to questions from the attorney) that the marriage has become insupportable and there is no reasonable expectation of reconciliation is sufficient to support the divorce. There is no requirement to establish the source or nature of the conflict, how long it has lasted, your efforts to fix it, or who is at fault.

There is no legal duty to reconcile in Texas. While there is a provision for counseling in the Family Code, plainly stated, there is really no defense to a petition for divorce based on insupportability – if one person wants to be divorced, there will be a divorce. No matter how much one spouse protests, Texas will not force you to stay married indefinitely against your will.

Prenups on the Rise

CNBC says prenups are on the rise... and Dallas Texas family law attorneys agree. A whopping 73 percent of divorce attorneys say they’ve seen an increase in the pre-marital documents, according to a recent survey by the American Academy of Matrimonial Lawyers. What’s more, 52 percent of them said they’ve seen an increase in women initiating the requests.

"Prenuptial agreements are becoming more generally accepted as an effective way to protect assets.  Interestingly, these requests are no longer just limited to a specific gender or age group," said Marlene Eskind Moses, president of the AAML. 

Part of it can be attributed to the recession.  People are generally paying more attention to their finances and future-planning these days. And, more women are wanting to protect their future too.  These days, more women are working and may be earning more than their husband-to-be, so they want to protect what will be their's.  Other women may want to make sure they are not thrown out on the street with nothing if the marriage ends.

Pensions and retirement accounts are increasingly being included in prenups, the survey showed. Thirty-six percent of the lawyers surveyed said they’re seeing an increase in retirement savings being a part of the prenup. Part of that is people marrying later in life, though it’s also the fact that many have watched their retirement accounts dwindle in the past few years.  They do not want to divide their retirement accounts twice -- once in the market declines and again in divorce.

Many people feel prenups are distasteful and against the grain of marriage.  But, marriage is a partnership -- a business deal in some respects -- and any good partnership has a written agreement defining the relationship and addressing potential eventualities like death or break-up.  Marriage should be no different.