The Value of Services as Spouse and Parent. I took care of the house and the kids. Now Pay Up!

“The Value of Homemaker and Parental Caretaker Services”

When it comes time to divide up the marital assets in a divorce case an analysis is done of the respective direct (financial) and indirect (non-financial) contributions of the parties. A similar analysis is done in the calculation of alimony or spousal support.

For example, under the law of New York and many other American jurisdictions, the courts must consider the “contributions and services as a spouse, parent, wage earner and homemaker”. However, such “contributions and services” are only one factor in the court’s overall assessment of a marital asset division or alimony determination. The larger question is whether such services have intrinsic and calculable value which should be compensated separately, in addition to other divorce awards involving the division of assets and alimony?

In China a husband was directed to pay his ex-wife $7,700 to compensate her for the five years she spent cooking, cleaning, raising children and nursing older relatives . This lump sum direction was in addition to the Court’s award of monthly alimony to the ex-wife, as well as an equal division of the marital assets. This historic decision followed the enactment of a new civil code in China which, in part, allowed divorcing parties the right to seek compensation from their spouse when they perform more of the homemaker and parental caretaker duties.

According to Chinese newspapers this case has sparked a “heated debate about putting a monetary value on unpaid work – still mostly done by women-at-home", with the topic viewed by 400 million times on Weibo, China’s Twitter-like service. Many of the people who weighed in on the topic felt that the amount awarded (about $4.30 per day) was too little to cover the five years of housework and childcare. Such critics noted that globally women take on two-and-a-half times as much unpaid care-taking and household work as men - a circumstance which serves to continue stereotypes and impoverish women disproportionately. A recent study, using actual salary data, has indicated that if you are a stay-at-home parent/homemaker your medium average salary would be $178,201 for the host of services provided, many of which are performed around the clock.

It will be interesting to see if other countries around the world enact similar statutes or issue analogous court rulings with regard to the actual payment of such services. So far little has been seen except for occasional blips on the screen. In one New York case a clever but unsuccessful husband tried to turn the argument around, suggesting that his soon to be ex-wife should receive a smaller percentage of the marital assets because she never “cooked a meal, dusted a table or mopped a floor” – an argument ultimately rejected by the appellate court which decided the case.

How Soon Can I Be Divorced?

I'm Never Getting Married Again - Maybe

Some people are so traumatized by the process of divorce that they vow never to get married again. For example Kelly Clarkson, the singer/entertainer, who has been involved in a contentious divorce from her husband, Brandon Blackstock, stated that when she is finally divorced from Blackstock she is going to be “single forever.” That observation is mild compared to the ex-husband who declared, in the aftermath of his brutal divorce case; “I’m never getting married again. I’m just going to find myself a woman I don’t like and give her a house.”

However, some people can’t wait to get back on the matrimonial merry-go-round. In my divorce practice, I have seen people jumping right back into a new relationship, even before the old one has been formally, finally and solemnly interred into the ground of dead marriages. This push to commit matrimony again leads to a number of interesting telephone calls between the divorce attorney and the client.

Let’s set the stage. As soon as the divorce case is settled, by virtue of a separation agreement, settlement stipulation or trial decision, one of the divorce attorneys is required to prepare and submit to the judge the proposed final divorce decree and related documents. When the attorney submits the papers, it is common for clients to ask; “So, when will I be divorced?” The answer given by most attorneys is, “as soon as the judge signs the papers.” Says the client, “Well when is that?” Good question.

The reality, ignored by the anxious client, is that the judge has a stack of divorce papers on his or her desk that look a compendium of telephone books piled one on top of the other. After all this client’s divorce papers is only one of several hundred sets of papers sitting on the judge’s desk. Typically, the attitude of the judge is “I will get to all of them as soon as I can. If they waited two years to settle their divorce case they can wait a few months more. What’s your hurry?” says the judge. Let’s now examine why the clients are feverishly calling their attorneys.

In some instances the reason is economic. Some people want to transfer or sell assets (like stocks, bonds or real estate) that they are entitled to under the settlement agreement. Or perhaps someone is waiting for the divorce decree to be finalized so that they can divide pension or retirement assets that cannot be moved without that final divorce order from the court.

Sometimes, the reason has to do with income taxes. If the divorce papers are signed before December 31, the law considers the spouses “single” for the entire year and they can now use that filing category on their tax return, along with the favorable tax treatment, instead of the worst filing category - “married filing separately.”

These are all sound albeit mundane reasons why clients call their attorneys every day to find out if the judge signed the papers. However, I have had a considerable number of cases where the reason is much more personal and urgent to the client. The wedding invitations are out and the date for the client’s remarriage to someone else is coming up soon.

“Well who told you that you could send out the wedding invitations,” I would say. This is where the client has “selective memory amnesia.”

“You told me the judge would sign the papers in a couple of weeks.”

“No”, I remind the client, I said “approximately four to six weeks and you never told me that wedding invitations were going out.”

Now I have to call the judge’s chambers and have that sweet, syrupy conversation with the judge’s secretary or law assistant to “pretty please” move my set of divorce papers to the top of the pile, while promising never to call again or to object to any of the judge’s rulings and whatever else I can think of to offer. Sometimes it actually came down to the week of the wedding. So much for I am never getting married again!!!

Be Careful What You Say!

Privileged Communications -

Imagine for a moment that you have been keeping a diary where you record your innermost thoughts, dreams, fears, sins, and misdeeds. You are now involved in a divorce or custody case. Your spouse has managed to put his or her hands on that diary and is going to use it against you. This is beyond frightening, is it not?

Over the course of many years all of us have come to the belief that certain conversations or disclosures are confidential in nature and cannot be exposed. For example, what we tell our attorney is protected by the attorney-client privilege. Similarly, what we tell our doctor, therapist or mental health professional is also privileged. Finally, the secrets we share with our spouses can, under certain circumstances, also be deemed confidential.

The reality is that all of these privileges have exceptions and limitations which can be exploited by an angry and ruthless spouse in the context of a divorce case or a custody matter.

Let’s start with the privileged communications between a mental health professional and a patient. Almost all of these privileges are found within the statutory laws of the individual states of this country. Thus, it is important to examine these individual statutory privileges and to consult with attorneys in your state.

For example, in New York, the mental health privilege generally protects disclosures and conversations between patients and a specific class of professionals - psychiatrists, psychologists and licensed social workers. At this time it is unclear whether “divorce coaches” or “co-parenting coaches” are included within this umbrella, unless they otherwise qualify under one of the other mental health designations.

However, even assuming the existence of a qualified professional relationship (i.e. “therapist”- “patient”), this privilege is deemed waived whenever the patient “puts into controversy” their mental or physical health – raises this issue in the context of a court case.

The clearest example of this implied waiver is a case involving custody or visitation. In such cases the parents in the battle are deemed to have put their mental and physical health in controversy. Thus, the treatment notes and records of their doctors or designated mental health professionals, as well as any conversations between them, are open for inspection and disclosure.

In my divorce practice, whenever I met with a client involved in a potential custody battle and found out that they were in therapy I had to advise them that they needed to be careful what they told their treating doctor or therapist since their conversations were not necessarily confidential. Obviously, such an admonition runs counter to the essential purpose of therapy. Unfortunately, this is an area where the law and medicine are at odds with each other.

Alternatively, one of the most commonly recognized and well established privileges is the attorney-client privilege. Yet, because of certain limitations on the privilege, there are times that the client has to be careful what they tell their divorce attorney.

In New York, divorce attorneys are required to certify as accurate the statements of their clients which are filed with the court - including financial statements of net worth and income. Thus, if a client reveals to his or her divorce lawyer that the previously filed tax returns do not accurately reflect the income of the parties or that there are hidden assets which the other spouse is unaware of (think Cayman Islands), the attorney cannot certify the client’s financial statements, unless the total income and all assets are revealed.

Said differently, attorneys may not reveal the confidential information imparted by the client but the lack of attorney certification on the client’s filing is a huge red flag to the judge that the statement is not accurate.

Also problematic for the attorney and the client are instances when the client has conducted illegal surveillance on his or her spouse and/or provided documents, tape recordings or other improperly gathered evidence to their attorney Here, the attorney is ethically forbidden from using such illegal evidence or even certifying that the client is innocent of such criminal activity.

Finally, we turn to the so-called husband-wife privilege. The privilege applies only to a confidential communications (oral, written or recorded) between spouses, which is induced by the marital relationship and made during the marriage. Generally speaking it is limited to those communications which a person makes to his or her spouse which would not have been made but for the marital relationship.

For example, when the husband discloses to his wife that he has previously filed false tax returns under-reporting their income or has stolen money from his employer in order to explain how they have managed to pay their bills, such disclosures are protected.

However, conversations between spouses about committing a future crime together are not privileged. Moreover, threats of violence or episodes of domestic abuse are not privileged since they are not made in reliance of the marital relationship and indeed are contrary to the relationship. Given the number of exceptions and nuances to the rule, advice from an attorney who has full knowledge of the relevant facts is the only prudent way to assess this issue.

In summary, parties embarking upon a divorce or custody case need to carefully navigate the area of “confidential communications” when dealing with doctors, mental health professionals, attorneys and even their spouses. Understanding the limits of confidentiality or privilege will at least provide protection against unintended disclosures.