Part of Real World Divorce: web edition | Kindle edition
This chapter is a guide to how changes in family law affect outcomes, based on our interviews with litigators all over the nation and in selected countries around the world. Because the perception of fairness varies depending an individual's circumstances, only you can decide what you think would lead to a fairer system in your state.
Custody laws determine (a) whether or not plaintiffs will decide to terminate a marriage, (b) whether a child will have one parent or two, (c) whether or not a divorce lawsuit is likely to be profitable. At the highest level, jurisdictions can be divided into the following categories:
Category 1 prevails in many countries around the world, but a gender-based rule would be unconstitutional in the U.S. The big question that U.S. citizens face is whether they want to live in a Category 2 or a Category 3 state. Americans can go from Category 2, shared parenting, to Category 3, judge-picks-a-winner, as easily as moving from Nevada to California or from Philadelphia to New York or Boston.
The big question for legislators is "Does it make sense to run a court system to pick a winner parent and, mostly, discard the loser parent?" Linda Nielsen, professor of Psychology at Wake Forest University, was the most cogent person we interviewed on this topic.
The lofty realm of Academia and the grubby underworld of divorce court seldom intersect. Professors gain tenure and prestige by publishing in academic journals, not by wading down into the muck of family law disputes. Can't judges read the journal articles? "Judges went to law schools. They don't want to be bothered learning new things," one lawyer told us. Nielsen, however, is able to fill the room with judges for her two-hour conference seminars. "They are very receptive to learning about social science research results if it is presented efficiently," Nielsen says. "They send me letters afterward telling me that what they learned in my seminar affected outcomes for children."
What does Nielsen think of the winner/loser custody system that prevails in most U.S. states? "A lot of social scientists say that a court cannot possibly pull together enough custody evaluators and psychology experts to accurately predict what is going to be the best parenting plan for each child in a particular family " responded Nielsen. "The premise that custody evaluators can always give an objective recommendation is flawed. It is not like a driving test or a math test. There may be no standard set of credentials for custody evaluators. There is not necessarily consistency from one evaluator to another and many of the measures used in these evaluations were not designed for that purpose.. A psychologist can't walk into an intact family, do an assessment and determine which parent is better for which child at which age in that family – or who will be the better parent four years from now. So why bring that difficult task into family court?"
Nielsen says that a deeper problem with courts picking the "better parent" at the time of divorce may be that the judge is answering the wrong question. "It doesn't matter who is a better parent at the time of the divorce," says Nielsen. "I ask students [in a Wake Forest University Department of Psychology course] 'Was your mother or father the better parent when you were 6, 10, 16 years old? Now answer the same question for your brother or sister. The answer is different at each age and, with siblings, depending on the personality of the siblings and the parents. The importance or effectiveness of each parent will go up and down as the child ages, which is one reason that children who are in shared parenting arrangements do better than children who spend less than 35 percent of their time with one parent."
In other words, if Nielsen's research-informed perspective is correct, states are collectively spending billions of dollars of tax money (to pay for judges and courthouses) and consumers are spending tens of billions of dollars (on litigators) on an exercise that, in most cases, should not be undertaken.
What about the fact that some divorce lawsuit defendants turn out to be "Disney Dads" post-divorce? Doesn't that confirm the wisdom of the judges who assigned them a secondary role? "Research shows that the type of parenting you can do depends on what activities and how much time you get to share with the child," says Professor Nielsen. "The best kind of parenting is called 'authoritative parenting', as distinct from 'permissive parenting', which is the worst. An authoritative parent sets rules and talks to children about important things. He is a child's parent, not the child's uncle. For this to be possible the children must spend ample time with the father and have a full range of activities with him, including ample time during the school week. When you cut the parenting time down to every other weekend there's not an opportunity to be an authoritative parent. It is not that the dad is a different person. He's the same person with the same parenting skills but in a restricted situation."
What do the litigators we interviewed think of judges' ability to pick a primary parent? "Judges don't have even a rudimentary understanding of psychology," said one veteran practitioner. "Some judges are man-friendly and others are woman-friendly," she continued, "and that's really the basis of their decision that is supposedly about a specific child or the specific facts of a case." Why do judges need to know anything about psychology? Can't a judge rely on a psychologist's testimony as a neutral custody evaluator? "Anyone who tells you that they've checked their biases at the door is an idiot. Evaluators have their own prejudices. Some of them think every man is abusive. Others think every woman is a liar."
What we found from interviewing attorneys was that any time a state offers to make one parent "primary," "custodial," or "residential," it is a recipe for all-out war. When a state offers to add profitable child support to the custody victory that is like giving tanks and fighter jets to both sides in the war. When a state offers to have the wealthier parent pay the less wealthy parent's legal fees, that's adding unlimited ammunition.
A state that eschews a 50/50 custody presumption in favor of running a winner/loser parent system is guaranteeing that children will be stripped of college funds and inheritances. A litigator since 1975: "There is nothing more important to people than their children. If they have money to spend they will spend it unless their lawyers rein them in."
(See the Children, Mothers, and Fathers chapter for a summary of the research on how a child's schedule with separated parents affects well-being.)
Virtually all of the attorneys we interviewed said that American custody lawsuits are primarily about money. This is consistent with what we found in Europe. Where children are not profitable, parents often cooperate and craft shared parenting agreements; where children are profitable, there will be a fight for primary parent status. "I can't remember having a mom who was passionate about winning sole custody if it wasn't going to be profitable," noted one attorney, consistent with R. Mark Rogers, the economist who said "The conflict [over children's schedules] clearly indicates that child support awards are higher than actual costs."
Brinig and Allen ("Child Support Guidelines, the Good, the Bad, and the Ugly," Family Law Quarterly, v. 45(2), Summer 2011, pp. 140-151) found that the more money that could be obtained via child support, the more likely a parent who expected custody was to file a divorce lawsuit: "In Canada, the effect of the large transfers of wealth to custodial parents is quite dramatic. … Amazingly, a $100,000 change in income led to the divorce rate increasing by 10%. This size is comparable to the entire effect of no-fault divorce on divorce rates."
This was consistent with what our interviewees told us. Profitable and/or uncapped child support guidelines drive citizens to
Children generally do not receive receive financial benefits from higher child support guideline amounts due to (a) successful plaintiffs spending the money on themselves, (b) parental wealth consumed by legal fees, (c) parents ordered by courts to pay higher amounts reducing their voluntary contributions.
As discussed in the chapter on children, research suggests that voluntary payments by a loser parent are helpful to children, but that any kind of court-ordered money transfer was harmful, even when paid: "[the Rutgers and University of Wisconsin psychologists] also find that provision of formal [court-ordered] child support is associated with worse withdrawn and aggressive behaviors."
Rigid child support guidelines, such as Virginia's, that extend out to infinite levels of income reduce litigation because they reduce uncertainty. Child support guidelines that leave a lot to judicial discretion, especially at the higher income levels where parents can afford attorneys, lead to enough litigation that the child is ultimately guaranteed to be worse off financially.
Judicial discretion may complicate the sale of abortions at higher-income levels. "When handling an abortion transaction," one attorney said, "the negotiations with the father don't usually start in earnest until the fetus is at 10 weeks and we've had a paternity test done using the mother's blood. The extent to which the father thinks that child support is discretionary with the judge keeps him from making the rational decision to buy the abortion. This slows down negotiations and if they go beyond the 24-week point we have a child support case instead of a completed abortion transaction."
The main arguments we heard in favor of unlimited child support profits were (a) not everyone gets them, and (b) it doesn't matter if rich people have to pay a lot. A typical analysis was from state legislator Kelly Burke of Illinois, who practiced family law for 10 years: "We've trying to come up with a system that works best for most people. Higher-end folks drive a lot of the fees and the business [of divorce litigation] but that is not a high percentage of the people getting divorced." In the no-limit states, we seldom heard an analysis from the point of view of the children, i.e., whether or not the child of a wealthy parent had a right not to be the subject of a custody lawsuit with millions of dollars in child support at stake, enough to drive a plaintiff parent to accuse the defendant of being a child molester, etc.
Wisconsin is a classic example of a state where it is more lucrative to have a child with a high-income partner than either to (a) work, or (b) marry a middle-income partner. It would not be economically rational for a resident to spend 12 years studying to become a primary care doctor when having sex with a dermatologist would yield the same spending power. Legislators arguing against a proposal to scale back some of the profits had a study done by the state's child support enforcement agency, chronicled in "Estimate: Proposed child support changes affects .04 percent of parents" (Molly Beck, Wisconsin State Journal, January 7, 2017):
An estimated 123 child support orders, out of more than 315,000 statewide, are for parents who earn more than $300,000 as of December, according to an analysis from the Legislative Fiscal Bureau requested by Sen. LaTonya Johnson, D-Milwaukee.
The $300,000 threshold corresponded roughly to the top 1 percent of Wisconsin taxpayers in 2013, based on IRS data that includes single men, single women, and married couples (see "Income inequality in the U.S. by state, metropolitan area, and county" (Estelle Sommeiller, et al., Economic Policy Institute, June 16, 2016). Child support defendants will be mostly male because 95 percent of people in Wisconsin collecting child support are women (Census 2014 data; see our chapter). Labor force participation among the prime working age men who are likely to be child support defendants is about 88 percent (whitehouse.gov). If we consider that, on average, men earn more than women and that incomes rose between 2013 and 2017, among men who could be child support lawsuit defendants, roughly 1 percent earned $300,000 per year or more. For only 0.04 percent of Wisconsin child support lawsuits to be affected by this part of the guidelines, therefore, only 1 in 25 men at this income level could be involved in family court lawsuits. I.e., the divorce rate for Wisconsin's high-income men would have to be close to 4 percent and nearly every out-of-wedlock pregnancy would have to turn into either (a) an abortion, or (b) a marriage terminated by death. Most likely the statistic comes from the fact that plaintiffs suing high-income defendants use private attorneys rather than the state agency. What is typical of American is that the legislators apparently accepted these numbers uncritically, as did the journal, Molly Beck. The article also illustrates typical American thinking that the supply of children is fixed. There is no hint that economic incentives might change behavior, e.g., that if it is possible to get $100,000/year tax-free by having a baby somebody will choose to have an additional baby in order to get $1.8 million over 18 years.
The primary beneficiaries of unlimited child support are (1) plaintiffs, who may never need to work again and/or are able to afford a luxurious lifestyle, and (2) divorce litigators, who can bill more in fees when $2 million is at stake than when $200,000 is at stake. Aside from children and defendants, the people who pay for this are fellow citizens. The state resident who collects child support doesn't pay income tax, thus shifting the burden of supporting state government to citizens with W-2 jobs. Even when a successful child support plaintiff has a job, the monthly checks result in fewer hours of work and less energy devoted to waged labor. See The Redistribution Recession (Mulligan 2012) for a University of Chicago economist's survey of how Americans respond to various welfare programs that function in a similar way to child support.
Attorneys in every state where child support varies with the amount of time that a child spends with each parent say that the "days for dollars" system encourages litigation. Research psychologists found that custodial mothers ("primary parents") in such states allow visitation with fathers only to the point that they are not at risk of having their child support revenue reduced. (Note that this may be partly due to the fact that every U.S. state provides child support revenue in excess of USDA-estimated child-related costs. "Days for Dollars" might not have the same effect if child support were capped at foster care rates.)
Why not scrap it? "You need to adjust child support based on timeshare to maintain an appearance of fairness with the public," said an economist. "In reality the costs are about the same if you have a child 10 percent time or 90 percent time, assuming that in both cases you need to provide the child with a bedroom. But if anyone were to acknowledge that fact the whole system would break down because what would the justification be for a parent who cares for a child 35 percent time to pay the parent who cares for a child 65 percent of the time? Most people get married to partners who have a similar educational and occupational status. Therefore most child support lawsuits involve two parents with approximately equal income. If you couldn't sue to get money from someone at roughly the same income level the divorce courts would be pretty quickly emptied of paying clients."
Most states terminate child support when a child reaches age 18 and do not permit a court to order a parent to pay for college. This is based on the idea that a child of divorce does not have superior legal rights to a child of an intact marriage. "If a 19-year-old from an intact family could not sue a father demanding monthly cash payments directly to the child, why can the mother of a 19-year-old sue the father demanding monthly cash payments into her own checking account?" is the reasoning as explained by one attorney. Similarly the argument on college expenses is that if there has been a rift, e.g., over the child's lifestyle, drug use, or treatment of the parents, the adult child of an intact marriage cannot sue for $400,000 in college tuition, room, and board. Why does a child of divorce then have that right?
Many attorneys that we interviewed favor extending child support, and therefore the period during which parents can litigate, at least through college. They also favor courts being able to order parents to pay college expenses. "It isn't fair to compare a child of divorce to a child of an intact marriage," said one attorney. "The child of divorce has only one parent, typically the mother, and the child's relationship with the visitor [loser parent] grows increasingly weak over time. Courts will allow the custodial mother to move 1000 miles away, further weakening the bond between the child and the father. The father, meanwhile, has been financially weakened by paying alimony and child support. So the child of divorce has a weaker bond with the father and the father is weaker financially than would be a father who hadn't lost a divorce lawsuit. That kind of father is much less likely to volunteer college tuition checks than a father who had lived with the child through age 18." Another attorney summarized his point of view with "It is beyond irony that four years of college and three years of law school are required to be a lawyer and yet judges don't see the sense in requiring college expenses at least minimally to be paid."
The practical battle for the kids, and the child support profits that may accompany them, is for physical custody. Even when that battle is won, a question of legal custody ("decision-making" in some jurisdictions) remains. The winner of "sole legal custody" can make decisions regarding the child's health, education, activities, and religion without consulting the loser parent.
Based on our interviews there is no practical difference between joint and sole legal custody. "We used to call it 'feel good custody' where the child was primarily with the mother because the father can pound his chest and say he had joint custody when he didn't," said an Arkansas litigator. "In my practice," said a Colorado attorney, "I spend more time explaining to clients how little an impact the joint/sole legal custody decision will have. With a healthy child you're going to have maybe half a dozen major decisions in their life." Another attorney said that even that was an overstatement of the importance: "If you're with the child only every other weekend you don't even know what issues there are so you have no practical means of exercising joint legal custody. It's a fictitious concept when parenting time is unequal."
The lives of divorced or never-married parents and their children are not substantially different in Oregon, for example, where the standard outcome is sole legal custody, and Washington, where the standard outcome is joint legal custody.
In the old days judges were engaged in what Professor Nielsen, above, says is a pointless exercise: choosing between two parents. Today, however, it is often the case that a judge is choosing between a parent and a commercial day care center or a paid nanny. A lot of parents who seek custody, and the child support profits that accompany custody, have full-time jobs. Thus they must ask a judge to find that it is in a child's best interest to be in a commercial day care center or with a nanny rather than with the defendant parent, who might well be available during those hours. If successful, typically the defendant/loser parent will also be ordered to pay for the commercial care.
We found that this was easily done in Massachusetts, for example, but not in states with guidelines that encourage a judge to "maximize" the time that a child can be with the two parents. If a fit parent asks a court for permission to take care of his or her own child personally, does it make sense instead to order that parent to pay for commercial care? Michel Houellebecq, in The Elementary Particles (2001), suggests that the answer is "yes":
Children existed solely to inherit a man’s trade, his moral code and his property. This was taken for granted among the aristocracy, but merchants, craftsmen and peasants also bought into the idea, so it became the norm at every level of society. That’s all gone now: I work for someone else, I rent my apartment from someone else, there’s nothing for my son to inherit. I have no craft to teach him, I haven’t a clue what he might do when he’s older. By the time he grows up, the rules I lived by will have no value—he will live in another universe. If a man accepts the fact that everything must change, then he accepts that life is reduced to nothing more than the sum of his own experience; past and future generations mean nothing to him. That’s how we live now. For a man to bring a child into the world now is meaningless.
We interviewed a number of attorneys who had been involved in legislation to rename various terms applied following divorce lawsuits. Noting that parents who "lost custody" were upset, they were proud of having participating in the renaming of the terms of a typical judgment following a divorce or custody trial. Instead of designating the winner parent as having "sole physical custody" the winner would now have "primary residential responsibility" or "primary placement' or simply "placement" a greater percentage of the time than the loser parent. Instead of the parents having "joint legal custody" they might have "shared decision making". Instead of parents being "custodial" and "noncustodial" they might have "shared parenting" and a "parenting time plan".
Here's the rationale as articulated in a Canadian Parliamentary "Report of the Special Joint Committee on Child Custody and Access" (December 1998):
Many witnesses testified that the current language of "custody and access" promotes a potentially damaging sense of winners and losers. … This Committee is of the view that a shift to new, less loaded terminology is critical to reducing conflict in divorce. … The Committee concludes that the current Divorce Act terms custody and access should be replaced by the concept and the expression "shared parenting". By this, the Committee is not recommending a presumption that equal time-sharing, or what is currently referred to as joint physical custody, is in the best interests of children. … it would be presumptuous and detrimental to many to establish a "one size fits all" formula for parenting arrangements after separation and divorce.
In other words, the Committee recommended retaining Canada's winner-take-all system, with potentially unlimited child support profits and an unlimited scope for litigation regarding which parent would be the winner. But they thought different terminology would make loser parents feel better about losing.
The lawyers we interviewed who had not been involved in this kind of legislation scoffed at the renaming, e.g., "You get sued, have to pay me $200,000 to defend the lawsuit, lose your parental role, are ordered to pay 100 percent of a child's expenses plus 100 percent of the mother's expenses to live in a five-bedroom house and not work, and babysit for free what used to be your kid every other weekend. If you can't recognize that this is a loss because the court calls you a 'secondary parent' instead of a 'noncustodial parent', you're an idiot."
States differ in the extent to which they encourage people seeking a divorce also to start a custody fight. Massachusetts, for example, home to a lot of custody wars that have consumed more than 100 percent of family assets in legal fees, has a standard complaint form for starting a divorce lawsuit. There is a box for the new litigant to check to ask the court to grant sole custody of minor children. There is no box that could be checked by a litigant seeking joint custody.
California's FL-100 "Petition for Dissolution of Marriage" and the Maryland form allow check-the-box requests for either sole or joint legal and physical custody.
It may be possible for a legislature to increase or decrease the amount and intensity of custody litigation by editing the standard forms that are offered to consumers and attorneys.
There is a divide between states on the length of time that it is possible to collect back child support. In some states, such as Texas and Massachusetts, it is possible to collect unlimited back child support. A mother can have a child, not tell the father about the birth, wait for 18 years and then sue for 18 years of back child support, plus interest, in one lump sum. The father will be imprisoned if he cannot pay. Given the rewards that states provide to parents who can show a history of caregiving, at a minimum it makes sense for a mother in a paternity case to wait a few years before informing the father. She then has a slam-dunk case for sole custody in most states and the maximum child support payments that accompany sole custody.
Wisconsin is an example of a state that recently switched from 18 years of potential back child support to essentially 0. "It has really changed people's incentives," said our interviewee there.
The concept of no-fault divorce, i.e., a divorce that can be imposed unilaterally by one partner on the other (divorcio unilateral in Spain; "unilateral divorce" in academic literature), is a relatively new one in human history. Most U.S. states adopted "no-fault" laws in the 1970s or early 1980s but there are some holdouts, such as Mississippi.
"Anyone who wanted a divorce in the old days could get one," an attorney noted, "but they'd have to negotiate with the other partner for cooperation."
The arguments in favor of quick and simple unilateral divorce included the following:
As explained in the History chapter, the no-fault divorce movement reflected a rebalancing of society's priorities away from children's welfare and towards personal happiness for adults. "Let's face it," one attorney said. "No-fault is about an adult wanting new sex partners. We try to make it up to the kids with the fiction that we're giving them cash via child support, but they'll never see the cash." A colleague agreed: "Men seeking newer/younger sex partners is not a new phenomenon, but now they can get paid for it [by suing a higher-income wife for alimony and/or child support]."
What about women? "The no-fault system was set up on the assumption that women didn't seek sex partners outside of marriage," a lawyer in a winner-take-all state told us, "but that turned out not to be true. There's been a lot more uptake than originally expected." What kind of life do women choose when there aren't any constraints? Catherine the Great was the most powerful person in the 18th century world. She choose a succession of boyfriends, usually in their 20s, replaced with new ones every two years. See Catherine the Great (Massie 2012).
Attorneys who'd been through the transition said that their fees hadn't been affected: "There is still plenty to fight about. We will fight about what the defendant's income potential is for paying alimony and child support. We will then fight about the amount of alimony and child support. We will fight about the length of alimony. We will fight about who gets the house and other assets. We will fight about whether the children get to spend time with their father. We will fight about whether the defendant will pay the plaintiff's fees. Fees are a function of how much money the couple has, not the number of issues in dispute."
Most of the older attorneys said that the introduction of no-fault made litigation more intensive because legislatures and judges simultaneously deemphasized alimony in favor of profitable child support. "The war about who was having an affair turned into a war over the kids," was a typical summary.
Since children have no voice in the political world, who argues against it? A handful of religious conservatives. Stephen Baskerville, a professor of Government at Patrick Henry College, provides a good example of the argument:
With no-fault divorce, the spouse who divorces without grounds or otherwise breaks the marriage agreement (for example, by adultery or desertion) … gains advantages. … Because the divorce creates work and earnings for judges, lawyers, and other court personnel, there is a strong incentive for these officials to reward the guilty spouse in order to encourage more divorces and more business for the courts.
The vast majority of no-fault divorces -- especially those involving children -- are filed by wives. … Overwhelmingly, it has served to separate large numbers of children from their fathers. …
The entire point of a marriage and family is for mothers and fathers to cooperate and compromise for the sake of children and to provide an example to those children of precisely these principles, without which no family can operate. Allowing one parent to surrender both parents' decision-making rights over the children to government officials because of "disagreement" … negates the very principle of private family life and invites collusion between the divorcing parent and state officials.
Judges and civil servants are not disinterested. … Allowing them to control the private lives of citizens who have committed no legal infraction simply by invoking "disagreement" gives them an incentive to reward the parent that is being the most disagreeable.
Openly false accusations of domestic violence and child abuse have become an industry in themselves, mostly to secure child custody. By dispensing with standards of justice for divorce, we have allowed them to be abandoned for criminal justice too. ... the accused seldom receives a trial or chance to clear his name. Instead he simply loses his children until he can prove his innocence, an impossible standard.
Litigators we interviewed generally agreed with Professor Baskerville on virtually every fact, but disagreed with his conclusion that no-fault should be abandoned. "The problem is not no-fault," one litigator told us. "It is that getting divorced is so profitable. If it is going to be automatic it shouldn't also be lucrative, especially given the harm that the parent pursuing the divorce is inflicting on the children. Get rid of alimony, have a 50/50 custody presumption, get rid of child support for anyone who has a decent job, and then you'll see the kind of divorces that no-fault was supposed to give us." Attorneys also suggested that divorces shouldn't be handled by conventional courts: "Once you've got no-fault and therefore you can be sure that the plaintiff will prevail, it becomes farcical to have divorces in the courtroom. Everyone knows how it will turn out. A no-fault divorce should be an administrative proceeding in front of an accountant, not a Perry Mason-style trial."
As in other areas, uncertainty regarding property division encourages litigants to "roll the dice" with the judge. Maximum uncertainty is created in states where premarital property can be divided in favor of a plaintiff spouse and where the percentage split of property is not fixed. Couples may sign prenuptial agreements with a specified disposition of property, but read Massachusetts Prenuptial Agreements to learn how that generates uncertainty regarding the validity of the prenuptial agreement, to be resolved at a cost in legal fees of $200,000.
The argument in favor of putting premarital property under the family court judge's jurisdiction and allowing arguments for a split other than 50/50 is that a more equitable outcome can be obtained in at least some cases. Generally, however, advocates for this kind of discretion do not adjust for the fact that the legal fees to argue over the division may exceed the value of the property.
Actual outcomes are not that different in states with rigid rules versus those that give judges discretion. For example, in theory one could find a person in Wisconsin with $10 million in savings, get married on Sunday morning, sue for divorce on Monday morning, and ask for $5 million under the state's 50/50 presumption. In Minnesota, on the other hand, the same lawsuit would be about "a just and equitable division" of the wedding gifts. In California, the parties would know before they showed up in court that the outcome would be a 50/50 division of the wedding gifts. The parties in Wisconsin would spend the most in legal fees but the outcome would probably be similar in all three states.
Attorneys in most jurisdictions told us that judges tend to rule according to personal prejudice and that, indeed, in most cases the selection of the judge would have a larger effect on the outcome than any of the facts. After a judge has been on the bench for a few years, the judge's predispositions tend to be become known. By definition a defendant is not someone who chose to be involved in a lawsuit. When that person learns that the judge assigned to his or her case is also likely to rule in favor of the plaintiff, regardless of the merits, the defendant will perceive the system as unfair.
Some Western states, e.g., Alaska, North Dakota, and Idaho, offer litigants the opportunity to request a different judge once per case, usually shortly after the judge is assigned. This limits a judge's ability to rule against certain kinds of people because eventually those people will stop showing up in that judge's courtroom. Court workload remains constant, since the number of judges and cases is unchanged.
How would a litigant know whether or not disqualifying a judge was a good idea? Without going to trial, is there a way for a divorcing couple to predict the judicially imposed outcome? Settlement-oriented attorneys suggested that states make data available on how each judge has been ruling. Settlements would be much more likely, we were told, if attorneys could tell clients what a judge is likely to order.
Attorneys were divided on the merits of elected, rather than appointed, judges. The elected judges of Pennsylvania have moved toward 50/50 shared parenting without any legislative prompting, possibly out of a need to get votes from male citizens. The biggest downside of an elected judiciary is potential bias toward litigants whose attorneys have made campaign contributions.
Attorneys everywhere told us that quick decisions at motion hearings tended to be confirmed at trial: "the trial is an expensive formality," was a typical comment. Part of the reason may be that in most states the same judge who hears a motion will be the one who hears the trial. Humans are reluctant to question their own previous decisions. Hawaii has a system in which one judge hears all of the motions up to the trial and then, to avoid prejudice especially from any exposure to settlement discussions, a different judge will hear the trial.
Most attorneys interviewed thought that a European-style three-judge panel would be the fairest way to resolve cases. "A child's life is too important to be determined by a single judge's arbitrary personal biases," summarized one lawyer. Vermont is the closest thing that we have to this in the U.S., with two "side judges" collaborating with the official judge. Cases in Vermont are resolved through trial faster and cheaper than in neighboring Massachusetts so it doesn't seem to slow the system down.
The American legal system was set up with checks and balances. A person who gets sued for more than $20 is entitled, by the Seventh Amendment to the Constitution, to a jury trial and the jury can be balance against a biased judge. The appeals courts can provide relief to a litigant who was not treated fairly by a trial court.
The American system of divorce, on the other hand, generally dispenses with these protections. Attorneys everywhere told us that the decisions that a parent might care about, such as the designation of a winner parent or the amount of money to be transferred by alimony and child support, were not appealable. The standard for an appeal would usually be "abuse of discretion" and it is impossible to meet partly because the job that a state legislature gives a family court judge is to exercise his or her discretion. A successful appeal often has no practical value since the case is sent back to the original trial judge who can issue the same orders with a different rationale.
Most interviewees said that they wanted a "genuine" appeals process, perhaps along the European three-judge panel lines, because they had seen so many arbitrary and unfair outcomes from solo judges working without constraints.
Attorneys in some winner-take-all states questioned the rationale for offering an appeal option, saying that it gave loser parents false hope and ran up costs. "The idea of going to an appeals court to say that the outcome of a divorce lawsuit was unfair is ridiculous," one lawyer said. "Divorce is not supposed to be fair to the litigants. Our legislature decided that, to serve the best interests of a child, a one parent should have the house, the kids, and most of the joint income. So that parent is going to be happy and the kids are going to be around a happy parent 90 percent of the time. For that to work, the other parent has to hand over his paycheck, under threat of imprisonment, and then go home alone to his crummy studio apartment somewhere. He (it is usually he) is going to be unhappy about this and you don't want kids to be around an unhappy person so it is a good thing that they seem him at most every other weekend. What's the basis for his appeal? That he lost everything and is unhappy? That's not an error by the trial judge. That's how the system is designed to work."
States differ substantially in terms of how easy it is to get a judge to order the wealthier or higher-income party, usually the defendant, to pay the other side's fees. Attorneys report that the potential for fee awards (a) encourages divorce rather than reconciliation, (b) encourages plaintiffs to litigate rather than mediate, and (c) prolongs and drives up the cost of the typical case.
"Basically the question is whether the case will end after one person runs out of money," said one lawyer, "or after both parents are made penniless." Which system is better? "It depends on if you think a child is better off with one poor parent or two poor parents."
Nearly all of the attorneys we interviewed were in favor of judges awarding fees so as to "level the playing field" and eliminate the possibility that one side would settle due to the prospect of running out of funds. They recognize that this makes the average case longer and much more expensive, but, as noted in the Children, Mothers, and Fathers chapter, avoiding even a single unfair outcome is a dominant goal for litigators, and a cost-benefit analysis is not part of the thinking.
Interviewees told us that courts encourage parents to take extreme positions in custody litigation. There are no penalties for asserting that the other parent is a child molester/abuse/monster and thus the child's contact with the defendant should be limited to two hours of supervised visitation per week. In fact, it was a conventional approach in many Massachusetts cases that we looked at in the courthouse. The alleged child molester would propose a 50/50 shared parenting plan and, after $200,000 in legal fees spent, the judge would "split the difference" by ordering an every-other-weekend schedule for the child.
David DeLugas, an Atlanta-based attorney suggests the family courts should move away from choosing between two parents toward choosing between two plans: "A judge would not be allowed to modify either plan, just pick one of the two. If you then have a trial it won't be about which parent is better."
What's his inspiration? "Major League Baseball arbitration," he told us in an October 2014 interview. "When a baseball player is a free agent and negotiating a contract with a team they go to arbitration. The arbiter decides how much the player is worth, then opens envelopes from the two sides with proposals. The one that is closer to what the arbiter decided becomes the player's salary." Why is this better? "Players and teams almost always settle before arbitration," said DeLugas. "They've gotten pretty close because you get penalized for asking for too much."
Rich people are a small percentage of custody and child support plaintiffs but take up a lot of taxpayer-funded court time. Some interviewees suggested that high-income or wealthy people should be turned away from the child support courts. "Why should married people who earn $30,000 a year at Walmart pay taxes so that plaintiffs who earn $300,000 per year can argue in front of a judge that they should get paid to be a parent?" asked one lawyer.
Consider that Walmart employee with a working spouse and a couple of children reading a January 7, 2013 article in TMZ headlined "I want child support … From My Ex!":
"Bethenny Frankel [a reality TV star] means business, even in divorce. … Bethenny filed for divorce last week against Jason Hoppy. … Bethenny -- who is reportedly worth between $25 million and $55 million -- has filed legal docs asking for the following from Jason:
--- Child support ... retroactive from the date she filed for divorce
-- Medical, dental, optical, therapeutic, and orthodontic expenses for HER and her child
-- Life insurance that makes both her and the kid beneficiaries"
Their child was 2 years old at the time. Under New York law, they have 19 more years to litigate in front of taxpayer-funded judges regarding which multi-millionaire parent pays for the child's T-shirts. An October 8, 2016 Inquisitr article on a California lawsuit:
As of October 8, The Richest claims [the defendant] is worth $240 million while [plaintiff Angelina Jolie] is worth a bit less with an estimated net worth of $200 million. [the litigants] were attempting to sort out an agreement for … temporary support for Jolie and the kids, and permanent financial support for the family.
In other words, California taxpayers will pay to provide a forum for a third-time divorce plaintiff with $200 million to argue about how much more she needs to support herself and some part-time children. This is rational for Ms. Jolie under the California guidelines. If she is successful in her bid to become the primary parent, she could get $50 million in tax-free child support to supplement whatever alimony she is able to obtain after a two-year marriage.
Of course, most of the rich people coming to court with child support demands are not celebrities. As discussed in the Post-Divorce Litigation chapter, Cameron Kennedy had sued her husband in 2006. The lawsuit terminated in a settlement agreement that gave her millions of dollars in assets, but no direct profit from the children, whose time was split 50/50 and whose actual expenses would be primarily paid by the father. She was remarried to a lobbyist and earning $350,000 each year working at McKinsey when she decided to keep the assets but repudiate the child support portion of the agreement. She sued her defendant a second time, heading down the courthouse in 2012 demanding $264,000 per year in child support paid to her.
The judge, and a previous judge, had spent the previous 1.5 years hearing a variety of motions, and issuing opinions, on subjects such as the appropriate way to extrapolate from the top of the D.C. child support guidelines. Then there were six days of trial. All told this was probably nearly two months of work for court personnel.
What did the middle-income taxpayers of Washington, D.C. get in the 64-page opinion that they paid for?
Maryanne Sorge sued her husband Joe Sorge in Wyoming in 2000. She got assets that were worth about $14 million, joint custody of their three children, and $96,000 per year in child support. Seven years later Maryanne, who had remarried (to a husband of unknown wealth and income), sued her ex-husband in California seeking "to modify the child custody and visitation arrangement" for a 14-year-old, a child who would age out of the California child support system within four years. Part of her lawsuit was that the former husband should have been disclosing to her, on a continuing basis, any changes in his income.
After three years of litigation, in 2010, Maryanne won an order for $216,000 per year in child support plus payment of $200,000 in her legal fees. Assuming the child support order was retroactive to the lawsuit's filing date, she netted $672,000. In upholding this award, the appeals court noted "California has a strong public policy in favor of adequate child support" and talked about the "needs of the child." The IN RE: the MARRIAGE OF Joseph and Maryanne K. SORGE case was finally decided in 2012, around the child's 19th birthday. The litigation over how the ability of a person with $14 million in assets (plus 12 years of investment returns and income from a new husband) to support a part-time child lasted until the child was an adult.
Attorneys who wanted to shut down these cases cited the fact that courts were "underfunded" and backlogged, resulting in slow case resolution and litigants turning to the fast-track domestic violence system with false allegations. The two months of judicial time that were devoted to Cameron Kennedy's quest to go from "pretty rich" to "even richer" represent, according to the attorneys we interviewed, roughly the amount of judicial time that is spent deciding custody for 270 children of middle- or lower-class parents.
A public-policy-minded attorney summed up the debate: "The current child support system was designed in response to media reports of the feminization of poverty. It is a welfare system for poor women. But most poor women are suing poor men and they don't get much in the way of child support. Most of the dollars transferred by this welfare system go to rich women, though there are a handful of guys who are learning to work the system too."
Attorneys tell us that divorce cases nationwide have become essentially domestic violence cases with richer rewards and lower standards of proof.
Some interviewees suggested returning domestic violence to the criminal courts. "If you're going to hand out criminal penalties" one attorney noted, "there should be a criminal 'beyond a reasonable doubt' standard used." Divorce courts can hand out criminal penalties? "Would you rather go to jail for 90 days or lose your house, your children, and your income for up to 18 years?"
Would a significant number of plaintiffs really be willing to stretch the truth in order to get the house, the kids, and the paycheck? See Professor Fiamengo's comment in our Rationale chapter: "Even pretty decent people would be tempted by the rewards handed out. It is easy to justify if you no longer like the guy you had been with." Attorneys interviewed suggested that judges make little attempt to determine the truth of domestic violence allegations: "It is easier just to give the woman the house and the kids," was typical.
The current system was built in response to advocacy from domestic violence groups, but they're not happy with how it works for lower-income litigants. From A Troubled Marriage: Domestic Violence and the Legal System (Goodmark 2011, NYU Press):
The focus on separation springs from a core belief that women in violent relationships should not remain in those relationships. … Even the most seasoned advocates (reluctantly) admit to having occasionally questioned why their clients don’t leave their partners. … Low-income women may be so economically bound to their partners that they cannot leave their relationships and may continue to rely on economic support from their partners even after their relationships end.
Goodmark suggests a "woman-centered" system that gives women more choice, including the choice to stay with an abusive man if 100 percent of his paycheck is required to keep the family going (a typical child support order is usually just 30-50 percent of the father's after-tax income). The judge would order the man to stop the abuse, whether verbal or physical. Goodmark couldn't explain how that would be enforced without the judge moving into the couple's apartment? We emailed a couple of law school professors who are domestic violence experts our own idea:
A judge has the power to order a man not to return to what had been the family home and to separate fathers from children. Judges also have the power to order that criminals be monitored electronically Why wouldn't a judge have the power to order video surveillance of a house? … an abused woman who did not want the automatic separation and prosecution that currently follow a domestic violence report could ask for video surveillance of her house. … Wouldn't the possibility of having his actions reviewed by a judge discourage the abuser a lot more than current paper/legal threats? Judges could also order this in cases where they were currently on the fence about whether or not to issue a restraining order. Instead of losing his place to live and his children, the man now loses some privacy (though let's say that the recordings are never viewed unless the woman makes a second abuse complaint; otherwise they stay encrypted on a hard drive somewhere).
The professors hadn't considered this before, but thought that it would be workable legally.
Our interviewees had less technology-intensive ideas. "Domestic violence has become the new adultery," said one lawyer. "The way that we dealt with all of the adultery allegations that were clogging up the courts with lying witnesses in the 1960s was to implement 'no-fault'. We should do the same thing with domestic violence. After a woman sues her husband there is no reason why she ever needs to see him again, kids or no kids. She shouldn't have to come into court and convince a judge that she is afraid of or actually being hit or whatever. She should have an absolute no-fault right never to look at this guy's face again, without giving a reason."
How would that be implemented then? "Since it is now a no-fault system and we can't have laws that explicitly favor one gender," she continued, "we can't make this too financially or emotionally rewarding for the person who pulls the trigger. So the kids immediately go to a week-on, week-off schedule with exchanges after school on Friday afternoon." How can that work in the summer? "They'll be exchanged after day camp or, if it really has to be parent-to-parent, at a public location that is under video surveillance."
Isn't that potentially burdensome? "There are plenty of Starbucks. Neither parent ever has to go the other parent's house." Wouldn't it still be worth bringing a domestic violence allegation in order to get exclusive use of the house? "Unless the parties come to an agreement, any jointly owned house gets sold, with the proceeds divided 50/50, and both parents have to set up new households."
What if the parents need to communicate about the children? "They can do that via email." What if they both need to be in a pediatrician's office? "The parent who is taking care of the kids that week goes and the other parent is brought in via Skype." What if the kids would be better off in the long run with a primary parent/visitor parent situation? "The mother can get that after a trial," responded the attorney. "She doesn't get that in a 10-minute ex parte [father not present] protection from abuse hearing."
If you're a legislator and want to shift the incentives that drive family law plaintiffs' behavior, you have a lot of levers to work with. If you're a citizen, remember that the current system is hugely lucrative for one or more powerful interest groups. Rather than wear yourself out trying to get the attention of legislators, it is a lot easier to move to a state that already has the laws you think are fair.