Perez v. City of Roseville, as described in:
Where Congress's attack on alimony tax exclusion came from: Both sides' explanations insufficient, not reality-based. Here's what we know:
The House-passed GOP tax bill shifts the tax burden on alimony from alimony payors to recipients. I.e., about 97% of the time, from divorced women to divorced men, who we all assume are in higher tax brackets than their exes. Currently, alimony is considered part of the recipient's taxable income, and not the payor's. The change would affect alimomy from post-2017 court orders or agreements, including modifications of earlier orders.(There's one feature of the bill that's completely good, and apparently not controversial: Including alimony payments pursuant to a written marital agreement, with no court order, in the definition of alimony.)
It's important to sometimes pause from a search for subtle "incentives" and subliminal effects, and remind ourselves what the most basic and obvious effect of a policy change is: In this case, taxing men instead of women on tens of thousands, sometimes over $100,000, of annual income. Alimony is all or most of many divorced women's incomes, and can already take a very large fraction of some men's incomes. Virginia's guidelines call for at least 28% of a breadwinner's gross income as alimony to a non-working spouse, and that's before child support, and before any deductions from his paycheck for taxes, social security, etc.
Lawyers, journalists and even the National Organization for Women have attacked the proposal, not for being anti-male, but for changing the law's current incentive for men to agree to pay alimony, and thus reducing the amount of alimony women would get. The change probably would have that effect, but that whole argument probably only occurred to them because this is a Republican proposal and it fits the narrative of a GOP "War on Women". Ordinarily, women's groups would be all for something that shifts divorce women's tax burdens wholesale onto their exes.
Blogger Stuart Levine, and many columnists quoting him, including Kevin Drum at the usually more thorough Mother Jones, have really only speculated about why anyone would want to do such a thing. Liberal writers and the supposably* conservative proponents of the change seem to share the mutually convenient illusion that this is an attack on divorce, on behalf of Christian morality. But that simply has nothing to do with how divorce, alimony or taxes actually work. The GOP Ways & Means Committee Summary says only this on behalf of the change:
- The provision would eliminate what is effectively a “divorce subsidy” under current law, in that a divorced couple can often achieve a better tax result for payments between them than a married couple can.
- ... spousal support as a consequence of a divorce or separation should have the same tax treatment as the provision of spousal support within the context of a married couple, as well as the provision of child support.
- ... the provision would increase revenues by $8.3 billion over 2018-27.
Frankly, living as close to Republican Washington as I do, it sounds like a young staffer who doesn't know anyone who pays alimony, who hasn't been invovled in a divorce, and just recently got off the parental tax returns and started filing form 1040-EZ, was thrown mysterious, possibly garbled instructions for changing something about alimony taxation, and was given 15 minutes to come up with some Republican-sounding arguments for it. But actually, the proposal was part of an early-2014 "Tax Reform Act" introduced by former Ways & Means chair Rep. Dave Camp, now retired, and the arguments above are repeated verbatim from the Committee Summary of that bill.
The "subsidy" argument, to the extent that it's either launched or received as an attempt to discourage divorce, partakes of the long-standing and totally wrongheaded assumption that "a couple" decides to get divorced, and may be incentivized, rewarded or punished for doing so. This dates back to the early days of no-fault divorce reform, when reformers picked the most compelling poster-children, decent people who both wanted to divorce but who were caged in "Holy Deadlock" by laws that denied them a divorce even when they both wanted one. Some conservatives and moralists, being apparently unfamiliar with divorce, and gullible about letting their opponents pick the battlefield and define its terms, compliantly responded that these couples were hastily giving up on their marriage and should be incentivized, restricted, counseled, and/or made to wait to see if it's what "they" really wanted. And whenever any change to loosen or tighten divorce laws is proposed, the same old arguments are dusted off, even though divorce decisions have long been unilateral and the proposed changes hardly ever would affect the "poster children" whom the arguments describe.
Individuals decide to divorce, pay taxes after divorce, and might or might not respond to incentives. Couples don't and can't.
The Committee's equality-based argument is even more surreal. Spousal support after separation or divorce is very different from what the Committee refers to as "spousal support within the context of a married couple", which it says should receive the same tax treatment. Uh, a married couple that isn't separated lives together as a family and an economic unit, and doesn't pay support checks to each other. And they can't get "the same tax treatment", because a married couple files taxes jointly or as the very disadvantageous "married filing separately", while divorced people file as single, or jointly with their new spouses. Again, this sounds like college debaters grasping for arguments about parts of adult life that they know nor care nothing about.
Here's what might have led to this: Veteran Congressman Lloyd Doggett D-TX last year was pushing a plan to require 1099s for alimony payments, citing a Treasury study showing about $2.3 billion a year in alimony excluded from payors' income but never reported by recipients. He wanted to use the revenue it gleaned to help states improve their foster care systems."He has been discussing the issue with Ways and Means Chairman Kevin Brady," Congressional Quarterly Roll Call reported. Perhaps the drafters set out to do what Doggett proposed, then realized that it would be simpler, cheaper, and revenue-positive to eliminate the tax code's recognition of alimony entirely, and seized on the 2014 proposal and arguments. It's probably the pet project of one Ways & Means member or staffer who's been there since Camp was Chair.
But where are the deeper, more extensive arguments that ordinarily would lead to something like this? To find out I traced backwards from the only article I found in favor of the change, "A Human Capital Theory of Alimony and Tax", by feminist law professor Tessa Davis in the George Mason Law Review. The only part of it I've thoroughly read is its abstract, every word of which is totally wrong, except for the stuff about "Family Law Theory", the entire posited existence of which is not only wrong, but should not be conceiveable in a rational world where people care about the real-life effects of anything. Even to utter its name, silently to oneself, throws down a gauntlet and crosses a Rubicon into a world where mere Families and Laws will henceforth be trivial playthings in the tiny hands of academic Theories and their adepts and familiars.
And yet I cannot help but admire Davis for having the monumental audacity to claim to speak for "a scholarly consensus" in favor of some kind of fundamental change. She cites only two previous proposals for tax law to disregard alimony: Rep. Camp's 2014 bill, and Donald H. Berman, "The Alimony Deduction: Time to Slaughter the Sacred Cow," 4 Am. J. of Tax Pol’y 49 (1985). Berman called the exclusion "inequitable, complex and arbitrary", and above all, unnecessary now that marginal tax rates had declined from a healthy, vigorous 91% to a negligible 50%. More of the history of dissent from the current regime can be learned from another, very solid, article Davis cites, Deborah Geier, "Simplifying and Rationalizing the Federal Income Tax Law Applicable to Transfers in Divorce," 55 TAX LAWYER 363 (2001). It recounts that in the mid-1980s, Senate Finance Committee staffers proposed totally eliminating the alimony exclusion. They tried to rally women's groups to their side. The ultimate results they got, and possibly what they were aiming for all along, were incremental restrictions that may have helped increase revenue and predictability. (Id., pp. 404-406.) The article advocates letting couples choose who'll pay the taxes on any forms of support or property transfers, with a default rule that the recipient has to pay them. It cites a very similar proposal, Laurie L. Malman, "Unfinished Reform: The Tax Consequences of Divorce," 61 N.Y.U. L. REV. 363, 367 (1986).
Davis's own argument is that alimony in a divorce is mostly viewed as compensation for "human capital," or return on investment or compensation for loss, none of which are taxed, and that any distinction between it and property transfers is artificial. (See pp. 50-55 of her article, downloadable from the abstract web page.) (Malman made similar arguments for her free-choice proposal.)
But the problem is, normal alimony, the kind that qualifies for the tax exclusion, almost always comes directly from someone's income -- where, unlike property, it get taxed if the Code doesn't exclude it -- and goes to provide income for someone else. The IRS has established clear, easily-followed boundaries between regular alimony and non-qualifying lump-sums that are more like property division. And in real alimony negotiations and trials, alimony is almost totally based on income -- needs and ability to pay. Yes, decisions are sometimes influenced by arguments about spouses' contributions to the marriage, but when statutes, judges and litigants look at women having sacrificed their own careers for the sake of a husband's career or to raise children, their point is that the women have a legitimate reason for needing supplemental income, and that it may take time for them to wholly or partly "rehabilitate" their earning potential.
Once again, this time on the left, the theorists are looking at the subtler reasons for alimony and missing what it obviously IS and what it's almost always FOR in real life.
* "Supposably" is a real word. It's from Seinfeld.
Defending marriage vs. unwanted dissolution, turning weakness into strength: Tim Kaine's first cases
"Diane married James against [her] guardian’s wishes and [the guardian] wanted to get the marriage annulled. Kaine represented Diane in a lawsuit to preserve her marriage. He fought the guardian and won, learning that the guardian wanted Diane’s disability checks.
“'What started off as a marriage case in Richmond Juvenile and Domestic Relations Court ended up as a criminal trial against the guardian in federal court,' he said.
"Kaine said, 'I learned a lot from Diane.' including the responsibility of law practice and that what a lawyer does really matters.
“'And I also learned a critical lesson that served me well throughout my career— whatever the issue seems to be at first, look deeper. The marriage lawsuit, ostensibly filed to protect a mentally disabled person, was really the guardian’s effort to continue the subjugation of Diane and the theft of her disability payments,' he said.
The article, about Kaine's talk at William & Mary's law school graduation, also includes some vital advice for lawyers and pretty much everyone else:
At one point Kaine said he sat at his computer with a mental block. Then he recalled a line from Second Corinthians, “in my weakness is my strength.” He said he understood then that “you can’t flee from your weaknesses but have to embrace and own them as a natural part of being human. I was afraid. But somehow, just admitting that to myself helped me jump back into the work and crank out all the pleadings and advocate at all the hearings right up to the last day.”
Kaine said, “This is a lesson that I come back to again and again in my life. Fleeing from your weaknesses or pretending that you don’t have them makes you weak. But acknowledging your weaknesses, which can be very hard to do, in one of life’s great mysteries, can make you strong.”
He closed his remarks with a promise to the new grads: “My clients taught me lessons that I still reflect on today, long after I gave up law practice because of the demands of full time public service. They changed me as a lawyer and they changed me as a person. And they will change you too,” he said.
Raleigh, NC lawyer Lee Rosen has been THE cutting-edge lawyer for every new innovation in law practice and firm management for the past 20 years, at least in my field, family law. When a friend of mine got a job with him in the late '90s, she wasn't given her own office or cubicle -- no one was. Instead, the firm had different areas for doing different kinds of work, like a hospital. It was exactly what she needed, as someone who, like many of us, had trouble focusing and staying on task without some social and environmental reinforcement. Already, back then, The Rosen Firm had a form on its web site where you could check boxes for all the different issues in your family law case and get a quote for the firm's flat fee, a billing practice that eliminates most of the worry, friction, heartache and regret from the attorney-client relationship. Later I got a notice that the firm was closing its offices and replacing them with home/mobile offices and small conference centers. If it had been anyone else, it would have been a self-parodying last hurrah of a quickly-disappearing business, but since it was from Lee, I knew it was the wave of the future -- indeed, a long-overdue adaptation to the present. Lee -- still the owner of a relatively large law firm for our field -- posted a picture of his office -- his Macbook Air on a small folding bookcase in his kitchen. Then I heard he was getting rid of all his books via a service that scans them for a flat fee of a dollar apiece. Then most of the stuff in his house. Then his house, following the same principle he already applied to office equipment, software, data storage, and most clerical services: why own when you can rent, why lease when you can month-to month, why that when you can on-demand? Today he's more prominent as a firm management consultant, trainer and speaker. He has always kept a hawk's eye on customer service, and on what everything we do looks and feels like to potential clients, and what they expect from other businesses they deal with.
Anyhow, today's issue of Divorce Discourse, Lee's longtime blog/newsletter, is titled "How Family Law Is Like Pornography". Its news was shocking and frustrating, at least to divorce lawyers: A message from Google's web advertising service said that "interest-based" banner/sidebar advertising would no longer include several sensitive subjects, including divorce. A sobering reminder of where family law stands.
And yet, when you think about it, it makes sense. These are ads that tell you, and anyone looking at your computer, what you have been searching for and reading. And of course it's not really censorship, that's just a shorthand, in a twitter-length headline, for a decision by a private company about who to do business with and what unsolicited images and words to stick into people's computer screens.
Jennifer Weiner is a first-rate writer, bestselling novelist, old-style newspaper journalist and Princeton grad who gets dismissed as "chick lit" because she chooses to write about something that was long one of the main subjects of Literature but is now considered "Romance" or "Young Adult" -- the mating and marriage habits of young-to-middle-aged people who are fairly normal, at least compared to most characters in Literature. For those of us who aren't up for one of her novels right now, she shows off what she can do in:
"This is not actually unusual in family law." That's the most typical thing we say on this blog, and the main reason I started it. To give the public and journalists background whenever -- and ideally before -- the media blows up with some story that essentially says, "In a shocking and unprecedented development which must be caused by corruption, politics or ideology, a mother lost 'full custody'! / was barred from moving her baby across the country / an American citizen was forced to return her children to the foreign country where they were born and raised! / a soldier was forced to share his pension with his slutty ex! / a child was forced to spend time in the care of his father when she could instead be in quality day care! / a white woman was jailed for disobeying a court order! / an orphaned child was sent to his non-custodial father instead of the heirs whom the mother left custody to in her will!"
What this blog usually says in such cases is no, that's actually routine and what happened in this case was for reasons that we in the family law field have come to accept as normal. So if you don't like it, you should realize that the problem is not with one judge who is corrupt, or anti-female or anti-male, rather, this is just one of thousands of similar cases of widespread suffering and irrepressible conflict that our current system, and perhaps any system of widespread family breakup, imposes on men AND women! And children.
We've also been able to say when a court decision truly is a wrongheaded outlier, such as the one forcing skier Bode Miller's ex-girlfriend to move across the country to give birth.
The case that's breaking the internet today is a little bit of both kinds:
By JOE PATRICE on abovethelaw.com, 9/2/15
The court opinion in the case includes two good and routine reasons to dismiss both parties' dueling divorce claims -- failure to prove the divorce grounds, and non-compliance with the court's procedural rules. Independently of the bad, creative, and publicity-attracting argument that the US Supreme Court has preempted any action on marriage by any other levels or branches of government.
If you read it to the end, it dismisses the divorce claims not only for for one bad reason, which is, as I had suspected when I first heard of this, a counterpart to the liberal judges who used to deny DV protective orders based on DOMA just to make DOMA look savage and harmful; a very good reason (failure to prove the divorce grounds), and a so-so but widely accepted reason (complete failure to comply with procedural requirements of local rules, such as filing financial statements).
It looks like the parties had normal relations the very night before the divorce complaint was filed and/or served. This cast doubt on the "irretrieveable breakdown" claim and also on the credibility of other claims in the complaint. And there were other problems with the parties' credibility. Quotes:
"The Court is also compelled to comment upon its observations concerning the credibility and demeanor of thePlaintiff and Defendant. As noted when the Court announced its decision, this matter suffers from a bad case of excellent cross- examination. Perhaps the Court's observation as announced was less than delicate, but the fact that the parties were gutted like a fish during cross-examination is nonetheless accurate."
... "The only excuse for Plaintiff' s decision to be intimate with Defendant after she had executed her 'fear for her safety' verification page in support of the divorce and request for a TemporaryRestraining Order was 'I wanted to give him one more chance' to avoid the filing."
Tennessee often has cases denying divorces because "irrevocable breakdown" was not proven. Even in Virginia, where no-fault is a matter of six or twelve months of separation with intent to permanently separate, I've had that happen, rarely but always with very good reason. (In one such case, the couple later reconciled and the wife became a marriage therapist.) Divorce cases also get dismissed for procedural reasons, such as failure to prosecute with a speedy trial, since they don't want cases hanging around on the court's open-case docket forever, making the court's statistics look bad. (Even if there are good reasons for the delay, such as the parties working on reconciliation or dealing with other more pressing issues such as a child's medical or mental health crises.)
It's very disappointing that abovethelaw.com, which I believe is a blog specifically about the law, merely calls the judge "stupid" instead of looking at the actual law and reasoning involved in the case.
by John Herrman, August 18, 2015
Ashley Madison breach offers land of milk & honey for divorce lawyers, & a lesson for adulterers: there's no contract
For divorce lawyers, the breach in the firewalls of Ashley Madison is like the breach in the walls of Jericho, when the trumpets did sound for seven go-rounds and the walls came tumbling down. Soon we'll be making money hand over fist.
It's also a reminder of how silly we are when we suppose that adultery is a contract that promises mutual silence and non-entanglement, even at a time when marriage itself is less of a real contract than ever. There are so many ways for the truth to get out.
For the rest of the story, as told by Northern Virginia family lawyer, bar leader, and tech-security guru Sharon Nelson, see:
NY's Unilateral No-Fault Law Increases Divorces 18%, Makes'em Nasty, Brutish & Long. Lawyers Mystified.
New York joined the rest of the U.S. and most of Europe a few years ago by allowing no-fault divorces that were unilateral -- not requiring a separation agreement on the economic and child-related details of the divorce -- and quick -- well, quick to start, anyway. Not so quick to finish. Now the divorce lawyers who pushed for the change are dumbfounded to discover that divorce in New York is starting to look exactly like divorce in the rest of the country, the New York Law Journal reports.
In the past, couples who lacked grounds for a divorce or didn't want to assert grounds had to work out an interim agreement and wait a year, said Lee Rosenberg, a partner at Saltzman Chetkof & Rosenberg in Garden City. Rosenberg, a fellow with the American Academy of Matrimonial Lawyers and former chairman of the Nassau County Bar Association Matrimonial Law Committee, said that while he is writing far fewer separation agreements now, he is seeing more divorces—and an inexplicable elevation in hostility. "There is a proliferation of litigation," Rosenberg said. "The amount of recalcitrance and expectations which are illegitimate, the amount of infighting amongst the litigants, and to some degree amongst counsel, is from my perspective at an all-time high."
The number divorces jumped from 49,816 in 2009 to 56,382 in 2010 and 58,556 in 2012* . "If there are more cases filed, there are more cases in the pipeline and less resources to deal with them. We have judges triple-booked for trials through the end of the summer," Rosenberg said.
"Data from the New York State Department of Health showed that in 2012, only one of every 32 divorces followed a separation agreement, compared with one in seven in the pre-no-fault era."
"Just a few years ago, separation agreements consistently preceded about 7 percent of divorces, providing a cost-effective way for unhappy couples to start dissolving their marriage and a steady source of income for matrimonial attorneys drawing up the agreements." Richard W. Cole of the Albany Law firm of Tully Rinckey said: "Previously, separation agreements were like a two-step divorce because you didn't want to fight over fault grounds. So, the parties would reach a separation agreement and wait out the year without having to prove cruel and inhuman treatment or any of those other unpleasant things that come up in divorce complaints."
Rosenberg said court system is being strained due to an influx of unrepresented litigants and budgetary constraints. The Judiciary, which has been functioning for years with flat budgets, is seeking about a 2.5 percent increase from the Legislature for the fiscal year that begins April 1.
"It is extremely burdensome on the judiciary and court staff to try and manage these cases," Rosenberg said. "If there are more cases filed, there are more cases in the pipeline and less resources to deal with them. We have judges triple-booked for trials through the end of the summer."
I'm so proud and lucky to be training to work as a divorce lawyer and mediator with couples in discernment counseling. It fills a generations-old need so fundamental that people have turned to all kinds of crummy substitutes over the years with demoralizing results -- marriage counseling that turns into divorce counseling and leaves one spouse feeling that that's what it was all along; "trial separations" that do the same and escalate the divorce conflict, mediations where the spouses and mediator have five different ideas of what they're meeting for. "DC" gives a safe space where people can weigh both options without getting into actions, threats and misunderstanding that drive people apart and quickly make divorce inevitable and nasty.
March 18th Webinar - Discernment Counseling for Couples on the Brink with Dr. Bill Doherty!
Learn about an innovation in working with couples on the brink of divorce where one spouse is leaning out of the marriage and the other wants to save it. This is a common presentation to marriage therapists, clergy and divorce lawyers, but there have been few protocols for helping these couples. Discernment counseling is a structured way to help "mixed agenda" couples decide whether to work on preserving their marriage or move toward divorce, based on a deeper understanding of what has happened to their relationship and each person's contributions. Bill Doherty has developed discernment counseling protocols for couples therapists (five sessions) and for clergy (one session and referral), plus an "ambivalence" protocol for family-friendly divorce lawyers and mediators.
- Identify the special challenges that mixed agenda couples face when they see helping professionals.
- Describe how couples therapist use discernment counseling to help these couples decide on the next step for their relationship.
- Describe how clergy use their own version of discernment counseling.
- Outline an ambivalence protocol for divorce lawyers and mediators who see mixed agenda couples.