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Should Weddings Come with a Warning Label? – Part II Marital infidelity probably won’t impact what you get in your divorce

In my last post I lamented that many people faced with a divorce would have benefited from a bit of education on divorce laws even before they got married.  In this post I continue down the aisle…. more things people should know before they utter “I thee wed.”

  • Marital infidelity won’t impact the economics of a divorce.

In October 2010, New York became a “no fault” state, joining the ranks of the other 49 states of the Union.  In large part this legislation was strongly supported by the many judges in the State who hear divorce cases.  No fault divorce legislation was symbolic of divorce judges nationwide.  Judges did not want to hear about the reasons a couple is divorcing.  Whether it was cereal infidelities, a drinking or drug problem or because he/she left the toilet seat up or the toothpaste cap off.  They don’t want to hear about it.  Judges wanted to focus on dividing marital assets and liabilities, fixing support and making sure the children are provided for.  If a spouse was unfaithful, a slob, financially irresponsible or cheap as Jack Benny, the Court’s remedy is: get a divorce.  If you put up with it for years, the court’s say you should have sought the divorce sooner; in short, don’t expect the Court to compensate a spouse more because they have been the victim of a less than stellar bride or groom.  They won’t.

  • New York’s definition of a marital asset is very broad and includes things that might not occur to you.

How uncommon is this: Couple gets married.  One spouse works one, two, three or four jobs to support the family while the other spouse goes to school to get a degree, a license or some other special training so he/she can have a career and presumably make a better living.  New York calls degrees, license or special training “enhanced earnings”.  If time goes by and a divorce comes along, what happens to that degree, license or special training?  In 49 states, the answer is: nothing.  In New York, the court’s view this “enhanced earnings capacity” as a marital asset, which can be valued (usually using an expert) and then divided as part of equitable distribution.  For example, if a wife works so her husband can go to medical school and become a doctor and the parties want to split, the value of the husband’s medical license and medical degree are considered marital assets and are subject to equitable distribution in New York.  This is true even if the husband has just graduated and only has a lot of educational loans to show for his years of training.  Ironically, the earlier in the career, the greater the value of the enhanced earning capacity (i.e., more years ahead to “enjoy” the benefit).  This can result in a newly graduated doctor for example, having a significant enhanced earnings capacity at a time when he or she has a significant school loan liability.  It can create real issues in a case, since the non-enhanced spouse feels the enhanced spouse will enjoy the benefits for years to come, while the enhanced spouse will feel crushed by the burden of having to pay the non-enhanced spouse for a portion of the value of the enhanced earning capacity, while at the same time still be responsible for school loans.  Perhaps you can understand why New York’s approach to this issue hasn’t caught on anywhere else, and why many New York lawyers and judges dislike the concept.  However, it’s still the law.

To be continued.…  Join me next time for more on the nuances of nuptials in New York.