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Divorce, American style

Your grandmother may be living in sin. So may be your doctor. Even your priest (presuming he or she is of the Episcopal flavor, rather than the Catholic Catholics being the non-marrying kind) may be “co-habiting” without the benefit of marriage. The husband in the wheelchair with the loyal wife you know, the couple who hold hands wherever they go, may really be the ex-husband and ex-wife, staring starry-eyed like teenage lovers at each other. Huh? How and why can that be?The answer my friends, rather than blowing in the wind, is crashing in the tide of economics. Pure and simple dollars and very little sense.Let’s start at the beginning, which all you Julie Andrews fans know, is a very good place to start. The port of our departure must be the institution of marriage itself. Simply, legally speaking anyway (this is, after all, a legal column), marriage may be defined as the legal union of one man and one woman as husband and wife. Well, you may be saying, whoopty-friggin-do! Well, let’s forge on then. Marriage is a legal status and a contract. A lifetime contract to live their whole lives together in a state of union. Or until divorced. Think of if as a lifetime contract with a termination clause which either party may exercise at his or her pleasure, or perhaps displeasure.It is the legal status of marriage that this column focuses on. While there are benefits to be sure to marriage, both practical and ephemeral, there are also legal deficits based upon one’s status as a married person. And these are what give rise to divorce American style, the peculiar institution of “strategic divorce.”While “strategic divorce” is my own invented term, I think it apt. It connotes when persons get divorced (or fail to marry at all), not because (as the Everlys might croon) they’ve lost that lovin’ feelin’, but because of simple economic necessity.Let’s take a couple of case studies:First, let’s consider a young financially struggling couple who delay or put off marriage entirely because of what has come to be known as the “marriage penalty.” A marriage “penalty” occurs when a couple filing joint federal income tax returns experiences a greater tax liability than would occur if each of the two people were to file as single individuals. The penalty is not an explicit additional tax. Instead, marriage penalties result from provisions throughout the federal income tax code designed to tax household income. Why, you may be asking yourself does the marriage penalty exist, particularly since every candidate for office in recent memory has extolled the many virtues “family values?”In testimony before the House Ways and Means Committee in February, 1998, June O’Neill, then Director of the Congressional Budget Office, explained that at the root of the marriage penalty lies a struggle between three conflicting principles of tax fairness: I) equal treatment of married couples with equal income; ii) tax neutrality as to marital status; and, iii) progressive taxation of household income.It is impossible to fully satisfy all three principles at once. As O’Neill put it, “the incompatibility of progressive rates, equal treatment of married couples, and marriage neutrality results in a continuing tension within the tax code.” The repercussions of the marriage penalty are, in part, that some couples who otherwise would marry, do not. Other couples divorce for tax planning purposes and then stay together in un-wedded bliss for the well being of their hearts.A second case might be that of a senior couple who for Social Security reasons live together unmarried, in order to avail themselves of greater Social Security income and/or Medicare benefits. Simply, the economic benefits of a senior couple living together out of marriage may outweigh the heartfelt benefits of marriage. Both programs favor the individual over the married couple. Thus, as is often the case with people living on fixed incomes, simple economics dictate the practical course to take.A third example, becoming more and more the case as the health care crisis in this nation exponentially expands, is that of practicing physicians, particularly in “high risk” practice specialties such as obstetrics/gynecology, anesthesia and neurosurgery. What doctors have come to realize is that if they are sued and lose and the award breaches the bounds of their professional liability insurance coverage, they may be financially devastated. Accordingly, more and more, doctors are divorcing, thereby transferring their assets to the non-physician “ex”-spouse and then living together with the “ex” in the blissful state of unwedded financial harmony. Other physicians, unable to afford the ever-increasing costs of medical malpractice insurance are unknotting their wedded vows for identical financial reasons, then “going bare,” that is, practicing with no insurance coverage at all. Not only is his bad for family values and the state of marriage, but, too it is bad for the practice of medicine, the economics of health care and, ultimately, for the patient.Our last case study is perhaps the saddest. When medical tragedy strikes, leaving one of a couple permanently disabled, the financial consequences are potentially equal to the physical. Except in unusual circumstances (take the late Christopher Reeve, for example), for most working people, the only way to deal with lifetime care for disability is through Medicaid. One of the many problems with Medicaid, however, is that in order to qualify, you must first be appropriately destitute. The only solution for some couples is to divorce, allowing the disabled partner to become sufficiently asset-less to qualify for aid, then remaining together perhaps for life as an unwedded couple. This strikes me as particularly cruel, for when a couple needs each other most, is when the umbilicus of deep and tested commitment must be severed for no better reason that crass economics.Simply, something must be fixed: in the tax code, in our social programs and in advancing meaningful tort reform. Until these fixes are made, the peculiar institution of divorce, American style for reasons of economic necessity, will continue to nibble at the foundations of society and all the words of all the politicians giving lip service to “family values” will amount to little more than hot air rising above a tattered emotional landscape.Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley. He is a member of the Colorado State Bar Association Legal Ethics Committee and is a former adjunct professor of law. Robbins lectures for Continuing Legal Education for attorneys in the areas of real estate, business law and legal ethics. He may be heard on Wednesday nights at 7:00 p.m. on KZYR radio (97.7 FM) as host of “Community Focus.” He can be reached at 926-4461 or at his e-mail address: robbins@colorado.net.


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