In 2007, author, professor, and former options trader Nassim Taleb published his book The Black Swan: The Impact of the Highly improbable. In the years thereafter, this book, and its central thesis, have become influential across a variety of fields. The term ‘Black Swan’ has become shorthand for any unexpected, unlikely event, that carries a significant impact. Examples of ‘Black Swan’ events include the Coronavirus pandemic, 9/11, and so forth.
As I write this today, my hometown of Abington Pennsylvania is dealing with a ‘Black Swan’ type event, albeit on a more local scale. A massive factory fire continues to burn twenty-some hours after the initial ignition, as one of the largest employers in that community sees their one-hundred plus year old factory burn toward a total loss. Meanwhile, there are ongoing shelter-in-place and limited voluntary evacuations for those businesses and residents who live close to the factory, which is largely surrounded by residential neighborhoods. I am astounded by the resilience and bravery of the first responders who have been battling not only the fire, and chemical particulates being released into the air, but also wind chills of around zero and heavy winds, all while attempting to put out a fire in a 500,000 square foot building that is more than 100 years old.
Black Swan Events and Alimony, Child Support, and Equitable Distribution
This is all on my mind as I write this. Which is all a somewhat long-winded introduction to what I wish to address with this writing as it relates to divorce law. What would happen to alimony, child support, equitable distribution with this sort of ‘Black Swan’ event? With something like this, property values may go down significantly for the homes located close to the fire. But there is no telling how long the prices may be diminished, or to what extent. If a couple were negotiating a divorce contemplating a certain buy-out number for the property last week, how do they determine that buy-out figure today. Should it change at all? To what extent?
Likewise, if a certain income was imputed to one of the factory workers for purposes of alimony and/or child support, how would that be calculated now assuming that worker is out of work for, at the very least, a duration of time.
These are hypothetical questions surrounding an ongoing disaster. I am retired from the Pennsylvania bar (i.e. I never really used my PA law license and got tired of paying the yearly fee to keep it active) and now only actively practice in New Jersey. But they speak to a specific theme: how ‘Black Swan’ events, whether they be personal, regional, or even global can impact what previously felt like firm ground.
Personal ‘Black Swan’ Events in a Divorce
Keep in mind that divorces can last years. I have had clients (or their spouses) die during the divorce process. I have also seen clients (or their spouses) get diagnosed with cancer or even terminal illnesses during my fifteen years in practice. Your police officer spouse gets shot in the line of duty. Your spouse goes out on disability. A child takes ill. Or your house burns down while the divorce is pending. When a personal ‘Black Swan’ event occurs, it can upend divorce negotiations. And remember that when it comes to the loss of a job, or a sudden downturn in business, a judge will likely be skeptical about whether this is an inappropriate attempt at divorce planning.
Disparate Impact of ‘Black Swan’ Events
Whether a ‘Black Swan’ event that is personal, regional, or global carries the most weight with judges is an interesting thought experiment. During the pandemic, there was a great deal of leeway granted to those going through work interruptions or job loss by judges, because there is no way to feign a global pandemic. In addition, it was something everyone was experiencing on some level. Either you, or someone you were close to, was impacted by the pandemic regarding their health, their employment, their business prospects, and so on. And as judges are, respectfully, lawyers in a robe, (i.e. people), I would think it would be difficult to not have some empathy in that situation.
Judge’s and ‘Black Swan’ Events
Meanwhile, your personal job loss may not hit the same sympathetic notes for a judge. (Particularly as most of their jobs are protected by tenure!). The bootstrap mentality may rear its head more in these personal ‘Black Swan’ events than something larger. After all, judges are often pretty tough customers (even if they are, ultimately, people). There are and have been judges who have worked through cancer, through terminal diseases, and so forth. They may expect the same out of you, even if the situations are not exactly in equipoise.
Conclusion
There is no doubt that ‘Black Swan’ type events, whether hyperlocal or global may have an impact on your divorce. As divorces can take months or even years to complete, we are tempting Murphy’s Law, if not New Jersey family law itself, as we proceed throughout the divorce process. Although the ‘status quo’ is supposed to be maintained throughout a divorce, such ‘Black Swan’ style events may impact your divorce, both as its pending and as to its ultimate conclusion.
Every case is different, and every ‘Black Swan’ style event is unique, be sure to share such events with your divorce attorney throughout the process to help ensure the best possible outcome for your case.