 Okay, we're back for the one o'clock block. This is life in the law. We're going to talk about law and lawyers, but more than that. We're going to talk with Brad Coats, a founder, if I can say, of Coats and Fry right here in the Pioneer Plaza. Thank you for coming on the show, Brad. Thanks for having me again, Jay. Yeah. So, today's discussion, we have styled it as a new look at modern marriage and matrimonial law. This is very interesting and provocative, and nobody could be at a better spot here in Honolulu as an expert or professional than you, because you wrote the book. The book is in front of us. The book is called Divorce with Decency. Catchy, huh? Yeah, catchy. Well, you know, but if you look at the book, and we did talk about the book last time, it's more than just decency and divorce. It's decency in general. Isn't it? It's the idea. Yeah. So, when we talk about marriage and also matrimonial law, let's talk about marriage first. And let's talk about changes in marriage, modern marriage. The institution has changed, hasn't it? Well, the institution's totally changed. For one thing, it's declined dramatically. I mean, in the 1970s, 75% of everybody was married. According to the 2012 census, whatever that is, for the first time, the number of married adults in America had dropped below 50%, down to 48%. I remember there was, don't you agree there was a rash of divorces in the 70s, maybe into the 80s? When people were really not comfortable with being married, I guess, everybody wanted a divorce. They were all looking for liberty and freedom and whatnot. Well, out of the 60s, everything sort of changed, and there was that, you know, that find yourself, you know, movement, and there was a huge period where people were trying to get in tune with their inner needs and being, and then so marriage did drop automatically in the 70s. It stabilized a little bit more in the 80s and 90s, and now the problem is that the number of people getting married has declined. So really marriage as an institution is, you know, possibly even on its way out. I mean, there are sociologists that predicted by 2040 there would be no more marriage left anywhere. In a lot of Scandinavian countries, there's far more unmarried people, including unmarried people having kids and having domestic partnerships or whatever, but just not actually married. And in America, it's headed that way too. Yeah, let's look at that from both ends. Why is this happening? I mean, one thing is you have to live in at least a middle class economy that have the wherewithal, right, to want that freedom, you know, because there were, there have been economic consequences of being married and being single. You have to have a certain amount of resource to be single in our world today. But what other factors play into this, you know, decrease in marriage? Well, you know, it's funny that you mentioned the economic aspect of it, because sociologically and economically, here's what's happening. College graduates are getting, are still getting married. They're still staying married. People that have gotten in, not completed high school or just completed high school, but stopping short of college, there are a lot of times just living in cohabitation relationships, maybe having kids in those relationships, but stopping short of marriage. So now you've got what's called the paternity calendar. And it's a self-segregating element of society because marriage has been shown to be economically a good move for people. It's estimated that people that get married have twice the wealth accumulated over the course of their lives. You can file short returns on so many things. You can do all kinds of stuff, yeah. And so it's good for society, generally viewed as being good for society. It's certainly good economically for the participants, but it's self-segregating now because the people that are, like I say, are less educated and are lower economic strata are less likely to get married, which means that they go in and out of relationships raising kids, you know, in a non-continuous kind of a situation. That's right, that's right. And then the kids that come from those kind of homes are less likely to be as stable and have as good a shot as kids that come from helicopter parents that are both high-educated and married people. Yeah, so that's the second part of my unpacking with you. So we have a country where, you know, the amount of marriage, the demographic, the demographic on marriage declines. And that's because of, you know, economic considerations and also social considerations. But that has to have an effect on the country. If I give you, you know, millions and hundreds of millions of people who are cohabiting instead of being married, that has to have an effect on the economy. It has to have an effect on the social structure of our lives and our country. A huge effect. I mean, right now, 40 percent of all the children in America are being born out of wedlock, which to people of yours and my generation is a shocking figure. For women under 30, 50 percent of all the kids are being born out of wedlock. It is, it's a huge, huge game changer because that, you know, again, now you're in a situation, I've got nothing against cohabitation and it's a, you know, it's a common way to keep relationships going, becoming more common all the time. But it's just not proven to be as stable. People who cohabit have a likely chance of breaking up. They got a less chance of burying children in a continuous fashion. So you've got a lot of kids being raised by single parents and there's social problems that are attendant to that. We pay a price for that. We, the community, pay us a price for that. That's correct, yeah. But the paternity calendar is the fastest rising calendar in domestic relations. The divorce calendar is shrinking. The paternity calendar, which is the one for when you have kids out of wedlock, that's the fastest rising calendar on the court's calendar. And is the law changing in that? What I mean is, again, Ken, a woman who has a child out of wedlock, out of marriage, can she be sure she's going to recover paternity claims? Well, what's happened as far as custody goes is that there's a trend towards joint custody. In marriages, if you get divorced and you've got kids certainly over a certain age, the courts are going to try and steer it towards joint physical as well as joint legal custody. And there's some of that on the paternity calendar, although maybe a little bit less so, because, again, those relationships haven't been as long or as established. But certainly parents, males who spawn kids are going to be paying child support. They're going to get tracked down oftentimes by the government, and they're going to pay child support. And then they've got custodial and visitation rights, similar to what you would have in a marriage, almost identical, at the end of a marriage, I should say. And that's an ongoing phenomenon. But generally, I think probably there's a higher rate of single moms taking custody of kids in paternity calendar than there is certainly in divorced moms taking sole custody. Yeah, and what about dads? And I suppose a judge has to look at both parties in their lifestyle and their ability to manage these kids in order to determine a good joint custody arrangement, because joint custody isn't always just half the time with one and half the time with the other, I guess. It's more complex than that, isn't it? Well, it can be more complex than that. There's all kinds of different ways to structure, but the court oftentimes will steer it towards literally half-half time. That's it. When they've done follow-up studies of the children divorced 20, 30 years down the line, what the kids say, the most difficult part of their divorce, of their parent's divorce or separation, was losing contact with either parent. So the touchy-feely psychologists and child psychologists in California came up with joint custody as being the best way to minimize the effects of divorce on kids. So now they try and force the majority of people down the joint custody track, which is tough. Joint physical custody can be very difficult for parties to implement. Does it work? Well, it has a lot of issues. I mean, like I say, if it's on the paternity calendar and the kids come out of a one-night stand and the guy's paying child support and hasn't had much contact with the kid, it can be pretty difficult for the parties to put that back in the box. If you've got a 15-year-old kid that's been the subject of a happy marriage, then it makes sense to have both parents have equal access to the kid. But what happens is in joint custody, as far as it affects the child custody calculation and the child support calculations, it can cut your child support almost in half. So an awful lot of people are arguing for joint custody just because they don't want to pay full-boat child support. Excuse me. You know, we talked before about filing joint returns and having tax benefits and all that. Is there something emerging in the law these days to allow cohabiting couples to have those kinds of benefits? Not that I'm aware of. I don't think so. I don't think just cohabitation allows you to file joint returns. It would certainly be handy, but there are certain areas where the marriage demarcation is the bottom line for that kind of thing. And you said that in the years to come, we may not have marriages in institutions. Well, there's a sociologist named Charles Martel who's predicted the end of marriage in a dramatic piece that he wrote by 2035, 2040. So that would be pretty interesting if that happened. But you tend to think that if a couple is cohabiting and there isn't marriage in the formal sense, I mean, even now, religious marriages are probably declining in favor of civil marriages. I'm sure you see that. But what about the notion of filling in the gap? What about the Lee Marvin type of claim where you get alimony even without a marriage? Well, that happens at some, they call that common law marriage where if you've been together for a certain number of years, the law turns you into a married couple whether you really were or not and gives property rights accordingly. I'm told that in Canada, that can be a very short period of time and a lot of jurisdictions, it's seven years, but we don't have... Not Hawaii, no. Not Hawaii, we have no common law. You can live with somebody for as long as you want in Hawaii and then there's still no joint property rights. No, that's not gonna change. But what does happen is that once you do get married, everything, and this is an important part of matrimonial law, it is viewed that there's a literally partnership principle of marital law now. So everything becomes half, half. Retirement plans, you used to be guys would try and hide money and trust or disinherit spouses in favor of their girlfriends or do what, now all of that gets plowed right through and it's half of everything you've got and it's half of everything you've got until the date of actual divorce which really fools a lot of people because a lot of people, they separate, they haven't got the energy or the money to hire an attorney or they just kind of let it go, you go your way, I go mine and they forget to put a final ending date to the marriage and they come to me 20 years later and say, hey, my wife, she's still my wife, we haven't seen each other in 20 years, she wants half of my pension for the last 20 years, how fair is that? And the answer is the judge's hammer doesn't fall on property division until the date of actual divorce not separate. That's all the appreciation up to that date. So you gotta get her done. This suggests that it's a better economic move for the person who has the resources to cohabitate instead of getting married, doesn't it? Well, I'm sure that's probably true, although only a cynic such as yourself would suggest that, but yes, that is true. What about anti-nuptial agreements? We see a lot of that these days. Yeah, they're getting to be more common, especially people that have been to see the divorce lawyers like me, time or two before, they don't want to do it again, so they want a prenuptial and the courts are generally enforcing those. Is it worth having an anti-nuptial agreement with a cohabitation? Well, I don't know if you can have it. You know, like I say, a premarital agreement. A premarital agreement. You can't determine child support anyway. You can't agree. That's a policy point for the judge. You cannot in a premarital agreement or in any kind of agreement between the parties themselves, you cannot attempt to predetermine who's gonna get custody or what the child support's gonna be. That's always within the sole purview of the court. That sounds right, actually. Yeah, yeah. So we talked about how marriage has changed and is changing and will change at least in the foreseeable future. We're gonna take a short break and then we'll come back and I would like to talk about how matrimonial law is changing. You alluded to that a minute ago on the fall of the hammer issue. This is Brad Coats, Coats and Fry. We'll be right back after this break. Talk about changes, notable changes, changes you should write down. It'll be on the final exam too, by the way. You know, in modern matrimonial law, we'll be right back. Hello and welcome to Out of the Comfort Zone. I am your villainous host, RB Kelly. Today we are playing two truths and a lie and I will tell you two truths and you will tell me which one is the lie. Truth number one, this is a real mustache. Truth number two, I want you to watch my show on Tuesdays at 1 p.m. So tune in and let me know which is the truth and which is the lie. I'm RB Kelly with Out of the Comfort Zone and show up next Tuesday to see my mustache live. Hi, I'm Bill Sharp, host of Asian Review here on Think Tech Hawaii. Join me every Monday afternoon from 5 to 5.30 Hawaii Standard Time for an insightful discussion of contemporary Asian affairs. There's so much to discuss and the guests that we have are very, very well informed. Just think we have the upcoming negotiation between President Trump and Kim Jong-un. The possibility of Xi Jinping, the leader of China remaining in power forever. We'll see you then. Okay, that's Brad Coats in his book, which we talked about before, is divorce with decency, but it goes further. It goes to marriage with decency, cohabitation with decency, life with decency. Life with decency. And it really is so important these days. So you were saying during the break that our society is changing at a rapid rate. No surprise, because everything around us is changing. So you have to expect the social constructs of our society to be changing. So cohabitation is changing. And maybe the form of relationships going forward. But what about marriage itself? Seems like when you get married these days, in the Jewish religions called the chuppah, the chuppah is the little tent over you as you break the glass and get married, it's different. But the relationship expected of you is different. When you utter the magic words, the promise somehow is different. This is governed by the law, isn't it? So how is it different? How is it changing right now? You've been doing this for a long time. How is it changing? Well, I wrote a piece a while ago about, that I just titled, I'll read it off. Seven mega trends of the new millennium. And I talked about the first being the woman's movement and the rise of what they call the shee economy, which is that women no longer need to rely on men economically. Now now they're out earning guys about a third of the time. And they rule the roost. Cohabitation, obviously a big one. Social media and the internet, something that you're all about. And they say that a third of all relationships are starting up via the internet nowadays. And God only knows how many of them are ending via the internet. Because basically, you got a lot of oops mistakes where the wife gets into the husband's phone. I've seen that movie. Yeah. The proliferation of pornography, which is a wild one. You've got a situation with pornography where it's still, I mean, they say that a third of all pornography. You know, the fact that the most research sites on social media now are porn and sex sites. They've taken over, you know, the vast majority. It's a trillion dollar business for sure. Oh, it's huge, it's huge. And so you've still got, I mean you've got women, they say maybe a third of the porn site searches and the dating site searches are women, but mainly a lot of this is a guy thing. And it's not really a good guy thing because what you've got is a situation where porn kind of dehumanizes women. I mean, you've got 16, yeah, not 16, we hope. 20 year old strippers, silicon supplemented females in body suits and doing all kinds of perverse sexual acts. And then you go home to your wife of 20 years and you know, it kind of pales by comparison. And then you've got the erectile dysfunction drugs. I mean, all kinds of stuff you wouldn't think about because the erectile dysfunction drugs are allowing guys, even older guys like you and I suddenly we still think we still ought to be sexy. Meanwhile, the wives, the female biology is, hey, we ought to be slowing this down a little bit. So you got a guy who's not only got an erection but an instant erection thanks to Viagra saying, okay, let's just go right now. Women who used to love foreplay in the mood and setting the tone, they're not that interested in that and they certainly are not that interested in their 75 year old husband doing that to them immediately. So you've got pornography, really kind of being a real game changer. It changes what I call the sex expectations of the couple. So you've got that, you've got the gray divorces which are old silver-haired guys like me getting divorced. I mean, who would think of people getting divorced in their 60s and 70s? But that's the fastest growing component of divorce in America nowadays. So there is a real sociological shift. But I know that's the kind of stuff that interests you on this program. Well, I mean, I'm sure it interests everybody to find this out. Can you think about it and maybe you wonder about it but talking to you, you have stats on it, at least experience on it. So going back to the last two things you mentioned, sex has got to be part of a marriage. As sex changes, the marriage changes, right? So as you go forward, it changes in so many ways. The institution itself is different because you can have these external sexual influences come in and they change the relationship between the parties. And that's not a good thing. Not always in a healthy way. I mean, I've heard sex therapists say, hey, watching porn together can get you both excited and stuff like that. And I'm sure in the minority of cases that can happen. But what you've really got is you've got guys taking a kind of a warped view of sex, women not seeing the humor in it, they come into their husbands den and he's got his computer open and then he slams it shut as soon as she walks in the door. I mean, that's destabilizing right there. So you, and then you've got, like I say, the situation where the expectations change so dramatically. And guys who, the human biology is designed where both genders should be kind of losing interest and losing ability and capability almost all at the same time. But now that's been jacked around by Viagra and the ED drugs where the guys can supposedly keep going, women are going, shouldn't we be focusing on something else now Dave? You can see how destabilizing that is. Distabilizes the whole institution. So, yeah, yeah, I mean, chemistry, modern chemistry. Not necessarily better living through chemistry. That's right, that's right. So how does that affect society though? We talked before about this migration of people to living together instead of being married. Now we're talking about marriages that are affected with external sex considerations. How does that affect society when you have that? Well, there's, you know, that obviously has a deleterious effect on society. And the other thing that's happening is that there's just so many more options. I mean, it used to be that, you know, you grew up in Nebraska and you had your high school girlfriend and you thought, my God, if I don't marry her, I'm never gonna have somebody as great as her in my life, right? And now, you know, you break up with a girlfriend and 10 minutes later, you go online and you go on one of these Tinder sites and there's somebody, you know, two miles down. That's really plugged into your GPS. So, okay, let's have a meetup. And, you know, 10 minutes later, you got a new girlfriend. So it's, you know, that is a hugely destructive, you know, it's a game changer. I won't say destructive because I guess it liberates. The other thing is that, you know, we grew up, I mean, I was talking about the great divorces. Our generation grew up out of the 60s, you know, where we thought we should just have everything. I mean, you know, we wanted to have, you know, free love, free sex, you know, we were gonna stop the war in Vietnam. We were gonna be peace and love in communes and all, you know, it's the expectations of our generation that we've had great post-war economics for 50 years. So our generation grows up expecting that everything ought to just go our way. And that's not really a healthy thing for marriage because, you know, I mean, things don't always go your way. Especially now when there are so many problems in the world and in the country. And so many other options. Yeah, yeah. So, yeah, another technology, you mentioned it, it seems to me it connects with the Viagra. That's one kind of technology. Social media is another, these are invasive, you know, on the structure of marriage, on the institution of marriage. And so my marriage can unravel because of social media. I can meet people online. I can stand up. I can meet people. And Sally and Harry and all those movies about romance that generated out of social media. So my question to you, and you alluded to this earlier, is does it work? Does the relationships that come out of social media really work? Because everybody can be sort of hypnotized into thinking that they know the other person when in fact they know the electronic image of the other person, not the real person. Well, I can tell you this, you know, it's hard to say exactly how much, you know, meetups resulted in workable stuff versus not. But I can tell you a couple things. One, marriages that come, you know, second marriages that come where somebody meets somebody new in the course of their first marriage, leaves their first spouse to go with somebody else. Those have even a higher rate of divorce than first marriages. First marriages, everybody thinks about the 50% of all marriages ending in divorce. It's actually about 45% of first marriages. Goes up to about 65% of second marriages. And all the way up to 85% for third marriages. So the idea of, you know, the guy taking off with his secretary, leaving his wife and then, you know, because she's younger and sexier, that's going to turn everything around. That's a misnomer. Actually, the chances of those kind of relationships working are actually minimal. I mean, it can happen. And they say that sex, for example, is better in second marriages. But, you know, to have everything else come together in the second marriage maybe is a little tougher. And the third marriage you mentioned, the chances of it working are even less. Now, could it be that it's a personality filter? In other words, you know, you're the kind of guy that likes to move on all the time. And so when you move on, you're really saying, I'm not willing to be committed. And marriage, to me, is an interim arrangement, yeah? Well, a personality filter is exactly right. There are some that I alluded to this earlier. There are now meetup sites and hookup sites that are targeted for just people in a certain socioeconomic group. I mean, it's gone beyond the just, you know, we'll get up there and try and have a date. Yeah, you know, there's Christians, there's farmers, there's all, you know, let's meet one another. And what happens is that it's self-selecting. Now you get high earners meeting only other high earners. Used to be a lawyer boss in a law firm might meet a secretary and if she was cute and bubbly, even though she had a high school education, you know, that'll be my second wife. Now your second wife or even your first wife is somebody that's from the same socioeconomic group that you're in and doctors and lawyers marry one another instead of marrying their, like I say, the nurses or the secretary. So it's actually causing social stratification between the haves and the have-nots in society. So that's a factor. There's all kinds of unintended consequences. I mean, technology is we're unleashing all kinds of stuff. And you also mentioned the gray, the boom in what you call it gray divorce. It's very interesting. You know, there's a relationship, isn't there, between gray divorce and gray sex? Oh, probably. Yeah, I mean, the kinds of process we've been describing for an undefined generation, maybe an earlier generation to a later generation, the same processes exist with technology with either the body chemistry technology. Or the pure chemistry technology. Yeah, or social media technology. All of those things are brought forward into your gray years and then you have gray divorce. Well, and it gets worse. I mean, gray divorce is so relatively new that I haven't gotten, my divorce or decency book has a lot of statistics in it. Statistics are not really coming together on gray divorce as to the causes. The effects are quite there. Like I say, it's the fastest rising component of divorce in society. So interesting. One is the me generation, we're used to having it all and we all think, I mean, I'm 67. I mean, this is a time where I would be theoretically thinking about who was going to change my diapers and my dentures and just be. You do have a way of putting things. And just be happy to have somebody that could mate, that could take care of you. Instead of, oh my God, now I can take Viagra and I can have sex for another 20 years. I've been doing everything I wanted all the rest of my life. So why should I stop now? Take a flyer, yeah. But the last point I wanted to get to was something we just talked about briefly in the first part of the show. And that is the law is changing. And as the social, our world of social mores, social connections changes, so must matrimonial law. And I know we have a minute to discuss a huge body of law, but I wonder if you could comment on that. Where are we going here in Hawaii and maybe nationally, maybe globally in terms of the way the law intercedes in a marriage that's having trouble? Well, there's a few changes that are happening. One, alimony used to be a common thread and a component of divorces. Now in Hawaii we have alimony in less than 9% of all cases, nationwide it's less than 15%. Because the Wahinis are working a lot of time. So those days of alimony for life, that's definitely changed. Joint custody, which we alluded to earlier, there's definitely a push for that. Child support used to be a negotiated idea, a negotiated element of a divorce. Now there's automatic guidelines based strictly on gross monthly incomes and it's automatically deducted from your paycheck. So that's gotten more draconian about its enforcement. There are definitely, obviously you've got, now you've got same sex marriage, which has the same law, applies the same sex as to heterosexual marriage. So a few of these things have been introduced that are literally changing matrimonial law, per se. And then there's the issue of, like I say, the changes in society, which are really complex and much more far reaching. So if camera one was a judge out there and you bring a certain amount of wisdom and experience, and he's a new judge, or she, what's your advice as to the appropriate mindset or a judge to have to deal with all these changes in our society? Well, you gotta have an open mind and that's getting harder and harder to do. There's a real, like I say, there's socioeconomic gaps, there's gender gaps, I just wrote a piece on the widening gender gap between men and women, which is kind of a shame and it's gonna get harder and harder to bridge. You get, regardless of what you think about President Trump, with his reputation for something resembling misogyny, that's divisive. I mean, I know a lot of women that just absolutely hate his whole program and literally would hate their husbands for watching Fox News and be voting for him. So there's a tendency to become much more tribal in society and judges, of course, you've got to rise above that. Judges have really got to try and understand everybody. It only occurs to me now, Brev, but I got to ask you one question. With the Me Too movement and women making complaints against men for various levels and experiences in sexual misconduct, that has to affect the courtship process, don't you think? That I think a lot of people would be a little afraid these days hearing about all of that and wondering if what they do now, which they think is a legitimate maneuver in courtship, turns out to be a mistake and turns out to get them in trouble when they want to go to the Supreme Court. Am I right to think that courtship has changed also? Totally, totally. I think we'd all better shred our high school yearbooks. Realistically, it used to be that there were well-defined roles between men and female. A guy would call up a gal in advance, ask her out on a date, get a corsage, pick her up, meet her parents, take her home at a reasonable hour, and all of that has totally changed nowadays. Nowadays, a guy sends a text to a gal that he's just met and says, me and my buddies are gonna be at Joe's bar at eight o'clock at night. Why don't you and a few of your girlfriends come on down and we'll hook up? And that's courtship. I mean, the whole methodology of that has totally gone out the window where a guy was supposed to be the initiator and try to be simple-rous about it. And now it's going even further than that. Now if you get a guy who calls a gal and she says, sorry, I can't come this Saturday, I can't go out with you this Saturday night. So he calls her back the second Saturday night and the next thing you know, she says, he's harassing me, he's called me twice. I mean, that used to be what a guy was supposed to do. Now he's a harasser. Right, it changes the whole scene. It changes how you can conduct yourself and the stakes are much higher now. Much higher. And everything thanks to your tech and everything's in the cloud. Everything that you've ever done in your life is there for everybody to find out. So you know, it haunts you for the rest of your life. Thank you, Brad. Brad Coats, Coats and Fry, divorce lawyer, a decent divorce lawyer. Decent divorce lawyer. A lawyer of decency. Thank you so much. Thank you, Jay. I think it was a quiet child.