Introduction

Part of Real World Divorce: web edition | Kindle edition

"When young people ask me about the law as a career," said one litigator, "I tell them that in this country whom they choose to have sex with and where they have sex will have a bigger effect on their income than whether they attend college and what they choose as a career."

As described in our history chapter, the no-fault or "unilateral" divorce laws of the 1970s and the child support guidelines of the 1990s have remade American society. In many states it is now more profitable to have sex with a high-income person and collect child support than it is to be in a long-term marriage with a middle-income person. In virtually all states it is more profitable to have children with multiple partners than to have multiple children with the same co-parent. Residents of most states can enjoy a higher spending power by collecting child support after a one-night sexual encounter than by working at the median wage for a college graduate. Although many Americans cling to traditional norms, plainly the country as a whole has responded to the economic incentives presented by state legislatures:

Fewer than half (46%) of U.S. kids younger than 18 years of age are living in a home with two married heterosexual parents in their first marriage. This is a marked change from 1960, when 73% of children fit this description, and 1980, when 61% did, according to a Pew Research Center analysis of recently released American Community Survey (ACS) and Decennial Census data.

-- "Fewer than half of U.S. kids today live in a ‘traditional’ family" (Pew Research, December 22, 2014)

"The USA has the highest proportion [among 16 countries] of children, as much as 50 percent, with any experience of living outside a two-parent family when they turn 15. … in many Western and Eastern European countries it is more common to find that around a fourth or a third of all children have an experience of that kind, at some time during childhood. … The USA stands out as an extreme case... "

-- "Children's experience of family disruption and family formation: Evidence from 16 FFS countries" (Andersson 2002, Demographic Research 7:7)

From the Wall Street Journal:

[in a survey of Americans] Fully two-thirds of women and half of men said they were "very" or "extremely" willing to marry for money. The answers varied by age: Women in their 30s were the most likely to say they would marry for money (74%) while men in their 20s were the least likely (41%).

Of course, when the mercenary marriage proves disappointing, there's always divorce. Among the women in their twenties who said they would marry for money, 71% said they expected to get divorced -- the highest of any demographic. Only 27% of men in their 40s expected to divorce.

Says Mr. Prince: "For these women, it's just another step on their journey to the good life. They want to be paid what they think they're worth and then move on."

-- "Marrying for Love ... of Money," WSJ, December 4, 2007

Although divorce, custody, and/or child support litigation touches the lives of roughly half of American children and their parents, there are widespread misconceptions regarding what happens when parents separate. One of the deepest misconceptions stems from the fact that the 50 U.S. states use the same word, "divorce," for wildly different processes and outcomes. Consider a couple where each spouse earns $100,000 per year. "Divorce" in New York means one adult will become the "winner parent," enjoy the company of the children 83 percent of the time, and be roughly $1 million wealthier than the other parent by having received $500,000 in tax-free child support payments. "Divorce" in Alaska, Arizona, Colorado, Delaware, Nevada, or Pennsylvania, however, would mean a 50/50 equal parenting situation and no cash transfer from one parent to the other. The New York couple might spend $500,000 on legal fees before one was declared the winner; the Arizona or Nevada couple would be done for less than $10,000.

After you read this book you will have a practical understanding of the divorce, child custody, and child support laws in all 50 states of the U.S. (plus D.C.). You'll be learning from the top divorce litigators in those jurisdictions about how concrete scenarios are likely to be resolved by courts.

What if you're not married and don't intend to get married? Remember that the trend in "family court" is litigation between adults who were never married and who may be only slightly acquainted. "Maybe it is your dream to go to college and medical school for 16 years, work 80 hours a week as a surgeon, and have three kids that you see on weekends," said a Massachusetts litigator, "but if you just have three kids with three surgeons you'll have the same income and can enjoy your time at home." (Don't try it in Nevada, though, where the custodial parent of three children from three different surgeons will collect only about $40,000 per year.) Have a high income, but no plans to get married? With apologies to Leon Trotsky, "You may not be interested in family law, but family law is interested in you."

Properly planned, which includes picking a jurisdiction in which to get pregnant and reside, collecting child support is the most secure way to earn a living in the modern United States. Child support revenue is tax-free. The defendant will be put in prison if he or she cannot or does not come up with the weekly or monthly check. In the most plaintiff-friendly states, the defendant will be ordered to purchase life insurance so that the plaintiff's profits are secure in the event of death. The attorneys we interviewed handled cases in which child support for a single child was $2-20 million. What are Americans willing to do in order to get their hands on that kind of money? Read the rest of the book to find out!

What if you're already married? This book can help you evaluate whether a proposed move will tend to stabilize or destabilize your marriage. If you want a divorce, this book will help you decide whether it makes better financial sense to sue now or after a move to a different state.

Are you a professional woman with a high-income and a tendency to save? You can defend a divorce lawsuit as a "breadwinner spouse." Quite a few states will invite your husband to come down to the courthouse to collect half of your savings and half of your future earnings via alimony so that he can spend time with young girlfriends. "A good general rule is that anything that is condemned as immoral outside of family court will turn out to be profitable once you get in front of a judge," said one attorney.

Visiting the U.S.? You can have sex with an American, go back home pregnant, and then have millions of dollars wired to you over 18-23 years. American taxpayers will fund the establishment of paternity and the collection of your entitlement. (See the "Child Support Litigation without a Marriage" chapter for how this works in practice.)

Don't want to be bothered with a child? It is legal and reasonably common since 1990 to sell an abortion at a discount to the net present value of the guideline child support cashflow. (We're as sentimental about kids as anyone, but throughout this book we adopt the amoral and cash-oriented perspective of the U.S. family courts. Emotions might be interesting, but we found few examples in which plaintiff behavior could not be predicted or explained by a desire to get as much as cash as possible.)

In law school? This book may help you decide whether family law is for you and in which state you'd like to practice. We've encountered many struggling attorneys over the years, in areas ranging from corporate law to intellectual property, but we never met a divorce lawyer who couldn't find clients. Your choice of state will determine whether you get paid $600 per hour (e.g., Massachusetts) or $3,500 per divorce (e.g., Nevada, where a 50/50 custody default and capped child support gives people less to fight about).

Still in college? "President Obama tells young Americans to study science, engineering, and math," said one lawyer, "but I can tell you that dropping out of high school is a better way to make money in the family courts. Do you want a $200,000 [annual] package of alimony and child support or a lecture from the judge about how someone with your kind of education should be able to earn at least $150,000 per year and therefore your income is going to be imputed at that level?" This book shows which states give less alimony and child support to plaintiffs with a practical college degree or a demonstrated history of earning.

Our core approach in researching this book was interviews with more than 100 practicing divorce attorneys. State laws are generally available online, but they tend to be vague. From Family Law in America (Katz 2014; Oxford University Press):

... divorce is one area of legal practice where the oral legal tradition may play as important, perhaps even more important, a role in negotiating a divorce settlement than official law found in statutes and cases. That is to say, the oral tradition is very much a part of law practice, as lawyers tend to advise clients on the basis of their experience, perhaps more than on what they read in statutes or cases. … a lawyer might advise his male client not to seek custody but to accept a reasonable visitation schedule because of his belief that a particular judge does not award a female infant to a father. Again, that fact may be found nowhere but in the lawyer’s mind and may indeed be contrary to the law’s statement of excluding any presumptions in custody laws. … There are, therefore, two systems at work in divorce, sometimes supporting each other and running parallel and modifying, or contradicting each other at other times. The first system is the oral tradition or the unwritten law. The other is the official law, which judges refer to in making their decisions.

Even the best-educated people have misconceptions about divorce that hinder their ability to make critical life decisions. In "When every relationship is above average" (Law and Human Behavior, August 1993), law professor Lynn Baker and psychology professor Robert Emery surveyed 137 young Virginians who had applied for marriage licenses. Answers to questions regarding divorce law were correct only 60 percent of the time: "... those who are about to be married have largely incorrect perceptions of the legal terms of the marriage contract as embodied in divorce statutes. … This systematic optimism [about their own chances for remaining married] means that young adults are unlikely to investigate the terms of the marriage contract embodied in divorce statutes until they begin having marital difficulties."

We conducted our own research in this area with 33 in-person interviews in Harvard Square. Interviewees had been in Massachusetts for at least five years and had at least a bachelor's degree (60 percent had an advanced degree, including one person with a law degree and one person in law school). Interviewees ranged in age from 28 to 74 with a median of 44. The male/female ratio was 40/60. Their median estimate of the maximum child support obtainable from a one-night encounter with a very wealthy very high-income person was $1750 per month (correct answer: unlimited and dependent on the judge, but certainly at least $8,000 per month). The licensed lawyer estimated $1500 per month, less than half of the official guideline amount for a defendant earning $250,000 per year. The median estimate of the maximum age through which child support could be obtained was 19.4 (correct answer: 23). Forty-five percent of surveyed citizens incorrectly believed that child support had to be spent on a child's actual expenses (including the law student, but not the licensed lawyer). Sixty-four percent of surveyed citizens incorrectly believed that Massachusetts statutes and customs favored 50/50 shared parenting. Seventy-one percent of surveyed citizens incorrectly believed that, when both parents had similar incomes, obtaining custody of a child and collecting child support under the guidelines would not be profitable.

The more that we worked on this book the more curious we got about the divorce system in America. The traditional U.S. state is unusual internationally due to the following factors: (1) there is no official custody presumption (i.e., children are up for grabs), (2) obtaining custody of children can be more profitable than going to college and working, and (3) litigation is the default process for a divorce or a custody and child support determination. No society in the history of humanity has ever devoted as high a proportion of its resources to custody litigation and wealth transfers via child support. How did we get to this place? It is a fascinating intellectual question. We try to answer it in chapters on the history and rationale of the U.S. divorce system.

Where you choose to live and the family law that prevails there will determine:

California, New York, or Massachusetts defendants who lose their children, their house, all of their savings, and most of their future income could have saved themselves from nearly all of that pain and suffering if they had only chosen a house in a different state, sometimes just a few miles away. Americans who had been put into the "loser parent" role by a family court generally said that the overall experience was so negative they wished they'd never had the children in the first place. An immigrant who lost his children and 80 percent of his income going forward told us "In my country occasionally a child will get kidnapped, but if you pay the ransom you get the child back. Here [in the U.S.] you pay but you don't get your child back."

"Before you can get a driver's license, they make you read a booklet with all of the laws," noted a consumer. "Why don't they make people applying for a marriage license read about how the divorce system works in that state?"

This is that booklet.

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