damnum absque injuria

February 9, 2011

Family Law is FUBAR, Part 2: Does Getting Accustomed to Something Entitle You To It?

Filed under:   by Xrlq @ 11:37 pm

When you get accustomed to something, you tend to feel like you own it, but usually you don’t. No one feels entitled to a job they just started, but if you’ve been working for the same company for 20 years and suddenly get laid off, you feel like your rights have been violated, even though they probably haven’t been. Conversely, you probably don’t feel as “entitled” to the house you just bought as you do to the one you’ve been living in for half your life, even though your legal entitlement is the same in either case. So when, and under what circumstances, is being accustomed to something actually a factor in deciding if you are entitled to it? As a former President might say, it depends upon what the meaning of the word “it” is. Here’s a table:

Meaning of “It” Entitled?
Your apartment No
Your job Negative
Your girlfriend/boyfriend Rotsa ruck
Your favorite store or restaurant always being there Nopers
Living rent-free off your parents Fuhgeddaboudit
Leeching off your spouse Yes
Your favorite rock band not breaking up As if
Just about anything else under the sun Don’t hold your breath

Doing nothing while married to someone who does something can pay big dividends. For Lorna Wendt, doing nothing paid $20 million. Nice work if you can get it.

10 Responses to “Family Law is FUBAR, Part 2: Does Getting Accustomed to Something Entitle You To It?”

  1. Phelps Says:

    Chris Rock had it best. “She’s accustomed to this, she’s accustomed to that. You know, Judge, that’s cool. I’m accustomed to F-ing her about once a week. So if we just set up a visitation schedule, she can have the house.”
    Phelps´s last blog post ..Obama’s Diet

  2. Anwyn Says:

    This is where we diverge greatly. If the woman gave up working in order to stay home with children, she’s entitled to a certain level of stuff.
    Anwyn´s last blog post ..Comair Crash Case Ruling

  3. Xrlq Says:

    I don’t think there should be a different rule for men vs. women. If both parties agreed that one would work and the other would give up or postpone a career for the sake of the kids, then of course the one who put his/her career on hold should be entitled to something. But what he/she … aw hell, let’s just say “she” since that’s usually the case … is entitled to ought to have a reasonable relationship to what she gave up in the first place. Lorna Wendt may well have given up something, but she certainly didn’t give up a $20 million career, and alimony doesn’t even require there to be any kids, let alone a mutual agreement. If one spouse simply does not want to work, and the other doesn’t divorce quickly, the non-working spouse is deemed a “dependent” spouse and is entitled to alimony. That’s insane.

  4. Anwyn Says:

    We disagree sharply on this issue and always will. That man has $20mil as a fraction less than 50% of his net worth partly because Lorna Wendt was at home. Your harsh assessment that she did “nothing” is, as far as I can tell by skimming the article, nonsense. She raised the children and kept the home. If he wanted to do it alone he should not have gotten married. Since he did get married, she should not be punished for a good-faith estimate made at the beginning that he would earn the dough and she would bake it.

    Your assumption that people “postpone” a career is false also. Many women who get married and leave their jobs neer go back to them. Ever tried being 54, female, just coming off a 32-year marriage and thus a 32-year hiatus from work and tried to get a job?

    Another reason why I think no-fault divorces can produce unreasonably harsh outcomes. You can’t have it both ways. Either have a no-fault divorce and pretend–pretend that the fault is either nonexistent or split 50/50, and split the assets 50/50 as well, or have a fault-based divorce and hold the person to blame responsible. If a man walks out on a woman who has stayed at home with the children and made the home for 32 years, she should not be punished for assuming he meant what he said when he took his wedding vows to stay with her for life. If the woman walks out, that’s a different story under a fault model.

    We’ll argue separately about the “but she drove him away” model. I’m talking now about straight fault v. no-fault.
    Anwyn´s last blog post ..Comair Crash Case Ruling

  5. Anwyn Says:

    Otherwise everybody should specify up front what they expect to happen in the event of a divorce; both parties should keep their assets separate and labeled as such in terms no court will abrogate; if a woman stays home she should insist on being paid an amount equivalent to what she could save for herself in a job, into an account with only her name on it, etc. etc.
    Anwyn´s last blog post ..Comair Crash Case Ruling

  6. Anwyn Says:

    As for valuation, I don’t see why what she gets should be measured in terms of what she gave up instead of measured in terms of what she enabled to happen in the partnership (despite my suggestion above about her being paid what she could otherwise save in a job). In cases of unjust enrichment the court will usually allow the more generous measure (benefit to the unjustly enriched party as opposed to market value of the services) unless the party alleging unjust enrichment acted nastily. Why should a spouse get lesser treatment than any garden-variety Contracts litigant?
    Anwyn´s last blog post ..Comair Crash Case Ruling

  7. Anwyn Says:

    And now I have to go read 20 pages of Contracts.

  8. Xrlq Says:

    If marriage were anything like a contract, I wouldn’t have a FUBAR series to blog about. Contract law is not perfect, but by and large, it’s pretty reasonable. No contract spelling out terms approximating a marriage would ever stand up in court; it would instead be struck down as unconscionable. Unjust enrichment, you say? Who was unjustly enriched by whom? Gary worked his ass off and managed to amass a fortune most of us can barely dream of, while spent her time playing tennis, rubbing elbows with the rich and famous, and generally living high on the hog in exchange for tending to no more family business than any other nonworking spouse in the world does. Probably less, actually, as most stay at home mom’s don’t have hired help. If anyone was unjustly enriched here, it was Lorna, not Gary.

    Under a contract theory, a spouse who gave up a career by mutual agreement of the parties would have a decent argument for reliance damages. Surely Lorna can earn something on her own, so if she refuses to do any work at all that’s on her, not Gary. Let the court figure out what she could earn now if she wanted to, and make a reasonable estimate of what she might be able to earn now if she had Gary had never met, and stick Gary with the difference. Better still, let’s try your yardstick of what she enabled on his end. She enabled squat! So I guess she should be able to sue him for unjust enrichment in the amount of $0.

    The other contract measure is expectation damages. Real contracts have termination provisions that make a tad more sense than “till death do us part,” but just for grits and shins, let’s pretend that really was the deal. Let Lorna enjoy the life of luxury that she could reasonably have expected at the time that they married (hint: Gary hadn’t even been through B-school yet).

  9. Anwyn Says:

    I’m bowing out now because we disagree and always will. She worked to support them while he was in b-school and helped him with his homework etc. That right there is enough to disprove your fantastically dismissive “she enabled squat.” As for the rest of her life I don’t pretend to know it. But I know plenty of women who stay home and deal with everything that isn’t an outside job. What they do is not squat. I’m done.
    Anwyn´s last blog post ..Comair Crash Case Ruling

  10. Xrlq Says:

    She worked to support them while he was in b-school and helped him with his homework etc. That right there is enough to disprove your fantastically dismissive “she enabled squat.”

    No it isn’t. Do you really think he wouldn’t have made it through b-school without her? Single people who are far less resourceful than Wendt manage that all the time. It is pure fantasy to suggest Wendt himself would not have done the same.

    Last but not least, this whole discussion presupposes she gave up something and enabled something else. Whatever you think of the Wentzes in particular, alimony laws have no such requirement. It’s enough to show that the “dependent” spouse has become accustomed to the lifestyle in question. A woman with a perfectly successful career could marry Bill Gates, not quit her job, and in fact have her career go on to become more successful as a direct result of the marriage, and she’d still be entitled to claim an obscene amount of alimony solely because she had become accustomed to leeching off the guy.

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