Leslie Spoltore's Alimony and the First Amendment

Leslie Spoltore, a partner in our Wilmington, Delaware office, just posted a blog entry on an unusual alimony argument made on appeal to the Delaware Supreme Court.  The family court evaluated the ex-wife’s expenses when calculating alimony she would pay to her ex-husband and reduced the significant contributions she made to her church down to what it deemed a "reasonable" amount of $100.00.  The Court considered it a voluntary reduction in income. This is not unlike how Pennsylvania's courts add back, for instance, voluntary contributions to 401(k) accounts when calculating child support and alimony pendete lite. 

On appeal, the ex-wife claimed that the Court's assessment of alimony based on their consideration of her available income resulted in her inability to appropriately tithe her church and violated her First Amendment freedom of speech.

It is an interesting and creative argument, but did not carry her case and the Supreme Court ruled the family court could consider any factor it deems appropriate and nothing prohibited her from contributing as much as she would like to her church.

Read Leslie's blog entry and link the decision here.

RECALCULATING RETIREMENT NEEDS

The Weekend Edition of the Wall Street Journal on February 19-20 reported on something most of us already knew:  Americans are not saving enough for retirement. The proposition is old but the data is new and, therefore, worthy of attention.

Why is this germane to a series on Separation and Divorce?  That’s easy.  In divorce we divide retirement savings that a couple has accumulated during the marriage.  In many instances the savings for retirement were calibrated based upon the principle that two live almost as cheaply as one.  But when the two go their separate ways, the economies of scale go out the door with them. That means re-thinking retirement plans in realistic ways.

 

The Journal’s research comes from several sources including Boston College’s Retirement Research Institute.  Roughly 60% of Americans approaching retirement have 401(k) plans.  Almost all Americans are eligible for some form of social security payment. These two devices are the engines of retirement income. The Boston College data shows that households headed by folks ages 60-62 with 401(k) type plans have median income of $87,700 in 2009.  The benchmark of most financial planners is that in retirement you will need 85% of your pre-retirement income to enjoy a comfortable lifestyle.  Eighty-five percent of $87,700 is $74,500 per annum or just over $6,000 a month.  For these median Americans social security will provide about $35,000 in income.  So the “gap” between the income target and the social security benefit is about $39,500, or $3,300 a month.  That’s where retirement savings on the individual’s part comes in.  The typical 401(k) for our near retirement couple is averaging $150,000.  New York Life Insurance would suggest that the balance be funded with a fixed income annuity.  An annuity through NY Life, however, throws off only $9,000 in income, or one-quarter of what we need based on current returns.  To get the income up to $3,300 with a quality annuity would require an investment base of $630,000.

 

About half of those on the cusp of retirement also have defined benefit retirement plans. These plans are a form of annuity themselves and the typical retiree with a defined benefit plan can bank on $26,500 a year or roughly $2,200 a month upon retirement.  For those folks the shortfall that must be made up by savings is only $13,000 a year.

 

All Americans over 30 years of age should be looking at how these numbers affect them. Admittedly young people view retirement as someone else’s problem. But the longer retirement contributions are ignored, the more implausible a sound retirement becomes because the funds do not have enough time to build value through investment.  The starting point is to assess what is projected to come from social security.  From there on, it is mostly going to be individual retirement contributions that will make the difference as defined benefit plans paying out monthly stipends continue to evaporate from the private sector.

 

Vanguard Group has recently increased what it deems to be the model for retirement savings from 9-12% of income to 12-15%. This means that couples with household income of $100,000 a year should be funding retirement savings at the rate of $1,000-1,200 a month.

 

As we noted at the outset, reassessment is required when a couple divides their retirement and doubles their expenses by moving from one household to two.  Commonly the impact is to defer retirement and scale back lifestyle expectations when it does occur. This is, for most, a price of divorce that cannot be avoided.

 

Bear in mind, the Journal does not discuss this, but we counsel clients to think carefully about what their expenses will be going into retirement.  The conventional wisdom is that living expenses constitute 85% of pre-retirement income.  However, upon retirement two large pieces of modern household budgets often change dramatically.  People who take on a 30 year mortgage at ages 30-35 should have satisfied that mortgage by the time they retire.  The home mortgage is commonly the largest single household expense.  The second largest is health insurance and 65 is the age when Americans become Medicare eligible.  Most of us will buy a supplemental policy at age 65, but we can hope that this coverage will be less expensive than the private plans we now pay to maintain.

 

The other thing to be learned from the Journal article is to invest conservatively.  The sad stories recounted there frequently involved folks who “took a chance” on investments calculated to make them wealthy rather than secure a retirement.  As most of us who were invested in 2008 learned, many of the high flying investments in real estate or start up companies crashed and burned in the last recession.  Sadly, that money is not coming back for those who are the vanguard of the baby-boom retirees.

NEGOTIATING THE COLLEGE COMMITMENT

In the process of handling a divorce where minor children are involved it is not uncommon for the parties to at least broach the subject of contributions to an undergraduate degree or vocational training for a child following high school.  This was once a pretty easy subject as Pennsylvania required separated parents to contribute to this form of enterprise from 1963 to 1992.  But that abruptly ended when the Supreme Court of Pennsylvania found that lower courts had imposed this duty without the imprimatur of legislative approval.  With the 1992 ruling in Blue v. Blue, 616 A.2d 628 college was only going to be ordered where the parties agreed.

The other driving force that had affected this area is the spiraling cost of college.  This author graduated from George Washington University in 1977 at a time when a year of college was a $5,000 experience.  Today, that same experience at the same university is 10x more expensive.  And while recent alumni have been quick to remind me that the school has improved vastly in the thirty years since I was emitted, I feel safe in my retort that it certainly is not 10x better. Even when adjusted for the Consumer Price Index, the $5,000 of circa 1977 should today be just under $18,000 in 2010 dollars.

So, we live in an age when a commitment to send a child to college can easily be a $200,000 obligation.  That will require roughly $300,000 pre-tax dollars, a fairly staggering sum for even affluent parents who are living together.  It becomes all the more dicey when net worth and income have been subject to proceedings to dissolve a marriage.  This means that agreements relating to support a college kind of experience need to be carefully considered and drafted if the commitment is to be something more than “We’ll do what we can.”

The easiest approach is to start the savings process early.  Uniform Transfer to Minors Accounts is one device. 529 Accounts are a second.  They come with different characteristics relating to accessibility but the key point is that the more you save now, the more will be available when college time comes.

But, what about limits on the contributions.  There is a big difference between a college education and a child’s dream college experience. We recently litigated a case where a child with a C+ average and board scores in the 1000 range wanted her parents to underwrite a $45,000 per annum private college experience. Is that a reasonable expectation? One parent said yes and the other no.  The agreement was silent except for a consultation clause related to college selection.  There is a tendency on the part of parents to be lenient when they execute these agreements because they feel guilty that they have “ruined” their child’s adolescence by splitting up. Kids are certainly affected by divorce but does an expensive college somehow make up for an experience, like divorce that is ubiquitous. Does the child of divorce get a BMW as his first car if mom and dad are separated, but a Focus if they stay together.  Economic decisions need to stand on their own and not be driven by guilt.  They also need to have some fail safe provisions.  We are seeing many folks who were earning hefty incomes and could easily have once afforded almost any college costs caught in the crossfire of a bad economy that this time has afflicted the management class almost as harshly as the working poor. Unemployment benefits of $400 a week leave little room for contributions to college.

Then there is the role of the child.  What are to be his or her responsibilities?  Today a child with mediocre grades and boards can still pull a quality college admission if he or she is willing to pay full freight. Does that mean the parent must commit as well? And if so, for how long?  Today only 30% of liberal arts majors complete their degree in four years. Is there a minimum grade point average that must be maintained or will the standard be how low can you go? Bear in mind that without a waiver of the student’s rights under a law called the Federal Educational Rights and Privacy Act, a parent has no right to a student’s grades or to know whether the student missed class because he was at the university hospital’s detox unit.

The issue of timing payment is also a minefield.  We have many agreements in our files that say each parent will pay a percentage of tuition or other costs.  But, we are seeing that many parents don’t reveal their incapacity to pay until the arrival of the college invoice. In once recent instance, we had a parent decide that the best way to save for college was to roll the child’s tuition savings plan into a lovely beach house.  That was four years ago when shore property was hot.  Chances are that child is not going to college until the market absorbs the huge inventory of unsold property that has been accumulating since 2007.

We conclude that college is a good thing and sensible provisions for it are as well.  But the price of education has escalated to a point where college or any other post secondary education needs to be carefully planned for if the investment is to be achievable and productive.