Law Blog

According to the U.S. Census Bureau, by 2030, about 20% of the U.S. population will be age 65 or older and by 2050, this aging segment of the U.S. will represent 88.5 Million people versus the 38.7 Million in 2008. (See U.S. Census Bureau) The increasing age of the Baby Boomer population comes with a significant transfer of wealth either through wills, trusts or through state mandated intestacy laws.  And, it raises an issue concerning how prepared Americans are in developing their estate plans, whether their estate is valued in the millions or in the thousands.

Contributing to this significant transfer of assets is an increase in the number of will contests being brought today, particularly as it relates to step-families.  Children of these families are rapidly learning that the second (or third) spouse often has significant if not greater rights than the children; intestacy shares can range from 1/3^rd to as much as ½ of the decedent’s estate when there is no will.  (Before Your Parent’s Say ‘I Do’ Again)

Even when there is a will, sometimes a new spouse will change not only the family dynamics but also the dynamics of the will or family trust.  Most Americans are familiar with Anna Nicole Smith’s short-lived marriage and protracted court battles that continue even after her death. (Daughter to Inherit Mother’s Estate ).  Anna’s litigation, however, is not atypical although most people’s estate assets are significantly less than the Marshall fortune.

In fact, some children are proactively approaching their parents about their estate plans before their parents die.  SmartMoney.com profiles Neil Finkel whose 80+ year-old father placed a large percent of his multi-million dollar estate into a trust for his son.  However, Finkel’s Dad married a woman 30 years his junior. Amy, the new spouse, and Neil subsequently waged a 2-year court battle over the father’s dwindling assets which were being eroded by the spending habits of the new wife.  Although the case was settled, it’s unlikely that the rift in the family will be healed and it could erupt again after Dad Finkel’s death.  (Before Your Parent’s Say ‘I Do’ Again)

During the past five years, tens of thousands of people have used LegalMatch to find an attorney to represent them in filing a lawsuit to contest a will or to defend the estate against a will contest.  Not surprisingly, many of the most popular states for will contests have a high concentration of residents age 65+.  Plus, this top 10 state list comprises over 55% of LegalMatch’s will contest customers: 

Your will or trust will have lasting implications on your heirs after your death, particularly in those families where there are step-children or multiple spouses.  Probate litigation is generally protracted and can tear families asunder.  Developing a proactive estate plan, even if your estate assets are small, should help to reduce family tension after your death.  However your estate plan is crafted, you will be communicating a strong message to your family. The properly drafted will can stand the tests of probate court and ensure that your intent is followed after death.

In the past 12 months LegalMatch.com has received tens of thousands of customers seeking child custody attorneys. I was curious how the majority of these customers were related to the children involved in these custody disputes. After looking into our database, this is what I found:

• 48% were the child’s mother 
• 44% were their father
• 5% were grandparents
• 2% listed themselves as “other”
• Less than 1% were step-parents

Not too much of a surprise there: the vast majority of these people are the child’s parents.

These statistics also closely match a Census data footnote reporting that as of 2007, more than 6% of children were living with their grandparents. Hopefully the courts hearing these child custody cases from grandparents are not unfairly giving them less benefit of the doubt due to preconceptions of what a family is “supposed” to be. The rise in “grandfamilies” and grandparents contesting child custody may be based on the modern realities of single parent households according to the Wall Street Journal.

But wait a minute… are the WSJ’s terribly lit pictures and ominous statistics supposed to indicate that grandparents raising kids is some kind of bad development? (Not necessarily; the point instead seems to be bemoaning the economic hardships facing senior parents.) I would welcome more involvement of grandparents in child rearing. Half of my family is one generation removed from a non-western social model where this kind of family was the norm. The household was mom, dad, their mom and dad, maybe even their mom and dad, and the kids.

In my view it is unfortunate that the American nuclear family is a one generation family.  Will times like this make Americans reevaluate our own social engineering? Probably not, but it can’t hurt to establish a dialogue about it. Although the nuclear family encourages mobility and individualism, (and thus buying more stuff) creating cohesive family units and support structures may be more important now than it has been in a while. I’m not peddling some cryptically hidden “family values” social agenda, but if you’re a young professional or a young newly married couple thinking of making the big move away from mom and dad, give it a second thought. Extended family networks, rather than things like day care and babysitters, could come in handy.

One of the more curious aspects of our financial crisis is the decline in divorces as of late. Apparently the cost of divorce is making those with less think longer about cutting things short. (Thank you, thank you, I’m here every night).

Nonetheless, here at LegalMatch.com tens of thousands of people have logged on to find divorce attorneys within the past 12 months. I was curious about their demographics, and here is what the data was telling me:

• The Median Age for a person seeking a divorce in the US: 37
• Median Number of Children: 1

37 years old seems about right for a starter divorce.  Plus, the Median number of children matches US Census results; the national average for children per household in the US is 0.90.

Not much stands out here separating your average divorcé from your average U.S. citizen, which is not surprising considering almost half of all marriages end in divorce in the United States.

So now we know who is getting divorces…are they decreasing in number? Not from what I can tell.

Looking back over the 12 month period, there is no significant difference in month to month numbers, nor is there any decline in the numbers from 2008 to 2009. And again, this is tens of thousands of customers seeking divorce, not just a small sample size.

Fear not divorce attorneys! The American Divorce Industry is apparently alive and well.

Traditionally, it was assumed that teens accounted for most out-of-wedlock births.  However, the National Center for Health Statistics reports that the teen birth rate in the U.S. has declined to an all-time low, while unwed women in their 20s are increasingly having children.  These figures reflect the fact that more people in America marry later in life or cohabitate with their significant other without taking marriage vows at all.

Out-of-wedlock births have been on the rise since the late 1990s.  There were over 1.7 million households consisting of unmarried couples with children in 2004, compared with just 200,000 in 1970.  According to a report conducted by the Pew Research Center, almost 37% of children in the U.S. are born to unmarried women, and 47% of adults between the ages of 30-50 have cohabitated with a significant other at some point in their lives.  Currently, approximately 50% of children are born to unmarried, cohabitating couples, while in 1993, only about 33% were.

LegalMatch statistics, compiled from online intake reports completed by respondents across the nation, support these numbers.  According to 2008 LegalMatch case data, 40% of couples involved in child custody disputes are living together and have never been married to one another.  About 12% of respondents (comprised of men and women) chose “other” to describe their relationship status; a significant number of these “other” respondents stated that they are cohabitating or have cohabitated with their child’s other parent in the past, but never married him or her.  About 9.5% of respondents answered that they are separated and haven’t yet filed for divorce, while 7% stated that they are divorced and now married to someone else.  Finally, 6.7% stated that they are divorced and they, as well as their spouse, are living alone. 

Notably, fathers aren’t necessarily absent from the homes of unwed mothers.  A 2002 report conducted by the National Center for Health Statistics showed that about 20% of new mothers under age 20 were unmarried yet cohabitating with the father of their child at the time of birth. 

While younger adults have expressed less moral concern over out-of-wedlock children and cohabitation, many older adults have expressed significant concern over these trends.  Perhaps as part of a backlash, Arkansas and Utah have expressly barred unmarried couples from adopting, but these statutes may reflect a prejudice toward homosexual parents rather than any bias against unmarried couples in general.

Recently Nebraska amended its controversial Safe Haven Law, after it led to alarming consequences reflecting a shortcoming in social services resources.  The law at issue (Legislative Bill 157 or LB 157) permitted parents to leave children up to 17 years old with a state hospital without facing criminal liability.  Since the law went into effect in September 2008, 35 children were abandoned at hospitals across the state:  the majority of them were at least 11 years old, and many of them were afflicted with substantial behavioral conditions.  Furthermore, parents from outside the state traveled to Nebraska to leave their children in the state’s care. 

Nebraska’s amended law, which contains an age limit of 30 days old, now conforms to nationwide norms as well as the purpose behind safe haven laws.  Safe haven laws were enacted to protect young children from immediate danger, not as a way to deal with misbehaving or difficult children.

Questions have been raised as to what will happen to the 35 children who were abandoned during the time when LB 157 was in effect.  Under LB 157, parents cannot be prosecuted for abandonment by leaving their children at a licensed Nebraska hospital; yet, these parents could face other charges and consequences.

For example, if authorities discover that a child was subjected to abuse or neglect before being left with the state, County Attorneys have the choice to file charges.  Additionally, parents who abandoned their children will not be free from all parenting responsibility.  Courts regularly make parents to take parenting classes, participate in therapy, and engage in conflict resolution education – all in an effort to eventually reunite with their children.  Moreover, parents may need to pay child support while their children are in state custody. 

Although Nebraska’s simplest option (a.k.a. LB 157) is no longer available to parents, this is probably a good thing – so long as other resources are offered and made easily accessible.  If not, however, children face the very real prospect of neglect, abuse, or worse.  Some may claim that parents shouldn’t be able to hand off their parental responsibilities to the state, but if social services are not made available, innocent children – and ultimately society at large – suffers.  Therefore, authorities should make parents aware of their options, and not be judgmental when they seek help. 

For now, parents can get state assistance by calling social services, 211, or local United Way organizations.  Parents can also visit their local DHHS office online.  Various resources within the community, including parent support groups, crisis hotlines, faith-based organizations, and treatment centers, can be helpful.  Finally, parents may contact law enforcement after exhausting other options, or if other options are simply not feasible.