Part of Real World Divorce: web edition | Kindle edition

We interviewed Paul Thomas "Tom" Clark, an Idaho litigator since 1970, and partner in the firm of Clark & Feeney of Lewiston, Idaho. As with other attorneys from more sparsely populated portions of the country, Clark handles a wider variety of cases than simply family law. See for a complete biography.

Clark goes to trial in a family law case or appears at an evidentiary hearing roughly two or three times per month. Compared to other places, Clark's corner of Idaho offers a true "rocket docket" for divorces, with cases going from filing to trial in as little as 4 months (compare to roughly two years in Massachusetts or as long as six years in Pennsylvania). Despite the near-instant nature of getting to a final trial, Idaho also offers a procedure for obtaining interim orders. Are those evidentiary? "It varies from judge to judge," explains Clark. "Locally the way courts do those is that a hearing will be set with each side presenting affidavits, limited witness testimony and cross-examinations. In other parts of the state it will be solely on affidavits and attorney argument/representations."

It is straightforward to obtain exclusive use of the marital home? "Generally the courts will be happy to give exclusive use of the house to one person," says Clark. "If there are children, the court will make an interim determination of custody and leave the children in the home." Is there a preference for a 50/50 custody arrangement until a full trial has been held? "No," says Clark. "Typically the judge will choose one parent." Does that establish a status quo that is prejudicial when it comes time for the trial? "I tell clients that temporary orders tend to be permanent unless there was some important piece of evidence that court wasn't made aware of."

Idaho allows a parent to collect child support until a child turns 18 or graduates from high school (but no later than age 19). The court cannot order a parent to pay college tuition. Child support in Idaho is comparable to what a plaintiff would receive in most U.S. states, e.g., if a person earning $250,000 per year is sued by a non-working plaintiff, the guideline amount is $20,076 per year. This compares to a cap of roughly $8,000 per year in Denmark or $13,000 per year in Nevada, a $17,412 annual transfer in Delaware, $40,000 per year in Massachusetts, and $42,500 per year in New York. The guidelines don't apply beyond $300,000 per year in combined gross income of the parents but Clark says that the courts will typically extrapolate at 5 percent of annual income for a single child. I.e., child support profits in Idaho are potentially unlimited. A plaintiff can obtain payments for health insurance and daycare on top of the basic child support amount. Idaho is an "income shares" state so generally extra costs are divided according to the parents' relative incomes.

Child support obtainable for one's own child is vastly more lucrative than what a foster parent can obtain from the state for taking care of a foster child, i.e., about $4,000 per year.

Idaho operates what attorneys in some states call a "days for dollars" system:

(1) Determining Shared Custody. It is recognized there is an overall increase in child rearing costs created by shared custody. If the child spends more than 25% of the overnights in a year with each parent, an adjustment in the Guidelines amount shall be made.”

(2) Computation. To compute the adjustment, the Basic Child Support Guideline obligation shall be multiplied by 1.5. The amount is then multiplied by each parent's percentage of income. The resulting amounts are then multiplied by the percentage of time the child spends with the other parent. The respective child support obligations are then offset, with the parent owing more child support paying the difference between the two amounts. In no event shall a parent be required to pay more support than the parent would have paid had there not been split or shared custody and all children were residing with the other parent. Whenever the guidelines calculation results in a parent having over 50% of the overnights paying child support, that parent may show that such payment is inappropriate considering factors (1) through (7) of Section 10(d) of the Guidelines.

Teasing the numbers out of these paragraphs, and considering the simple case where one parent earns all of the income, a 50/50 parenting arrangement would result in a reduction in child support of 25 percent compared to a sole custody situation. (Multiply the basic child support number by 1.5 and then multiple by the 50 percent time share for a net factor of 0.75.)

Unlike in some other states, a child support plaintiff is not freed from the risk of financial loss in the event that a defendant dies. While child support is still owed by the estate of the dead parent, a court will not order a defendant to purchase life insurance to secure a stream of child support payments.

Clark says that, assuming adequate disclosure and representation at the time of signing, a "walk-away" prenuptial agreement, in which separate property remains separate and neither party pays alimony to the other in the event of a divorce, would be valid in Idaho.

State background

The average hourly wage in Idaho is $18.48 per hour. Census 2014 data show that median income for a 22-36-year-old college-educated woman working full time is $31,000 per year ($23,504 after tax). The corresponding man earns $53,000 per year ($37,968 after tax). Attending University of Idaho for four years will cost $61,472. Idaho collects 9.45 percent of state residents' income to run state and local government (compare to a national average of 9.8 percent; source: Tax Foundation).

The average annual cost of child care is $5,834 for an infant and $5,059 for a four-year-old. The total cost of child care from age 0 through 12 is about $39,096 in commercial settings or $35,999 in a family care setting.

The male college graduate will have an after-tax spending power of $470,080 after 14 years of working (14 years of income minus taxes and the cost of college). After adjusting for USDA-estimated costs of caring for a child, he would enjoy a higher personal spending power by collecting child support when that support is $2,926 per month or more. This would require finding a mother earning well over $300,000 per year. With two children from two different mothers, however, he could have an after-tax spending power larger than from going to college and work if each mother paid $1,840 per month, which is possible when each mother earns $289,600 per year.

The female college graduate will have an after-tax spending power of $267,584 over the same time period. She would be better off collecting child support when that exceeds $1,989 per month, which would require finding a father earning at least $300,000 per year . If she is suing two fathers, however, she is financially better off compared to the college/work case when she can get $1484 per month from each one. This should be possible within the guidelines if each defendant earns at least $176,560 per year before taxes.

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.

Clark explained that "Our statute requires the court to award joint legal and joint physical custody unless the court makes specific findings. So they'd have joint legal custody." Does "joint physical custody" mean that they'd share the child 50/50, as in Alaska? "No," continued Clark. "Joint physical custody means 'substantial time with the child' but not necessarily equal." How about a New York-style every-other-weekend schedule that results in an 83/17 time share? Could that be considered "joint physical"? "It could," says Clark, "but usually with holidays and summers it works out to more like 25 percent time with one parent."

Clark expected that the mother would get residential custody. "One judge here refers to the 'nuts and bolts of parenting' and looks for which parent has been primarily responsible for caring for the child," says Clark. "The fact that dad was having an affair wouldn't disqualify him but the court would want to know about this third party and her background and whether it would affect the child."

What kind of schedule would the child have with the father? "Every other weekend, Friday afternoon to Sunday afternoon, would be typical," says Clark. "Sometimes with an evening visit each week as well."

As the child gets older what would the standard be for modification? "This would require a showing of a '"permanent and material change in circumstances'," says Clark. What would constitute such a change? Would the child getting older by itself be sufficient? "That's very judge-dependent," says Clark.

To what extent would a judge be influenced by a child's expressed preference? "It is one of the relevant factors a court can consider," says Clark. "I have seen it all over the board. In one case a judge refused to follow the desire expressed by children 16 and 17 years old and in another case the judge followed the wishes of a 6-year-old child." Did the 6-year-old take the witness stand? "The child was interviewed by the judge in the courtroom without anyone else present," says Clark, "and the discussion was recorded."

The father will owe the mother child support, but given that he is not making money in his photography business, how will that be calculated? "The judge will impute at least minimum wage to the father," explained Clark. "though the wife could bring in a vocational evaluator to testify as to his potential earning capacity, which could then be used as his guideline income. The court court let him be a default day care provider, but I'd be skeptical about that since he had a nanny." At what parenting time split would she be at risk of having to pay him child support? "Starting at 26 percent of the overnights," says Clark. Does his experience dovetail with the psychologists and attorneys who say that parents will fight hard against any custody change that results in a financial loss? "There is no question that she would fight hard to keep the child's time with the father under 25 percent," responded Clark.

[R. Mark Rogers, the former Federal Reserve Bank of Atlanta economist, said "The conflict over parenting time splits clearly indicates that child support awards are higher than actual costs."]

Clark charges $295 per hour and estimated that handling one side of this case could cost $20,000 through trial. Could the low-income defendant get the judge to order the high-income plaintiff to pay his fees? "That's within the judge's discretion but unlikely," says Clark. "It varies throughout the state."

Clark expects that the father would not be awarded any alimony ("spousal maintenance") and that he would receive a 50 percent share of community property, which would include any income received during the marriage on her separate property.

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.

If both parents come into court asking to be designated the primary parent, can the judge ignore both of them and award 50/50 shared parenting? "Yes," says Clark, "but if there is any evidence that the parents don't get along well or communicate well the court will likely award custody to just one parent." Does that reward pre-lawsuit planning and the generation of conflict? "Yes," responded Clark.

How much cash is at stake? The two parents have a combined income of $130,000 per year. That works out to $10,833 per month. Per the table in the published guidelines, the "basic monthly child support" guideline amount is $2,371. That would be split 50/50 because of the parents' equal income. So the loser parent would pay the winner parent $1,185.50 per month ($14,226 per year), a little less than the $1,468 per month in the same scenario in Texas. In Massachusetts the same dispute would trigger a $20,384 per year payment and in New York $20,150 per year.

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.

Clark predicted that the mother in this scenario would win custody and the father would be unsuccessful in a bid for 50/50 shared parenting. The mother would receive approximately $2,715 per month in child support ($32,580 per year). What if the father cuts his work schedule to four days per week, now that he is divorced, so that he can spend more time with the kids? "The court will peg his earnings back to his potential," says Clark. I.e., he'll still pay child support and any alimony as though he was earning what he did when he had a stay-at-home spouse.

The wife's ability to maintain her pre-divorce lifestyle depends on where in Idaho she lives and on the particular judge assigned to her case. "There are no guidelines for alimony," says Clark. "It is simply based on statute 32-705. You have to establish that you lack sufficient property to provide for your needs and that you're unable to support yourself through employment." What do judges do then? "In our community, judges tend to favor an equal division of the community property and not to give spousal maintenance. In other parts of the state she might get an unequal property division and/or maintenance."

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.

"Idaho still has a 'tender years' doctrine," says Clark. "If both parents are equally suited to have custody, the mother gets preference through 5-6 years of age. In this case where mom has provided most of the care, I think mom is going to get custody." (i.e,. the father will be an every-other-weekend visitor)

How does the $2 million in pre-marital savings figure into her potential for post-marital payments? "The guidelines suggest using dividends and interest as part of his income for calculating child support," says Clark, "but judges go both ways on this. Some would include only the income from his primary occupation." Purely based on his $275,000 per year salary, she would receive $1,778 per month in tax-free child support ($21,336 per year). The guidelines suggest 5 percent of any additional income, however, which means that child support could be boosted by an additional $3000 per year in a low-inflation, low-yield (3 percent) investment environment or $15,000 per year in a high-inflation, high-yield (15 percent) investment environment.

Due to the short length of the marriage, Clark predicted that the wife would not receive alimony.

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.

If the father doesn't find out about the child until he or she is a year old, is he prejudiced in terms of obtaining custody? "The father has a strike against him from not living with the child," says Clark. Who wins if both parents, aside from the age discrepancy, are both boring competent normal people? "She gets custody."

Her basic child support revenue from the table will be $21,336 per year. Clark says that it wouldn't be reduced even if she went on to marry a billionaire.

How long can the mother wait before suing and still collect child support going back to the date of birth? "She could file a day before the 18th birthday and get 18 back years of child support," says Clark.

Must the mother hire a lawyer? "No," says Clark. "The Department of Health and Welfare will establish paternity and get child support for her. If she applied for any state aid they would do that automatically."


"This issue of moving is one that has generated several appellate cases," says Clark.
"Five or six times in the last few years. Best I can tell you today is that you better have a pretty good reason for moving, you better be by far the best parent, you better have a good plan for the child, and lastly you need to have a plan whereby the other parent will be able to maintain a reasonable relationship." What's the chance of success if all of those things are in place? "Our local judges are hostile to moving," responded Clark. "I just talked to a judge who heard 10 moving cases in the past 12 months [2013-2014] and allowed only 1. This is a big change compared to five years ago [when it was easier to move]."


Like Alaska, but unlike most other states, a divorce litigant has a right to a different judge if he or she believes that the judge assigned to the case is likely to be prejudiced. "You can get an automatic disqualification of a judge within 21 days after learning who the judge will be," says Clark.

Idaho opens up a rich field of litigation whenever anyone self-employed is sued. The definition of "gross income" for child support calculation includes the following section:

For rents, royalties, or income derived from a trade or business (whether carried on as a sole proprietorship, partnership or closely held corporation), gross income is defined as gross receipts minus ordinary and necessary expenses required to carry on the trade or business or to earn rents and royalties. Excluded from ordinary and necessary expenses under these Guidelines are expenses determined by the court to be inappropriate for determining gross income for purposes of calculating child support. In general, income and expenses from self-employment or operation of a business should be carefully reviewed to determine the level of gross income of the parent to satisfy a child support obligation. This amount may differ from a determination of business income for tax purposes. Additionally, specifically permitted are the following deductions, unless, in the sole discretion of the Court, permitting any or all of such deductions would result in an inequitable or inappropriate amount of child support in view of all the circumstances:

(A) Straight line depreciation for the life of the asset. [FN1]

(B) One-half of the self-employment social security tax paid on the trade or business income.

In other words, the litigants pay attorneys, and the taxpayers pay court personnel, to engage in an argument regarding accounting methods and the tax code. It may be the case that no participant in this argument has any training or expertise with regarding to accounting or taxes.

Idaho assigns different cash values to different children from the same parent. In "adjustments to gross income" the guidelines read "A deduction shall be allowed from Gross Income for the amount ordered pursuant to any other court order for child support or spousal maintenance from another relationship.". Thus the first person to sue gets the most cash and each subsequent plaintiff gets less. Children who come along after a defendant has been sued are explicitly excluded from having their financial needs considered: "In a proceeding to modify an existing award, children who are born or adopted after the entry of the existing order shall not be considered."

Unlike in most states, the child of a marriage has the same cash value as an extramarital child. If a married-with-child defendant is sued for child support, his or her gross income is reduced due to "Support of other children living in home." and that reduction is calculated using the same child support guidelines.

As in most other states, Idaho provides financial incentives to have children with multiple co-parents. At the bottom of the guidelines, for example, three children with one co-parent can yield 30 percent of up to $10,000 in income while three children with three different co-parents will yield 54 percent of the same income. At the top of the guidelines, three children with one co-parent are worth 11 percent of income above $150,000 per year in income while three children with three different co-parents are worth 15 percent of income above $150,000.


What has Clark learned in 44 years of practice? "I'm a great believer in trying to get cases settled because people become truly polarized by litigation," says Clark.


For custody and child support, Idaho sets up a "winner-take-all" system where the most common outcome of litigation is that one parent ends up both enjoying time with the children as well as a cash profit to go along with that enjoyment. A parent who didn't fight to be the winner rather than the loser in that system would be irrational. Idaho further encourages litigation with its "days for dollars" system of adjusting child support.

By rejecting shared custody in situations where a litigant can claim that the parties have conflict and awarding child support in excess of USDA-estimated child rearing costs, Idaho sets up cash incentives for a parent who believes that he or she can win sole custody to start fights with the co-parent.

By looking at the historical pattern of caregiving in making custody awards and having those custody awards be hard to review, Idaho substantially rewards pre-lawsuit planning by the party who knows that he or she is going to sue.