In Re the Marriage of Rhinehart

CADY, J.

(dissenting in part).

I respectfully dissent from the majority’s division of the Prudential retirement account and, in turn, the division of marital assets that awards one spouse $75,000 more than the other spouse. The decision of the majority to award a greater share of the marital property to one spouse casts a dark cloud over the principle of equitable distribution of property in this state, and subverts, if not denigrates, the core concept of a marriage as an equal partnership. The approach adopted by the majority is not only a step back toward the dark ages of marital rights; it improperly intrudes into the legislative arena by undermining the legislative declaration to exclude inherited property from the divisible estate.

*685The concept of an equitable division of property in a dissolution of marriage does not require an equal division of property. In re Marriage of Schriner, 695 N.W.2d 493, 499 (Iowa 2005) (citing In re Marriage of Webb, 426 N.W.2d 402, 405 (Iowa 1988)). Instead, it requires the division of property made by the court to be fair. See In re Marriage of Probasco, 676 N.W.2d 179, 184 (Iowa 2004) (“Property division is based on each spouse’s ‘right to “a just and equitable share of the property accumulated as the result of their joint efforts.” ’ ” (quoting In re Marriage of Francis, 442 N.W.2d 59, 62 (Iowa 1989))); see also In re Marriage of Anliker, 694 N.W.2d 535, 542 (Iowa 2005) (“[I]n deciding what constitutes an equitable distribution of property, there need not be an equal division if the division is justified and equitable under all of the circumstances and factors set forth in section 598.21(1).” (Citation omitted; emphasis added.)). It recognizes that certain circumstances of a marriage can make it fair to award an unequal division of marital property at the time of divorce. See id. Yet, the key to an unequal equitable distribution is that the factors supporting the unequal division must reveal the fairness in permitting one spouse to leave the marriage with more property of the marriage than the other spouse. In other words, the factors must override the basic concept of the marriage as an equal partnership that otherwise supports an equal division of all property accumulated by either party to the marriage, except property excluded from the divisible estate by our legislature.

By all accounts, save a single factor relied upon by the majority in this ease, the circumstances of the marriage between Deborah and Scott support an equal division of marital property. Deborah and Scott were married twenty-five years. They raised three children and were attentive to their needs. Each spouse contributed to the marriage in endless ways. Deborah is an elementary school teacher, and Scott is a lawyer. They were married when Scott was still in law school. They both enjoy good health, are relatively young, and are successful in their professions. The property accumulated during the twenty-five years of their marriage'— nearly $600,000 — was, undeniably, the result of their joint efforts throughout the marriage. The alimony award to Deborah was not structured to compensate for an unequal distribution of property.

The single factor identified by the majority to support awarding Scott $75,000 more in property than awarded to Deborah is that Deborah has a future beneficial interest of $550,000 in a trust fund established by her father. This future interest, of course, is not marital property subject to the property division, but is excluded as a divisible asset. See Iowa Code § 598.21(1) (excluding “inherited property and gifts received by one party” from divisible property); In re Marriage of Schriner, 695 N.W.2d at 499 (stating a future interest that accrues during the marriage is subject to equitable distribution, but one that accrues after the divorce is not); Williams v. Massa, 431 Mass. 619, 728 N.E.2d 932, 941 (2000) (stating contingent remainder interests in a trust are “mere expectancies, comparable to a future inheritance, which are not sufficient property interests to be considered a part of the marital estate” (citation omitted)). There is no claim, or facts to support a claim, that it would be inequitable to Scott or the children not to include the inheritance in the divisible estate. See Iowa Code § 598.21(2). Additionally, Deborah’s interest in the trust is not vested, and she could be removed as a beneficiary at any time. Yet, while the majority properly excludes the inheritance from the divisible estate, it brings it into the division process through the back door by using it as a factor to justify an unequal division of the divisible *686property. Under the approach adopted by the majority, Deborah’s future interest supports an unequal division of property because her “future need for [the parties’ marital] assets is considerably less than Scott’s need.” In other words, Scott’s need for the marital property is greater relative to Deborah’s need.

Clearly, “the economic circumstances of each party” is a factor courts may consider in determining an equitable distribution of property. See Iowa Code § 598.21(l)(i) (listing as a factor to be considered in equitable distribution “[o]ther economic circumstances of each party including pension benefits, vested or unvested, and future interests”). Additionally, it is even permissible to consider future economic circumstances that involve nonmarital assets, such as social security and military pensions. See In re Marriage of Boyer, 538 N.W.2d 293, 294-96 (Iowa 1995); In re Marriage of Schissel, 292 N.W.2d 421, 424-27 (Iowa 1980). For example, in Boyer, we held the disproportionate future expectation of social security benefits between the spouses was an economic circumstance that could be used as a factor to support a disproportionate division of the marital assets. Boyer, 538 N.W.2d at 296. However, we were careful to point out that it was fair to do so because the wife had left the workforce after the marriage to become a fulltime homemaker and gave up her ability to build up her own social security benefits as the husband was able to do during the marriage. Id. Under these circumstances, we said it would “be ironic to bar [the wife] from having the disproportion in the anticipated benefits weighed as a general factor in [the property division].” Id.

The important point is this: future economic circumstances involving nonmarital property of one spouse are properly considered in the division of property only when there is some circumstance of the marriage that makes it fair to do so. It is not the presence or the expectation of nonmarital property that justifies an unequal equitable distribution, but it is the circumstances within the marriage that justify consideration of the nonmarital property in making a property award. In Boyer, the circumstances that made it fair to consider nonmarital property related directly to the joint-efforts concept of a marriage and the variant roles assumed by the parties.

In this case, there are no circumstances of the marriage that make it equitable for the court to consider the expected future inheritance of Deborah in dividing the marital property. Clearly, the future economic circumstances of Deborah do not address or define “Scott’s need.” Such circumstances have nothing to do with the needs of Scott. In truth, Scott has no special needs of his own that a divorce court must address to reach an equitable distribution of the property accumulated during the marriage.

The relative-need standard articulated by the majority is totally detached from the concept of equity in the dissolution of a marriage. See In re Marriage of Probasco, 676 N.W.2d at 184 (“Property division is based on each spouse’s ‘right to “a just and equitable share of the property accumulated as the result of their joint efforts.” ’ ” (quoting In re Marriage of Francis, 442 N.W.2d at 62)). As this case illustrates, this standard will necessarily lead to injustice. In this case, the existence of an inheritance only explains the nature of the economic circumstances; it does not explain the fairness of using an inheritance to divide the marital property. That explanation must come from the circumstances of the marriage. A standard that fails to consider such an analysis is inherently unfair and indirectly considers property, or a mere uncertain expectation of *687future property, that the law does not allow to be directly considered. The relative-need standard also means a spouse cannot equally share in marital assets when the spouse happens to have wealth independent of the marriage.

The concept of an equitable division of property has taken on a new meaning in Iowa as a result of this case, far removed from the concept declared by our legislature and articulated by this court in the past. It means that future inheritance has now been injected as a factor in the division of property in all cases. It means a spouse may be deprived of the right to share in an equal distribution of the property of the marriage at the time of the divorce when the spouse is expected to receive an inheritance in the future. It means, in this case, Deborah will not share equally with her husband in the property she equally helped to accumulate during the marriage. This is inequitable and contrary to statute.

STREIT, J., joins this dissent.