By Jennifer M. Paine
Attorney, Cordell & Cordell, P.C., Detroit office
“You have to pay her how much alimony? What about our ‘business trip’ to the Bahamas?”
“Billy, why don’t you bring the children over for a nice, long weekend with Grandma? Who cares if it’s Susan’s weekend? What is she, still your wife?”
“How can the court make you give that ring to her if you give it to me first?”
Sound familiar? If you are dealing with other women, be they girlfriends or second wives, grandmas or aunts, sisters or mothers, you have probably heard statements like these. These women are excellent at giving advice, helping you deal with your family dissolution, and comforting you when you are down.
But beware. They look and talk like angels, but they may be devils in disguise. Whether you are in the midst of a family dissolution or your family dissolved years ago, the other women in your life will affect your family harmony – and possibly your legal rights.
Lovers and Finances
Divorce attorneys often hear the question, “Will my child support increase if my new wife gets a pay raise?” or a variant thereto. My favorite was the client who asked whether the divorce court would order him to give the diamond bracelet he bought for his 20-something girlfriend (and the reason his wife filed for divorce) to his soon-to-be-ex. “I don’t think she’ll go for it,” he said. “They, I mean. My girlfriend won’t understand, and my wife will probably strangle me with it. She has the same one.”
The short answer is usually no. First, unless your rights have been suspended or terminated, only you are responsible for supporting your children. Therefore, the court will consider your resources (and your ex’s) when calculating child support, but not the resources of lovers, mothers, aunts, sisters, etc., none of whom are legally responsible for your children. Second, the property and debt you acquired during your marriage (and sometimes before) are game for property division, but not that of third parties, who are not parties to and have acquired no rights under your marriage.
There are exceptions.
Take the case of Mr. Irvin in Irvin v Irvin, 47 Ark App 48; 883 SW2d 862 (1994), as an example. Mr. Irvin and his wife had two children, twin boys. In their consent divorce decree, the Irvins agreed that Mr. Irvin would pay $250 monthly child support. Less than three months later, Ms. Irvin petitioned the divorce court for a support increase. Mr. Irvin failed to appear at the hearing. Based on testimony from Ms. Irvin, the divorce court concluded Mr. Irvin had an income of or was capable of earning $25,000, even though he had no job, and increased his support obligation to $505 a month.
On review from Mr. Irvin’s objection, Mr. Irvin’s real income came to light. Although he never held a job during their marriage, Ms. Irvin testified that Mr. Irvin always had money to spend. He paid cash for all purchases. The purchases included a $7,500 Firebird, an $18,000 Nissan, a $13,000 mobile home, a $2,000 air conditioner, living room furniture, kitchen appliances, entertainment systems, clothes, and a diamond ring for his girlfriend. He boasted about the ring. (Although he never revealed his occupation, Mr. Irvin was charged with conspiracy to manufacture marijuana.)
On appeal, the Arkansas appellate court upheld the divorce court’s award. The court noted, “In this case, the chancellor had evidence before him that the needs of the children had increased since the entry of the divorce, as well as evidence demonstrating that [Mr. Irvin] maintained the ability to provide for his children even though it would appear that he was not employed.” Accordingly, because “when calculating income, it is appropriate to consider the amount a payor is capable of earning or a net-worth approach based on property, lifestyle, etc. . . under the particular circumstances of this case, there was no abuse of discretion in setting the amount of support at $505 by imputing income of $25,000 based on the evidence of [Mr. Irvin]’s spending habits.”
Gifts to lovers do not open the floodgates for a nasty trial on every sordid detail of a date, however.
Take the case of Ms. Joldersma in In re Joldersma, 370 So 2d 80; 1979 Fla App LEXIS 14504 (1979), as an example. Ms. Joldersma was the young fling who stole Ms. Stewart’s doctor husband away. He admitted that he was able to pay alimony. Nevertheless, Ms. Stewart’s attorney subpoenaed Ms. Joldersma for a deposition. Among the questions, Ms. Stewart asked how many times she and Mr. Stewart had intercourse, whether they went on vacations, how long they lived together, and other sordid questions, all of which Ms. Joldersma refused to answer. At a contempt hearing, the divorce court held, rightfully, that a party is entitled to discovery from a lover to the extent the discovery is “reasonably calculated to obtain information” about the other party’s ability to pay support. These questions were not.
If you are concerned about the financial outcome in your case, be sure to document your income and spending. Keep receipts. Provide your attorney with copies. Back up copies on your computer. Explain what you receive, what you spend and why. Discuss the support laws with your attorney and how they apply to your income and expenses. Rationalize your attempt to reduce your support obligation or avoid paying support within the parameters of the law. A well-prepared case is more likely a winner.
Most of all, forgo that trip to the Bahamas, lest you give the divorce court the impression that you have or can earn more than you do.
Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell P.C. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims. Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.