Part of Real World Divorce: web edition | Kindle edition
We had two sources for information about California law and customs. Dan Jaffe was our first interviewee and gave us a perspective informed by southern California cases. Stephen James Wagner was our second source and, though he also practices in southern California, gave us answers from the perspective of "moderate income" Sacramento-area cases (where "moderate" means $50,000 to $600,000 per year in family income).
After graduating from UCLA School of Law, Dan Jaffe has been practicing for more than 50 years and has tried hundreds of cases. Jaffe has won more or less every possible honor for a divorce litigator and has represented so many celebrities and business tycoons that he referred to all of our scenarios (incomes up to $325,000 per year) as "low-income cases." You can learn more about Jaffe at jaffeclemens.com
Jaffe represents a 50/50 mixture of male and female clients, though the majority of the cases in which he is involved were started by a female "petitioner" (as the plaintiff is known in California; the defendant in a divorce lawsuit is a "respondent"). Where there has been no marriage, he estimates that 95 percent of paternity and child support lawsuits are started by women and the remaining 5 percent are men seeking to maintain a connection with a child where the mother has cut them off.
Jaffe charges $900 per hour with a standard retainer of between $25,000 and $50,000 at the start of a case. He described handling cases for a low of $125,000 where a father sought to expand his children’s time with him from every other weekend by adding a mid-week overnight (settled via mediation). At the high end? "I did one a few years ago where my client got $30-40 million from her previous husband. Her second marriage was five years with a five-year-old kid. The husband was paid a total of $16,000 during those five years for directing a movie. The fees were $1.5 million per side. The court ordered her to pay $750,000 of his fees. We owed him $370,000 from the prenup. He borrowed $200,000 from mother. His lawyer is now chasing him for the remaining $500,000."
Stephen Wagner represents mostly women "but it has been trending towards 50/50." Why the disparity? "Early in my career I had a reputation for being forceful and that made women gravitate toward me." As in SoCal, Wagner says that "the majority of cases [in which he is involved] are filed by women." Wagner began his practice in 1975 and has worked exclusively in family law since 1980. He is the co-author of a 10-volume book, Complex Issues in California Family Law. He charges $525-575 per hour in Sacramento and $675 per hour in southern California. See dwfamlaw.com for more.
California law and customs make a short-term association with a wealthy person potentially vastly more lucrative than either (a) a long-term marriage to a middle-income person, or (b) attending college and working full time. California's community property laws would seem to preclude the possibility of instant riches if the wealthy partner's savings were accumulated prior to the marriage. Under the community property system a petitioner cannot ask for a share of the former spouse's premarital savings. However, the profit potential from having a child will automatically unlock the value in these savings. Jaffe explained that judges will impute 3 to 4 percent of the value of those premarital savings as income to the wealthier party. Plugging that imputed income into the state's child support formula will then result in a fraction of that 3 to 4 percent to be transferred as tax-free child support to the petitioner. Due to the low real returns ("real" meaning "adjusted for inflation") available from investments at the time of this writing (December 2013), effectively this results in 100 percent of the after-tax investment real return on those savings being transferred from the wealthier parent to the less wealthy parent over the 18 years during which child support is payable.
Child support in California stops at age 18 unless a child is still in high school, but in any case by age 19 and courts cannot order a parent to pay for college. Jaffe notes that "College funding is often included in a divorce settlement. Men get indignant when asked to agree to this in writing because in fact they don't mind paying money to support their child. What they don't like is giving money to their ex-wife. I'm representing one client right now who has been paying $14,000/month to his ex-wife. In addition to this he pays for 100 percent of the expenses: private schools, private tutors, medical/dental, lessons. He gives the mom a credit card to use for any additional expenses that the kids might have. She uses it to pay for parking meters in Beverly Hills so the bill is full of $1.50 charges. She just filed an action to increase her child support to $125,000 per month and told the press that the father wasn't paying any support." [For comparison, note that California pays foster parents $8,000 per year to take care of a child.]
What about the idea of extending child support liability through the child's 23rd birthday, as in Massachusetts, or until age 21, as in some other states? Wagner doesn't support it: "First, the Legislature has rejected this concept. Second, you've eliminated any opportunity for the parents to continue to parent the adult child. Personally, I do not think a judge should be able to order over a parent’s objection a parent to pay for a dope-smoking kid who isn't taking college seriously. That should be a parental decision, not a decision made by the court "
How is child support calculated in California? "The statutes and formulas are so complicated that there is no accurate Web calculator as far as I know," says Jaffe. "Judges and lawyers use a commercial desktop computer program called Dissomaster. Unlike in some other states, there is no cap to child support. Right now I'm handling a case where the mother moved from New York to California to take advantage of these non-capped child support awards. The biological parents were never married and the father has no custodial time with the child. The father has a $30 million per year annual income. Dissomaster computes that the child support should be $154,931 per month." (Note that https://www.cse.ca.gov/ChildSupport/cse/guidelineCalculator is available for use by consumers, free of charge.)
Could this guy have to pay that much as a result of a casual encounter? "There is a 'high earner exception' that can lower these numbers but the burden of proof is on the father to prove that paying $154,931 per month exceeds the reasonable needs of this kid," says Jaffe.
Should the guy have to pay that much as a result of a casual encounter? Wagner says emphatically yes: "The child had nothing to say about being born or the wisdom of a one-night stand. That child should be supported exactly as if those parties had married and stayed married forever." Is he worried about an incentive structure where a one-night stand is more lucrative than going to college and working? "A judge would slap you silly if you pointed out that a plaintiff would be earning more from child support than from attending college and working," Wagner says. "Put yourself in the diaper of the child. Public policy says that he or she has a human right to be raised in the lifestyle of the two parents. If you don't like that philosophy get the hell out of California." Wagner explains that the current law came about because "California was ranked 45th in nation in late 1980s in the amount of child support obtainable. The legislature was astounded and created the current system. It is public policy that California will always be ranked among the top 5 states [in potential profits from child support]."
[The authors note that unless litigation were to become free, the child of a casual encounter can never actually enjoy the material wealth that would have occurred had the parents gotten married and stayed married. If the parents spend $1 million in attorney's fees to handle both sides of a custody and child support suit, the pie that they can share with their children will necessarily be $1 million smaller.]
How is this philosophy implemented? From reading the appeals court decision in IN RE: the MARRIAGE OF Joseph and Maryanne K. SORGE (2012), we learned that Maryanne Sorge sued her husband Joe Sorge [later the director of the movie Divorce Corp.] in Wyoming in 2000. She got assets that were ultimately worth about $14 million, joint custody of children, and $96,000 per year in child support. Seven years later Maryanne, who had remarried (to a husband of unknown wealth and income), sued her ex-husband in California seeking "to modify the child custody and visitation arrangement" for a 14-year-old who was, at the time, yielding $48,000 per year in tax-free revenue for the mother. After three years of litigation, in 2010, Maryanne won an order for $216,000 per year in child support plus payment of $200,000 in her legal fees. In upholding this award, the appeals court noted "California has a strong public policy in favor of adequate child support" and talked about the "needs of the child." In other words, taxpayers pay judges to consider what "needs" a child might have that a part-time parent with $14 million in assets and $48,000 per year in tax-free child support could not meet. Note that the litigation lasted until the child turned 19, a year beyond the maximum age at which a Californian can collect money on the basis of being a parent.
Circling back to the question of whether the guideline formula can be applied to any amount of income… what qualifies as a "high earner"? "It varies heavily by county," says Jaffe. "I surveyed judges back in 2005. Some judges from rural areas thought that above $200,000 per year would be a high-earner. The average around the state was about $600,000 per year. But in Los Angeles the judges said that it would have to be above $2 million. One judge ruled that $5 million was not a high earner, though it was beyond the top 1/10th of 1 percentile of American incomes."
How does the application of the high-earner exception work in practice? "I had a Kirk Kerkorian case where the guideline support was over $400,000/month. He was paying her $75,000/month voluntarily plus had given the mother a free house. The judge gave her $50,700/month. Included in the kid's needs were $600/month for pet care. After the judge's ruling, the mother threw the pets over the father's fence because she said that she couldn't afford to take care of them on only $50,700/month." (Note that Kerkorian was in the news in 2010. "Kirk Kerkorian To Pay $10.25 Million In Child Support," a Huffington Post article from October 22, 2010, states that "Kirk Kerkorian agreed Friday to pay more than $10 million in back child support plus $100,000 a month for a child his ex-wife has admitted is not his biological daughter. Lisa Bonder Kerkorian, who was married briefly to the casino mogul after a long relationship, acknowledged during a child support battle that she had faked a DNA paternity test by using saliva she obtained from Kerkorian's adult daughter. … Bonder Kerkorian, 45, a former tennis pro, was married to Kerkorian for 28 days in 1999. … Bonder Kerkorian originally sought $320,000 a month in alimony and child support.")
What kind of arguments do parents make in order to keep the guideline amount? "In one case," said Jaffe, "the mother said 'Why should this four-year-old kid have to look at a picture of the Mona Lisa in a book when I can charter a Gulfstream and fly to Paris to show the child the real painting?' She ended up getting $19,000 per month."
Do Californians pursue collecting child support as an alternative to college and work? Jaffe says that southern Californians are not overlooking this opportunity: "We represent a lot of athletes and after every basketball game there literally are five or ten women outside the door with their legs open, hoping to get a $20,000 per month job for 18 years. There is no question about that."
Shared physical custody will result in a reduction in child support payments and also makes it more difficult for a parent to win a removal action (see below). A proposed guideline definition of "shared" is that a child spends at least 40 percent of her nights with a parent (146 nights per year). According what Jaffe characterizes as a "relatively new statute," a court must consider the wishes of a child regarding which parent to live with starting at age 14. By convention and custom, however, a court will sometimes consider the wishes of a younger child who is "of sufficient age and maturity." A lawyer may be appointed to speak for the child in court.
Can a California plaintiff essentially win a divorce lawsuit at a temporary order hearing without evidence being presented? Wagner explains that "Prior to four or five years ago almost every county in California preferred declarations [affidavits and attorney argument] while Orange County had evidentiary hearings [with witnesses and cross-examination]." What changed? "Our Supreme Court in the Elkins case held that family law is just like any other civil matter and a party has a constitutional right to present evidence consistent with other civil cases," responded Wagner. "As a result there was a multi-year study by the 'Elkins Committee' and the Legislature adopted its recommendation via a statute that basically says you have a right to present oral evidence at a temporary hearing unless court makes a series of findings (there are 7 or 8) in order to deny a right to that hearing. The judge can control the hearings in terms of duration and ask questions of the witnesses directly. There is far more evidentiary work than in past as a consequence, but at the same time the courts are partially shut down due to the budget crisis."
Wagner notes that in terms of refining its statutes and appeals court decisions California has been "maybe more active than any other state over the last 40 years" but decries the fact that more resources are not devoted to the judicial system: "Family law has been brought up to the level of ordinary civil cases, but still it is easier for a person with whiplash to get a two-week jury trial than for a divorce litigant to get a two-week trial in family court. 'Justice delayed is justice denied' applies to divorces. People give up because it is taking so long or it is so expensive." How long does it in fact take? Wagner said that he expected a Sacramento case to go to trial generally within two years of being filed. Thus if a party gives up on a case during that period essentially a decision made at a temporary order hearing would likely become permanent. What kind of cash could a plaintiff receive while waiting for trial? "Both spousal support and child support will be calculated using Dissomaster during litigation, though spousal support after trial must be set by the court after weighing about a dozen factors."
Is there a practical right of appeal in California? As in nearly all states, a trial court’s order about the stuff that matters most to most people is not likely to be reversed on appeal because the matter involves disputed facts, not disputed law. If there is any substantial evidence to support the trial court’s factual findings, the appellate court will not overturn the decision. A judge would essentially have to be incompetent if he or she could not make a custody award in an appeals-proof manner. "If 500 people testified that something never occurred while 1 person testifies that it did, the judge can say that he or she found that 1 person more credible and that's nearly an impossible-to-overturn finding of fact," says Wagner.
Via the above procedural mechanisms and its child support formula, California offers financial and practical incentives to divorce litigants willing to make allegations that the co-parent is a sexual or physical abuser. A plaintiff can obtain the house, the children, and a stream of cash payments by alleging that the defendant is abusing the children. Wagner says "It is effective but the advantage may be temporary. If the defendant is cleared by the social services agency there is a statute that says the judge must take [the unproven allegation] into account when making a custody award. The more seasoned the judge the more weight this tactic is given." How long would it take for a falsely accused parent to get back together with his or her children? "It takes a month or two for the criminal investigation," says Wagner. For a modern two-career household, a child abuse allegation that results in removing the other parent from the picture makes good financial sense. For example, if both parents have $250,000-per-year jobs and McMansions with mortgages, support goes from $28,140 per year at a 100/0 split, $20,148 per year with an 80/20 split to $11,172 at 65/35 to $0 at 50/50. Over an 18-year period, therefore, it would be worth over $500,000 (tax-free) if a judge believed an abuse allegation and awarded 100/0 custody rather than 50/50.
Angelina Jolie made the headlines in 2016 when she instigated three separate child abuse investigations against the defendant in her divorce lawsuit. He was ultimately cleared by the California DCFS, the Los Angeles Police Department, and the FBI. The six children at issue have a cash value to Ms. Jolie of approximately $50 million (tax-free) under the California child support guidelines (calculation). The value would be close to $0 in a 50/50 shared parenting arrangement.
Alec Baldwin in A Promise to Ourselves (2008) wrote about his experience as a child support defendant and accused child abuser in California:
Within a matter of days, the DCS caseworker arrived at my Los Angeles home. … I said, “Do you find that people are making claims such as this, false claims of child abuse against their ex-spouses, in order to hurt them during litigation?” Carl spoke softly, nodding his head. “No doubt,” he said. “No doubt, Mr. Baldwin. I have your file marked ‘Ongoing litigation with pending proceeding.’ That’s what I deal with all the time. Someone is on their way to court, so they file some charges to dirty up somebody right before the hearing.” I sat there numb. Carl informed me that the complaint was filed by what is referred to as a “mandatory reporter.” This can be a teacher, doctor, or clergy. It can also be a therapist.
He later learns that the child's therapist was the reporter and that the therapist, in addition to seeing the child, was regularly speaking with the plaintiff (Kim Basinger) regarding the child.
A "walk-away" prenuptial agreement, in which neither party can profit from property division and alimony via a marriage, is valid in California. As in other states, the prenuptial agreement cannot bind a court regarding child support and custody. It is possible that a court would enforce a clause requiring the parties to go to mediation before going to court. (See our short book California Prenuptial Agreements for more on this issue.)
The average hourly wage in California is $25.17 per hour. A person who goes to college at the University of California, Los Angeles will spend approximately $107,552 over four years to earn a bachelor's degree. Census 2014 data show that the median income for a 22-36-year-old college-educated woman who works full time is $40,000 per year in California or $30.737 after taxes. For a corresponding man it is $55,000 per year or $40,346 after taxes. California is the 6th least efficient state in the U.S., collecting 11 percent of residents' income in order to run state and local government (source: Tax Foundation; compare to less than 8 percent in efficient states such as Texas). Despite the high tax collections, California spends far more than it takes in by promising public employee pensions that are underfunded by hundreds of billions of dollars.
The average annual cost of child care is $11,823 for an infant, $8,237 for a four-year-old, and $2,736 for a school-age child. Thus the total cost of child care from age 0 through 12 is $54,103 in commercial settings or $41,454 in a family care setting.
For a man who goes to college and then works for 14 years, his total after-tax spending ability is $457,292 (earnings minus college costs). For a woman the comparable number is $322,766.
Excluding child care, which will be separately paid by a child support defendant, the USDA-estimated actual cost of providing for a child in a single-parent household is between $8,000 and $10,000 per year (average of $9,000 times 18 years of childhood = $162,000).
After factoring in these child-related costs, a college-educated man collecting child support for a single child is financially better off compared to working when child support payments over 18 years exceed $619,292 ($2,867 per month). For a woman the number is $484,766 ($2,244 per month). Assuming a $6,000/month mortgage interest/property tax payment by the defendant, a woman needs to sue a man earning at least $204,000 per year in order to have a greater personal spending power than in the college/work/no-kids case. Using the 80/20 parenting time defaults, the online calculator shows that a male plaintiff gets there by suing a woman who earns at least $300,000 per year while making a monthly house payment of $8,000 per month.
A man collecting child support for two children with two different mothers gets more money than in the college/work scenario when payments are more than $1,800 per month per child. According to California's official online calculator, this is attained when each mother earns at least $138,000 per year and one assumes a $4,000 per month mortgage and property tax expenditure by the mother and an 80/20 parenting nights split.
A female plaintiff with two children has a higher personal spending power than her college-educated working peers when each father pays her $1,500 per month. This happens when each father earns at least $93,000 per year and pays $3,500 per month in mortgage interest and property tax while the children spend 80 percent of their nights with her.
The state pays adults $8,000 per year to take care of a foster child.
Census 2014 data show that 94 percent of Californians collecting child support are women, suggesting that women win more than 90 percent of California custody disputes.
A 35-year-old female hand surgeon earning $325,000 per year marries a 33-year-old photographer. She sets up her husband with a photo studio and $100,000 of equipment, but he works just a few hours per week. They have a one-year-old child who is cared for by a nanny. The father is often home with the baby and nanny, but he spends most of his at-home time watching TV and surfing the Internet, leaving the child-rearing chores to the nanny. With the mom at work and/or taking care of the baby, the dad begins an affair with a young fashion model. After two years of marriage, the mom sues for divorce, custody, and child support.
Dan Jaffe predicts the following: "Dad if he wants it will get 50/50 custody. He will get child support from the mom of approximately $2,000 per month. She will also be ordered to pay for the nanny. If the mother can persuade the court to give her 70 percent custody the child support to the father will drop to $1,085 per month. If, on the other hand, the father can win 70 percent custody his child support revenues will probably be between $3,000 and $4,000 per month."
How about the fact that the father is not making any money from his photography business? Will a judge impute income to him? "In one county," says Jaffe, "judges simply impute $1,400 per month on the grounds that anyone can earn that amount. It doesn't affect the Dissomaster output very much. If I were representing the wife I would get the husband sent to get a vocational guidance report and try to impute income."
What kind of property division and alimony can the father collect from this short marriage? "There won't be significant community property because the mother's salary was probably substantially spent," says Jaffe. "He may get a year of alimony. Dissomaster computes alimony as well. Courts are not supposed to follow it but in 90% of cases they do, particularly on low-income cases like this one. The father can expect to get over $6,000 per month in alimony while it lasts."
Wagner predicts a court battle with experts making presentations regarding to which parent the child is more psychologically attached. The court would then seek to reinforce the greater psychological attachment by assigning the child to one parent the majority of the time. So the outcome of this case would depend on the dueling experts. Wagner agrees with attorneys in other states that a stay-at-home father would not get as good a reception in court as a stay-at-home mother: "The gender bias still exists, although it is diminishing. The judge will likely be more irritated with this guy if he isn't working by the time of the trial compared to if there were a stay-at-home mother."
Wagner concurs with Jaffe regarding alimony but notes that the mother may get credit for paying the father during a year of litigation, in which case the father will receive no additional alimony after a trial.
A 22-year-old woman marries her 22-year-old college sweetheart. After 14 years of marriage, they have four children, ages 3, 7, 9, 13. Both parents are public school teachers earning approximately $65,000 per year. They have shared child care duties roughly equally over the years. Now they can't stand to be in the same room together. He accuses her of having an affair. She accuses him of being verbally and emotionally abusive to her, but not to the kids. After a stormy argument in the kitchen, he moves in with a friend and she files for divorce, requesting sole custody and child support. The father answers the Complaint by requesting sole custody, but no child support. Both parents agree that the marital assets can be split 50/50. Both parents prefer as little post-divorce contact with the other as possible.
While in Massachusetts the existence of "conflict" asserted by one parent would be a strong and usually winning argument in favor of sole custody, in California "nobody cares about the fight that these parents are having," says Jaffe. "If anything in California asserting conflict would work against a parent seeking custody. Custody would go to the person who is more able to ensure that child is going to be kept in contact with other parent. It is the opposite of Massachusetts."
So what happens with these children? "Clearly this will be a 50/50 custody case and the parents will split all expenses for the kids," says Jaffe.
What would be the cash value of one parent winning 70 percent custody? Jaffe: "Dissomaster says that would result in child support payments of $857 per month."
Due to the equal incomes in this case there would be no alimony and neither parent would have a superior right to the marital home.
Wagner says "If there is an equal bond between the children and each of the two parents and the parents have equal income then there will be 50/50 custody and no child support." Wagner's answer leaves more scope for litigation and expert testimony than Jaffe's because Wagner says that it will be a question of "psychology" for the court to answer.
An 18-year-old woman marries a medical resident. She spends the first four years of the marriage as a college undergraduate, earning a bachelor's degree, and then becomes a stay-at-home mother to two children. She files for divorce after 10 years of marriage. The kids are 5 and 2 years old at the time the divorce commences. The plaintiff does not allege any misdeeds on the part of the father, only that they drifted apart in the time that she aged from 18 to 28. The mother has very obviously been the primary caregiver. The father has now completed his medical training and is earning $275,000 per year. The family has home equity of $300,000 and additional savings of $200,000.
Jaffe: "My guess is she will get more than 50% custody. He will get 35-40% custody. He can possibly move up to 50/50 if he can afford a nanny. I'm considering this a low-income case at $275,000 per year. That's only about $150,000 per year after taxes. He can't afford a $1,000 per week nanny. She will be getting $3,500 per month in child support and $3,800 per month in alimony [$87,600 per year]. That totals about 46 percent of available income."
Who gets the house? "Due to mandatory equal division, the mother would not get the house without paying her 50 percent share," says Jaffe. "There can be a 'Duke order' that permits a court to award the use of the house until the kids turn 18, but it is hard to get."
How long does the alimony last? Jaffe: "By statute anything more than 10 years is a 'long marriage'. Thus the court may not terminate jurisdiction over spousal support until death or remarriage. If the parties divorce at age 30, the court has jurisdiction to award support until the woman turns 100. In this case she would probably get 5-6 years of alimony and the judge would give her a 'Gavron warning' saying that the law provides that every party should do his or her best to become self-supporting and that if she doesn't do anything for 5 years her continued alimony will be at risk."
Can the father work his way up toward 50/50 custody as the children get older? Jaffe: "The standard for review is a 'material change in circumstances'. If I were representing the father I would argue the kids getting older and him adjusting his work reschedule would qualify. If I were representing the wife I would argue that the kids getting older was predictable and not a material change."
Wagner agrees with Jaffe that the mother here will win custody of the children and enough money to continue her stay-at-home lifestyle. "Most calls will go her way on spousal support," says Wagner. "The husband will pay dearly on child support. She will get about 50 percent of his net income on temporary after trial and 40-45 percent of his net income on his permanent basis."
Unlike in New York, Wagner notes that "by statute, his medical license is not an asset capable of being valued and divided. The community may be entitled to reimbursement plus 10 percent annual interest if he paid student loans back from his salary during marriage, unless the community has received the benefit from the education." (In other words, the doctor will essentially have to make double student loan payments, once during the marriage to the bank and once during the divorce to the 'community' that will be divided between at the end of the lawsuit. Due to the disparity between the real world interest rate and the statutory 10 percent rate this will result in cash payments that may be nearly double the actual liability.)
Unlike with the stay-at-home dad in Scenario 1, Wagner does not predict that the judge would expect this stay-at-home mom to have a job at the time of the trial. However, he notes that "In California we have a codified public policy that she must become self-supporting as reasonably possible in a reasonable period of time. The presumption is half the length of the marriage which would be five years here." Wagner notes that if the woman were older, however, the half-the-length-of-the-marriage rule may not be applied: "A judge would not want to cut off a 70-year-old woman if she'd been married from age 40 to 60 [notwithstanding that she would also have gotten a share of any pension benefits accumulated during the 20-year marriage]."
Wagner notes that this 28-year-old woman will historically be likely "remarry to replace her spousal support" and notes that he has observed a social trend in which "older women are less likely to remarry than before. Women in their 40s and 50s generally have a good job. Women traditionally remarried because they didn't have the ability to earn decent money." (In other words, for hundreds of years men lived under the delusion that their companionship was valuable but it turns out that it was their paycheck that kept marriages together!)
A 25-year-old woman marries a 40-year-old never-married medical doctor earning $275,000 per year. She had been earning $50,000 per year working as a receptionist in a medical office. She has a child after a year of marriage, quitting her job during the 7th month of pregnancy due to fatigue. She files for divorce when the child is 8 months old (after 1.75 years of marriage), alleging that the father did not participate in the infant's care, e.g., he did not change diapers or get up in the middle of the night to soothe the baby. The mother will allege that the father was verbally demanding and abusive, though there won't be any witnesses to corroborate. The father had savings of $2 million that he accumulated prior to the marriage but there was no significant accumulation of assets during the less-than-two-year marriage. The mother seeks a division of assets as well as alimony.
Jaffe: "The mother will get primary custody. If she can convince court that Dad isn't able to take care of the kid she can limit him to monitored visitation. There will be no overnights with an 8-month-old. He may see the kid 2-3 times per week for a few hours."
What kind of profit will the mother earn from the marriage? "Under community property laws," says Jaffe, "she doesn't get any of his $2 million. Because the father has so little custody she will get the maximum child support. Based on his income it would be $2,500 per month plus a year of alimony at $5,000 per month. However, the court will impute income on his $2 million in savings. If we add $5,000 per month in imputed income, the mother's revenue rises to $3,000 per month in child support and $8,000 per month in alimony. The alimony will be limited to about a year."
Wagner agrees with Jaffe that the mother here will be awarded primary custody and an associated stream of child support payments. "Overnights [with the father] would depend on what happened during the marriage. If the mother had left the child alone with the father during the marriage then the child could spend overnight with the father immediately." Wagner also confirmed Jaffe's prediction that alimony would last just for one year. "Application of the law has changed because society and judges have changed. Today most spouses are working. A case in 1965 would be heard by a trial judge born in 1910. Nobody got divorced so the woman had to be taken care of. By contrast, with a judge born in 1950 or later there is a good chance that the judge, someone in his or her family, or a friend has gone through a divorce. Only in the last 15-20 years has there been a dramatic change in spousal support. That's 80 percent from the bench and 20 percent from the Legislature.
An 18-year-old woman goes to a music festival and meets a 38-year-old medical doctor earning $275,000 per year. Things get a little crazy and a few months later she calls him up to say "I am going to have a baby." The 18-year-old does not go to college, quits her $12/hour job during the pregnancy, and does not wish to return to work.
"She just hit a home run, this lady. She has an annuity," says Jaffe. "This is why instructions are given to NBA players never to leave a condom in the house. Always flush them down the toilet. Otherwise women will use a turkey baster."
How about custody? "He can maybe get some time with this kid," predicts Jaffe. "But my guess is that the guy is never going to want to see this kid or have anything to do with the mother. He will just send her a check every month. He'll pay about $2,500 per month according to Dissomaster."
Does the fact that they were never married affect the calculation? "No," says Jaffe.
What if she gets married at 25 to a man earning $100,000 per year? "She won't lose any of her annuity," notes Jaffe. "A court cannot consider 'new mate income' by statute. But if she quits work because of her marriage to a man with income, court may impute income at the previous level."
Wagner's answers were consistent with Jaffe's, albeit less colorful.
What are the California standards regarding removal? With 50/50 custody says Jaffe "she would have a very hard time getting court to approve a move. The judge won't care if her mother lives in Eureka. It would destroy the 50/50 custody arrangement."
Given the enormous size of California, how many miles can a person move within the state before it is considered a removal? "The standard restraining order is that you can't move the kid out of the county," notes Jaffe, "though remember that LA County is 400 miles around. Generally speaking a mother trying to move from Beverly Hills to Newport Beach could be blocked on the grounds that it could take 2 hours to get there."
How about if the father's role has been reduced to every-other-weekend? "They are actually talking about a guideline number of 40%. If he has less than 40% custodial time with the kid, the mom has much greater flexibility." So the mother could move and the child would go from every-other-weekend to almost never? "No. The new order would be that he gets the kid for two weeks at Christmas, Spring vacation, 6-8 weeks during summer. Weekends would be replaced with those times. If he has money he will be 100 percent responsible for the transportation costs and hassle."
Wagner's perspective from northern California was similar. "If the father has 25% of time and he is an active parent during those nights, it would be tough for the mother to move even to San Francisco," says Wagner [we noted that the example that came most easily to Wagner's mind, as with nearly all the attorneys we interviewed for this book, was that of a situation in which the mother was the primary parent]. "If the children are with him 30-40% of the time it will be even tougher. If he has the children 25% of the time and is using sitters then it is easier [for the mother to move]," continued Wagner. "It comes down to a decision as to whether or not the children's relationship with the dad is superficial." Who decides that the kids don't need to see their dad anymore, except perhaps during some vacations? "The judge will get a report from family court services and private psychologists. Then there will be a trial with expert witnesses on each side."
As in most other states, because existing child support orders are deducted from income that can be tapped for additional child support orders, different children from the same parent have different cash values. The first person to sue a parent will get the most money and each successive plaintiff will get less. There is no formal equalization process, according to Wagner, but "if dad could cause a motion to be filed against all the mothers at the same time and consolidated and heard by the same judge, there could be discretionary equalization." Is that likely to prevail? "Res judicata governs child support orders," says Jaffe, referring to the fact that reopening a court decision is discouraged in our legal system. "Child support cannot be revisited unless there is a material and substantial change in circumstances and then you're trying new facts. An award for an additional child is probably not not material or substantial." Wagner adds that any equalization attempt would have to be initiated by the payor: "Mom #5 has no standing to try to get Mom #1 reduced."
Also, as in most other states, a child support plaintiff has a greater claim to a parent's income and a superior right to financial security than do the children of a marriage or the legal spouse. If a person is married with four children and has an affair that results in an additional child being born, child support to be paid to the co-parent of that extramarital child is calculated without reference to the obligations the defendant might have to the four children of the marriage and to the spouse. The spouse and children of the marriage might suffer financially in the event of a parent's death. By contrast, according to Wagner, a child support plaintiff can get a California judge to order a defendant to purchase life insurance. In addition, "the obligation to pay support is binding on the estate [of the deceased]." So the plaintiff with the extramarital child will have first dibs on any money left behind by the parent of the four marital children.
The California child support formula takes into account the potential tax advantages of the mortgage interest deduction. A quick experiment with the California state government's official online calculator shows that a parent with an annual income of $250,000 per year who takes care of a single child 20 percent of the time (the default) will pay $2,245 per month ($26,940 per year) to a co-parent who earns nothing. If, on the other hand, that parent pays $1,500 per month in property tax and $7,000 per month in mortgage interest, child support goes up to $2,639 per month ($31,668 per year). In other words, the defendant who lives in a splendid McMansion will pay more in child support than the defendant who rents a modest apartment and therefore actually has more disposable income.
[For comparison, note that both California numbers are lower than the $40,000+ per year that a Massachusetts plaintiff could obtain from the same $250,000-per-year earner and the $42,500 that could be obtained from a defendant in New York.]
What kinds of changes has Jaffe seen in his 50 years of practice? "The biggest change is more fathers wanted custodial time with kids. Courts started being receptive to children spending time with their fathers about 15 years ago."
Was there any pushback about children having more cash value than starting and selling a company to Facebook or Google? "No," says Jaffe, concurring with Wagner's perspective (above). "But a big problem is with people whose income can fall. Athletes can make $8 million per year and then nothing. Same with actors. There is no mechanism for putting some of the child support money into a savings account for the child. The mother gets the big money while the guy is doing well but she spends it all and then there is nothing available during a bad year."
Wagner agreed with Jaffe that shared parenting situations are much more common today than 20 years ago, especially when both parents have jobs. "The reason for this is as a society 'Donna Reed' and 'Leave it to Beaver' fathers are on the decline. More and more fathers are involved. Kids are involved in more after-school sports, which is one area where fathers are at least as likely to be involved as mothers but in any case there is more active parenting by both sexes. More and more parents come in [for divorce representation] saying that 'custody is all worked out; maybe 60/40 or 50/50."
[The authors note that California's child support formula doesn't have sharp cliffs at particular parenting time shares, unlike many other states. A child support plaintiff will not lose everything if the child is with the defendant 50 percent time compared to 30 or 40 percent. the $31,668 per year child of a $250,000-per-year defendant with a McMansion (see above) becomes a $28,944 at 65/35 custody and $24,732 at 50/50. If both parents have $250,000-per-year jobs and McMansions, support goes from $28,140 per year at a 100/0 split, $20,148 per year with an 80/20 split to $11,172 at 65/35 to $0 at 50/50.]
Wagner is an unabashed fan of the California system. Asked if a Danish-style administrative divorce system, with litigation as a last resort, would be preferable, Wagner responded that "Family law in California is the most complex subject matter in California, state or federal. It used to be securities law that was the most complex. California divorces could not be handled administratively." [The authors note that this means that the marriage of two Californians vacationing in Las Vegas, entered into after 15 minutes of un-sober reflection, might involve more lawyers to undo than would be required to handle a dispute regarding a multi-billion dollar stock offering.]
Wagner is a fan of the child support calculator: "When you have a formula that is rigid, child support gets settled very quickly." But he doesn't see alimony in the same way. "Fifteen years ago I would have said there needs to be change in the long-term spousal support statutes," says Wagner. "I even got active in legislation but a 1990 opinion in the Smith case talking about the purpose of permanent support convinced me that I was wrong. The opinion said that the Legislature was wise in not taking away judicial discretion because every case is different." Doesn't the fact that something is subject to judicial discretion and therefore attorney argument lead to more litigation? "When you have two experienced lawyers working on a settlement," Wagner noted, "it can be done reasonably quickly and equitably." [The authors note that this means that if one attorney is inexperienced and/or either attorney wishes to obstruct settlement, the divorcing couple will be spending potentially all of their assets on litigation.] Wagner greatly prefers the California system to New York's, in which one parent will emerge the unconditional victor of custody and child support payments (e.g., if each parent earns $200,000 per year and there are two children, a parent will be approximately $2 million better off (after taxes, over 20 years) by winning rather than losing custody): The New York Legislature encourages people to clog up the court system. Shame on them."
We pulled the California code section for child support from the state government's Web site to see if it were true that the only people who can understand the formula are the computer programmers behind Dissomaster. Here is the statute:
4055. (a) The statewide uniform guideline for determining child
support orders is as follows: CS = K[HN - (H%)(TN)].
(b) (1) The components of the formula are as follows:
(A) CS = child support amount.
(B) K = amount of both parents' income to be allocated for child
support as set forth in paragraph (3).
(C) HN = high earner's net monthly disposable income.
(D) H% = approximate percentage of time that the high earner has
or will have primary physical responsibility for the children
compared to the other parent. In cases in which parents have
different time-sharing arrangements for different children, H% equals
the average of the approximate percentages of time the high earner
parent spends with each child.
(E) TN = total net monthly disposable income of both parties.
(2) To compute net disposable income, see Section 4059.
(3) K (amount of both parents' income allocated for child support)
equals one plus H% (if H% is less than or equal to 50 percent) or
two minus H% (if H% is greater than 50 percent) times the following
Income Per Month K
$0-800 0.20 + TN/16,000
$6,667-10,000 0.10 + 1,000/TN
Over $10,000 0.12 + 800/TN
For example, if H% equals 20 percent and the total monthly net
disposable income of the parents is $1,000, K = (1 + 0.20) × 0.25, or
0.30. If H% equals 80 percent and the total monthly net disposable
income of the parents is $1,000, K = (2 - 0.80) × 0.25, or 0.30.
(4) For more than one child, multiply CS by:
2 children 1.6
3 children 2
4 children 2.3
5 children 2.5
6 children 2.625
7 children 2.75
8 children 2.813
9 children 2.844
10 children 2.86
From the bottom portion of this section it is clear that having three children with three different co-parents is more lucrative than having three children with the same co-parent. If the co-parent/defendants all have the same income there will be a 50 percent boost in child support revenue (3x1 versus 2x1) compared to the single co-parent case.
If we assume that substantially all of the income of the two parents is earned by one person the formula becomes pretty simple.
CS = K[HN - (H%)(TN)] ≈ K * (L%) * HN (because HN and TN are almost equal)
If "L%" (percent time spent with the lower earner) is the default 80 percent and the high earner is truly rich, the formula settles in at 1.2*0.12*0.8*income. For a single child this is 11.52 percent of after-tax income, which is much less than Illinois's straight 20 percent of after-tax income. Given current federal and state tax rates this is only about half of what a judge who extrapolates from the top of the Massachusetts guidelines would give to a plaintiff.
For defendants with less stratospheric incomes but with one primary earner, the formula is richer as a percentage but less cash overall. For example, if the primary earner makes $15,000 per month, after taxes, ($180,000 per year) the formula works out to 1.2*(0.173)*0.8*income. For a single child this works out to 16.6 percent of the defendant's after-tax income. Given prevailing tax rates this is only roughly half as lucrative as New York's 17 percent of gross (pre-tax) income, assuming that a New York judge can be persuaded to go beyond the statutory income cap (as is typical in the wealthier regions of the state).
A portion of the statute that seems confusing is calculating K, e.g., " 0.10 + 1,000/TN" as the rate for incomes between $6,666 and $10,000 per month. The fraction is there so as to avoid a cliff at $6,666 per month such that a plaintiff would collect less from a defendant with $6,666 per month in income than one with $6,665 per month. It also serves to make the percentage of total income fall as the child support defendant's income rises.
Attorneys in numerous other jurisdictions referred to California in our conversations. Oftentimes the state in their mind is a model for a future in which divorces are handled formulaically and inexpensively. Our interviews and research, however, show that the sheer amount of cash that is available to the person who files a California divorce lawsuit, through a combination of alimony and child support, leads to litigation as intense as anywhere. It is true that the child support formula covers all possible scenarios of income and parenting time. However, with $20 million or more in after-tax cash possibly riding on the question of custody, a parent has a strong financial incentive to obtain custody at any cost, including fabricating tales of child, sexual, and physical abuse. That the state passed a statute encouraging judges to punish child support litigants for making false allegations of abuse only shows how strong the incentives are.
As with a lot of other states, California relies heavily on mental health and other paraprofessionals to make recommendations to judges regarding custody. This streamlines court operations but leaves in place a system in which a child's future is determined essentially by a single individual and his or her personal biases. By having the witnesses interviewed outside of the courtroom this decision will be made without cross-examination and thus it may be harder for a defense to be mounted against a well-prepared plaintiff.
California rewards pre-lawsuit planning. The person who knows that he or she is going to file a lawsuit can prepare by trying to move as much of the lawsuit target's separate property into community property status and also by taking on more child care tasks in order to win a larger slice of the children's time, which will translate into higher child support profits.
Because the total child support obligation over an 18-year period is easily calculated and potentially unlimited, the marketing of abortions is relatively common in California (see the Child Support Litigation without a Marriage chapter for how this works).
Because California is a popular tourism destination and, according to Wagner, by design offers more child support profits than all but at most four other states, it is a sensible weekend destination for an unmarried person hoping to profit from a casual relationship. The child conceived and born in Nevada, for example, will yield at most $13,000 per year due to the cap on child support in that state. A weekend trip to Los Angeles may trigger the Uniform Interstate Family Support Act's section 201(6) ("the individual engaged in sexual intercourse in this State and the child may have been conceived by that act of intercourse.") to gain California jurisdiction when the baby is ultimately born and the $13,000-per-year baby could become a $200,000-per-year baby. (Note that this does not apply to married couples residing in Nevada; Nevada courts would retain jurisdiction even if conception occurred out of state.)
How do people behave who understand the family law system best? See "This Lawyer is Hollywood's Complete Divorce Solution; No one separates the rich and famous better than Laura Wasser." (Bloomberg, March 2, 2015) It seems that Wasser, one of California's most successful divorce litigators, has chosen to have children out of wedlock with multiple fathers and says "I don’t want to get married. I don’t like the idea of entering into that contract."
One of our team members was fortunate enough to attend Burning Man in 2015. Here's a (slightly cut down) write-up of "Attitudes toward marriage and children" from the festival…
If you're not part of a camp you don't learn too much about the personal lives of fellow Burners. Convention dictates that casual conversations stay in the moment and, if the Default World does come up, stay positive. After sharing tents, shade structures, kitchens, dining rooms, and showers with 200 "villagers" and 70 "campers," however, discussions go deeper.
Our village was primarily populated by Californians. "Every guy that I know who was ever married got totally screwed in a divorce," said a Bay Area woman. Her observation was supported by data from the camp. California-based men in their 50s and 60s who had been married had in fact lost a house, the children, and much of their income going forward: "Getting married was the worst mistake that made in my entire life. I was about 30 percent happier for five years and then lost 90 percent of my happiness for 15 years," was a typical comment. None had remarried. The never-married men in their 40s and 50s had an almost equally negative view of the institution: "Just about every friend who has been married is now divorced," one said, "and they're all paying to support a woman whom they hate and kids whom they never see."
We had a lot of high-income women in our camp. All recognized that they could be targeted and potentially become the loser under California's winner-take-all system. A medical professional said "There is no way that I'm going to pay to support a guy. It was bad enough the last time that I lived with a boyfriend and I had to pick up his socks all the time and do his laundry. Thank God I didn't have to support him financially." A finance executive said "I worked my ass off for 17 years for what I have. I am not going to risk losing it." I explained that, based on the income she had described, her exposure under the California child support system would likely be about $2 million ($4 million pre-tax) for one child. She responded "That's an unacceptable risk." She wanted to have children, but recognized that the only way to do it without substantial financial risk was to find a mate with a higher income, thus making the pool of potential men very small.
Despite a high level of education and a long residence in California, there were a lot of misconceptions about California family law (similar to what we found surveying Massachusetts residents). Many villagers wrongly believed that they could limit their exposure to child support lawsuits via a prenuptial agreement. They also did not understand that an out-of-wedlock child from a one-night encounter would yield the same child support profits as the child of a marriage. Nor did they understand that child support revenue was potentially unlimited. They were not aware that family law varied widely from state to state and that the California system was dramatically different from nearby Arizona's, for example.
The successful Californians (biotech, software, medicine, etc.) in our village recognized that having a child opened the door to a lawsuit from a financially-motivated plaintiff. Here was one of the more colorful comments:
"Considering the extensive, repeated, and generally copious amount of unprotected sex I've had over the years, my $5,000 vasectomy has provided an infinite (or better) IRR. I better re-test that it's still working. I guess with the 20-somethings the risk is orders of magnitude higher than with the older Cougars. I would pay big bucks for a DIY home fertility test... it's a massive headache to schedule and get it done wherever the fuck they test for negative fertility."
[Note that Burners in their 20s had a more positive view of marriage and, in fact, there were a handful of weddings actually performed during Burning Man.]
A high-income woman asked "Why does [a high-income middle-aged fellow villager] chase after women in their 20s?" The response was "Well, he tried being a good husband and father and all that he got for his trouble was a set of divorce papers and a $10 million hole in his pocket." The woman nodded thoughtfully and said "fair point." For his part, a middle-aged man observed "Women in their 40s don't want to get sex out of men for their own pleasure anymore. When they reach 40 they look for other stuff that they can take from a guy. Most of the ones I have met are divorced and heavy drinkers. They're really mean when they're drunk." A female psychologist said "Research shows that humans need only one close social connection. So as long as she can get alimony or child support, it doesn't make sense for a woman to stay married once she has had a child; the child becomes her main social connection." Why divorce at that point? What's the problem with having the father of the child around as an additional social connection? "My patients don't like to say this directly, but they enjoy going out, meeting new men, and having sex with them. It's a lot more exciting than cooking dinner and sharing a bed with the same man every night."
Relations between children of divorce and their fathers were consistent with the research we reported on in the "Children, Mothers, and Fathers" chapter ("When fathers and children live in separate households during part or all of the year, these routine exchanges [helping with everyday events] are not as frequent or as easy. Thus, the loss of a household brings a decline in father-child contacts and a loss of paternal time investments. … As time goes on, a child's contact with his or her father becomes increasingly infrequent. Ten years after a marriage breaks up, nearly two-thirds of the children report not having seen their fathers for a year."). A divorced-for-20-years father from the Bay Area said "I regret all of the time and energy that I spent on my children after the divorce. With the every-other-weekend schedule we just grew further apart every year. They were strangers within five years and the visits stopped because it wasn't satisfying for anyone. It would have been smarter to start a new life on the day that I was served and not dwell on what turned out to be the past." How did the kids turn out? "Pretty bad, but it might have been genetic," he responded. "Remember that their mom married a guy for his money and then divorced him because she found someone a little richer and figured out that she could collect money from two guys at the same time."
Another father said "Divorce spoiled my experience of fatherhood. When I saw my son it would remind me of how much money I was paying to his mom and the lawyers, the guys that his mom was cheating on me with during the marriage, and how stupid I was to have gotten married. There was no joy left in the relationship for me and I'm sure that he sensed it. We'd been inseparable when we all lived together, but he stopped visiting when he was a teenager and I seldom see or talk to him today." The psychologist in our village said "It is rare for me to see a child of divorce who wasn't profoundly damaged. When they're young and the judge cuts their time with their father what they perceive is that their father has abandoned them. Nobody recovers from that. For the rest of their life they will be insecure. When they're teenagers they come to realize that their mom did it for the money and/or so that she could have sex with a bunch of new guys. It is tough to come to terms with the fact that your mom was a whore." What about as adults? "Men whose parents were divorced are wary of marriage but eventually they seem to succumb and, of course, eventually get taken to the cleaners just like their dad did. Women also tend to do whatever their mom did. If mom worked, the daughter will work. If mom worked her body and the child support system, the daughter will work her body and the child support system."
Not everyone was down on the Californian family law system. "I got married when I was 22," said one woman, "looking primarily for financial security. About five years later my next-door neighbor got divorced and I learned from her that I could keep the financial security and enjoy my freedom at the same time. For the last 20 years I have been able to do whatever I want, whenever I want, including come to 10 burns. To me child support meant not having to work at a job unless I loved it and it was no more than 20 hours per week. To me it seems crazy that anyone works 40 hours per week."
[Note that Burners are a biased sample. The Californian who is living behind a white picket fence with a spouse and 2.5 children is less likely to be able to escape for a week than the childless or divorced Californian.]