Marital home is Biggest Source of Economic Stress for Divorces

JHDJ Law Founder, Stephenie Jocham is quoted in the January 21, 2009 issue of Indiana Lawyer, Family Law Focus section:

The money pit
Marital home is biggest source of economic stress for divorces.

By Rebecca Berfanger

One thing is clear after talking with divorce attorneys around Indiana: while some are seeing a decrease in divorces and some are seeing increases, all of them have noticed their clients are hurting from the economic downturn, something they don’t think will likely change in the near future. While the stock market hit retirement funds, a common asset that parties could divide in a divorce, the biggest issue seems to be the housing market and who gets the house – and possibly the resulting debt, foreclosure, or bankruptcy. For most if not all people looking to sell a home, whether going through a divorce or not, to say the market has been unkind is an understatement.

“The No. 1 issue is with how to handle the marital residence,” said Dana Leon of Rockhill Pinnick in Warsaw. “… It’s not just for people who were signed up for subprime mortgages, but even those with normal financing can’t get financing. … We used to be able to cash people out easily by selling the house, but we have peotheir houses for two years now. Either couples languish on and stay married, or they go their separate ways with one person … left with a ball and chain with their credit tied up until they can sell the house.” This is a problem for divorcing parties who, in the past, could structure their divorce settlement that would stay in the house and the other would pay a share of the mortgage until the home was sold – giving the party staying in the house three months or six months or longer. Usually that was plenty of time.

But with the parties unable to sell the house before that time period ends, it results in financial hardship or even foreclosure, which scars credit ratings, impacting whether the parties will be able to buy a smaller home or take out loans for other large purchases.

“When people divorce, they have a plan,” said Brian Zoeller of Indianapolis firm Cohen & Malad. “They think, ‘I’ll take my share of equity and buy this little house over here.’ Now they typically have no equity and can’t sell the home.” One couple whose divorce Zoeller worked on seven years ago just recently sold the house. “People don’t have equity in their homes,” he said. “They are getting second mortgages and are in over their heads in debt. It’s really creating a problem to have only debt when leaving the marriage. It’s harder to fulfill the fantasy of buying the smaller home.”

Some attorneys have even seen clients who were in foreclosure before the divorce. This and other economic hardships tend to affect couples in one of two ways: either it brings them closer together as they weather the storm, or it causes friction in the marriage. “It’s not always the case or maybe not even often the case – financial issues do cause marital problems, but sometimes financial hard times will bring people closer together,” said Kena Hollingsworth of Carmel firm Hollingsworth Cassman & Zivitz. “But I have seen more foreclosures and a lot more bankruptcy filings. … I don’t know if it’s due to people losing jobs,” she said. “… I’ve had clients making good money who were downsized or even accepted pay cuts to keep their jobs. As a society, we tend to spend what we make, but trying to keep two residences going with what supported one before is too much. … And some people are just trapped in their houses.”

Divorce attorneys interviewed for this story have seen an increase in pro se cases. They’re seeing it when the other party is unrepresented, and in clients who were pro se for the original filing but needed to hire an attorney for refilings or modifications of their original agreements. This can be more expensive than hiring an attorney in the first place, but the lawyers know sometimes paying for legal representation is the last thing people want to spend their money on.

As for stocks, Judy Tyrell of Tabbert Hahn Earnest & Weddle, and a new fellow of the American Academy of Matrimonial Lawyers, suggests her clients divide the stocks and not the value of the stocks, if possible. “For instance, if a couple has 100 shares of General Motors, which hopefully no one still does, it’s better to divide the shares rather than the value of the shares,” she said. “Most of the time, if you divide retirement accounts by shares, it will come out fair.”

Another issue when dividing the shares instead of the value is because the value could be based on the value as of the filing date or the value of the decision date, which can make a difference if the filing happened before the stock market fell and therefore the party who will owe this amount won’t necessarily have access to this amount in cash or other assets.

Retirement funds are also a bigger deal to couples who are at or near retirement age, Hollingsworth said. “Some of them saw this high dollar amount for a number of years and were planning to retire sooner, and now they just aren’t able to,” she said.”For people who are younger, it’s so far away it doesn’t cause quite the panic or disruption. I have a case where the parties intended to retire at end of last year … but can no longer do that.”

The cost of divorce may also be a factor in the increase in mediations and settlements. Stephenie S. Jocham, of Carmel firm Jocham Harden Dimick Jackson, noted the firm has seen a decrease in new divorce cases in the third and fourth quarters of 2008, and financial issues were prevalent among cases they were handling. But in the first weeks of 2009, they have seen a “resurgence in prospective client calls, initial consultations, and retained cases,” she said in an e-mail, which isn’t unusual for January of any year. “One interesting aspect we have observed is clients seeking less-expensive options for divorce, such as mediation and collaborative law,” she said. “These processes tend to be less costly emotionally as well as financially, so I see this as a real plus even though I am looking very forward to the market improving!”

Other attorneys interviewed for this story agreed that this is the case but were not sure if it was due to the courts’ suggestions or requirements of alternative dispute resolution prior to trial or due to the economy, or both.

But for divorce attorneys who’ve noticed some clients trying to wait out the bad housing market, they say couples that want to get divorced ultimately do.

“The economy is not creating a slowdown in my area; it’s at a higher rate if anything,” said Emily Szaferski of Burt Blee Dixon Sutton & Bloom in Fort Wayne. “It’s such an emotional area …,” she said. “It’s not like a business. If they want to get out of a marriage they want to get out now. I don’t think people will wait a year or two for assets to increase.” She added that in some cases, the higher wage earner may be better off filing now – when his or her assets are low – as the higher wage earner will lose less money in the process. She added none of her clients have specifically said that or other factors due to the economy are why they want a divorce now.