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December 13, 2017 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

I have two things to say about this (NBR, 12/11/17). First, our approach to division of marital assets isn’t sensible. Second, a person’s outcome in family court reflects the proclivities of the judge in the case and little else.

The case reported on occurred in New Zealand. For reasons I can only guess at, the two spouses are given pseudonyms not only by the article, but by the various courts that ruled on their case. The two had children, but this isn’t a custody matter. So I don’t see the point of keeping the public in the dark about who these people are. In any event, the woman’s nom de guerre is Ms. Scott and the man’s, Mr. Williams.

Mr. Williams is a lawyer and apparently a very successful one.

During their marriage the pair had built up a substantial pool of assets including a Remuera property which was subdivided into two, three commercial properties in New Lynn, a half share in another commercial property, a beach house in Omaha, a half share in a Fiji property and another property in Auckland, and Mr Williams’ interest in the law firm.

Now, the only property still under dispute by the time the trial court ruled was the Remuera one.

Ms Scott had spent much of her married life caring for the couple’s two children and supporting her husband at home and at work doing accounting services and legal work.

Interestingly, that’s the article’s only statement that even comes close to explaining how it was that the two managed to accumulate all that property. Ms. Scott had done as stated, but what was Mr. Williams doing all that time? Well, he was assiduously and successfully practicing law and making large sums of money for the two to enjoy, but the writer makes no mention of it. The “pair had built up a substantial pool of assets,” apparently by fiat.

What’s also not mentioned is how long the two were together. Was it two years? Twenty? Forty? It makes a difference when one is trying to assess the equity of the courts’ various rulings.

Still, the notion that a spouse who stays home with the kids as a matter of her own free choice and therefore did little to contribute to the cost of the accumulated assets should get half of them when she divorces her husband can certainly look nonsensical. As I’ve asked before, how is it that caring for children that, absent special circumstances, looks fairly much the same from one kid to another, happens to be hugely more or less valuable depending on one spouse’s earnings? If Dad earns $25,000 per year and builds up essentially no assets, his wife who stays home with little Andy or Jenny, gets nothing. In Ms. Scott’s case, she apparently got millions for doing not a whit more work than the hypothetical mom just mentioned. How does that make sense?

Should anyone reply that he owes his success to her, he may somewhat, but no one in their right mind believes that she contributed 50% to his success as an attorney. How many cases did she try? How many clients did she bring to the firm? As one wag exclaimed about Kobe Bryant’s ex, “She can’t even make a layup!”

If we want to reimburse mothers for childcare and housework, we should do so at the going rate. To do otherwise is to encourage divorce by women and discourage marriage by men.

So much for point number one.

Point number two, as readers will recall, harks back to the data obtained on family court rulings in North Dakota. There it’s clear that, whether a child comes out of his/her parents’ divorce with meaningful relationships with both is purely a matter of which judge decided the case. A scant few seem to think equal parenting is a good idea and order it in up to 30% of their cases. Others never do. Not once.

Now, that could simply reflect the litigants in the courtrooms. Perhaps one judge ended up with parents who are uniquely ill-suited (or well-suited) for shared parenting of their kids. But in North Dakota, that’s highly unlikely. It’s one of the most demographically homogeneous states in the nation, in terms of race, educational level and income. So what’s left to explain the dramatic difference in custody outcomes? Nothing but the judge.

In New Zealand, it seems the same holds true, at least when it comes to dividing the marital assets. The Williams/Scott case was decided by a trial court, appealed to the high court and then to an appellate court and finally to the Supreme Court. Each had dramatically differing views about what the outcome should be and, in some cases, even judges on the same court couldn’t agree.

Applying section 15, the Family Court had ordered Mr Williams pay Ms Scott $850,000, while the High Court changed the order to $280,000. The Court of Appeal had revised this to $470,000.

In this nation’s top court, a majority of Justice Susan Glazebrook, Justice Terence Arnold and Justice Mark O’Regan said the order should be $520,000. The chief justice Sian Elias thought the question should go back to the Family Court, while Justice William Young thought that the order should be $188,000.

It looks a lot like a game of marital darts, doesn’t it? Williams may owe Scott anywhere from $188,000 all the way up to $850,000 depending on which judge you ask. Why not just blindfold someone and have them throw a dart at a board with monetary amounts on it?

That such huge discrepancies from court to court and judge to judge reflect some principled understanding of the law simply doesn’t wash. The key is this:

While there is a presumption under the current law that when couples break up assets will be split 50/50, section 15 of the Property (Relationships) Act can award lump sum payments or the transfer of property to redress economic disparity.

The law leaves such matters wide open for a judge to exercise his/her bias freely. No pretense is made of an equitable division of assets, but only that economic disparity must be “redressed.” The notion that Ms. Scott made her choices freely and, like countless other mothers, chose caring for her children above paid work is nowhere to be found. Neither is the idea that adults should be responsible for the choices they make. And of course neither is the idea that, for years she lived on her husband’s earnings and has therefore received all the bounty to which she’s entitled.

But clearly, the legal requirement to make financially equal two people who never were and likely never will be again opens the door to judicial bias and mischief-making. I feel certain that lay observers of this case understand it all too well. Divorce court is a crap shoot. The only thing that matters is whose dice are in the game.

 

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