Betting on an estranged spouse’s untimely demise

Posted Saturday, November 26th, 2016 by Gregory Forman
Filed under Alimony/Spousal Support, Equitable Distribution/Property Division, Law and Culture, Litigation Strategy, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

In the first twenty years of my practice it was rare that a party died in the middle of divorce litigation or within a few years of the divorce. The few times this happened there were obvious warning signs: either a history of serious mental illness including suicidal ideations, or addiction to dangerous narcotics–typically opiates.

Within the past few years I have had four clients die suddenly either during divorce litigation or shortly after the litigation ended. All these clients had very similar attributes that would not normally suggest impending death: male; White; educated; middle-aged; middle-class (if not upper middle-class). Yet they also shared attributes that placed them at higher risk: repeated setbacks in career progression; suspected mental health issues were serious enough for me to suggest counseling; suspected alcohol use sufficient to become a factor in custody. Any client’s death is surprising, but these deaths were hardly shocking.

Except in times of war or depression, life expectancy in America has had a clear upward progression since Colonial times. Yet recently epidemiologists have noted increased mortality rates for middle and working class white Americans in what one might call early middle-age. Depression, alcohol and opioid addiction would appear to explain some, but not all, of this disturbing trend. I’ve had a few recent cases in which seeming awareness of this trend, and a suspicion that my client might become a victim of this trend, was a factor in settlement negotiations.

In these cases, a supported Wife has offered what I perceived of as a very favorable (for my client) child support and/or alimony demand, conditioned upon receiving a supermajority of the marital estate and receiving alimony as a lump sum rather than permanent periodic. From the wife’s perspective, getting more assets upfront, and locking in a lump sum alimony amount that (in theory) the husband’s estate will pay even if he dies, is a safer option than fewer assets upfront and longer potential alimony that ends immediately if my client dies. This negotiating strategy is something wholly new in my practice experience.

Based on my own analysis of a reasonable alimony resolution and an anticipated 50/50 division of marital assets, I can actually determine how long my client would need to live to make this a favorable outcome. I note to my clients that their wife is betting on their untimely demise. I also note that if they are dead their remaining alimony obligation may be their estate’s problem but it won’t be their’s. But realizing that their wife expects them to die within the next few years can be a sobering experience. Ideally, they take the deal and prove their soon-to-be ex-wife wrong. Yet, I suspect, a few of them will meet their spouse’s unfortunate expectations.

Practicing family law can turn one into an amateur sociologist. Some time around 2006 I began noticing clients upside down in their homes or clearly lacking cash flow to pay their mortgages. This wasn’t something I’d seen in my practice previously. Rather than encouraging clients to keep their homes in the divorce, I began encouraging them to unload the homes on their spouses. Clients who took that advice in the 2006-09 time period did much better in their divorces than those who didn’t.

I believe something similar is now going on regarding the recent uptick in mortality for middle-age, middle-class Whites. Attorneys and clients who anticipate their spouse may be headed towards an untimely demise, and trade lower support for greater property division, may be a clear signal that this trend is entering the public consciousness. Suspicion that a party to divorce may be a likely victim of this trend is a factor that should be discussed with a client prior to settlement negotiations.

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