District of Columbia

Part of Real World Divorce: web edition | Kindle edition

Our questions regarding District of Columbia law and customs were answered by Sanford Ain, a 1972 graduate of George University Law Center. He is admitted to practice in DC, Maryland, Virginia, and in front of the US Supreme Court. He has been recognized by Washingtonian Magazine as the D.C. area's best divorce lawyer and has been a fellow of both the American Academy of Matrimonial Lawyers and the American College of Trial Lawyers. Due to his focus on wealthy clients, Ain often works at the intersection of family law with trust and estate law and tax law. See http://www.ainbanklaw.com/ for Ain's full biography.

Ain represents a 50/50 mixture of male and female clients and tries as few cases as possible: "my firm as a whole is known to help people settle cases rather than to try them, though we have made law in all three jurisdictions."

Ain notes that "DC has a statutory presumption of joint legal custody that judges have expanded to include physical custody as well. Judges start from the principle that parents should have essentially equal access to the children. Then they look at the particular needs of the children and the manner in which the children are bonded to each of the parents. It is only in extreme cases that sole custody will be awarded to one parent." Aaron Christoff, our source for the Virginia chapter who also practices in D.C. says "Don't confuse D.C.'s shared custody with 50/50. You can expect that a child would be with one parent at least 35 percent time, but not necessarily equal time." (In other words, as noted below, a parenting time schedule that another state would call "sole physical custody with visitation" would be called "shared custody" in D.C.)

What constitutes extreme? "I represented a father who sought custody where his relationship with the children had been poisoned by the mother to the point that the children didn't want to see him. It was a two-week trial with lots of expert testimony. The poisoning of children was subtly done but, through good psychiatrists and convincing testimony of father, the father got custody. The mother's visitation was conditioned on family therapy and the therapist coming back to court to testify in favor of mother. The mother didn't want to go to therapy and appealed for unconditional visitation. The court of appeals upheld because the mother held the key to the jailhouse door."

DC allows a parent to collect child support until a child turns 21. The child support guidelines are found on the court's web site. The guidelines top out at $240,000 per year in gross income and a $33,051 after-tax obligation for one child. Ain says that judges will tend to extrapolate beyond the top of the guidelines, using 10.83% of additional gross income, when a couple's income is high, though "case law suggests that courts should look at the reasonable needs of the children based on the lifestyle to which children have become accustomed." Courts should impute at least some level of income to a non-working parent for the purposes of child support calculation.

There is no hard limit on the amount of child support that can be demanded, as demonstrated by Cameron Kennedy's 2014 lawsuit against former Obama Administration official Peter Orszag. At the time the couple divorced, the two parents were earning comparable salaries and, as the parenting time was divided 50/50, they agreed to share the children's expenses 50/50. When Orszag got a $4 million job at Citibank, Kennedy, who earned $350,000 per year at the time, sued to terminate this agreement and to obtain $264,000 per year in child support. After a trial, the court ruled that Orszag would be responsible for 100 percent of the two children's actual expenses, such as private school and health care, but that he would not have to pay additional sums directly to Kennedy.

A District of Columbia court can order a parent to pay for college tuition, room, and board through a child's 21st birthday.

Shared physical custody results in a reduction in child support payments by the formula, starting when a child spends more than 35 percent of his or her nights with the non-custodial parent. There is no statutory age at which a child's preferences regarding custody are considered. "Case law is consistent that a child who reaches age of approximately 14 should have his or her preferences be given great weight. It does depend on the level of maturity."

As in other states, a prenuptial agreement cannot limit a court's ability to award custody or child support. A "walk-away" prenuptial agreement is valid in D.C. as long as the following conditions are met: full disclosure or knowing and voluntary waiver of disclosure; each party represented by an attorney; and lack of duress (can't present it at the last minute). What constitutes "last minute"? "Many lawyers will not handle a prenup if it is to be signed less than a month before the wedding, though on the other hand we have plenty that are signed close to the wedding."

State Background

The District has off-the-charts average hourly wages of $36.51 per hour (compare to a national average of about $22 per hour). A person who goes to college at University of District of Columbia will spend approximately $73,160 over four years to earn a bachelor's degree. Census 2014 data show that median income for a 22-36-year-old college-educated woman who works full time is $47,000 per year in D.C. or $34,241 after taxes. For a corresponding man it is $55,000 per year or $38,949 after taxes.

The average annual cost of child care is $20,178 for an infant and $15,437 for a four-year-old or school-age child. The total cost of child care from age 0 through 12 is about $119,085 in commercial settings or $87,539 in a family care setting.

For a man who goes to college and then works for 17 years (21 years of child support availability minus 4 years of college), his total after-tax spending power would be approximately $588,973 (17 years of average earnings minus college outlays). For a woman who goes to college and then works for 17 years, the comparable number is $508,937.

The USDA-estimated actual cost of providing for a child in a single-parent household is between $8,000 and $10,000 per year (average of $9,000 times 18 years of childhood = $162,000).

Factoring in these USDA-estimated costs, a man collecting child support for a single child will have greater personal spending power, compared to the college/work/no-kids case, when child support payments exceed $3,087/month. A woman with one child needs to collect $2,770 per month to outspend her college-educated/full-time working peers. As the top of the child support guidelines is $2,754 per month, the women needs to sue a man earning right at $240,000 per year and a man suing a woman needs to target a defendant earning slightly more.

As in most U.S. jurisdictions, collecting child support is more lucrative when there are multiple children and when each child has a different co-parente. A woman suing two different fathers, each for child support for one child, needs to collect just $1,650/month for each father. She can do this with defendants who earn $128,400 per year. A man suing two different mothers needs to collect $1,810 per month from each in order to outspend his college-educated/full-time working peers. He can get this from defendants earning $143,400 per year pre-tax.

Among adults collecting child support in the District of Columbia, 94 percent are women (Census 2014), suggesting that women win the majority of custody lawsuits.

The Scenarios

Scenario 1: Professional Wife and Slacker Husband

A 35-year-old female hand surgeon earning $325,000 per year marries a 33-year-old photographer. She sets up her husband with a photo studio and $100,000 of equipment, but he works just a few hours per week. They have a one-year-old child who is cared for by a nanny. The father is often home with the baby and nanny, but he spends most of his at-home time watching TV and surfing the Internet, leaving the child-rearing chores to the nanny. With the mom at work and/or taking care of the baby, the dad begins an affair with a young fashion model. After two years of marriage, the mom sues for divorce, custody, and child support.

"The father has jeopardized himself. If he wants custody he would be well-served to spend more time raising his children. Litigation will take about a year to get resolved, so he has some time to clean up his act and could work toward a 50/50 division. On the other hand, the judge will be more interested in what happened before the divorce was filed than during posturing phase. The wife is very likely to end up with primary custody with the nanny.

"A judge will impute income to the father based on the testimony of a vocational rehabilitation expert. The expert may look at photographers with comparable equipment."

If the father wins 70 percent parenting time, he would receive child support in the amount of $33,051 from the top of the guidelines plus 10.83% of the $85,000 income beyond $240,000 ($9,225) for a total of $42,276 ($845,520 for the remaining 20 years). Unless an enormous amount of income was imputed to him, his child support profits would be similar in a 50/50 custody situation. If the mother, on the other hand, were to win 70 percent parenting time and get $40,000 per year in income imputed to the father, she would receive approximately $7,800 per year in child support ($156,000). Thus for the mother, the financial stakes in going from 50 percent custody to 70 percent custody would be just over $1 million after taxes. Similarly, the father can come out $1 million wealthier if he is able to obtain at least 50 percent custody.

Given the disparity in income, what is the likelihood that the mother will be ordered to pay the father's legal fees of defending this lawsuit? "Legal fees are one component of the total case. He's not very sympathetic because he has not been devoting time either to children or profession. However, he may get some award of fees. It varies by the judge."

Can the father ask for alimony? Yes, but "probability is very low and it would be only rehabilitative. Maybe for a year."

Scenario 2: 14-year marriage of equals

A 22-year-old woman marries her 22-year-old college sweetheart. After 14 years of marriage, they have four children, ages 3, 7, 9, 13. Both parents are public school teachers earning approximately $65,000 per year.  They have shared child care duties roughly equally over the years. Now they can't stand to be in the same room together. He accuses her of having an affair. She accuses him of being verbally and emotionally abusive to her, but not to the kids. After a stormy argument in the kitchen, he moves in with a friend and she files for divorce, requesting sole custody and child support. The father answers the Complaint by requesting sole custody, but no child support. Both parents agree that the marital assets can be split 50/50. Both parents prefer as little post-divorce contact with the other as possible.

"Despite the parents' dislike of each other, this will likely be a 50/50 custody case. Very likely it will be a 2-2-5-5 arrangement so as to reduce the number of back-and-forth trips. Conflict should not affect the parents' ability to share physical custody. Where it can become a factor is in decision-making that is part of joint legal custody. Sometimes courts will divide up responsibilities, e.g., one parent picks health care, one education, one religious."

With a 50/50 parenting time split there would be no child support ordered. Nor would there be alimony in this case. If there were an unequal parent time split, child support would be in accordance with published guidelines.

Scenario 3: 10-year marriage with kids 2 and 5

An 18-year-old woman marries a medical resident. She spends the first four years of the marriage as a college undergraduate, earning a bachelor's degree, and then becomes a stay-at-home mother to two children. She files for divorce after 10 years of marriage. The kids are 5 and 2 years old at the time the divorce commences. The plaintiff does not allege any misdeeds on the part of the father, only that they drifted apart in the time that she aged from 18 to 28. The mother has very obviously been the primary caregiver. The father has now completed his medical training and is earning $275,000 per year. The family has home equity of $300,000 and additional savings of $200,000.

"Odds are that the woman will get primary custody. Home equity and savings would be split 50/50. The doctor's medical practice value would be calculated as what he would receive if he left. There is no question that he would pay alimony to supplement child support. It would depend on the household budget, but likely to be $4,000 per month in child support and $3-4,000 per month in alimony. The only guidelines for alimony are the standard of living during the marriage and the need and ability to pay and ability of recipient to contribute to her own support. Alimony could last until a party dies or the wife remarries."

[Note that the top-of-the-guidelines number for two children of $43,423 per year plus 13.33% of the income over $240,000 would result in total child support revenues of $48,078, i.e., almost exactly Ain's $4000 per month estimate.]

Scenario 4: 1.75-year marriage with 8-month-old child

A 25-year-old woman marries a 40-year-old never-married medical doctor earning $275,000 per year. She had been earning $50,000 per year working as a receptionist in a medical office. She has a child after a year of marriage, quitting her job during the 7th month of pregnancy due to fatigue. She files for divorce when the child is 8 months old (after 1.75 years of marriage), alleging that the father did not participate in the infant's care, e.g., he did not change diapers or get up in the middle of the night to soothe the baby. The mother will allege that the father was verbally demanding and abusive, though there won't be any witnesses to corroborate. The father had savings of $2 million that he accumulated prior to the marriage but there was no significant accumulation of assets during the less-than-two-year marriage. The mother seeks a division of assets as well as alimony.

"The woman would get primary custody and the father would get substantial visitation. It depends on what he can convince court regarding his ability to care for the baby. He would be able to work his way up to 50/50 in D.C. Due to the short-term length of the marriage, there might be some modest rehabilitative alimony for the mother, but not a lifetime of alimony." There would not be a division of the father's premarital savings in favor of the mother. Child support would be according to the D.C. guidelines ($36,842 per year or $736,830 over the 20 years remaining prior to this child reaching age 21).

Scenario 5: 18 year old free spirit/music lover; no marriage

An 18-year-old woman goes to a music festival and meets a 38-year-old medical doctor earning $275,000 per year. Things get a little crazy and a few months later she calls him up to say "I am going to have a baby." The 18-year-old does not go to college, quits her $12/hour job during the pregnancy, and does not wish to return to work.

The woman is likely to get primary custody and top-of-the-guidelines child support ($33,051 per year plus a potential extrapolation of $3,791 per year). "This reminds me of cases involving professional athletes who have had children out of wedlock. I represented one athlete who made $800,000 per month. The court awarded the mother $4000 per month. The same case in California would have resulted in $20,000 per month in child support."

If the woman at age 25 marries a man who earns $100,000 per year, will her child support payments be reduced? "The new husband has no obligation to support the existing child, so the recipient would argue that she should continue receiving payments at the top of the guidelines. The payor's argument would be that the mother's expenses are reduced now that she is part of a household with substantial income. There is a strong possibility of reduction due to the need being reduced."

Removal/Relocation

D.C. uses a "best interests of the child" standard for evaluating a parent's relocation request. The factors were clarified in a June 2013 decision from the D.C. Court of Appeals in Estopina v. O’Brian (affirming an award of primary physical custody to the mother and the right to move to Virginia Beach, Virginia, a four-hour drive away):

Note that the opinion in this same case refers to an Orwellian distinction under which what other states call "sole custody" can be considered "shared custody" in D.C.:

This court, however, has held that a custody arrangement constitutes “joint physical custody” so long as it involves some sort of shared custody, such as primary physical custody awarded to one parent and visitation rights to another. See Hutchins v. Compton, 917 A.2d 680, 682 (D.C.2007) (citing Taylor v. Taylor, 508 A.2d 964, 967 (Md.1986)); see also Taylor, 508 A.2d at 967 (“Shared physical custody may, but need not, be on a 50/50 basis, and in fact most commonly will involve custody by one parent during the school year and by the other during summer vacation months, or division between weekdays and weekends, or between days and nights.”). Here, the trial court awarded primary physical custody to appellee while appellant was granted regular visitation consisting of alternating weekends and an alternating holiday schedule. In addition, appellant was granted visitation with I.E.O. for five weeks during the summer. Because a custody arrangement that grants primary physical custody to one parent and visitation to the other is considered a joint custody arrangement, the trial court did not fail to honor the presumption in favor of joint custody and appellant's claim is without merit.

Quirks

The District of Columbia provides financial incentives to have children with multiple partners. At the top of the guideline chart, three children with the same co-parent will yield $1 million in tax-free child support revenue. Three children with three different co-parents have a cash yield of $2.08 million.

Monica Lewinsky and Bill Clinton

Leading up the 2016 Presidential election, one D.C.-area litigator, said "Monica Lewinsky could have done pretty well for herself if she hadn’t left the white gold on her blue dress." What did she mean? It turns out that if Monica had stayed in the District of Columbia with Bill Clinton’s child, under the extrapolation formula above, she would have been entitled to roughly $2 million per year for 21 years, i.e., about $42 million total, based on the Clintons' $22 million-per-year in earnings.

Closing Thoughts

"One of the things that we've seen in recent years is that it is increasingly common for custody plaintiffs to make allegations of abuse or sexual abuse by the other parent."

[Note that Alaska experienced a similar surge in abuse and sexual abuse complaints after imposing a 50/50 custody presumption with an escape clause in cases of abuse. See the Alaska chapter for more details.]

Summary

Despite the vibrant job market fueled by federal government spending and expansion, a typical young person can make more money by having out-of-wedlock children than by going to college and working in D.C.

D.C. demonstrates that a weak shared parenting presumption leads to a lot more litigation than a strong presumption, such as in Alaska or Arizona. The vastly higher amounts of child support available in D.C. compared to states such as Texas, Nevada, and Alaska also lead to intense litigation. If a jurisdiction offers the opportunity to collect $264,000 per year in child support (times 21 years = $5.54 million), people like Cameron Kennedy will come to the courthouse with lawyers trying to get it.

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