Part of Real World Divorce: web edition | Kindle edition
by the realworlddivorce.com staff, edited by Suzanne Goode; ISBN 978-1-944861-04-9 (Kindle edition)
Copyright 2016 Fifth Chance Media LLC.
Based on a naive reading of the law, a California divorce should be simple and inexpensive. Property acquired prior to the marriage won't change hands or be divided. Property acquired during the marriage will be split 50/50. If the marriage lasted less than 10 years, spousal support (alimony) shouldn't last for more than half the length of the marriage. In practice, however, whenever the parties have substantial assets or income there are no practical limits to the scope of the legal battle. Californians can argue about the extent to which separate property (owned by one spouse) has been transmuted into community property (to be divided 50/50). Californians can argue about the extent to which a defendant's 1040 income tax return reflects the amount that he or she is capable of earning. Following a marriage longer than 10 years, litigation over the amount and duration of alimony can extend until one or both former spouses are dead. If a couple has children, custody and child support litigation may last until the youngest child turns 18. Remember that California offers unlimited child support profits and therefore unlimited financial motivation to litigate over custody of children.
A prenuptial agreement can help make your marriage last by reducing the financial incentives to filing a divorce lawsuit. If your marriage doesn't last, a prenuptial agreement can help reduce the time and money spent on litigation. This book will show you what a prenuptial agreement can and can't do. It will also explain how you might be better off simply moving to a different state or country.
Does family law matter if people are marrying out of love and a desire for companionship? "You might think you're marrying for love," one lawyer told us, "but as far as the government is concerned marriage is a business transaction." Lawyers in every jurisdiction offering "no-fault" or "unilateral" divorce (initiated by one partner against the other) told us that the commitment aspect of marriage was meaningless: "Marriage lasts until one spouse figures out that he or she can be better off by getting rid of the other spouse." An expectation by both partners of an enduring marriage is no guarantee of an enduring marriage and, indeed, the American landscape is no longer dotted with nuclear families living behind white picket fences:
Fewer than half (46%) of U.S. kids younger than 18 years of age are living in a home with two married heterosexual parents in their first marriage. This is a marked change from 1960, when 73% of children fit this description, and 1980, when 61% did, according to a Pew Research Center analysis of recently released American Community Survey (ACS) and Decennial Census data.
-- "Fewer than half of U.S. kids today live in a ‘traditional’ family" (Pew Research, December 22, 2014)
Do both partners at the altar typically expect the marriage to be enduring? It turns out that a substantial percentage of Americans would marry someone for the money with the expectation of a lucrative divorce lawsuit. From the Wall Street Journal:
According to a survey by Prince & Associates, a Connecticut-based wealth-research firm, the average "price" that men and women demand to marry for money these days is $1.5 million.
Fully two-thirds of women and half of the men said they were "very" or "extremely" willing to marry for money. The answers varied by age: Women in their 30s were the most likely to say they would marry for money (74%) while men in their 20s were the least likely (41%).
Of course, when the mercenary marriage proves disappointing, there's always divorce. Among the women in their twenties who said they would marry for money, 71% said they expected to get divorced -- the highest of any demographic. Only 27% of men in their 40s expected to divorce.
Says Mr. Prince: "For these women, it's just another step on their journey to the good life. They want to be paid what they think they're worth and then move on."
-- "Marrying for Love ... of Money," WSJ, December 4, 2007
Those who do not marry for money to begin with may nonetheless be energetic and enthusiastic about divorcing for money. Based on our interviews with more than 200 attorneys nationwide and hundreds of spouses-turned-litigants, once a person decides to end a marriage and files a lawsuit against his or her spouse, the typical plaintiff ("petitioner" in California) develops a laser focus on how to turn the discarded marriage into spendable cash. Litigation is stoked by the fact that California courts keep cases alive by ordering the higher-income spouse to pay some or all of the lower-income spouse's legal fees. A plaintiff who isn't paying legal bills has little incentive to settle for less than the hoped-for amount.
Remember that in California, unlike in some European countries where it is an administrative process, a divorce can be obtained only by going to the court system. Although the California court system tries to be friendly to citizens without attorneys, it is likely that the spouse who seeks to improve his or her life by divorcing will talk to an attorney. As we note in our chapter on the divorce litigation process per se, part of the reason that divorce litigation is intense is what tends to happen at parties' first meetings with attorneys. "A lawsuit never looks better than the day you file it," one litigator told us. By definition the attorney who is interviewing only one spouse at the inception of a lawsuit hasn't heard any of the other side's facts. The result is that each litigant develops an expectation regarding the divorce lawsuit that is an unlikely best-case outcome. Both attorneys are giving accurate estimates based on what they've heard from their respective potential clients. These irreconcilable expectations quickly turn into feelings of entitlement. People naturally get upset when they aren't getting something to which they feel entitled. Plaintiffs also hear what they want to hear. When an attorney says "You could get $100,000 per year in alimony for life," the plaintiff client hears "I will get $100,000 per year in alimony for life."
In order to keep the doors open to litigants, California courts are happy to start from the assumption that a petitioner needs help to make ends meet and that the most logical place to get that help is the to-be-discarded spouse. How much money can a person have and still be considered a credible "dependent spouse" by a California court? Angelina Jolie, with an estimated net worth of $200 million, sued Brad Pitt, whose estimated wealth was closer to $240 million. Lawyers and courts were involved in determining "temporary support for Jolie and the kids, and permanent financial support for the family" (Inquisitr, October 8, 2016).]
"The beauty of no-fault divorce is that you get to have sex with new partners, and maybe even get money from new partners, while still getting money from the discarded spouse," is how one lawyer summed up the typical U.S. state's system. An attorney we interviewed for the New York chapter said, "A person's decision to divorce is primarily financial. Of course there are people who are concerned about the kids, but they are not very common. Sad to say it is all about money here in the U.S." A lawyer in Massachusetts: "When I tell the prospect that the facts of her case are different and she is likely to end up with a smaller number, if that number isn't sufficient for her to maintain her lifestyle, she'll typically reconsider the idea of suing. If that number will provide a better material lifestyle than what she enjoys presently, she'll write me a $25,000 retainer check on the spot. A lot of men in Massachusetts would be surprised to find out that they are still married only because they aren't wealthy enough to be worth suing."
[How can a divorce lead to a "better material lifestyle"? The spender married to the saver will enjoy, post-divorce, sole discretion regarding spending and can spend more. The successful divorce plaintiff will have most of their defendant's income plus additional spending power from a new partner's income.]
Academic researchers tend to express themselves less colorfully, but their conclusions are similar to what the lawyers told us anecdotally. The more money that someone can get from filing a divorce lawsuit, the more likely that person is to end the marriage under America's no-fault system ("unilateral divorce" in the parlance of the academics). The key to alimony profits in most states, including California, is being deemed economically dependent on the other spouse. In practice this simply means having a lower income; thus a plaintiff who earns $300,000 per year would be considered the dependent spouse if the defendant were earning $350,000 per year. "Her Support, His Support: Money, Masculinity, and Marital Infidelity," (Christin Munch, American Sociological Review, June 2015) is summarized by the professional society with a headline of "People more likely to cheat as they become more economically dependent on their spouses." Parents who can expect to win custody are more likely to divorce their spouses in jurisdictions where collecting child support is more profitable. See "Child Support Guidelines, the Good, the Bad, and the Ugly" (Brinig and Allen 2011; Family Law Quarterly, v. 45(2), pp. 140-151), for example.
To the extent that a prenuptial agreement reduces the profits available from a divorce it will reduce the lower-income spouse's incentive to have sex outside the marriage and to end the marriage via a divorce lawsuit.
What does an incentive to cheat or an incentive to sue look like? One case that we looked at involved a successful financial services industry fund manager. Due to the Wall Street-style checks rolling into the household, her husband decided to relax at home, watch the nannies raise the children, surf the Web, pursue hobbies, etc. As the wife was getting ready to retire the stay-at-home husband asked "Do I need this woman to earn more money?" The answer was no due to the fact that she was about to stop working. He then asked "Do I need her around to provide a stable environment for our children?" The answer was no because the kids were nearly launched. Did he need her to produce more children? It would have been biologically impossible due to her age. After a bit of litigation it turned out that, under the Massachusetts no-fault system, "I want to have sex with 22-year-olds off Craigslist" is as good a reason for a divorce as any (as it is in California). The husband got paid tens of millions of dollars down at the local family courthouse. Although he only netted half of the money that his wife had earned, his practical spending power had increased due to the fact that the wife, like a lot of self-made people, was a saver while he was a spender. The case would have been even simpler in California. Absent a prenuptial agreement, the husband would have been entitled to 50 percent of what had been saved from the wife's earnings plus spousal support (alimony) for at least half the length of the marriage.
What if they'd lived together and had children together, but not been married? California does not recognize a common law marriage based on cohabitation. Thus, if he'd wanted to keep spending the money that she earned he would have had to stay with her and refrain from indulging his passion for 22-year-olds. Could the high-income woman have used a prenuptial agreement to participate in a traditional or religious marriage without tempting the husband with a multi-million dollar reward for cheating? Keep reading to find out!
The process of developing a prenuptial agreement should begin with a discussion by the potential marital partners regarding what would be fair in the event of divorce. As discussed below, for the agreement to survive a validity challenge, it is helpful to show an email record of discussion, perhaps with exchanges of informal agreement drafts, well in advance of the wedding. A written informal agreement should also streamline the work that attorneys need to do in preparing the final formal agreement.
Most parents are concerned about the welfare of their children. Although there is an industry of therapists happy to collect money for reassuring divorce plaintiff patients that children can be fine following a parental separation, academic research psychologists have concluded that the typical divorce is more harmful to the average child than the death of a parent. "Child Support and Young Children's Development" (Nepomnyaschy, et al, 2012; Social Science Review 86:1), a Rutgers and University of Wisconsin study of children of lower income unmarried parents, found that any kind of court involvement was associated with harm to children: "We also find that provision of formal [court-ordered] child support is associated with worse withdrawn and aggressive behaviors." Attorneys told us that, in their experience, children never recover from the experience of one parent suing the other while the other parent scrambles to defend the lawsuit. Given the potential for harm, one might think that provisions regarding child custody and child support, with the aim of preventing litigation around these issues, would be front and center in any prenuptial agreement. However, by law any such provisions are invalid in every state:
[P]rovisions in a prenuptial agreement purporting to affect the rights of the parties’ children are void as against public policy. Provisions limiting child support are unenforceable, as are provisions that seek to dictate the custody of a child or a parenting schedule unless the disposition is also in the best interests of the child.
-- "Forbidden Provisions in Prenuptial Agreements: Legal and Practical Considerations for the Matrimonial Lawyer" (Fields 2008; Journal of the American Academy of Matrimonial Lawyers, v. 21)
In theory a custody or child support lawsuit is for the benefit of a child and the child wasn't a party to the prenuptial agreement. Thus the prenuptial agreement cannot interfere with the child's right to litigation resulting in court-ordered child support (it will be an adult who sues for child support, of course, and banks the money once paid! See the Family Code section 1612(a)(7)(b) for "The right of a child to support may not be adversely affected by a premarital agreement."). Nor can a prenuptial agreement interfere with the child's right to a court-determined custody arrangement.
What about a clause that binds the adults to go to mediation before suing if there is a child-related issue? The attorneys we interviewed for our full chapter on California law thought that it was possible that such a clause would be enforced. Here's an example of such a clause:
In the event of the commencement of any action with respect to which the issue of support, custody and access to minor children is at issue, the parties shall attempt to agree upon the same through discussions between them or through a process of mediation with an agreed upon mediator trained in alternative dispute resolution; however, if they are unable to agree, such issues shall be determined by a court of competent jurisdiction.
What actually can be addressed in a California prenuptial agreement:
If you and your intended can't agree on the fair answer to the above questions, it is probably unwise to get married. You're setting yourselves up for a lawsuit that will consume 100 percent of your assets. For example, suppose that Spouse A earns $100,000 per year but thinks it is fair to receive alimony for a period of time following a divorce because Spouse B earns $150,000 per year. Spouse B insists on a mutual alimony waiver as a condition of marriage and Spouse A agrees. In the cases that we looked at, Spouse A will sue for alimony as part of the divorce and allege that the prenuptial agreement is invalid due to one or more reasons. If two people don't agree on a fair divorce outcome they are likely to have what newspapers call "a nasty divorce" (i.e., one person trying to get as much money as possible out of the other in America's litigation system).
A person's idea of what is fair in the event of a divorce seldom changes. Someone who is marrying with an eye toward the money (roughly half of Americans according to the survey cited in the introduction) and who wants to be paid following a divorce will hold onto that mercenary interest and that desire even after a prenuptial agreement is signed. "Take the most outrageous demand that someone makes during prenup negotiation, multiply it by 5, and that's what you're going to see in the divorce Complaint," said one litigator.
Congratulations. It seems that you are part of a happy couple with shared values that include a shared sense of what would be fair in the event of a divorce. If it turns out that the state where you intend to reside shares the same beliefs then you may not need a prenuptial agreement.
For example, suppose that you think that, in the event of a divorce, the higher-earning partner should pay alimony to the lower-earning partner for a period of time that is a function of the length of the marriage or, if the marriage lasted 10 years, potentially forever. If you planned to live in Germany, Texas, or Indiana you would need a prenuptial agreement to ensure what you consider to be a fair outcome. Those jurisdictions don't generally issue court orders that render one able-bodied adult the financial dependent of a former spouse. However, your idea of fairness is perfectly aligned with California family law and thus the prenuptial agreement could be irrelevant. It still might be worth having a prenuptial agreement, however, in case you decide to move to Florida where "permanent alimony" can be awarded after a 7-year marriage. A prenuptial agreement might also save litigation time and expense regarding the amount of alimony to be paid.
We encourage you to look through the state-by-state coverage in Real World Divorce. It may well be the case that there is already a place where the legislature's idea of fairness is similar to yours. In that case you won't need to spend thousands of dollars on a prenuptial agreement prior to the marriage and potentially hundreds of thousands of dollars litigating the validity of a prenuptial agreement following the filing of a divorce lawsuit.
You might think of marriage as a romantic enterprise. Under California law, however, marriage is primarily a financial arrangement and the most important right that a person obtains by getting married is the right to sue the other spouse for money, real estate, etc. A prenuptial agreement is generally a waiver by both parties of some or all of that right. Thus the Legislature and courts want to make sure that the waiver is an informed one. California, along with roughly 27 other states, has implemented the Uniform Premarital Agreement Act (drafted in 1983), but not the new and improved(?) 2012 version. This can be found in the Family Code Section 1610-1617.
Section 1611 says "A premarital agreement shall be in writing and signed by both
parties. It is enforceable without consideration." In other words, no money ("consideration") has to change hands at the time the agreement is made and, in theory, unlike in some states (see Massachusetts), the agreement is enforceable even if neither partner can profit from the marriage.
Section 1612 explicitly lays out some items that could be covered:
(a) Parties to a premarital agreement may contract with
respect to all of the following:
(1) The rights and obligations of each of the parties in any of
the property of either or both of them whenever and wherever acquired
(2) The right to buy, sell, use, transfer, exchange, abandon,
lease, consume, expend, assign, create a security interest in,
mortgage, encumber, dispose of, or otherwise manage and control
(3) The disposition of property upon separation, marital
dissolution, death, or the occurrence or nonoccurrence of any other
(4) The making of a will, trust, or other arrangement to carry out
the provisions of the agreement.
(5) The ownership rights in and disposition of the death benefit
from a life insurance policy.
(6) The choice of law governing the construction of the agreement.
(7) Any other matter, including their personal rights and
obligations, not in violation of public policy or a statute imposing
a criminal penalty.
Note that (7) is a catch-all into which unusual provisions might fit. More interestingly, Section 1612 essentially says that no prenuptial agreement is secure from an in-court challenge:
(c) Any provision in a premarital agreement regarding spousal
support, including, but not limited to, a waiver of it, is not
enforceable if the party against whom enforcement of the spousal
support provision is sought was not represented by independent
counsel at the time the agreement containing the provision was
signed, or if the provision regarding spousal support is
unconscionable at the time of enforcement. An otherwise unenforceable
provision in a premarital agreement regarding spousal support may
not become enforceable solely because the party against whom
enforcement is sought was represented by independent counsel.
The test for unconscionability comes at the time of the divorce lawsuit. Therefore there is no way to know in advance whether or not provisions regarding spousal support are going to be valid. Suppose that two medical doctors marry and execute a prenuptial agreement with a mutual waiver of alimony (spousal support). Their income was identical at the time of the marriage, but Doctor A stopped working after two years while Doctor B worked 80 hours per week building up a successful cosmetic medicine clinic. If Doctor A sues Doctor B at the 10-year point favored by California petitioners, a judge could easily find that it was unconscionable for the zero-income doctor not to get alimony from the high-income doctor. The prenuptial agreement per se wasn't defective, but circumstances as they evolved made it invalid.
Section 1615 explains other circumstances under which a court should invalidate an agreement:
(a) A premarital agreement is not enforceable if the party
against whom enforcement is sought proves either of the following:
(1) That party did not execute the agreement voluntarily.
(2) The agreement was unconscionable when it was executed and,
before execution of the agreement, all of the following applied to
(A) That party was not provided a fair, reasonable, and full
disclosure of the property or financial obligations of the other
(B) That party did not voluntarily and expressly waive, in
writing, any right to disclosure of the property or financial
obligations of the other party beyond the disclosure provided.
(C) That party did not have, or reasonably could not have had, an
adequate knowledge of the property or financial obligations of the
(b) An issue of unconscionability of a premarital agreement shall
be decided by the court as a matter of law.
(c) For the purposes of subdivision (a), it shall be deemed that a
premarital agreement was not executed voluntarily unless the court
finds in writing or on the record all of the following:
(1) The party against whom enforcement is sought was represented
by independent legal counsel at the time of signing the agreement or,
after being advised to seek independent legal counsel, expressly
waived, in a separate writing, representation by independent legal
(2) The party against whom enforcement is sought had not less than
seven calendar days between the time that party was first presented
with the agreement and advised to seek independent legal counsel and
the time the agreement was signed.
(3) The party against whom enforcement is sought, if unrepresented
by legal counsel, was fully informed of the terms and basic effect
of the agreement as well as the rights and obligations he or she was
giving up by signing the agreement, and was proficient in the
language in which the explanation of the party's rights was conducted
and in which the agreement was written. The explanation of the
rights and obligations relinquished shall be memorialized in writing
and delivered to the party prior to signing the agreement. The
unrepresented party shall, on or before the signing of the premarital
agreement, execute a document declaring that he or she received the
information required by this paragraph and indicating who provided
(4) The agreement and the writings executed pursuant to paragraphs
(1) and (3) were not executed under duress, fraud, or undue
influence, and the parties did not lack capacity to enter into the
(5) Any other factors the court deems relevant.
Let's take this section by section.
Full disclosure is critical. Assets acquired prior to a marriage, in theory, aren't divisible by a family court judge in California. However, income from those assets could be used to generate alimony. Therefore it makes sense that a party potentially waiving or limiting his or her right to alimony would be entitled to know just how big a fish was on the hook.
The statute provides for multiple ways that a judge can find that the agreement was involuntary. Watch out for that last provision "Any other factors the court deems relevant," which effectively opens the door to unlimited judicial discretion, which then opens the door to unlimited litigation expenses at both the trial and appeals court levels.
An inquiry into whether or not the agreement was made voluntarily will raise evidentiary issues. A typical divorce lawsuit in California will come at the 10-year point, which means that the court is looking at the question of whether an agreement was entered into voluntarily at least 10 years previously. Save all of those pre-lawyer emails and disclosure documents.
Each party should be represented by an attorney. Courts will assume that a party represented by an attorney has been informed of what would happen in the event of a divorce, what rights are being waived, etc. There is no requirement in the statute that the attorney be competent in the area of family law, but we would strongly advise that only working California divorce litigators be retained to work on California prenuptial agreements. Only someone who is in the family court every day trying to wring cash out of a defendant can know the practical ins and outs of wringing cash of California divorce lawsuit defendants. Working divorce litigators are also typically embroiled in representing parties either challenging or defending the validity of prenuptial agreements and therefore are familiar with current case law (appeals court decisions) regarding what can and can't be done via a prenuptial agreement.
As noted above, it is best to be able to establish that negotiations regarding a prenuptial agreement were started well before the wedding or, in the case of a compressed time schedule, immediately after an engagement. Email is helpful here and also helps establish that both parties were informed and active participants in the process. The statute requires that an agreement, to be valid, was not presented and signed at the last minute. The final draft could be signed the day of the wedding, in theory (but watch out for the catch-all provision!), but should have been presented at least 7 days before the wedding.
The more that you spend on your wedding the more likely it is that you'll be a party in a divorce lawsuit; an elaborate wedding also increases that possibility that a judge could find "duress" and therefore invalidate a prenuptial agreement. Judges assume that if a venue, florist, and caterer have been booked for a specific date and invitations have been sent out to 100 people there will be pressure to get the prenuptial agreement done. If one party has signed the agreement under the duress of a potentially canceled expensive wedding celebration then that is an argument for why the agreement is invalid.
[Another argument for a simple wedding ceremony is provided by "Why spending less on your wedding could save your marriage" (PBS, January 13, 2015), based on "‘A Diamond is Forever’ and Other Fairy Tales: The Relationship between Wedding Expenses and Marriage Duration," (Francis and Mialon 2015; Economic Inquiry 53:4). Highlights from the PBS article:
Note that, despite their professional credentials as Emory University academic economics, Francis and Mialon failed to consider the body of previous research showing that divorce lawsuits are more likely when plaintiffs can get their hands on more cash. It may simply be that people who are worth suing for divorce also spend more on their weddings, in which case the academic exercise would serve mostly to remind readers not to confuse correlation with causation.]
By giving judges a lot of discretion and encouraging petitioners to seek alimony, California gives divorcing couples plenty to fight about and, especially if there are kids involved, plenty of good reasons to fight dirty. A California divorce lawsuit can easily turn into a no-holds-barred bare-knuckle fight for the last possible dollar. Your prenuptial agreement attorney should be someone who is in the mud pit every day listening to allegations of child molestation, emotional abuse, lurid sexual behavior, etc., all wrapped up as part of a quest for more cash.
Here are some competent attorneys whom we've come across in the course of our research:
Although it may be helpful to open email negotiations with your intended prior to hiring attorneys, once the two sides are lawyered up most of the discussions will be lawyer-to-lawyer from that point onward.
You still have a role to play, however, in reviewing the terms. There is no way that you can communicate all of your concerns, goals, and priorities to your attorney in a few emails or phone calls. Ask about any sections that seem needlessly complex or confusing to a layperson. If a section is ambiguous to you it may also be ambiguous to a judge and therefore be the subject of litigation in the event of a divorce.
The cooperative tone of negotiation that prevailed during email exchanges with your intended may not survive the lawyered-up phase. The lower-income or less wealthy spouse who talks to a lawyer will repeatedly hear the phrase "under the law, you are entitled to..." and will come to see that a prenuptial agreement is a waiver of those potentially valuable entitlements. The lawyer won't mention that obtaining alimony and a larger slice of property division might run up $500,000 in legal fees, of course, so the potential profits of a divorce lawsuit tend to be exaggerated during this as in all pre-litigation phases. The lower-income spouse who previously prized independence and self-reliance now begins to fully appreciate the possibilities of being the "dependent spouse" in a California divorce and to see these legal entitlements as moral entitlements. Obtaining savings that someone else earned and alimony going forward is now perceived as the fair outcome of a divorce (as noted above, that this is "Justice" with a capital J is an accident of jurisdiction; the plaintiff who files a divorce lawsuit in Germany or Texas won't be entitled to alimony). If the higher-income spouse doesn't want to offer this via the prenuptial agreement then he or she is behaving in an unjust manner.
If it is hard to reach an agreement, our advice is to either walk away from the idea of marriage or drive away from California to live in a jurisdiction where the law provides for whatever you consider to be a fair divorce outcome and therefore you can be married without a prenuptial agreement. "If you think the prenuptial negotiation is contentious," said one lawyer, "just wait for the divorce litigation." As noted above, demands during prenuptial negotiation are a preview of demands that will be made, in a greatly amplified form, during a divorce lawsuit.
Although your attorney will be primarily responsible for protecting your interests and you'll probably be able to spot the big stuff such as a waiver of alimony, there are some things that might look like harmless boilerplate but can have important implications. When reading every section of the agreement, ask yourself the following questions:
As explained in Real World Divorce, divorce in different states or different countries looks completely different. What might be a quick and low-cost administrative procedure in Denmark can be a fight-until-the-money-runs-out lawsuit in California. A divorce lawsuit through trial that consumes $10,000 in legal fees in Europe can cost $500,000 or more in California or Massachusetts. A prenuptial agreement that would be invalid in alimony-oriented California might be considered a reasonable contract in Texas. Thus provisions regarding jurisdiction and government law may be critical.
Consider a couple that signs a "walk-away" prenuptial agreement with a mutual alimony waiver in California, but there is no requirement that California law be used to interpret the agreement. They move to Massachusetts. If the lower-income spouse sues for divorce, part of the lawsuit can be to invalidate the prenuptial agreement, or at least the alimony provisions, on the grounds that the agreement has removed the profit opportunity from the marriage. Or they move to South Dakota where, by statute (state law), a prenuptial agreement cannot waive alimony.
How about a prenuptial agreement that says where the wife lives determines jurisdiction for any divorce? The family lives in Lake Tahoe and has moved to the Nevada side to escape California state income taxes. The wife decides to sue her husband, but learns that Nevada caps child support at roughly $13,000 per year per child and the law essentially requires a 50/50 shared parenting arrangement for children. She rents an apartment back over the state line and, six months later, sues her husband. Now she has a more than 90 percent chance of becoming the "primary parent" (Census 2014 data) and the cash value of the children may be $50,000 per year or more.
A world of potential claims waived (or litigation avoided, depending on your perspective) is wrapped up in the following:
Conclusiveness of Legal Title
The ownership of any property interest not listed in Schedules A or B [the parties' disclosure of premarital assets] shall be determined exclusively by legal title thereto, subject to any written declaration of trust pertaining to such interest. The earnings, personal skills, contributions, services or efforts of either party shall not be used at any later time to determine the ownership interest in any money or property, irrespective of the fact that either party may have directly or indirectly enhanced or contributed to the appreciation of the value of the property of the other.
In the old days, divorces could be done with less litigation because courts could look at the title to a bank account or a piece of real estate and say "It belongs to whoever's name is on the title." A premarital asset then would generally stay with the person who had previously owned it because it would be titled in that person's name. A vacation house purchased during the marriage, if titled solely in one spouse's name, would go to that person following a divorce. Modern day family law is interested in fairness above all, without consideration for what it costs in legal fees to arrive at a fair outcome. Suppose that Jill buys a vacation house with money that she inherited. It is titled in her name. Without the above provision, Jack can try to get hold of a share of the vacation house's value, or the house itself, by arguing that he spent every weekend fixing it up, that he paid for a new roof, etc. Exploring all aspects of this dispute via document discovery and depositions and then bringing this dispute to the courthouse could end up costing more in legal fees than the house is worth. With the above provision, however, Jack can't even try to get hold of the vacation house. He needs to be aware that, during the marriage, if he is going to be able to claim part or all of something, he needs to persuade Jill that it should be jointly titled.
Make sure that disclosure includes potential liabilities from other family court plaintiffs. One Massachusetts marriage was, um, disrupted when the mother of a 15-year-old girl sued the father for 15 years of child support (see Real World Divorce; depending on the state, the opportunity to obtain retroactive child support may be limited to just a few years or may extend back decades). This child was the product of a brief acquaintance between the biological parents that preceded the father's marriage. The father had a written agreement with the mother in which, in exchange for him not asserting parental rights, she would not seek child support. As noted above, this kind of agreement turns out not to be enforceable; child support, though payable to the mother, is technically for the benefit of the child. The mother could not waive the child's rights to child support. The father's marriage was further strained when the 15-year-old, having a bad relationship with her mother, decided to move in with him and the father's wife (i.e., the teenager's stepmother). When it was time for college, the father was successfully sued for the full cost of tuition, room, and board. Adding up retroactive child support, child support going forward, and college expenses, the child that preceded the marriage was a nearly-$1 million financial liability and failure to disclose her existence could have invalidated any prenuptial agreement.
If you don't get divorced the prenuptial agreement is typically irrelevant until and unless one partner dies and then any provisions regarding property distribution at death come into effect. Suppose that a divorce lawsuit is filed. In that case the first fight may be about where to fight and under what rules to fight (see our "Relocation and Venue Litigation" chapter). If a couple has moved away from California, for example, the agreement might yet require that California law be used to interpret the agreement.
The simplest, quickest, and best-for-children way to obtain a divorce is via mediation. Certainly this is what all of the attorneys we interviewed for Real World Divorce said that they would want for their own children, themselves, or their friends. Mediation becomes less common as (a) there is more money to be won, and (b) there is more uncertainty about what a litigated outcome would look like. The California winner-take-all system for children, in which one litigant obtains both the satisfaction of spending time with the children and profitable child support cash, discourages mediation. Who is going to voluntarily agree to take on the loser parent role?
Generally it is the person who has a lower income and therefore is on track to become "the dependent spouse" and then "the winner parent" who files a divorce lawsuit. California law hasn't changed substantially since the publication of the American Law and Economics Review paper "These Boots are Made for Walking: Why Most Divorce Filers are Women" (Brinig and Allen; 2000). Professors Brinig and Allen concluded that it was the anticipation of child custody and child support that motivated lawsuits:
Due to Brinig and Allen's observation that "Individuals file for divorce when there are marital assets that may be appropriated through divorce," it would be rare for the Petition, the document that kicks off a divorce lawsuit, to request that a judge enforce a prenuptial agreement. Typically the respondent asks for this. Generally, however, it will be the spouse seeking to invalidate the agreement who bears the burden of proof.
After the basic documents are filed outlining to the court what each party wants, the lawsuit proceeds like any other American lawsuit, with the exception that in a typical contract case neither party accuses the other of rape, child abuse, etc. Depending on how much money is at stake and how determined a Petitioner is to "appropriate marital assets" (as Brinig and Allen phrase it), litigation through the first trial can last for years. As noted above, if alimony is not successfully precluded via a prenuptial agreement, post-trial alimony litigation in California can continue until one or both former spouses are dead. Regardless of any prenuptial agreement, post-divorce custody and child support litigation can continue until the kids are 21. If alimony is involved, issues to be explored by lawyers on both sides can include (a) what the defendant spends, (b) what the plaintiff spends, (c) what the defendant actually earns, (d) what the defendant could theoretically earn, (e) what each investment held by the defendant actually earns, (f) what each investment held by the defendant could theoretically earn, (g) what the plaintiff earns, (h) what the plaintiff could earn. If it is only child support the spending questions disappear, but it is still possible to run up $millions in legal bills. Then there is the question of the child's schedule, which can be fought over for up to 18 years and for which there is no limit to the issues that can be presented to the court. (See "Post-Divorce Litigation" for more on this subject.)
Some other countries and states have moved divorce, or least the child-related parts of divorce (see Delaware, for example), into non-adversarial administrative hearings. The Legislature in California, however, promotes litigation as the right solution to disputes under family law. Why does getting to a divorce end up consuming years of the litigants' lives and perhaps more in legal fees than the total assets that a petitioner is attempting to win? Roderic Duncan, a retired California divorce judge, explains in A Judge's Guide to Divorce (2007, Nolo Press):
Divorce courts operate with the same basic rules used by the courts that deal with car accidents, disputes between giant corporations, and criminal charges from petty theft to murder. … Unfortunately, the traditional adversary system works very poorly when the issue before the court is the breakup of a family. In such cases, hours spent preparing for trial and parading witnesses on and off the stand could be spent much more productively… any contested divorce is expensive and can be as costly as one spouse wants to make it. … the present legal system needlessly heightens the negative emotions of the divorcing spouses by purposefully pitting one side against the other. Many more people than you would guess maintain at least some sort of a friendly relationship with a former spouse after a divorce. But that is highly unlikely if the two of you go through a contested trial. … a contested divorce trial ultimately ends up causing terrible damage to any children…
Angie Hallier, a top litigator in Arizona:
the legal process itself is still designed to make divorce a battleground. Existing divorce law in the United States says the only way to end your marriage is for one party to file a lawsuit against the other. … you have to sue the person who has shared your bed, trusted you with life’s deepest secrets, and maybe even made babies with you. Divorce, by law, starts as an adversarial act. File a lawsuit. With that as the starting point, it’s easy to think the only outcome is: you will win, or you will lose.
Our legal system was set up to address wrongs. It deals with criminals. It decides who’s in the wrong when there’s a car wreck, or whether someone is guilty of medical malpractice when healthcare goes awry. When divorce laws were first written, somebody had to be in the wrong before a divorce could be granted. Somebody had to be cheating or abusing or otherwise be some kind of evil scoundrel before the other person — who was presumed to be the innocent victim — could file a lawsuit to be released from their marital hell. So historically divorce, like most other legal proceedings, addressed a wrong. Today, the litigation model of divorce still stands, despite the fact that no-fault divorce is the norm. … for the most part, the legal system, families, communities, and society still tend to treat the act of ending a marriage like something to be won or lost. This adversarial system helps no one in the end.
Hallier writes from a state that has substantially less litigation over child ownership and child profitability due to the legislature's imposition of a 50/50 shared parenting default. However, her basic points remain applicable to California. The same careful plodding cost-is-no-object procedures used to decide if someone is guilty of murder, and therefore needs to be imprisoned for 20 years, will be used to decide if a defendant should pay a plaintiff an extra $100 per week in child support or alimony.
As noted above, because children cannot be parties to a prenuptial agreement, the agreement cannot limit the rights to children to be the subject of custody and child support lawsuits. This enables a cash-motivated petitioner to seek via custody and child support what a prenuptial agreement precludes obtaining via property division and alimony. California family court judges may take a holistic view of how much cash they would like to transfer from the "breadwinner" to the "dependent spouse." Nothing stops a judge from going above the child support guidelines to give a plaintiff two-thirds of a defendant's pre-tax income via child support. All that the judge has to do to support the deviation from the guidelines is "the reasons the amount of support ordered differs from the guideline formula amount" and "the reasons the amount of support ordered is consistent with the best interests of the children." Due to the fact that child support, unlike alimony, is not tax-deductible, the effect of a two-thirds pre-tax award is to transfer 100 percent of a defendant's after-tax income to a plaintiff. As a practical matter these decisions are not reviewable by an appeals court. Due to California's "days for dollars" system, a judge who is concerned that a large child support award might not stand up under appeal can increase the amount of time that the child(ren) will be with the winner parent.
California Family Code Sections 4050-4076 govern the awarding of child support. Courts are supposed to start with the guideline number, but can work up from there. Here are some excerpts that encourage judges to award maximum dollars:
The last element above essentially instructs judges to award child support as alimony: "improve the standard of living of the custodial household." Note that "custodial household" here means "winner parent."
For high-income cases, the legislature invites litigation with the following suggestion for deviation from the guidelines: "The parent being ordered to pay child support has an extraordinarily high income and the amount determined under the formula would exceed the needs of the children." Other states have a simple cap on how profitable a child can be. In California, though, for every high-income case the same questions are raised anew: What's "extraordinarily high"? What are the "needs of the children"? According to the attorneys we interviewed, the answers vary from judge to judge and therefore parties invest heavily in attempting to persuade judges to see things their way. What's "heavily"? With tens of millions of dollars in child support potentially at stake, parties can spend millions of dollars in legal fees.
At the lower end of the income spectrum, the legislature ensures jobs for lawyers as well: "For purposes of this section, an extraordinary case may include a parent who voluntarily or intentionally quits work or reduces income, or who intentionally remains unemployed or underemployed and relies on a subsequent spouse's income." Did a defendant quit or was he or she fired? Is the defendant intentionally unemployed or just unwanted by employers? How much does the new spouse earn? How much of that new spouse's earnings does the defendant get to spend? Witnesses and experts can be called to testify on all of these questions while lawyers on both sides bill by the hour.
What if the defendant is self-employed? "Income from the proprietorship of a business, such as gross receipts from the business reduced by expenditures required for the operation of the business." Note that IRS Schedule C business income is not what the court considers income for the purpose of calculating child support. The court wants lawyers on both sides to argue about which of a small business's expenses are "required for the operation of the business." Lawyers and accountants on both sides can bill for looking at every transaction in which a small business has engaged, e.g., the purchase of some pencils at Staples. Witnesses can be called to testify that the business already had enough pencils and therefore this expense should be folded back into profit. With a higher profit, the defendant now has a higher income and therefore the guideline child support number is higher.
What if the judge can't get to the desired number using any of the above methods? The legislature says that "The court may, in its discretion, consider the earning capacity of a parent in lieu of the parent's income, consistent with the best interests of the children." This encourages lawyers to put on expert and fact witnesses to talk about how a defendant could be earning $1 million per year if he or she really tried. If the judge agrees, the child support formula can be applied with a starting point of $1 million per year in income, despite the fact that the defendant has never earned that much.
If a petitioner files a divorce lawsuit when children are young, a prenuptial agreement may have little effect on the total amount of cash transferred via a divorce lawsuit. In fact, due to the fact that custody litigation has a potentially unlimited scope, the legal fees and intensity of the litigation maybe be increased by requiring a petitioner to work on profiting from the children rather than simply taking a 50-percent share of acquired assets. It isn't relevant in a property division lawsuit to assert that the defendant is a child molester, for example, or has threatened domestic violence. But when seeking sole custody of a child, and the accompanying child support profits streaming into one's bank account, is it very convenient to have a respondent who is a child molester.
Don't have the stomach for the litigation described above? You probably need to move out of California, then, to a state where children are less profitable and/or where custody is presumed to be 50/50 (thus discouraging a battle to become the winner parent). See our Georgia chapter for how divorce outcomes can be completely different even within the same state (Metro Atlanta versus small towns and rural areas). If you're considering a family move, why not go to the courthouse in the proposed new location and see how a typical divorce lawsuit plays out in that jurisdiction?
We trust that you've seen that a prenuptial agreement provides only limited protection for the higher-income or higher-wealth partner in California. Assuming that the agreement isn't simply invalidated, wealth that a prenuptial agreement blocks from immediate transfer, for example, may be transferred gradually via child support.
If the prenuptial agreement can't address concerns regarding wealth-preservation it is of even less value when it comes to concerns regarding children. If you think that you will benefit from the way that California handles custody and child support, but want to move to another state, for example, you cannot preserve your rights under California law via a prenuptial agreement. Similarly, if you believe that you or your children would be harmed by the way that California handles custody and child support, you can't change that with a prenuptial agreement. Your only option is to move to a different state or country.
Unless parents are actually hitting each other ("physical violence or severe abuse"), research psychologists have come to the conclusion that children are best off in a two-parent home. The parent who leaves a marriage "for the sake of the children" is behaving in accordance with American 1970s popular psychology but contrary to experimental research. The Divorce Culture (Barbara Dafoe Whitehead 1996) summarizes the wave of popular books and academic research that followed the implementation of no-fault divorce across America:
According to a representative 1974 book, The Courage to Divorce, "divorce can liberate children." Its authors, social workers Susan Gettleman and Janet Markowitz, emphasize the psychological goods and benefits for children. … The authors approvingly cite one mother's positive announcement of divorce: "Children, I have good news for all of us. There is going to be more happiness in this house from now on."
The Courage to Divorce also claims that divorce will result in better relationships between nonresidential fathers and children, noting that divorced fathers can pay more attention to their children than unhappily married fathers. … divorced fathers have visitation privileges which provide "a number of undisturbed hours in which parent and child may be left alone with each other, to share thoughts, feelings and experiences." As for the concern that father-absence is harmful to boys, it is exaggerated. "When fathers are not available, friends, relatives, teachers and counselors can provide ample opportunity for youngsters to model themselves after a like-sexed adult."
… marital dissolution can spur the career development and economic advancement of divorced mothers: "Divorce often impels a nonworking wife into gainful employment, while child-support payments (and often even alimony) continue. This may mean augmented income for the wife and children."
"Future generations of women may not have to look forward to the humiliation of taking alms from men who do not love them and whom they do not love."
… Most influentially, this rationale established a new measure of child well-being: the individual marital satisfaction of each parent. … the new view tied children's interests to the emotional well-being of each parent but particularly of the mother. … This rationale for divorce also offered a reprieve from the ethical imperative for parents to preserve the marriage for the children's sake. In their intimate and family relationships, parents' first responsibility was to themselves; if they sought their own satisfactions, then their children's happiness would follow.
California firmly subscribes to the 1970s pro-divorce attitudes described in The Divorce Culture. The state offers large financial incentives for filing divorce lawsuits and offers plaintiffs the opportunity to be the "winner parent," with all of the pre-divorce benefits of being a parent held intact.
Winner parents, lawyers, judges, psychologists, and other non-attorney members of the divorce industry all benefit from this pro-divorce attitude. Nobody seems to care about the feelings of the loser parents. Why then should anyone be concerned about the "Divorce Culture" that Whitehead chronicles? Research started in the 1980s and continuing through the present shows that the benefits of a divorce accrue to the plaintiff parent while the costs are borne by children. This is consistent with anecdotal reports from the attorneys we interviewed, e.g., "It a mistake to think of divorce lawsuits as being Parent 1 v. Parent 2. In the cases where anyone has enough money to hire me, the parties who are opposed are the plaintiff parent and the children. … You have to start by considering the interests of the children. From their parents they can get love, time, energy, devotion, necessities during childhood, money for college, wealth via inheritance. A divorce won't help the children get any of these things. The parent who launches a litigated divorce has a lot to gain. He or she can enjoy the freedom of spending the former spouse's money without having to get the spouse's approval. He or she can spend time with lovers. The plaintiff parent will no longer have to consider the comfort or happiness of the former spouse or any of the in-laws. This gain comes primarily from a loss to the children." Do children figure this out? Yes, according to "The Unexpected Legacy of Divorce: Report of a 25-Year Study" (Wallerstein and Lewis; Psychoanalytic Psychology 21:3 2004):
No child of divorce in our study was invited by both parents, either separately or together, to discuss college plans. … Only 57% of the divorce group achieved their bachelor's degree as compared with 90% in the comparison group. … Unhappy, [those who did attend college] settled for fields of study that were not their first choice, at lower ranked institutions than their parents had attended. It was at this time that one young person, echoing the emotions of many others, commented bitterly, "I paid for my parents' divorce."
In a study of 124,114 fathers in Denmark, whatever a mother gained financially from child support (limited in that country to a range of $2,000 to $8,000 per year per child) came at the expense of reduced investments of time by the father in the child(dren). See "Parental Responses to Child Support Obligations: Causal Evidence from Administrative Data" (Rossin-Slater and Wust; December 8, 2014 American Economics Association Conference). This tradeoff between extracting money or a father's time and energy is starker in a litigation-oriented society. Attorneys told us that their defeated-father clients (i.e., most of their defendants) had less to contribute to children. "They have less money," one lawyer said, "because they paid me and they paid most of their plaintiffs' fees too. They have less time because they spent years assisting me with their defense. They have less energy because they put so much of it into a losing battle that nobody had the heart to tell them could not have been won by any man."
In a study of all Swedish children aged 12 or 15 (172,000 children total), the highest levels of well-being were experienced by children within intact families. Children who were in Alaska/Arizona/Colorado/Delaware/Nevada/Pennsylvania-style 50/50 shared parenting arrangements came in a close second. Children who were in a California-style primary/secondary parenting arrangement had substantially lower levels of physical and psychological well-being. (See papers by Malin Bergstrom, et al.) A California child with every-other-weekend access to the loser parent, however, would be far more damaged than a Swedish child with a similar schedule. Child support in Sweden is typically around $2,000 per year and the Civil law system there is much simpler, cheaper, and faster. Thus the Swedish child is unlikely to have been the subject of a no-holds-barred lawsuit that consumes most of a family's savings.
Attorneys told us that, in their experience, litigation over who was going to become the winner parent and collect profitable child support ended up harming children more than any marital discord. Here's a veteran divorce litigator's perspective: "Why have we set up a system where the American dream is to find the right fortunate person to marry and then divorce? Attorneys will go to the mat to defend litigation because we're so fucking important, but the reality is that everyone who can afford a real litigator can support a child. If you already have enough money to support a child you shouldn't be able to use the courts to fight for more. What we do supposedly to advance the best interest of children is devastating to children."
Consider two parents, each with an income of $125,000 per year, and a one-year-old child. Following a parental separation they will have approximately the same child-related costs, primarily the real estate expense of an additional room in the house or apartment. The California court will look to find who has been the "historical primary caregiver" and award "primary parent" status to this person. Along with "primary parent" status will come approximately $171,360 in tax-free child support over a 17-year period (plus the value of any new federal tax breaks for parents; by IRS regulation these accrue to the winner parent as well). Thus the primary or "winner" parent will end up $343,000 richer than the secondary or "loser" parent. Given reasonable forecasts of future federal and state tax rates, that's equivalent to earning roughly $700,000 on a pre-tax basis. You and your intended might get along now, but suppose that your future spouse has a new lover and is done with you. How hard would you expect that spouse to fight for $700,000 million (equivalent to 5.6 years of wage income at $125,000 per year)? That's how hard your future plaintiff will fight for primary custody of the kid(s).
U.S. Census data from 2014 show that a California mother has a 94-percent chance of being the winner parent and collecting child support. However, high-income women should be cautious. "Judges will generally try to arrange things so that a dependent spouse doesn't leave empty-handed," was a representative perspective from Massachusetts litigators. A woman with a somewhat higher income than her husband can be identified as the "breadwinner" while he becomes the "dependent spouse." If the prenuptial agreement and/or the short duration of the marriage precludes alimony and California's community property rules preclude substantial profits from property division, the only way for the judge to enrich the husband is to give him primary parent status or at least order a 50/50 schedule so that the lower-income husband is entitled to some child support cash.
If you want to ensure continued status as a parent, rather than "secondary parent," following a separation or divorce, and you want to spare your children what research psychologists and attorneys have found to be the permanent damage of a custody and child support lawsuit, our advice is to move to a jurisdiction in which 50/50 shared parenting is the norm and, ideally, where collecting child support is not especially profitable. Check Real World Divorce for a continuously updated view of statutes and customs around the country and the world. Currently within the U.S. the states where 50/50 parenting is a customary outcome include Alaska, Arizona, Colorado, Delaware, Nevada, and Pennsylvania. Sweden favors 50/50 parenting by law while Denmark and Germany favor 50/50 parenting by limiting the profitability of being the primary parent.
One potential prenuptial agreement pitfall is any clause that could intensify a custody lawsuit. As noted above, the California child support guidelines turn children into cash cows ("little bags of money," is how some Massachusetts divorce bar veterans refer to kids). Suppose that it were legal to sue neighbors for custody of their children. A person could go down to the local Family Court to say "Bob and Jane aren't great parents. They park their kids in front of the TV while they drink wine and barbecue with friends. They let the kids eat pre-sweetened cereal for breakfast. The kids would be a lot better off living with me and, by the way, to ensure that the kids don't suffer a reduction in lifestyle I need you to give me Bob and Jane's house plus 60 percent of Bob and Jane's after-tax income." Plainly there would be plenty of cash-motivated litigation over who is the best parent in the neighborhood, even without any plaintiff having a sentimental or biological connection to the subjects of these custody lawsuits.
If a typical California custody lawsuit therefore already involves (a) enough cash to make seeking primary custody rational even if the plaintiff doesn't like the kids, (b) lurid allegations of child abuse or deviant sexual practices in an attempt to sway the judge, and (c) a biological or sentimental connection between plaintiff and children, how could it possibly get more intense?
Imagine a prenuptial agreement that gives a victorious custody plaintiff a free house or yet more cash on condition that he or she wins custody. Here's an example:
In the event that either party files an action for separation, separate support, or divorce during marriage, the parties agree to the following disposition of the principal residence: If there is a child of the marriage with respect to whom a party has primary custody, that party shall be entitled to live in the principal residence until the child reaches the age of emancipation.
This may sound reasonable at first glance, especially if you're not a full-time divorce litigator. If the kids, post-divorce, are living primarily with one parent, wouldn't it be nice if they could all stay together in the same house as during the marriage? Yet viewed through the lens of predictable litigation, the above language translates to "free house for up to 18 years conditioned on winning primary custody." To a divorce litigator this clause plainly gives a plaintiff an additional and powerful motivation to reject a 50/50 shared custody arrangement.
California rewards divorce plaintiffs for pre-lawsuit planning. Many of the lawyers that we interviewed described being retained by plaintiffs well in advance of filing a divorce lawsuit and providing them with advice regarding how best to position themselves for future litigation. The defendant was usually caught on the back foot and never truly caught up. (See: a funny 30-second Nevada video about pre-divorce planning.)
One of the most frequent and critically important pre-divorce actions is a lack of action: not taking a job. "I tell clients who are planning to sue for alimony and child support that they should absolutely avoid any kind of paid employment," said one attorney. "For every dollar that they might earn during the marriage they could be giving up 10 dollars in alimony and child support. Courts tend to get anchored on a number, either for alimony or child support and whether the number is in a settlement agreement or in a judgment after trial. Even if a mother gets a high-paying job post-divorce, the father will likely have a tough time getting a modification, especially if the case was settled by agreement." Note that the "don't take a job" advice is not just for women. We interviewed a 50-year-old Florida resident, between managerial jobs at the time, regarding his first consultation regarding defending a divorce action commenced by his wife. The attorney advised him to start seeing a therapist who would testify at trial that he was clinically depressed and unable to work. This would bolster his bid for "permanent alimony" from the $220,000-per-year ex-wife. If your partner has always been a hard worker but suddenly steps back into a lower-paying job or no job at all, watch out!
Due to "historical primary caregiver" standard that California uses for awarding "primary parent" status, a future plaintiff may volunteer to take on a greater proportion of child-rearing tasks, encourage the future defendant to take a job requiring more travel or hours away from the home, and create an email record of taking children to doctor's appointments, etc.
When a future plaintiff is concerned that just being the more important parent won't be enough to block 50/50 parenting and the reduced child support profits that come with it, a common tactic is to establish a record as an abused spouse. "Allegations of abuse raised after a divorce lawsuit is filed tend to lack credibility," said one attorney, "which is why women are well-advised to establish a record starting 6-12 months in advance." What does that look like? "Provoking the husband in arguments, recording those arguments, calling the police to the house, and injuring themselves and photographing the bruises if the husband cannot be provoked into actual physical violence." Note that recording a spouse surreptitiously is legal in "one-party recording" states, which California is not. Watch out for a provoked argument while on vacation and also keep in mind that a recording could be played for a custody evaluator making a custody decision even if the law would prevent that recording from being used as evidence in the courtroom.
Women are also advised to begin seeing a therapist and to tell the therapist about abuse that they are suffering so that the therapist can later come to court and testify, thus getting around the "he-said, she-said" problem that causes many judges to throw up their hands. Keep in mind that California Family Code 4320 requires a judge to consider "any history of domestic violence" in determining the amount of alimony to be awarded. See our Domestic Violence Parallel Track chapter for more about how the domestic violence system works in practice. If your partner is shoving you out of the way in the kitchen, it might be more about the future lawsuit than about the meatloaf.
Financial activities are a common and effective pre-divorce technique. One attorney described "an ongoing case where I represent a man who signed a prenup that carves out premarital property and keeps income separate. The wife had two children very quickly. She went into the joint accounts and moved half of the money to her personal account. While feigning continued affection for her husband she persuaded him to sign a deed to sign the $2 million house into joint tenancy. She planned it out beautifully." How well did it work? The plaintiff made millions of dollars from her pre-lawsuit activities and obtained, under the prenup, "a substantial sum for every month they were married."
One of the most effective pre-divorce financial activities is simply spending a lot. "A good general rule is that anything that is condemned as immoral outside of family court will turn out to be profitable once you get in front of a judge," said one attorney. Spending the family's savings like a drug dealer? That's helpful for establishing a need for above-guidelines child support or maximum alimony. California Family Code 4320 requires a judge to consider, among other factors, "The needs of each party based on the standard of living established during the marriage."
[Note that sometimes it is possible to spend a lot without actually spending a lot. A standard procedure used by Massachusetts plaintiffs is get a gift card during every visit to a grocery store. By law the value of the gift card can never expire and these gift cards are stockpiled for post-divorce use. Either due to gift card purchases or simply obtaining cash back at the register, bank statements will show an extra $100 or $200 per week in spending. It would probably work just as well in California.]
Prenuptial Agreements aren't typically examined that closely until one spouse decides to sue the other. At that point it may become clear that one of the attorneys involved made a serious mistake. The median length of an American marriage is 8 years (Economist; note that lawyers nationwide told us that the most cash-motivated plaintiffs tend to sue when the youngest child reaches age 2, which might be less than 8 years after the marriage.) If it takes 2 years to get through to trial then it will be approximately 10 years after the prenuptial legal work was done before you know whether or not it was done properly.
To preserve a malpractice claim against the lawyer or law firm that worked on the prenuptial agreement, a consumer should make sure to keep that firm advised of the divorce lawsuit and offer the firm the opportunity to assist with enforcing the prenuptial agreement. The consumer should also appeal any adverse rulings regarding the prenuptial agreement, again offering the attorneys who represented the consumer for the prenuptial agreement the opportunity to work on the appeal. This prevents the prenuptial drafter from saying "Well, it was just one crazy judge and everyone knows that Family Court judges can do whatever they want. If you had appealed it the decision would have been overturned."
Note that a one-year statute of limitations may begin to run as soon as a party to a prenuptial agreement learns that it may be defective. So any malpractice lawsuit should be filed within one year of an event such as (1) a spouse's attorney writing a letter saying "this prenup is invalid" or "this prenup, interpreted correctly, gives my client the following rights," (2) an order from a judge suggesting that a prenuptial agreement is invalid, or (3) a trial at which a prenuptial agreement was invalidated or interpreted contrary to the client's original instructions. Don't wait for the appeals process to shake out before filing the lawsuit. See Laird v. Blacker (1992), for example.
What are possible scenarios for legal malpractice in the context of a prenuptial agreement? A client might provide a lawyer with a list of assets, which the lawyer failed to include in the final documents, thus leading to a finding of invalidity. A client might instruct a lawyer to ensure that any agreement protected a certain asset but the lawyer did not follow that instruction and the agreement was either silent or defective on this point.
K.O. Herston, a Tennessee attorney commenting on a malpractice case that arose from an invalidated prenuptial agreement: "lawyers who are not proficient in family law should refrain from drafting prenuptial agreements. They are fraught with danger. The drafting lawyer is all but guaranteed the prenuptial agreement will be scrutinized and likely challenged by a motivated lawyer if the parties divorce. (I should know — I represented Wife at the trial court level and succeeded in invalidating the prenuptial agreement in this case.) If the prenuptial agreement is invalidated, the drafting lawyer may be on the receiving end of a legal malpractice lawsuit, like Attorney was here. Lawyers who dabble in family law should consider referring clients seeking prenuptial agreements to lawyers who focus exclusively on family law. I’m sure the attorney in this case wishes he had done so."
As we noted above, we agree with Attorney Herston. Consumers should hire a California divorce litigator to write a California prenuptial agreement.
As we hope that you have learned, when it comes to divorce, jurisdiction is everything. A California divorce lawsuit that yields $10 million in alimony may barely be worth filing in Texas or Germany. Suppose that a California wife has a slightly lower income than her husband. After 10 years of marriage they have three young children. Under California law, in the event of a divorce, she may be entitled to a lifetime of taxable alimony. She has a better-than-90-percent chance of obtaining "primary parent" status with respect to the children, thus guaranteeing her roughly 17 years of lucrative tax-free child support payments. Even if she chooses to end the marriage, her financial security is assured; she will get the lion's share of the combined incomes.
Suppose now that the husband gets a great job offer in Philadelphia and proposes moving there. Under Pennsylvania family law, the children are likely to be granted equal time with both parents. As their incomes are similar this eliminates the possibility of substantial child support profits. The wife would be well advised to insist on a postnuptial agreement giving her ownership of existing joint assets or guaranteeing her, in the event of a divorce, either a lump sum payment or 20 years of alimony. This will compensate her for the rights that she is giving up by leaving California.
Postnuptial agreements are similar to prenuptial agreements but, in order to be valid, carry the additional requirement that spouses act in accordance with a fiduciary duty toward each other. Thus the agreement can't simply take away rights or money from one spouse without giving something in exchange. (In the above hypothetical scenario, the agreement by the wife to move to Pennsylvania would be exchanged for a payment by the husband.) Don't skimp on lawyers for this one.
If you are serving in the U.S. military and based in California, be aware that if you are ever deployed overseas you are virtually guaranteed to lose any custody lawsuit filed during the deployment. Attorneys described active-duty military personnel in jurisdictions like California as "sitting ducks" for divorce, custody, and child support plaintiffs. "If you were serving in Iraq for the last year," noted one lawyer, "how could you possibly show that you were the historical primary caregiver?" If you are overseas when you get sued, a judge will have no choice but to designate your plaintiff, via temporary order, as the primary parent (this will also start a child support cash flow). When you get home, due to the arrangement put in place via temporary order, a judge or custody evaluator with a preference for continuity would dictate that the primary/secondary parent arrangement be continued.
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."
Californians are great customers for the therapy industry and the human potential movement. One father said "I spent a lot of time driving to Berkeley for 'forgiveness therapy.' But I discovered that it only works when you've suffered a one-time injury. It doesn't work if every month you have to write a new check to a person who betrayed you and then sued you. Whenever the therapist would ask me to think about my ex-wife I would just fantasize about having her killed so that I could get the kids back and stop paying her. It doesn't help that my girlfriend refers to the ex-wife as 'the greedy cunt.'" The psychologist weighed in: "Therapy works best for trivial problems. If you're depressed when your circumstances aren't depressing or if you get anxious or angry about things that don't bother most people. It doesn't work if something truly bad happens to you, such as losing the house and the kids in a divorce."
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.]
Summarizing the main points of this short book...
If your concept of a fair divorce is aligned with that of the California Legislature, you may not need or want a prenuptial agreement. The main result of a prenup may be simply an extra $200,000 of legal fees or, if one of the attorneys made a mistake in drafting, an unexpected transfer of property from one former spouse to the other.
If your concept of a fair divorce is not aligned with the prevailing system in California, it is much safer to move to a different state than to rely on a prenuptial agreement.
If your goal is to stay married, California may not be the best place to settle. Especially if kids are involved, the state provides substantial financial incentives to the lower-income spouse to file a divorce lawsuit.
If you are the lower-income spouse in California and have a colorable claim to becoming the "primary parent" post-divorce, your children are your main source of financial security. A move to another state can substantially reduce the opportunity to collect child support, through a combination of the new state mandating shared parenting, the new state having less lucrative child support guidelines, or the new state capping child support. You can protect what you have earned through a California marriage by insisting on a postnuptial agreement prior to any move.
If you're a married entrepreneur intending to stay in California, be aware that you are at much greater risk for both legal fees and an ultimate judgment compared to a W-2 employee with a salary. A prenuptial agreement, if upheld, can limit alimony to a fixed and predetermined amount, but child support litigation will continue unabated. Plaintiffs typically sue when a spouse's business is prospering. Judges are encouraged to explore the question of whether a self-employed defendant could be earning more money and/or could continue to earn the same amount as during a peak year. Quite a few entrepreneurs end up being ordered to pay more than 100 percent of their after-tax incomes and therefore their retirement savings are gradually eroded by alimony and child support payments. The legal fees expended to figure out the earning capacity of a self-employed defendant typically exceed any additional income that a person might earn compared to holding a 40-hour-per-week W-2 job.
If you are planning to have children and are the higher-earning spouse, especially a male higher-earning spouse, recognize the risks of staying in California. The state will offer your spouse the opportunity, at any time and for any reason, to sue you and (a) take the house, (b) take the kids, and (c) take most of your savings and earnings via child support.
If you are reading this book after having already been sued, remember that defending the lawsuit won't move the needle too much. If you're in front of a judge who adheres to the standard-for-California primary/second parent concept, you are not going to be a parent anymore, unless your plaintiff ("petitioner") wants you to be. Most of the money that you earn going forward is going to be paid to your plaintiff via court order. You can save yourself a lot of time, energy, and money if you remember the wise words of an attorney in Massachusetts whose friend kept defending post-divorce lawsuits by his original plaintiff (she'd won the "primary parent" sweepstakes decades earlier). The child was 22 years old at this point (Massachusetts child support profits keep flowing to the winner parent until age 23). The father was heading down to the courthouse to oppose a demand by the mother for more cash. The business lawyer said "I'm not a [family court] attorney but you know that the game is rigged. Why are you swinging at every pitch?"
Parting words: If you know someone who is considering filing a divorce lawsuit in California, encourage them to ask the spouse to agree to see a mediator. Legal fees in a litigated California divorce can be so high, and children are so damaged by litigation, that it is wise to remember the old adage "A bad settlement is better than a good lawsuit."
Our main source for the history of divorce in the U.S. was The Divorce Culture (Barbara Dafoe Whitehead 1996; Vintage). The author, a PhD historian, was co-director of the National Marriage Project at Rutgers University. Her book quotes historian Nancy Cott writing about the number of women suing for divorce in Massachusetts nearly doubling from 1775-1786 compared to the previous decade and that "the overall trend in the early years of the Republic was toward liberalizing divorce provisions." Whitehead writes about the beginning of commercialized "divorce colonies in western states" in the 1860s: "As western legislators and entrepreneurs discovered, short residency requirements could attract divorce-seekers from states that required a year's residency or more before granting divorce. … With legal residency periods lowered to as little as ninety days, remote states like Nevada and South Dakota could attract Easterners... "
Note that these early divorces were prior to our "no-fault" system and required cooperation between the spouses, e.g., with potentially both moving to a "quickie divorce" jurisdiction or one admitting to adultery. Thus any questions of property division or alimony would have been settled by private agreement and the person wanting the divorce would have to offer terms that were acceptable to the person who had wanted to stay married.
Whitehead writes that "public concerns were deepest when it came to divorces involving dependent children. In fact, even the most ardent defenders of divorce consistently pointed to its harmful impact on children. … During a polio epidemic one social-work professor argued that divorce posted a greater threat to children than this dread infectious disease: 'Imagine 300,000 children stricken in one year by infantile paralysis. Yet the chances of these children in divorce being crippled emotionally are far greater than the chance for physical crippling by poliomyelitis.' The view of divorce as a source of disadvantage to children persisted until the mid-1960s."
In a section titled "Vulgar Divorce," Whitehead writes about the divorce rate increasing in the 20th century, rising to 7.7 per 1000 marriages in 1920. Simultaneously alimony awards were increased to cover "'personal recreation,' one sign that courts recognized consumption and amusement as necessities of life for modern women. The redefinition of wants as needs influenced expectations about acceptable levels of support."
We interviewed Karen Straughan, a Canadian gender counter-theorist, who pointed us to the 1848 Declaration of Sentiments from the first American women's rights convention, in Seneca, New York:
"He has so framed the laws of divorce, as to what shall be the proper causes of divorce, in case of separation, to whom the guardianship of the children shall be given; as to be wholly regardless of the happiness of the women - the law, in all cases, going upon a false supposition of the supremacy of a man, and giving all power into his hands."
"Originally fathers got custody because they remained responsible for the child's support," Straughan said. "Early feminists decided this did not serve women's happiness and convinced lawmakers in the United Kingdom to change the default to custody for the mother and financial responsibility to the father. The idea eventually spread across the West and became the 'tender years doctrine'. Women could now get the benefit of the child without the cost and that definitely contributed to women's happiness as well as a 15X increase in divorce rates over a 50-year period."
What kind of financial responsibility did men have in this new era? Whitehead quotes historian Elaine Tyler May: "By 1920 it was no longer clear precisely what constituted adequate support on the part of a husband, and a number of bitter conflicts erupted over the issue." May noted that the husband's failure to provide sufficient money during the marriage was itself the ground for the majority of divorces granted between 1890 and 1929. From The Divorce Culture:
One blue-collar wife's divorce petition argued: "You have had ample time to make a man of yourself in all these six years, if you are cared for your wife and baby, instead of driving a wagon for twelve dollars a week [about $15,000 per year today]. You would not take work offered you at twenty-one dollars a week, so it is not because you could not find better." [emphasis in the original]
Whitehead explains that until World War II, divorce was associated with "the newly and boisterously rich." People criticized divorce because it was an "invasion of middle-class family life by marketplace values" and it was "corrupting the virtuous middle class with capitalist values." By contrast, the Nation wrote that middle class people would put effort into "the plodding task of domestic compromise and adjustment."
Edith Wharton's 1913 Custom of the Country portrays Undine Spragg marrying for money and social advantage, ignoring her son, and divorcing twice in hopes of achieving a higher income via marriage to a different man.
Emily Post, the etiquette authority, was divorced from her unfaithful husband in 1906. She later wrote "the epidemic of divorce which has been raging in this country for the past forty years must be rated as a catastrophe along with floods, dust bowls, and tornadoes." There don't seem to have been any better answers back then for children's schedules, nor was the idea of 50/50 parenting novel. Emily Post in 1940: "There is no use pretending that there is any good side from the children's point of view to divorce, excepting in a case where they are protected from a cruel parent or from the influence of a dissolute one… But to the thousands of children who love both parents equally and who can therefore never have more than half a home at a time, the feeling of devastation is quite as great as that caused by enemy bombings of mere buildings abroad." Post wrote that "There could never be any argument with the fact that if there is any chance of maintaining a civil relationship, if not a deeply loving one, it is far better to do so, not only for the couple but most especially for the children."
At some point in the 20th century, states abandoned straightforward and therefore simple and inexpensive to litigate rules regarding property division. This process is explained in Family Law in America (Katz 2014; Oxford University Press):
The common law property system is based on evidence of title. In other words, under the common law property system the motto: “He who holds title takes the property” has a ring of truth to it. Under the community property system, found in nine states in the western and southwestern part of the country, the distribution of marital property (accumulated during marriage) upon divorce is theoretically based on the principle that each spouse owns an undivided one-half interest in each community property item. While four of the community property states jurisdictions seem to conform to the fifty–fifty split (assuming there has not been a prenuptial agreement that assigns property differently), the other five incorporate equitable distribution principles (that is, a judge considers the equities of a case), which may result in a different formula than an equal split. Over the past four decades, there has been a major decline in the number of states that adhere to the old common law property system, whether by statute or case law. Now, the prevailing method of assigning marital property upon divorce is called “equitable distribution.” Basically, equitable distribution has changed the nature of the judicial inquiry when assigning property. Instead of asking who holds title, the court considers: which property is marital and which is separate; when and how the disputed property was acquired (while the parties were single or before marriage but while the couple was living together, during the marriage, or after the separation); who has contributed to the enhancement of its value or who has depreciated the property; when should property be valued (e.g., at the time of separation, initial court petition for divorce, or the time of the divorce trial) and what is its value; whether parties themselves or experts should value the property; if the property was acquired by gift or inheritance, should it be considered separate; and finally, if either of the parties enhanced the value of the gifted or inherited property during the marriage by keeping the property in good repair or rehabilitating the property, whether those activities were sufficient to change its nature from separate (if that was the case) to marital. The key to equitable distribution is “contribution,” and the ultimate question is: who should be assigned the property?
… even though judges are governed by statutory provisions, there is still wide discretion in interpreting statutory factors and applying them to a particular set of facts. One commentator has gone so far as to label equitable distribution as a “discretionary” exercise.
The factors that are considered in the assignment of property are not weighted equally. Nor do equitable distribution provisions provide a precise formula. Rather, the statutes merely state that certain factors are to be considered, thus allowing the judge to set his or her own priority of importance
The old system enabled a sophisticated spouse to take advantage of an unsophisticated spouse, e.g., by keeping assets solely rather than jointly titled, though lifetime alimony limited the effectiveness of this tactic (the asset-rich spouse would simply have to pay a larger amount of alimony to the asset-poor spouse). The new system will result in fairer outcomes in certain cases but vastly larger legal expenses in all cases since the question of "who holds title?" can be answered by a clerk but the questions of "who contributed to the increase in value of Item X" and "what is Spouse A's fair share of Item Y" must be answered by a judge after potentially extensive testimony by witnesses and attorney arguments. Anything that is "discretionary" with the judge will necessarily be potentially ruinous in terms of legal fees because there is no way to know what the judge might find persuasive.
The divorce rate doubled between the start and end of World War II, fueled to some extent by the long separations imposed by the war, then dropped back to its previous level in the 1950s and 1960s. Roughly 80 percent of all Americans born between 1933 and 1942 would enjoy a first marriage that lasted at least 10 years, a rate that is comparable today for the subpopulation of college-educated Americans who wait until 25 years of age to get married.
Whitehead says that the big change came in the late 1960s: "Before that time, divorce was contained within a system of marriage and subject to its jurisdiction. After that time, divorce outside the government of marriage and established its own institutional jurisdiction over family relationships. Before the mid-1960s, divorce was viewed as a legal, family, and social event with multiple stakeholders; after that time, divorce became an individual event defined by and responsive to the interests of the individual. … divorce moves from the domain of the society and the family into the inner world of the self."
Whitehead chronicles the rise of the "personal happiness" business of psychotherapy in the 1970s. Instead of talking to friends, family, medical doctors, and clergy about problems, Americans would pay mental health professionals. In the therapist's office patients would learn that "one's first and most important obligation was to oneself," perhaps by reciting the 1969 Gestalt Prayer by Fritz Perls:
I do my thing and you do your thing.
I am not in this world to live up to your expectations,
And you are not in this world to live up to mine.
You are you, and I am I,
and if by chance we find each other, it's beautiful.
If not, it can't be helped.
Whitehead writes that "Just as rising economic expectations had bred material dissatisfaction earlier in the century, so now rising emotional expectations fostered a sense of emotional dissatisfaction and restlessness in marriage. … This was especially true for women, who placed greater emphasis on the relational and affective side of marriage than did men."
Sociologist Jessie Bernard wrote that "To be happy in a relationship which imposes so many impediments on her, as traditional marriage does, a woman must be slightly ill mentally." Whitehead writes that Bernard's writings "reflected the feminist view of the marital state as an institution of patriarchal power and dominance which kept women in a subordinate and inferior status." Bernard wrote that she was influenced by "the message of radical young women" in coming to her conclusions regarding marriage. Statistical surveys found a "high level of reported happiness among married women" but that they were "more likely to be irritated and resentful of their spouses' lack of help in meeting the responsibilities of housework and child care" and women were more likely than men to approve of divorce.
Whitehead calls the new no-fault initiated-by-women divorce era "the rise of expressive divorce": "After the psychological revolution, however, divorce became a subjective experience, governed by the individual's needs, desires, and feelings." (The "individual" here is the plaintiff who initiated the divorce.) Whitehead summarizes self-help books of the 1970s: "Written mainly by divorced therapists or women who had been through therapy during their divorces, this literature locates divorce in the inner life of the individual and depicts the breakup of a marriage almost exclusively as a set of bewildering and disorienting feelings. … [but] the bad feelings of divorce can lead to good things. … As the author of one popular divorce book writes, 'After being in a long-term marriage in which they tended to deny so much of themselves, divorce gives many women their first chance to validate their reality, to explore who they are, to cherish newfound identities, to heal old wounds, and ultimately to take care of themselves.'"
What about for men? Whitehead says that books aimed at guys would point out that they were no longer bound to conform to the "norms of monogamous marriage and responsible fatherhood" but could instead enjoy the freedoms of the sexual revolution (this was prior to the 1981 arrival of HIV/AIDS in the U.S.). She quotes from Winning Your Divorce, A Man's Survival Guide (1994), by Timothy Horgan, an attorney in New York. Horgan talks about likely outcomes rather than dwelling on feelings. He starts by describing a typical client, a man who meekly provides for a wife and two children for 10 years of marriage and then, after the wife divorces him, pays 78 percent of his income in alimony and child support. The wife marries the doctor with whom she had been having an affair. "Jack was left to live a diminished life, divorced not only from his wife but also from his children, his neighbors, and the community activities that had meant so much to him." Horgan talks about how the divorce system worked in the 1990s (and still does in many states, according to our interviewees): "the wife almost invariably gets the house and custody of the children … a divorced father [has] little or no voice in how his children are raised… the system [works] on the automatic assumption that the man is the bad guy." He exhorts men to make the wife fight for every inch of ground (and pay an attorney such as himself for that fight!): "Maybe this approach makes you feel that you're being unduly harsh and that you're depriving your children of proper support. The first thing you must understand is that the divorce system is unfair to men. The system is not there to help you and, contrary to feminist rhetoric, there are few protections afforded you. … if you fight the system, you are not fighting your children. … your children did not leave you voluntarily; the system takes them away. Your children do not destroy your standard of living. But the system will destroy you economically if you let it." Horgan reminds men that the family law world is a club: "The consideration your case will receive in court--and the respect of your wife's attorney--often is directly related to your attorney's reputation in the legal community."
Horgan's book shows that the pre-lawsuit planning that our interviewees described was alive and well in the 1990s. For the man who has some warning that a divorce is coming, he advises them to "gradually usurp your wife's role with the children in order to later prove that you are the principal nurturing parent" via encouraging the wife to "go to aerobics class while you stay home with the children or take them on an outing." Horgan reminds his readers that a divorce lawsuit is a war, e.g., "preparation wins battles."
Horgan's book states that the use of the domestic violence system grew dramatically starting in the mid-1980s: "Ten years ago child abuse rarely surfaced as an issue in a custody dispute. Yet one study claims that today fully 30 percent of all custody cases in the United States involve allegations of sexual or physical abuse by the father." Horgan notes that the man "is faced with the task of 'disproving' a life and proving his wife a liar. … There is no easy way to mount a defense against these charges." [What do social scientists say about the prevalence of sexual abuse of a child by a father? The best study is perhaps "The prevalence and context of incest abuse in Finland" (Sariola and Uutela 1996; Child Abuse & Neglect 20:9). Given a surveyed population of 9,000 15-year-old girls, the authors found that "Girls reporting experiences with their biological father was 0.2%," or about 1 in 500.]
Horgan tells men that "child support is probably the most troublesome area of divorce law" and "support enforcement procedures have proved very effective against delinquent parents, but at the expense of due process. A man's right to be heard [following the loss of a job, for example] has been sacrificed to the desire to impose punishment."
His printed-in-1994 book shows that arguments about equal parenting for the sexes are not new: "Because alimony and property awards are no longer gender-based, it is only fitting that every state should enact a law decreeing joint physical custody of the child. This would certainly be in 'the best interests' of the child, because parents would be forced to redirect their energies from fighting to cooperating, from court battles to kitchen-table conferences. The child obtains two equal parents, both available, and both participating in the child's upbringing. … Although women were once treated as mere chattels, that attitude has changed [over 200 years]. … But it is imperative that in our haste to remedy old wrongs we do not deny men their birthright--equality under the law."
Do men have this "birthright" to which Hogan referred in the early 1990s? "No in the U.S.," said one attorney. "The definition of a 'right' is something that you can go to court to get enforced. By this standard, at least in my state, children do not have a right to spend meaningful time with their fathers and fathers do not have any right to a parental role with children." What about the "fathers' rights" groups that periodically lobby Legislatures? "They are asserting rights that do not exist, that the public does not recognize, and whose recognition is opposed by a multi-billion dollar industry in most states. The only right that is real is the right for a plaintiff mother to get money from a defendant father while simultaneously keeping the children away from the father. You know that it is real right because you can go to court and get a judge to order it."
Statutory and judicial preferences for awarding sole custody plus child support to women led to a growing number of single mothers. The Divorce Culture titles a section "single motherhood as an expressive pursuit." Previously "the hardships of postdivorce life for mothers and their children" had been emphasized and "the notion of a shared plight had its roots in nineteenth-century notions of motherhood that saw the mother-child bond as the most important and durable of all family attachments." Receiving child support payments was a source of conflict, resented by the ex-husband and "too little or too late" from the ex-wife's point of view. A 1956 study of divorced mothers by sociologist William J. Goode opined that "at every developmental phase of childhood, the child needs the father (who is usually the absent parent) as an object of love, security or identification, or even as a figure against whom to rebel safely. This is the case for both boys and girls." Mothers would feel guilty about having brought this calamity down on their children's heads and making their children unhappy.
"With the rise of expressive divorce, this view of divorced motherhood change," says Whitehead. Starting in the late 1970s, popular literature emphasized the opportunities for career and personal growth that came with single motherhood and an overall improvement in life quality.
This view was exemplified by a woman whom one of the authors encountered at a 2014 aviation event in Florida. She had flown down there in a $700,000 Cirrus SR22. "I had always wanted to learn to fly," she said, "but with a full-time job and kids there was just no way to carve out time for lessons. After I got divorced, though, I had every other weekend free and the child support was enough to pay for a factory-new airplane." Who was caring for the two children while she enjoyed the show in Florida? "My ex-husband."
Given that changes in the law allowed a marriage to be dissolved unilaterally and there was no longer a need for an unhappy partner to invest time and energy in marriage therapy, how did the therapy industry adapt to this loss of revenue? Aside from the fees obtained from serving as parenting or custody investigators and expert witnesses in lawsuits, Whitehead says that American therapists shifted from "marriage counseling" on how to improve a marriage to "divorce therapy" on how to "accept responsibility for the failure of the marriage and thereby to achieve a new level of self-understanding." What about Horgan's example, above, where the partner to whom one has been faithful is having an affair with a rich doctor and divorces you to harvest the house, children, and child support? "Counseling established a joint-fault system aimed at persuading each individual to accept responsibility for the breakup. … 'To view oneself as 'innocent victim is thus to engage in fundamental distortion,' the study goes on, 'the consequence of which is a high probability for an equally bad remarriage.' … Many husbands and wives who did not seek or want divorce were stunned to learn from their therapists that they were equally 'at fault' in the dissolution of their marriages."
According to Whitehead, psychiatrists and therapists made money with face-to-face sessions and books reassuring adults who wanted to divorce for personal reasons that they need not feel guilty about any suffering caused to their children. Constance Ahrons, a (divorced) sociology professor at University of Southern California, wrote The Good Divorce (1994) where she blamed negative stereotypes and "old moralities" for any remaining public perception that children were harmed by divorce. The problem was not divorce and the separation of children from fathers but rather public disapproval of divorce. The New York guy unhappy because he pays 78 percent of his income to his adulterous ex-wife? Ahrons proposes a "a wedding ring smashing ceremony invented by a New Mexico entrepreneur specializing in 'Freedom Rings: Jewelry for the Divorced.' … If such rituals were to become more common, Ahrons argues, they could become part of the emotional healing process."
Child psychiatrist Robert Coles, a professor at Harvard, wrote a 1994 paper "On Divorce" for the New Oxford Review:
[during his childhood] Divorce was a rare step, a drastic one, an occasion for a good deal of soul-searching and regret among neighbors, never mind the two adults involved, and never mind any children they might have.
Now divorce is everywhere -- one of two marriages ends in it. Now the intensely felt sense that a marriage is a lifelong commitment no longer dominates most neighborhoods, as was the case in the one where I grew up and learned what to value and why. Now, in fact, my profession of psychoanalytic psychiatry is often summoned to defend particular divorces, even the more general phenomenon of divorce, as a readily available and far from objectionable alternative to what is often called a "bad" marriage, meaning, of course, one in which psychological pain is to be found.
... many, many marriages (the great majority, I suspect, of those headed for divorce) that held together in my parents' generation wouldn't stand a chance these days, when half of all newlyweds are headed for lawyers and the breakups they help negotiate. I have in mind, really, the social and cultural climate in which we live: a world that tells us in countless ways that our individual psychology matters, our "autonomy" matters, our "rights" matter, but is far less interested in emphasizing the obligations and responsibilities that go with living in this world, a world that has knocked down a million constraints, scorned any inhibition in sight, doted on what used to be called the weird, the aberrant, the preposterous, to the point that such words, with their implied moral judgments, have given way to others -- how interesting or how cool. … why should two individuals who are married, and going through a spell of trouble, feel they ought to stay together? They live in a society that celebrates the validity and importance of impulse, of feeling, of desire, a society that promises (through pills, through palaver, through purchases) an end to pain: swallow this, talk about that, buy everything in sight with every credit card thrown your way…
I sat in a courtroom a while back, listening to ordinary men and women convey their reasons for wanting a divorce through lawyers, who were all too glad for the paid chance to be of help as spokesmen. … I realized what a bonanza those courts are for my ilk -- we are the ones who get the patients, who are appointed mediators, who decide when the children should visit which parent: mediation in the name of something called "mental health."
Watching, listening, I wondered who "we" are, all those counselors and therapists, all those court-appointed mediators and supervisors -- what do we believe in, what do we stand for, uphold? We are the "value-free" ones, who in the name of 20th-century relativism summon psychological and sociological words that have become pervasive pieties: "do your own thing," "let it all hang out" -- as Christopher Lasch so tellingly called it, "a culture of narcissism," wherein standards and values are as various as the individuals who may (or may not) choose them. God forbid that someone in that courtroom (the judge, one of the doctors or psychologists, one of the social workers who worked in a nearby clinic, or one of the lawyers feeding off the trough of assembled family disarray) stand up and cry in sorrow and horror -- remind all of us that we all have our ups and downs, with ourselves, with one another, and that marriage is a solemn and sacred step, taken (as the old vow says) for life, "in sickness and in health, 'til death do us part." God forbid that someone point out what divorce can do to people. Even social scientists have had second thoughts about the matter -- Judith Wallerstein's extensive, pioneering work (Surviving the Breakup) has reminded us of the long-term consequences a divorce has for children.
I wonder whether we are well served today by the prevalent notion that the institution of divorce, so highly developed, so readily summoned by us, is a measure of our progress. Many marriages would last and last were all encouraged to regard divorce as a serious, a grave step, indeed -- and a moral tragedy, rather than as evidence, merely, of the psychological hang-ups two individuals happen to have.
Once we healers felt impelled to try at all costs to help marriages work, now all too many of us regard ourselves as there to heed the call of mood and instinct, of changed minds and casually errant hearts. Conscience and its necessary demands become a quaint, obsolete construct, while we negotiate the practicality of the passions -- how to permit them to have their day, their sway -- and let our nation's moral life, its family life, its children pay the costs.
Roughly 20 years after the no-fault revolution began, the system of determining child support was revolutionized. The federal Family Support Act of 1988 requires states to develop and use child support guidelines that would substantially reduce the discretion of judges regarding financial awards to a parent who had been victorious in a custody lawsuit. As covered below, one big change was that child support revenue would be the same whether a child resulted from a 20-year marriage or a one-night encounter.
Child support varies from state to state to the point that a baby with a cash value of $20 million in Wisconsin would generate only about $200,000 in profits across the bridge into Minnesota (child support capped at about $25,000 per year, resulting in $450,000 in revenue of 18 years from which USDA-estimated actual costs of child rearing must be subtracted).
How did children come to be so potentially profitable for a parent who could win custody? Professor of Economics Douglas Allen, the scholarly partner of Margaret Brinig on a series of classic papers, attributes the change to popular books and press reports regarding post-divorce women. "It was a 1985 book, The Divorce Revolution [by Lenore Weitzman, a sociologist], that gave people the idea that women are subjected to poverty after a divorce while men enjoyed an improvement in their standard of living," Professor Allen told us. "It turned out that she had used a biased sample of divorces in Los Angeles and her conclusions were false but they were very influential." Allen's perspective was supported by one of our California interviewees who said that in the late 1980s it became "public policy that California will always be ranked among the top 5 states [in potential profits from child support]."
What does the The Divorce Revolution actually say? Weitzman is a sociologist whose focus was on long-term stay-at-home mothers. "Even women who have been housewives and mothers in marriages of long duration, and who are fifty years old at the time of the divorce, are routinely denied the support they were promised. … [courts] are treating the husband's income [going forward] as 'his' rather than as 'theirs'. … Mothers of young children also experience great hardships as a result of the new rules. Courts award inadequate amounts of child support which leave the primary custodial parent, who is the mother in 90 percent of divorce cases, with the major burden of supporting the children after divorce. The research shows that … divorced women and the minor children in their households experience a 73 percent decline in their standard of living in the first year after divorce. Their former husbands, in contrast, experience a 42 percent rise in their standard of living." Weitzman goes on to say that "The net effect of the present rules for property, alimony, and child support is severe financial hardships for most divorced women and their children. … The major economic result of the divorce law revolution is the systematic impoverishment of divorced women and their children. They have become the new poor."
"A Re-Evaluation of the Economic Consequences of Divorce" by Richard Petersen (American Sociological Review 1996) says that "[the 73 percent decline] is particularly striking when one considers the maximum possible decline is 100 percent. … The Divorce Revolution received considerable attention in academic, legal, and popular publications. … From 1986 to 1993 it was cited in 348 social science articles ... and in more than 250 law review articles … and in at least 24 legal cases in state Appellate and Supreme courts … and was cited once by the U.S. Supreme Court. … the California State Senate Task Force on Family Equity was formed in response to The Divorce Revolution, and some of its recommendations were enacted in 1987 and 1988. … I reanalyze Weitzman's data and demonstrate that the results reported in The Divorce Revolution are in error." Petersen concludes that, had Weitzman properly interpreted her own data, some of which had been inaccurately transcribed from paper records, the numbers should have been a 27-percent decline for the women and a 10-percent improvement for the men. However, even these numbers are probably wrong since "in Weitzman's study, and in [Petersen's] paper, new spouses, cohabitors, and other includes are included in the calculation of economic need, but are not included in the calculation of income." In other words, if a divorced woman had a second marriage with a physician earning $700,000 per year, Weitzman would have counted this Beverly Hills resident as "poor."
That the sociologist couldn't do arithmetic as well as an economist doesn't make the book uninteresting. Weitzman gives her own history of marriage and divorce describing "the married woman's subordination" and noting that "upon marriage the wife became … a legal nonperson." She notes that "Traditional divorce laws also reaffirmed the sex-based division of roles with respect to children: the husband remained responsible for their economic support, the wife for their care. All states, by statute or by case law, gave preference to the wife as the appropriate custodial parent after the divorce, and all states gave the husband the primary responsibility for his children's economic support." Weitzman notes that one cited problem with "fault divorce" was "the lure of substantial property awards encouraged heated charges and countercharges between spouses," since the party found innocent would get more of the couple's assets than the party found guilty.
Weitzman says that along with no-fault came a reduction in the tendency of judges to award permanent alimony. She notes with disapproval that one justification for less alimony is that a woman who "could not support herself" could remarry and then be supported by a man other than her original husband. Weitzman says that this assumption is valid only for young women because "if a [divorced woman] is forty or older, she has only a 28 percent chance of remarriage" and that employment opportunities are limited for older women who have been out of the workforce for decades.
She notes that "Although the legal rules now  give fathers an equal legal right to child custody after divorce, custody is still awarded to the mother in the vast majority of the cases--close to 90 percent--throughout the United States." She notes that this was supported by psychologists of the day, e.g., "Bruno Bettelheim cautioned against the unnaturalness of fathers raising children--even in cooperation with the mother." In 1968, an attorney-psychologist team recommended that states retain a statutory maternal preference on the grounds that women were going to win lawsuits anyway and fathers knowing that they were certain to lose would be more likely to abandon custody without a damaging-to-the-children fight. Weitzman notes (page 223) that the nasty fights about fault that used to occur regarding property division had simply been shifted to nasty fights about fault regarding custody: "allegations of a wife's promiscuity or adultery, which would be considered irrelevant in a divorce action, could be discussed in court if her fitness as the child's custodian was at issue. Similarly, a husband's physical abuse of his children would normally have no bearing on a no-fault divorce. But it could be used as evidence to deny his request for for custody…."
Weitzman quotes William Goode: "the relationship with children contains one of the most important weapons in the conflict of wills between ex-spouses, both during the divorce conflict and afterwards. This exploitation of the parent/child relationship may, of course, be unconscious, since few parents can admit that they use their children as punitive instruments." She adds "women may find it easier to restrict the husbands' visits, and fathers may find it easier to skip a planned visit than to constantly argue about the plans." What if the combination of being ordered to pay the bills and having an irritating ex-spouse as "primary parent" causes a father to decide to do something else with his weekends? Weitzman quotes "feminists [who] … suggest that courts apply some form of negative sanctions to fathers who consistently fail to visit their children."
How prevalent was shared custody back then? Weitzman reports a rise from 1 percent of Los Angeles County judgments in 1972 to 2 percent in 1977. Weitzman interviewed judges and found that "they were reluctant to 'take little children away from their mothers' and sincerely believed that maternal custody was usually in the child's best interest. In fact, 81 percent of the Los Angeles judges we interviewed said that they thought that there was still presumption in favor of the mother for preschool children…." Weitzman quoted a judge: "I think mothers make better mothers." She interviewed attorneys and found that 98 percent thought that judges acted as though the explicit maternal presumption was still part of the law. Where did the states get the idea of looking for a "primary caretaker"? Weitzman says that it was from a 1981 West Virginia Supreme Court decision "which has gained widespread attention." (See Linda Nielsen's comments in the Citizens and Legislators chapter for what modern-day psychologists think of this.)
Weitzman says that California was a leader in favoring joint custody "with its appealing promise that the children of divorce could 'keep both parents.'" Weitzman says that she favors joint custody only where parents agree on it voluntarily and describes a joint custody presumption as "coercive" because "most children need the security and stability of one home." I.e., if the choice was between losing a parent entirely and having to alternate between households it was better to give up a parent. Weitzman cites a study by Pearson and Thoennes indicating that 90 percent of mothers were satisfied with their sole custody awards while only 70 percent of mothers were satisfied being joint custodians. The same study showed that joint legal custody had increased conflict between former spouses.
Weitzman concludes that "our findings indicate that despite the major changes in the California divorce law over the past fifteen years, there has been little change in the actual distribution of child custody awards." What does she advocate? Sole custody to the mother, both legal and physical: "as joint legal custodians, men not only have more control over their children; they also have more control over the postdivorce lives of their ex-wives" and "a rule that would create a presumption that custody will be awarded to the primary caretaker … would ensure optimal continuity and stability for the child."
What about the cash that comes with custody? Weitzman contrasts California post-no-fault unfavorably with England: "In England it is assumed that a divorced woman with young children should be supported so that she can provide the children with the care and attention they need." Weitzman decries the deadbeat dads that were common prior to 1984 when federal law changed to require "mandatory income withholding and the interception of federal and state tax refund checks." Weitzman points out that a woman who won a custody case involving a single child might collect only 25 percent of a man's after-tax income in a child support award and that this amount was likely to be her only income because she wouldn't work and wouldn't have been married long enough to collect alimony. Why wouldn't judges award enough in child support for both the child and the woman to live at least as comfortably as the ex-husband? Weitzman quotes judges as saying that they did not want to de-motivate the father from going to work: "you can't touch the goose that lays the golden egg." Rather than rely on men pursuing economic self-interest, Weitzman advocates for larger court-ordered transfers and harsher penalties for men who can't or don't pay. She says that an "essential component of an effective deterrent system appears to be a high probability of jail for continuously delinquent fathers. … those counties [in Michigan] which most often used jail had the highest rates of compliance" and notes with approval that "Michigan, which ultimately jails one out of seven divorced fathers, collects more child support per case than any other state in the country."
Weitzman notes that college-age children of divorce "saw their fathers as more distant, judgmental, and selfish, and often felt psychologically (as well as financially) abandoned by these men who were now pursuing 'new lives.'" Her proposed solution was that California law be amended so that judges could order men to continue to pay child support to the mothers who had won custody and also college tuition, room, and board at least "until children complete their education."
The Divorce Revolution is based on 1000 divorce cases from 1968, 1000 from 1972, and 500 from 1977. The 1968 and 1972 cases were from Los Angeles and San Francisco; the 1977 cases were from Los Angeles alone. Weitzman doesn't say who filed these cases, but if Brinig and Allen's classic "These Boots are Made for Walking" paper applies, as well as our own research from Middlesex County, Massachusetts (72 percent of lawsuits filed by women), most of the divorces that she studied were initiated by the wife. Weitzman does not explain why women would hire a lawyer for $400 per hour in today's dollars so that they could obtain a 73-percent drop in their standard of living. The Divorce Revolution does not explain why, if the kids were such an economic drag, the mothers wouldn't hand them over to the fathers or put them up for adoption. The Divorce Revolution talks about the sometimes vigorous defense that fathers would put up against divorce, custody, and child support lawsuits that had been filed by their wives. Weitzman doesn't explain why, if being an every-other-weekend parent and paying the then-prevalent child support rates was such a great deal, the fathers would bother with any defense at all.
The Divorce Revolution is tough to square with the behavior of mothers in today's world of litigation. For example, we interviewed a mild-mannered engineer who was the father of four children. HIs wife, a PhD college professor, sued him for divorce in Massachusetts with the standard arguments that he was unfit to have shared custody because he was abusive, a child molester, etc. Then her millionaire boyfriend agreed to marry her on the condition that she move to California. She obtained approval from the judge to take her four children out there, 3000 miles away from their father, while continuing to deposit child support checks at the higher Massachusetts rates. The new husband didn't appreciate having four non-biological children underfoot so the mother put them on a plane back to Boston. A few years later she divorced her second husband, collecting millions of dollars from a California judge, and tried to get the kids, and the child support payments, back. By now, however, the children were old enough to express their distrust of mom and a desire to stay with the father so the mom was unsuccessful. Attorneys told us that oftentimes custody lawsuit plaintiffs were happy to agree to 50/50 shared parenting or even sole custody to the father as long as they got paid as much or more cash as would come with a sole custody victory.
As you read our chapters you'll learn that though The Divorce Revolution may contain flawed arithmetic, Professor Allen was right about its political influence. In many states collecting child support for a single child can be more lucrative than going to college and working. Fathers are regularly jailed in all states for nonpayment of these awards. Mothers continue to be victorious in the vast majority of custody lawsuits nationwide and shared custody is generally only something that can be obtained if a mother agrees to it. A mother can collect child support for as long as 23 years (Massachusetts) as well as impose 100 percent of college costs on a father. The depth of Weitzman's influence is summarized by Professor Allen: "Family courts treat the noncustodial parent as purely a financial input."
What Weitzman did not predict is the tremendous variation in child support profits from state to state, despite the fact that federal law requires each state to follow a similar procedure in developing child support guidelines. How profitable can it be? A professor of economics in Massachusetts, a typical "winner take all" state, said, "The best career advice that I could give to a female freshman would be to drop out and stop paying tuition. Get pregnant with a medical doctor this year. Get pregnant with a business executive two years from now. Get pregnant with a law firm partner two years after that. She'll have three healthy kids and a much higher after-tax income than nearly all of our graduates in economics."
Except in the handful of states that have adopted a 50/50 custody presumption or guideline, such as Alaska, Arizona, Delaware, and Nevada, matters are only slightly changed from where they were in 1996 when Dr. Whitehead published The Divorce Culture. As you'll learn from our chapters, no-fault divorce is available in nearly every state, women typically initiate the divorce lawsuit (i.e., are the plaintiffs), women always prevail in these lawsuits in the sense that the divorce will be granted and the vast majority of the time the woman will be awarded the children and, if the man has sufficient income, a revenue stream of child support.
As child support awards were increased, alimony awards tended to be decreased in duration if not amount, according to the veteran attorneys whom we interviewed. This decrease in alimony duration, particularly from short-term marriages, was attributed to the retirement of older judges and a belief among younger judges that women are capable of working.
Domestic violence allegations in divorce court seem to have grown in nearly every state in nearly every decades. On the other hand, the U.S. Bureau of Justice Statistics reported that "Between 1993 and 2002 the rate of family violence declined [from 5.4 per 1000 persons aged 12 or older to 2.1 per 1000]. … The downward trend in the rate of family violence mirrored the overall downward trend of all violent crime during the same period." (Family Violence Statistics, June 2005 (most recent available), NCJ 207846). As of 2008, Americans actually charged in criminal courts with domestic violence were more likely to be prosecuted, convicted, and incarcerated than other kinds of felony defendants (BJS press release). Despite the fact that domestic violence is increasingly uncommon and the perpetrators of actual violence are increasingly in prison, attorneys report that accusing a wealthy defendant of being an abuser remains a very effective weapon in their arsenal.
How many Americans are affected in some way by the divorce, custody, and child support industry? Roughly half of America's children today are children of divorce and/or never-married-and-no-longer-together parents. This implies that close to half of America's fathers are subject to court orders requiring them to make payments to former wives or girlfriends. The Federal Office of Child Support Enforcement's statistics show that roughly half of these fathers are targets of state and federal agency coercion regarding child support payments and, as noted in Weitzman's book, statistics from Michigan indicate that about 1 in 7 fathers will be imprisoned for non-payment.
Our interviews show that middle-class divorce in some Civil law countries, such as Denmark, is a relatively inexpensive process marked by cooperation between co-parents. Why, when the parties have middle-class incomes, is it typically an expensive war in the U.S.? "Americans can't agree on what's fair," was a representative response from our attorneys, "One interest group may get a statute passed that seems fair to them but that doesn't mean it will seem fair to litigants. For example, all of my defendant clients accept as fair that they should pay a share of children's actual expenses. But most believe that it is unfair for them to pay the plaintiff's post-marriage lifestyle costs via alimony and the new style of alimony that we call 'child support.' That's why defendants fight so hard to avoid what plaintiffs and judges consider to be a fair outcome. That's why we need agencies and prisons to chase down divorce lawsuit losers. We've ordered them to do something that they wouldn't do voluntarily because they don't think it is fair for the plaintiff to get the kids and also a huge profit from the kids."
Interviewees report that, with men having been completely defeated by statutes and judges, the political battleground is shifting to women versus women. Women who work full time and find out that non-working child support plaintiffs earn more than they do are becoming a political force. The women who are most involved in lobbying for changes to statutes are those who are married to or partnered with men who pay substantial alimony and/or child support. "Why should my husband and I work 60 hours a week so that a woman who has never worked can relax at home, go to the gym, and take a lot of vacations?" is how a New England "second wife" critiqued the current system.
Another political rift is black-white. Legislators and attorneys told us that in many states the divorce laws are overseen by legislators who are themselves divorce litigators. The litigators who become legislators or committee members tend to be those who are the most successful and who charge the highest fees. Thus they tend to represent wealthy white people (Asian-Americans can be wealthy but they have a very low divorce rate and therefore don't represent a substantial market for the family law bar). "The laws are great for rich white female plaintiffs and their rich attorneys," a legislator told us, "but they are of little value to black women, most of whom aren't collecting from a father with substantial resources. The laws have a devastating effect on black men because any period of unemployment following a child support judgment tends to result in imprisonment and black men are more likely to suffer unemployment. They have a devastating effect on black children because fathers who've been defeated in the family courts give up on participating in the child's life."
If Texas is typical, family law is about 15 percent of all litigation. The Annual Statistical Report for the Texas Judiciary, Fiscal Year 2013, reports that Texas had 1.17 million child support cases and 386,000 other types of family law cases, about 1.56 million cases combined. This represents about 15 percent of the total of 10.1 million cases "disposed of" by the Texas courts in 2013. The federal government's Bureau of Economic Analysis calculates that for 2012 the "gross output" of the Legal Services sector of the economy was $294 billion. Assuming that divorce, custody, and child support cases generate the same amount of legal fees as the average case, and that family law has a similar mix of litigation and other work as do other parts of the law, the total fees paid by American consumers to fight with each other in these areas is about $44 billion. This is consistent with an often-quoted statistic that divorce is a "$50 billion industry" because mental health professionals, accountants, and other expert witnesses also get paid when a person sues his or her spouse. It is also not too far from the "$30 billion in attorney fees alone" statistic cited in an April 10, 2013 Forbes article ("Can This Y-Combinator Startup's Technology Keep Couples Out Of Divorce Court?").
How does the Texas/BEA-based estimate of $44 billion compare to other sectors of the economy? The BEA says Americans paid $46 billion in 2012 for child care services. The $44 billion is more than the $39 billion that the BEA says we spent on "elementary and secondary schools" or "spectator sports". Parents spent more suing their co-parents (and defending those lawsuits) than Americans spent on books ($39 billion), dairy cows and milk ($38 billion), bread and other bakery products ($36 billion), building aircraft engines and parts ($36 billion), veterinary care ($30 billion), manufacturing heavy trucks ($30 billion), or drilling oil and gas wells ($29 billion).
We asked Professor Allen what the effect of this spending was for macroeconomic growth. "You're creating transfers," he responded, "rather than new wealth. So it is a deadweight loss to the economy." Does that mean any time someone is paying a lawyer the economy is shrinking? "No," said Allen. "If you're in a complicated world you may need lawyers to settle disputes." Thus a principal difference between divorce in the U.S. compared to divorce in a Civil law jurisdiction is that we've turned the break-up of a two-income middle class couple with children into a "complicated world" that requires the same amount of attention (and fees) from lawyers as a contract lawsuit between two large companies.
Certainly whatever American parents are currently spending on divorce litigation is money that they could have spent on their children instead.
How big are the alimony flows? A May 15, 2014 U.S. Treasury Inspector General for Tax Administration report said that "In Tax Year 2010, 567,887 taxpayers claimed alimony deductions totaling more than $10 billion" and further noted that recipients of alimony reported at least $2.3 billion less in alimony income than payors reported paying. This result is that the Treasury lost tax revenue on $2.3 billion and general taxpayers have to make up the balance to keep the government funded. What other U.S. industry is comparable to collecting alimony? The U.S. Bureau of Economic Analysis says that manufacturing "Apparel and leather and allied products" is roughly a $10.5 billion industry. In other words, the total payments to all clothing factories in the U.S. is roughly equal to the total alimony paid (depending on whom you think is telling the truth to the IRS).
Attorneys interviewed noted that an increasing proportion of their business is working with plaintiffs and defendants who were never married to each other.
"The Supreme Court made abortion legal with Roe v. Wade in 1973 and Congress made abortion profitable in 1988 with the federal Family Support Act [that required states to develop child support guidelines]," is how one attorney summarized the evolution of law in the last quarter of the 20th century. The new state guidelines made an out-of-wedlock child just as profitable as the child of a marriage. Our interviewees report that it did not take long for people to put these two legal innovations together and thus began the age of women selling abortions to men. "If the child support guidelines make having a baby more profitable than working," a lawyer noted "it only makes sense that 5-10 years of the average person's income is a fair price for having an abortion."
In the event that a child is not aborted for profit, attorneys and government employees will work for 18-23 years to manage the cash flow that results from the child's birth. Some of our interviewees report that they handle just as many paternity and child support cases as divorces.
None of the attorneys interviewed expressed opposition to gay marriage. "That's inventory," a divorce lawyer was reported to have said (in the Divorce Corp. movie) every time he drove by a wedding. Attorneys generally looked forward to having a larger base of clients and some expressed the opinion that judges hearing gay divorces might ultimately revisit their gender biases when handling divorces between men and women. "If they get used to the idea of awarding shared custody to two moms," one lawyer said, "then they might start thinking that it was okay for a mom and a dad to do 50/50 shared parenting."
What do they make of the public fight over gay marriage? "What would surprise people from 100 years ago the most is not that two people of the same sex wanted to live within a framework of laws that were designed for two people of the opposite sex," said one attorney. "What I think would surprise them is how the benefits of civil marriage cited by gay marriage advocates have nothing to do with marriage per se. The public discussion is about potential tax or Social Security benefits from being married or that it isn't necessary to execute a health care proxy to get control over an unconscious person's health care. But nobody talks about what used to be considered the main benefit of a civil marriage, i.e., that you had a life partner on whom you could rely."
An attorney who'd been practicing for nearly 40 years said "Today's civil marriage is a shadow of its former self. In the old days, if your partner was having an affair you could have him or her arrested on charges of adultery. If your partner decided to repudiate his or her marriage vows, the state would assist you in trying to enforce those vows. He or she could negotiate with you to end the marriage but there was no equivalent to no-fault divorce in which your partner could sue you and be guaranteed of winning the lawsuit. Gays and straights today are fighting over the scraps of marriage."
What about the moral and philosophical dispute regarding gay marriage? "When I read arguments by opponents of gay marriage," said one attorney, "I don't recognize their description of straight marriage as some sort of sanctified institution. With no-fault statutes that kept the old alimony, property division, and child support rules, straight people made a mockery of civil marriage a long time ago. Marriage today is a way for a smart person with a low income to make money from a stupid person with a high income. What difference does it make whether the gold digger and mark are of the same sex?"