Within the first year after divorce, women and their minor children suffer an average 73 percent drop in their standards of living, while former husbands enjoy a 42 percent rise in theirs.
This is the startling conclusion of a Stanford University sociologist, Lenore J. Weitzman, after a 10-year study of the economic consequences of divorce. (Weitzman defined living standard as income in relation to needs, with needs based on U.S. government measures.) The reasons behind this disparity are many, and they have sparked debate over the way the legal system defines "property" and values a woman's unpaid contributions to a marriage.
The study also adds a dramatic backdrop to the concern expressed by some divorce lawyers, tax lawyers and financial consultants over the way couples finance divorce.
Several professionals agreed in interviews that both spouses often lose financially in a divorce, either because they lack the financial expertise to see what is in their self-interest, or because they cannot see through their own anger and hurt.
Professionals who have counseled divorcing clients concede that it is usually impossible for couples to view divorce dispassionately -- it is normally a wrenching, agonizing and disorienting crisis. Nevertheless, some experts say they urge their clients to approach it as a financial transaction, to seek expert advice, and to try to structure the divorce in a way that will benefit both parties.
Mathematically, there is no way around the fact that an income that once supported one household will be stretched to support two, and only the very wealthy will be capable of supporting both new households at the previous standard of living. But there are ways to maximize the estate to be divided by keeping as much as is legally possible from the Internal Revenue Service. Other financial goals of the divorce include providing economic security for both parties into the foreseeable future, and assuring support and stability for the children.
Too often, the major emotional goal is for one side to get as much as possible while inflicting the most damage on the other. Financial experts say this approach can cause more damage in the long run.
"People who want to fight are going to be hurt in legal fees and missed opportunities," said Sharon Lieblich, an Alexandria attorney who specializes in domestic relations. "Try to look at it as a business deal. You want to minimize the amount spent on litigation, maximize the amount left and finance the separation in the smartest way. The goal is survival with dignity."
If a couple can agree to try to maximize what they are dividing, they should start with studying recent changes in tax law covering alimony, property and child support, as well as legal changes that have clarified the rules on dividing retirement benefits. These changes are outlined below, but are too complicated to be explained in full here. Only a tax expert should be relied on to interpret such changes and how they apply to individual circumstances.
Recent changes in tax law are expected to help more women hold on to the family home, but may reduce the amount of agreed-on child support, some financial analysts said. A separate new law may help increase the amount of child support that is both agreed to and collected.
More generally, lawyers and consultants say, there are financial pitfalls common to divorcing couples that may be avoided with a little warning. There also are innovative solutions to common problems that may be worth considering.
Few rules, however, apply to all cases. The circumstances of two young, childless professionals are vastly different than those of a corporate executive married for 30 years to a homemaker, or those of a couple in which the wife has job skills but may have diminished her earning power because she left the work force for a time to care for young children.
The experts say that one of first things to do is to seek help from experts. Divorce lawyers are not tax preparers, accountants, financial planners or even tax lawyers. Tax law is extremely complex. The bigger the estate to be divided, the more professional assistance may be needed to identify and valuate assets, to determine the tax advantages of different schemes and to negotiate.
"Divorce is always complex, and always expensive," said Marjorie A. O'Connell, a tax attorney and president of Divorce Taxation Education Inc., a local company that teaches attorneys and financial professionals about changes in divorce tax law. "Most start out saying, 'This is going to be a very simple divorce,' because they want to minimize the cost and hurt. But it is never simple . . . especially if there are children involved."
A tax specialist can help a divorcing client determine which tax status he or she can qualify for, and which may be most advantageous, whether it be as married-filing separately, head of household, single or even jointly if the divorce is not final by Dec. 31.
The costliest route is to litigate a settlement. One way to save money, in an amicable divorce, is to reach a financial settlement with the help of a neutral mediator. The couple can then take the agreement into court and submit it to a judge for approval.
Once a mediated settlement is reached, a couple should not try to cut costs by sharing one attorney, said Connie S. P. Chen, a certified financial planner who sometimes mediates divorce agreements. Both parties must have separate legal counsel when going into court, so one of them can't come back to court trying to change the agreement years later, arguing that he or she was not adequately represented, Chen said.
The next step is is to figure out what the couple has to divide. All married couples, whether happy or separating, should have an updated balance sheet of all their assets and liabilities, said Chen, president of Chen Planning Consultants Inc. of New York City.
The balance sheet should include an inventory of all the property, stocks, bonds and investments, including insurance policies, retirement plans and other employment benefits. Each asset should be identified in terms of how and when it was acquired, whether as a gift, a joint purchase, an individual purchase or inheritance or other. Assets also should be evaluated in terms of their liquidity -- their ability to be sold and converted into cash, or their availability now versus later.
One controversial issue is society's traditional definition of property, which has focused on tangibles such as the house, the car, the jewels. Stanford's Weitzman argues that this tradition is one of the reasons divorced women and their children suffer such a large drop in their standard of living.
She found that judges traditionally have concentrated on these assets when dividing marital property "equally," overlooking assets such as the husband's career, education, future earning power, pension and health insurance. This practice also ignores the wife's unpaid contributions to a marriage, such as maintaining the home, caring for the children and sacrificing her own earning power. For example, a woman who divorces at age 55 and has no insurance finds she cannot get coverage, while the husband remains insured through his employment.
This "equal" division of property often results in the forced sale of the family home, making things more difficult financially and emotionally for the custodial parent, whether male or female.
With about half of all marriages ending in divorce, Weitzman argues that traditional divorce settlements are systematically impoverishing women and children, hurting older homemakers and women with young children the most.
Laws vary, but nontraditional recognition of marriage assets is being used increasingly in the divorce bargaining process. One spouse may be willing to give up the house in order to hang on to his or her pension.
If either partner in the marriage makes unpaid economic contributions to the marriage, noting them in early financial assessments will make it easier to recognize their worth later if the couple decides to split up.
Once the balance sheets are drawn up, a couple can then use a variety of financial tools to structure the divorce agreement in a way that maximizes the benefits to both parties. These tools include:
Alimony. Considered one of the best tax tools available to divorcing couples, alimony is also one of the most complex. The Domestic Relations Tax Reform Act of 1984 (DRTRA), which went into effect Jan. 1, 1985, changed the rules defining alimony for tax purposes. About five tests must be met for alimony to qualify as such, and only a competent tax specialist can guide a client on how to word the divorce agreement so those tests are met.
One major change is that, in general, the former spouse paying child support and alimony can no longer pay it all in one lump sum and deduct the total as alimony. The payer can deduct only the part that qualifies as alimony, and not the amount that goes to child support.
Lawyers and financial advisers generally recommend allowing the payer to pay as much as possible as alimony, to maximize the tax deduction. Generally the payer is the one in a higher tax bracket, and will gain more from the deduction than the receiver will have to pay in tax. The couple will then keep more to be divided between them.
*Child Custody. The new law dictates that the custodial parent gets the $1,040 dependency exemption for each child, unless the parent transfers that right in writing. In the case of joint custody, the exemption belongs to whichever parent has custody for more days per year.
The ability to transfer the exemption may be a bargaining tool for the custodial parent. For example, if the custodial parent is unemployed or earning very little, the exemption may be worth far more to the other parent.
*Property transfers. DRTRA is expected to increase the amount of property transferred in divorce settlements because it eliminates all taxes on such transfers. One spouse can transfer his or her half of the house without paying capital gains taxes on the appreciated value of that half.
The desirability of the transfer depends on how much the house has appreciated and how long one spouse plans to live there.
If both want to move on, it may be best to sell the house and divide the proceeds. In that case, a divorcing individual should know that he or she will not have to pay tax on the capital gains from that sale if that person uses the proceeds within two years to buy a home equal or greater in value to the person's half of the old house.