Divorce Litigation

Part of Real World Divorce: web edition | Kindle edition

"Divorce courts in the United States are unique in that they are the only court system where you get financially rewarded for breaching a contract," noted one lawyer. "You make a promise at the altar that you don't want to keep. It is my job to help you get millions of dollars as a result of breaking that promise."

A marriage starts with a simple trip to City Hall to get a license. In some other countries, such as Denmark and Sweden, it can be dissolved with a similar trip to a government official. In the United States, however, the marriage that started with an inexpensive administrative procedure is dissolved with a lawsuit. "Litigation isn't something that is priced for ordinary consumers," one attorney noted. "Which is why smart couples will go to a mediator. Unfortunately the chance is high that at least one spouse will consult an attorney independently and learn about all of the wonderful things that could potentially be obtained via litigation. At that point one spouse is fired up to sue and the other spouse will have no choice but to defend the lawsuit until, typically, the family's assets are exhausted and the case settles."

An Insider's Perspective

Roderic Duncan, a retired California divorce judge, wrote A Judge's Guide to Divorce (2007, Nolo Press). Here are some excerpts:

Divorce courts operate with the same basic rules used by the courts that deal with car accidents, disputes between giant corporations, and criminal charges from petty theft to murder. Unfortunately, the rules do not work well in solving the disputes that arise in the process of ending a marriage.

Unfortunately, the traditional adversary system works very poorly when the issue before the court is the breakup of a family. In such cases, hours spent preparing for trial and parading witnesses on and off the stand could be spent much more productively… any contested divorce is expensive and can be as costly as one spouse wants to make it.

… the present legal system needlessly heightens the negative emotions of the divorcing spouses by purposefully pitting one side against the other. Many more people than you would guess maintain at least some sort of a friendly relationship with a former spouse after a divorce. But that is highly unlikely if the two of you go through a contested trial.

… a contested divorce trial ultimately ends up causing terrible damage to any children…

… on almost every morning of the ten years I sat in divorce court, three hours were allotted to hear the evidence and make orders regarding child custody and support in the 35 cases or so that were scheduled. Some of them would settle … For those that didn't settle, the rules provided up to 20 minutes for hearing each case. But on mornings when there were a large number of cases scheduled, I could only devote ten minutes to many of them.

Given the importance of decisions in divorce cases, you might think that the most talented judges available would be assigned to hear them. You would be wrong. Serving as a divorce judge is usually considered one of the least attractive judicial assignments around.

As noted above by Judge Duncan, though the official divorce process is long and complex, the issues of (1) whether there will be two parents or one parent and a "visitor", (2) if the answer is "just one real parent," which one it will be, and (3) how much the loser parent will pay the winner every month, are typically decided in 10-20 minutes. As you will learn from reading our interviews, in most states a "temporary" decision made at a 10-minute hearing is generally unappealable and, from a practical point of view, permanent. How reliable is the information that a judge receives? Judge Duncan headlines one section "Lies Usually Go Unpunished."

A Litigator's Perspective

Angie Hallier, our Arizona interviewee, is the author of The Wiser Divorce (2014):

the legal process itself is still designed to make divorce a battleground. Existing divorce law in the United States says the only way to end your marriage is for one party to file a lawsuit against the other. … you have to sue the person who has shared your bed, trusted you with life’s deepest secrets, and maybe even made babies with you. Divorce, by law, starts as an adversarial act. File a lawsuit. With that as the starting point, it’s easy to think the only outcome is: you will win, or you will lose.

Our legal system was set up to address wrongs. It deals with criminals. It decides who’s in the wrong when there’s a car wreck, or whether someone is guilty of medical malpractice when healthcare goes awry. When divorce laws were first written, somebody had to be in the wrong before a divorce could be granted. Somebody had to be cheating or abusing or otherwise be some kind of evil scoundrel before the other person — who was presumed to be the innocent victim — could file a lawsuit to be released from their marital hell. So historically divorce, like most other legal proceedings, addressed a wrong. Today, the litigation model of divorce still stands, despite the fact that no-fault divorce is the norm. … for the most part, the legal system, families, communities, and society still tend to treat the act of ending a marriage like something to be won or lost. This adversarial system helps no one in the end.

Pre-Litigation

Nearly all states substantially reward pre-lawsuit planning. This favors the plaintiff because the future defendant may not expect a divorce. Many of the lawyers that we interviewed described being retained by plaintiffs well in advance of filing a divorce lawsuit and providing them with advice regarding how best to position themselves for future litigation.

One of the most frequent and critically important pre-divorce actions is a lack of action: not taking a job. "I tell clients who are planning to sue for alimony and child support that they should absolutely avoid any kind of paid employment," said one attorney. "For every dollar that they might earn during the marriage they could be giving up 10 dollars in alimony and child support. Courts tend to get anchored on a number, either for alimony or child support and whether the number is in a settlement agreement or in a judgment after trial. Even if a mother gets a high-paying job post-divorce, the father will likely have a tough time getting a modification, especially if the case was settled by agreement." Note that the "don't take a job" advice is not just for women. We interviewed a 50-year-old man, between managerial jobs at the time, regarding his first consultation regarding defending a divorce action commenced by his wife. The attorney advised him to start seeing a therapist who would testify at trial that he was clinically depressed and unable to work. This would bolster his bid for permanent alimony from the $220,000-per-year ex-wife.

The second most critical area, though it is primarily useful for women, is setting up to present oneself as an abused spouse in the divorce courts and the parallel domestic violence system. "Allegations of abuse raised after a divorce lawsuit is filed tend to lack credibility," said one attorney, "why is women are well-advised to establish a record starting 6-12 months in advance." What does that look like? "Provoking the husband in arguments, recording those arguments [legal in "one-party recording" states], calling the police to the house, and injuring themselves and photographing the bruises if the husband cannot be provoked into actual physical violence." Women are also advised to begin seeing a therapist and telling the therapist about abuse that they are suffering so that the therapist can later come to court and testify, thus getting around the "he-said, she-said" problem that causes many judges to throw up their hands.

Shuffling assets works for both men and women. One attorney described "an ongoing case where I represent a man who signed a prenup that carves out premarital property and keeps income separate. The wife had two children very quickly. She went into the joint accounts and moved half of the money to her personal account. While feigning continued affection for her husband she persuaded him to sign a deed to sign the $2 million house into joint tenancy. She planned it out beautifully." How well did it work? The plaintiff made millions of dollars from her pre-lawsuit activities and obtained, under the prenup, "a substantial sum for every month they were married."

A Massachusetts man described how his stay-at-home wife managed to transfer money to her boyfriend, a contractor, by paying him for work on the house from joint assets. "She claimed that the payments that she had made to him were for work that he had done on our house and, therefore, were legitimate. I guess that could be true if a new asphalt shingle roof costs $200,000, and a brick firepit costs $150,000. She even claimed the $70,000 Mercedes that she bought for him was a payment -- coincidentally on his birthday. My best estimate is that roughly $1.1 million was embezzled and moved offshore. The boyfriend admitted in deposition that he was withdrawing $10,000 at a time in cash in order to avoid IRS scrutiny. The judge fully acknowledged that the evidence indicated that large amounts of cash from the marital assets were misappropriated." The plaintiff in this case got half of the remaining joint assets, with the judge arguing that the embezzlement took place while she was still married and had legitimate access to the joint account. She also got $60,000 per year in alimony, $60,000 per year in child support through age 23, 100 percent of the two children's actual expenses, 100 percent of college expenses, and $60,000 per year in alimony for 10 years. Her total profit probably amounted to 80 percent of what the husband had earned and would earn.

In states where alimony depends on factors such as the parties' pre-divorce lifestyle, a future plaintiff can increase the profitability of a divorce lawsuit by organizing expensive family vacations and otherwise increasing household expenditures (though attorneys caution that simply buying designer clothes and jewelry for oneself may not be helpful).

In states where child support is profitable and custody is determined by looking at the pre-divorce "status quo", a future plaintiff can increase the chances of winning sole custody, and the child support profits that accompany custody, by voluntarily taking on a greater proportion of child-rearing tasks. This is also helpful if the future plaintiff hopes to be able to move to another state with the children.

Litigation

What is at stake in a divorce lawsuit? Typically the following:

The lawsuit typically starts with one spouse hiring an attorney who goes to the courthouse and files a "complaint". After that the person who filed the case is the "plaintiff" and the person who got sued is the "defendant" ("petitioner" and "respondent" in some states). In the United States, women are much more likely to sue for divorce than men. Our data from Middlesex County in Massachusetts indicate that 72 percent of divorce lawsuits in the spring of 2011 were filed by a woman, i.e., that women were 3 times more likely than men to sue their spouse.

Part of the reason that divorce litigation is so intense is what tends to happen at parties' first meetings with attorneys. "A lawsuit never looks better than the day you file it," one litigator told us. By definition the attorney who is interviewing only one spouse at the inception of a lawsuit hasn't heard any of the other side's facts. The result is that each litigant develops an expectation regarding the divorce lawsuit that is an unlikely best-case outcome. For example, a plaintiff mother may be told that she can expect sole custody of the children and $150,000 per year in child support while the defendant father is told to expect 50/50 custody and $75,000 per year in child support. Both attorneys are giving accurate estimates based on what they've heard from their respective potential clients. These irreconcilable expectations quickly turn into feelings of entitlement. People naturally get upset when they aren't getting something to which they feel entitled.

General Tone

"In the old days it was all about insinuating adultery," one lawyer explained, "and now it is all about insinuating domestic violence during every motion hearing, no matter the relevance. It doesn't matter if you can't prove it at trial." How does it actually work? "We use the language of the abuse industry," she continued. "If I'm representing the wife and seeking to impose 20 years of control over the husband via alimony, child support, and custody orders that limit his access to the child, I'll keep talking about how the husband wants to 'control' the wife and that's why we need more orders against him." How does that relate to abuse? "Psychologists in the abuse world are always talking about how men beat up women in order to control them," she responded, "so we talk about how the defendant is trying to control the plaintiff so that the judge subconsciously thinks that domestic violence is imminent. That's why my client needs the house, the kids, and interim family support. Another good theme is that the husband doesn't want to support the children. He's asking to take care of them on a 50/50 basis and my client might have a similar income, but I just start from the presumption that only the mother is a fit parent and now he's stingy because he doesn't want to give her 100 percent of his income." What if she is representing a man? "It doesn't matter what I say because he is going to lose. Just to fill up my portion of the time I will talk about how the wife is already comfortably provided for because she has the marital home, her own income that is probably more than the judge earns, and, at a minimum, guidelines child support. So the theme is the wife's greed and how she's going to spend all of the extra cash on herself, not the kids." Why doesn't that help? "A greedy plaintiff is entitled the same cash as a non-greedy plaintiff and the system considers it a good thing for the wife to spend child support on herself. Happy mom means happy kid."

Temporary or Interim Orders

Litigation in the United States takes a minimum of 1-2 years between the time that a lawsuit is filed and the trial where a decision is made based on evidence (witnesses testifying, authenticated documents, etc.). Thus most of the critical decisions in a divorce case are made via "temporary orders." After the 10-minute hearing that Judge Duncan mentions (above), a judge may order that the children are to live with one parent while the other parent becomes a "visitor." Simultaneously the judge could order that the winner parent will have exclusive use of the marital home. The lawsuit is effectively won at this point, without a single witness having been called to testify or being cross-examined. What attorneys told us was consistent with the research perspective, e.g., from Brinig and Allen (American Law and Economics Review, Vol. 2, p. 137, 2000): "When the wife files [a divorce lawsuit], she is often given temporary custody of the children. Temporary custody, like possession, tends to be 'nine-tenths of the law' and plays a role in the assignment of permanent custody, especially when the divorce does not occur for some time."

What about the fact that in nearly every state the temporary order is not supposed to be taken into account by the judge at trial? "That's the difference between what's on the books and how reality pans out," said a lawyer in Iowa. "If you win a temporary hearing you're pretty much in the catbird seat as far as negotiation is concerned. You've got the house and the kids," said an Arkansas litigator.  "An old saying in Massachusetts is that 'nothing is more permanent than a temporary order', " noted an attorney who specializes in divorce appeals. "Judges here almost always give the kids to the mother by temporary order. There is no practical means of appealing that because the appeals court won't touch a case until after the trial. Then two or three years later the trial comes around and perhaps the judge realizes that the initial temporary order was a mistake. The father is actually the better parent. But now the mother wins the custody case at trial by arguing in favor of stability. The kids are still alive and not hospitalized for mental illness so clearly they are doing well. Why uproot them now when they are used to living with their mom?"

There is a substantial divide between states in how these temporary orders and motion hearings are handled. In some jurisdictions, such as Illinois, to win the house and the kids will require a mini-trial with witnesses testifying under oath and lawyers cross-examining those witnesses probing for inconsistencies or outright lies. In others, such as California (see above) or Massachusetts, a judge will effectively decide the family's future in a 15-minute hearing based on "attorney representations", i.e., stuff that the opposing lawyers say to the judge, presumably based on what they've been told by their clients. "Realistically this is where one parent, typically the father, should give up," said one attorney, "due to the court system's bias toward the status quo, even a status quo that was created by the court. The judge has told the father 'The only thing that you're good for is paying the mother's bills but dad has trouble believing that he'll never be anything other than an ATM. In a lot of ways the ghetto dads are smarter than my high-income male clients. Ghetto dads don't expect anything resembling justice from the court system. Ghetto dads try to minimize the financial damage, comply with court orders to pay money, but don't volunteer to serve as unpaid babysitters of a child that the court has deemed to be essentially someone else's." What does it mean to "give up"? "My happiest male clients are the ones who accepted that they weren't parents anymore and moved at least 500 miles away. They accepted that everything they'd worked for was gone and that, going forward, they were going to have to live on 40 percent of their former income. They didn't have to see or interact with the plaintiff who took everything from them. If they wanted to be dads they started over with a second wife or partner." Did they still see their biological children from the first marriage? "Christmas vacations. A few weeks in the summer."

The domestic violence chapter explains how temporary orders can be accelerated and/or won.

Discovery

After the rash of temporary orders there will be a process of "discovery" that lasts at least six months. Each side has the right to obtain documents, such as email messages and bank statements, from the other. Each side will also be entitled to compel witnesses to appear for depositions in attorney offices. Attorneys want to contact everyone who might conceivably have relevant information or who might appear at trial. If people won't talk to an attorney voluntarily, they need to be deposed and their testimony taken down by a court reporter. "If cases were not in fact simply decided by the personal prejudices of the judge or maybe what she had for breakfast, this would be a critical part of the case," said one attorney, who then softened her answer. "Depositions do limit what a witness can say at trial. If the plaintiff says in a deposition that the father is reasonably nice to the children she can't come to trial and say that he beats them."

Disputes will arise during the discovery process and these may require motions and court appearances to resolve. For example, Parent A asks for all email messages sent by Parent B and Parent B refuses to produce them. If Parent A wants to insist on a right to obtain these email messages then his or her lawyer would have to ask the judge to order that they be produced.

There are "status conferences" at which the parties and their attorneys appear before the judge to explain what progress has been on settling any portions of the case, what issues remain, what witnesses will appear at trial, and how many days of trial are likely to be required.

In a case with a lot of assets or where one party is self-employed, discovery will take longer and can consume hundreds of thousands of dollars in legal fees.

Psychologists, Guardian ad Litems, Custody Evaluators, etc.

Most states, as part of the discovery process, have a process by which a court can appoint one or more people to investigate questions regarding custody and parenting time. Such a person might be called a "Guardian ad Litem" (GAL) or a "custody evaluator" and, at least in some states (e.g., Missouri), a court may appoint both. The job of the GAL is to find facts by interviewing the parents, relatives, friends, teachers, and neighbors, and to report those facts to the judge. The GAL or custody evaluator may also make recommendations for a parenting time plan. One lawyer whom we interviewed pointed out that mental health professionals, such as psychologists, who make these recommendations are not doing so from a foundation of research studies on what actually works out best for children. Her perspective was bolstered by the fact that mental health professionals tend to make recommendations that reflect the laws and conventions of the jurisdiction from which they collect their paychecks. A PhD psychologist in a state where sole custody is conventional, for example, will confidently come to court and talk (for $300 per hour) about how a stable single home is best for a child, with every-other-weekend contact with the other parent. Across a state line, however, a psychologist with a PhD from the same university will confidently speak about how shared custody is best and almost every child deserves to have significant contact with both parents.

Lawyers and judges whom we interviewed were skeptical regarding the value of court-appointed psychologists. Here was a typical litigator's perspective: "They have no reliable research. They have no long-term research. There is no proof that psychology and psychiatric professionals are any better predictors of parenting than lay judges. [divorce psychology/custody/GAL work] is a wildly expensive industry that has grown up based mostly on hocus pocus. 'Best interest of the child' is a legal term, not a psychological term yet we are turning to psychologists to tell the court what is best for a child.

Psychologists who got paid to testify in court spoke confidently of their ability to deliver value. Psychologists who were not being paid to do this work spoke scornfully of their colleagues who were. Linda Nielsen, professor at Wake Forest: ""Anyone who tells you that they've checked their biases at the door is an idiot. Evaluators have their own prejudices." Joyanna Silberg, who has written extensively on child abuse: "Psychologists have sold their souls. I will not do custody evaluations. It is ridiculous to look into which parent is feeding sugared cereals. I will not pretend that I have divine power." What about commonly used psychological tests? "I was head of testing for a hospital. I have no interest in using tests developed to treat very ill people to help somebody get custody." But how can she resist the fees? "Courts give a lot more attention to money than to children. I have no interest in the money-making industry of lawyers and parents fighting with each other over money." But isn't it nominally over what's best for the children? "The economics underlying child support incentivizes so many horrible things that are done to children," responded Dr. Silberg. "It is insane that our law gives parents a financial incentive to fight over custody." (Silberg works for a hospital system in Maryland, a state where child support revenue is potentially unlimited.)

Whatever the value of psychologists in the courtroom, the price tends to be high. Andrea Estes, a reporter with the Boston Globe, found that GALs in Massachusetts regularly ran up $50,000 bills and that, rather than use a court-run system to appoint GALs sequentially, judges tended to appoint friends as GALs. Who pays the $50,000 bills? As with legal fees, the costs generally fall primarily or exclusively on the defendant.

What keeps the GAL/custody evaluation system going? Attorneys told us that custody recommendations make judges' lives easier. By rubber-stamping the recommendation of a GAL or psychologist, whose own investigation was not subject to any of the rules of evidence or cross-examination, a judge can dispose of custody cases quickly and in an appeal-proof manner.

Attorneys, judges, and psychologists all agree that psychologists are big in the world of divorce. But how big is divorce in the world of psychology? We looked around the Boston suburbs for child psychologists or psychiatrists. Out of a sample size of 11, at least 9 were earning money from testifying in divorce lawsuits or serving as Guardians ad Litem. (Research method: type therapist's name into Google along with with the word "divorce" or "forensic" and wait for legal documents or advertisements for expert services to come back.)

Trial

The trial itself may take months to schedule due to the fact that courts are busy. In most states there will be a special court system just for divorces. The judges are drawn from the "family law bar" and are hearing cases presented by their former colleagues. Some of the lawyers that we interviewed cited this as an advantage. In their view, cases go faster because divorce litigators-turned-judges are familiar with every aspect of divorce law and every trick that lawyers can use to get an advantage. Others, however, criticized the family court system for cronyism and for its tendency to attract what they said were mediocre judges. ""People have this misconception that judges are smarter than average people," one litigator pointed out. "They are either political appointments or people who weren't successful in law practice. Otherwise why would they want to work for $110,000 per year?" [A Boston litigator told us that working divorce lawyers, by contrast, can easily earn $1 million per year.] Another attorney expressed this more colorfully: "What do you call a divorce lawyer with an IQ of 85? … 'Your honor'." In other states and/or in some rural areas within states, divorce trials are heard by judges who handle a full range of cases, from civil contract disputes to violent crime. This system was praised for its reduced tendency to cronyism and clubbiness (the extent to  which one parent may get a big advantage by hiring a litigator with whom the judge is friendly) but criticized because divorce trials will be rescheduled at the last minute if a criminal case needs to go forward. Texas offers the option of a jury in custody cases.

A typical divorce trial will last between 1 and 10 days depending on how many issues are open. Unlike a typical civil or criminal case, the trial days may not be consecutive. In some jurisdictions the issues may be decided piecemeal over a period of months, e.g,. with two days for property division in July and three days for custody in September followed by three days of alimony and child support testimony in November. The attorneys will spend several days preparing for each day of trial. This includes preparing enormous binders of exhibits that are agreed upon as well as those that are contested. The trial itself consists of witnesses undergoing direct or cross-examination.

Will justice prevail as a result of a trial in front of a judge? Attorneys were generally negative regarding the ability of judges to sort out the truth. "People who are crazy and sociopathic are great witnesses," said one attorney with more than 20 years of experience in the courtroom. "They can lie without batting an eye and sound completely credible. That's why con artists thrive. If we were good at assessing credibility none of us would ever get ripped off."

The judge cannot simply make a decision immediately after the trial. She may have made up her mind how she wants to rule, oftentimes even before the trial started according to attorneys interviewed, but she needs to justify that ruling with evidence. She needs to wait for the court reporter to deliver a transcript of everything that was said at trial and then begin organizing evidence heard in a way that supports "findings" that she wants to make. The attorneys involved may submit post-trial briefs where they engage in the same process of finding the most compelling evidence heard at trial to support their sides. If the judge isn't careful to support findings with evidence from exhibits or the trial transcript the case may be overturned by an appeals court.

Appeal

At least one litigant will probably be unhappy with the result and this can lead to an appeal. In countries following the Civil Law (most of Europe) typically the appeal is heard by a three-judge panel that can re-examine all issues in the case. In countries, such as the United States, following the Common Law, the appeals court will consider only errors of law made by the trial judge, not findings of fact. The most critical issues in divorce are questions of fact, not of law, and therefore the right of appeal is of negligible value for most parents according to nearly all of the attorneys that we interviewed.. Whether the children should live with their mother or father is a question of fact, not of law. Whether the custodial parent should receive $10,000 per year or $100,000 per year in child support is a question of fact, not of law. If the trial judge is sloppy and writes down "Because I think that the plaintiff needs a new Mercedes S-class sedan, I award $100,000 per year in child support" that can be overturned, but it would simply be sent back to the same judge who could then find an alternative basis for awarding $100,000 per year in child support, such as "Because I think the children are entitled to maintain their pre-divorce lifestyle, I award $100,000 per year in child support to the plaintiff." Generally for an appeals court to overturn a ruling that a parent might care about, e.g., custody, child support amount, alimony amount or duration, the appeals court would have to find that a trial judge committed an "abuse of discretion." This is an almost impossible standard to meet because legislatures give divorce judges almost infinite discretion.

Litigation Explained by Attorneys

What makes divorce litigation in the winner-take-all jurisdictions so intense? "The desire by one human being to live off another's labor is the strongest desire that I've ever encountered," said one litigator. "It is tough to collect alimony after short-term marriages and your typical would-be alimony plaintiff doesn't want to invest 15 or 20 years in a marriage. This puts tremendous pressure on the custody and child support portions of a case. Plaintiffs will stop at nothing. They will sign affidavits saying that they were abused, that the defendant abused the children. They will report the defendant as a child molester to social services agencies. Then I have to go into court and lie. I repeat what the plaintiff tells me, but I know that almost everything that I say about the defendant is a lie. If these guys were as violent as I say, they'd show up to a deposition with a gun and shoot me. If these guys were as indifferent to their children as I say, they'd let the kids drown in a swimming pool to get out of the $100,000 per year child support obligation. Everyone in the system knows that my plaintiffs are lying and that I am lying." Why would divorce judges want to reward liars? "If they didn't give money to liars they wouldn't be able to give money to anyone and the system would fall apart."

Lisa McCoy, a Pennsylvania litigator, said that parents obstruct shared parenting and seek sole custody not simply for financial gain: "You also see it where a parent has few friends or is jealous of the child's bond with the other parent. Seeking primary custody is typically done for the parent's gain, not out of concern for the child."

From a more practical standpoint, divorce litigation is more intense than other kinds of civil litigation because, depending on the state, one person can be designated by the judge to pay the legal fees for both sides. "Once my plaintiff gets a hint from the judge that she'll be getting a fee award," said one attorney, "she no longer has any motivation to settle. The lawsuit and trial are going to be free for her and anything she gets in the final judgment is gravy." Another lawyer said "Most civil lawsuits end when each party has spent about as much on legal fees as the amount in dispute. By that point they've both learned their lesson that litigation generally makes sense for lawyers, not for litigants. In divorces, however, since all of the fees are being paid by the defendant there is no reason for the case to end until he runs through his savings, what he can borrow from friends and family, and what he can borrow from the bank."

Several attorneys said that divorce lawsuits go on longer than other kinds of civil litigation because they are really attacks on children but the children aren't formally parties and therefore don't have any representation. "It a mistake to think of divorce lawsuits as being Parent 1 v. Parent 2," was how one lawyer explained the typical situation. "In the cases where anyone has enough money to hire me, the parties who are opposed are the plaintiff parent and the children. None of the children in whose name I have won child support [for a plaintiff] in the last 20 years actually needed any money. Their parents both had ample resources and a willingness to pay for all of the necessities and luxuries of life for their children. They would have been fed, clothed, housed, and schooled regardless of any court order."

Why is it really parent versus children? "You have to start by considering the interests of the children. From their parents they can get love, time, energy, devotion, necessities during childhood, money for college, wealth via inheritance. A divorce won't help the children get any of these things." [See the discussion of "Parental Responses to Child Support Obligations: Causal Evidence from Administrative Data" (Rossin-Slater and Wust; December 8, 2014 American Economics Association Conference) in the Children, Mothers, and Fathers chapter for how even small-by-American-standards child support payments reduce both paternal and maternal investments in the children whom the money was supposed to help.]

At the middle-to-upper-income levels that are required for parents to retain lawyers, whom does a divorce help? "The parent who launches a litigated divorce has a lot to gain. He or she can enjoy the freedom of spending the former spouse's money without having to get the spouse's approval. He or she can spend time with lovers. The plaintiff parent will no longer have to consider the comfort or happiness of the former spouse or any of the in-laws. This gain comes primarily from a loss to the children."

How so? "First, the very process of litigation degrades parental capability in both parents. The plaintiff may be transformed by greed and hatred. The defendant will be beaten down and depressed. Every minute that the parents are with their respective lawyers or in court is a minute that those parents could have spent either (a) with their children, (b) planning an activity for their children, or (c) earning money for their children. Second, the cost of litigation ends up coming straight out of what would have been money for college or an inheritance for the children. A typical plaintiff doesn't mind spending $2 million in family assets on litigation so that she can spend $1 million on clothing, jewelry, trips to Aspen, etc., but that's $3 million out of the children's pocket. The children don't have a lawyer in the courtroom to argue 'Hey, stop spending our $3 million.'" But even if the $2 million in legal fees is a loss, couldn't the children benefit at least from the $1 million transferred to the victorious parent? "An only child rattling around in an 8000-square-foot mansion is not necessarily any happier than a child in a regular house or apartment." Generally the attorneys that we interviewed all reported that their clients got more and more angry with the parent on the other side and with the system the longer that the litigation went on. Even successful plaintiffs weren't necessarily happy, e.g., an Ivy League-educated 38-year-old plaintiff in one of our Massachusetts cases won a $1 million house with all expenses paid for 20 years, $50,000 per year in alimony, $94,000 per year in tax-free child support for 20 years, all of her child's expenses paid for, including a nanny, by the father. Without working, she out-earns her University of Pennsylvania classmates by more than 3:1. How could she be disappointed with that outcome? Her lawyers had told the judge that she was entitled to $235,000 per year in child support.

What about after the divorce? Is the plaintiff parent still taking resources away from his or her own children? "If there is anything left over after paying the lawyers, the children of the first marriage are likely to find that their inheritance is diluted by the children of a second marriage. The parent that is rich enough for the first spouse to sue probably has enough good personal qualities to attract a second spouse. Outside of being a divorce plaintiff, it is tough to make money in American society unless you are responsible, reliable, diligent, well-educated, intelligent, trustworthy, and reasonable. These are all qualities that are likely to attract a second spouse who is interested in having a co-parent for children of his or her own. There is no getting around that fact that a parent with 4 children has less time for each child than a parent with 1 or 2 children. And an inheritance split 4 ways is not as large as an inheritance split 2 ways, especially if most of that inheritance has been spent on litigation."

"The strangest thing about all of this is that even though it is typically Plaintiff Parent v. The Children," said one lawyer, "when I'm in court arguing for a plaintiff I have to pretend that everything my client is seeking is for the benefit of the children. It is not my client who wants a fancy house and a new car, it is the three-year-old who craves these things."

Who pays for all this? Mostly the children. The money that was spent to pay lawyers to argue about the cost of hormone-free eggs at Whole Foods is money that the children aren't going to inherit. But also taxpayers. We collectively pay to keep the courts running so that judges, clerks, court reporters, courtroom security officers, etc. will be available when a plaintiff making more than 10 times the median U.S. personal income (or one with hundreds of millions in wealth) shows up to talk about how he or she can't afford to put food on the table for the part-time kids. As noted in the Citizens and Legislators chapter, the 1.5-year lawsuit that Cameron Kennedy launched to enhance her $350,000 per year income required the taxpayers to pay judges, clerks, and other trial court staff for about two months of full time work.

Real-world time and effort calculation

Below is a diary entry from a Massachusetts defendant. He earned about $300,000 per year and was sued after three years of marriage by a plaintiff who earned about $200,000 per year. The plaintiff opened up with the standard-for-Massachusetts allegations that he was unfit, a child molester, etc., but eventually agreed to primary/secondary parenting in which she would care for the daughter (2 at the time the lawsuit was filed; 4 at the time of the trial) two-thirds of the time. As custody had been settled via agreement, the four-day trial was limited to the question of how profitable the child would be for the plaintiff.

Another way to look at the whole case is how the time, money, and energy spent compares to what the average family invests in a child.

The Daily Mail, in a July 19, 2006 article, reported on a British government study that found that a parent who works full-time spends approximately 19 minutes per day (weekdays only?) "looking after their children." An OECD study from 2011 that included weekends came up with a number closer to one hour per day per parent. My management of litigation defense, gathering of documents, trips to parenting coordinators, emails to [the plaintiff] that had to be carefully considered in light of how they were going to sound when read in court, etc. probably was equivalent to a half-time job over more than two years of litigation. Including the time that I spent trying to persuade [the plaintiff] not to divorce me and/or to mediate, that's 2500 hours. Let's assume that [the plaintiff] also spent 2500 hours. So that is the amount of time that a typical two-career couple would invest in their children over 2500 days (roughly age 0 to 7). Assume that the average family has two children, so that's the parental time that two children would absorb for 7 years.

The USDA estimates the basic cost of child-rearing at about $200,000 per child through age 18. Add in another $100,000 for a four-year degree at a state university and that's $300,000 in total cash outlays. So we spent enough money on legal fees (at least $1.2 million) to rear four children through a bachelor's degree.

[the plaintiff] became essentially a half-time worker at [a government-affiliated financial institution], though she suffered no reduction in salary, but perhaps missed out on valuable promotion opportunities that would have been available to workers who did not leave work to pick up [the child] mid-afternoon (chalked up to litigation posturing, since she hadn't done anything like that during the marriage), to attend depositions (she went to her own depositions, as well as mine and some depos for random other witnesses; perhaps 10 days total), to attend hearings, to attend depo and trial prep, etc. Let's assume that she could have been earning $20,000/year more for the rest of her working life if she had not put the time into litigation, plus $20,000/year more during retirement. That's another roughly $800,000 (40 years times $20k). For myself, I could maybe have billed half of those 2500 hours as a consultant. That's 1250 hours at $350/hour or $437,500. The total then adds up to the cost of rearing four additional children through college.

Without the judgment in hand, it is hard to know what I will be paying [the plaintiff] but it seems guaranteed to exceed the USDA-estimated cost of rearing a child. Let's assume that the number is halfway between [the plaintiff]'s $6000/month personal lifestyle-based proposal and my $2000/month guidelines-based proposal. That's $48,000 per year for 20 years = $1 million. Enough to rear three more kids through college.

The "energy" is hard to measure, but certainly nearly all of the experience of being a divorce lawsuit defendant is negative. Before the lawsuit started I would put my extra energy into doing things to delight [the child] or relatives, e.g., sending [the child]'s first two pairs of shoes off to be bronzed (and then shipped to [the plaintiff]'s sentimental relatives; I don't think that would have been mentioned by [the plaintiff] if there had been a custody trial!), making picture books at shutterfly.com, making a wall calendar for proud grandparents and other relatives, etc. Engaging in those activities would leave me motivated to do more stuff like that. But the stuff that I had to do as a divorce lawsuit defendant, e.g., explain to DCF that I was not sexually molesting [the child], show up to hearings where [the child] and I would inevitably lose, etc, was enervating. The only thing that might be comparable from a parenting point of view is dealing with a troubled teenager. So both [the plaintiff] and I probably already spent the mental and physical energy resources that most parents don't have to tap into until and unless their kids turn into difficult teenagers.

So if someone asked me what it is like to be a divorce lawsuit defendant with one kid in Massachusetts I would say "It is like paying for 11 kids from age 0 through college, putting in the parenting hours for two kids through 2nd grade, and putting in the energy and sleepless nights that would be required to deal with a teenager who was in and out of rehab."

[Seven months after the trial, the plaintiff was rewarded with $1 million in tax-free home equity, $1 million in tax-free child support through age 23, reimbursement of actual child-related expenses such as daycare, $800,000 in life insurance on the defendant (paid for by the defendant), and about half of her legal fees paid.]

How much control do defendants have over the process? From another Massachusetts defendant:

 I tried pretty much everything, including buying a house near my kids' school so that I would have a good argument to maintain my parental role. Nothing worked. In the harsh clarity of hindsight, the money that I paid to lawyers might as well have been flushed down a Porta-Potty.  The outcome would have been the same regardless of whether I paid a lawyer $1,000 to fill out the paperwork or the actual $500,000 that I paid to have them spend 5 years passing motions back and forth.  I seriously doubt that it matters whether you are represented by lawyers, Shetland ponies, or yourself.

Kids' Perceptions

Do children figure out just how much family treasure, time, and effort was entailed in one parent backing out of the marital vows? Yes, according to "The Unexpected Legacy of Divorce: Report of a 25-Year Study" (Wallerstein and Lewis; Psychoanalytic Psychology 21:3 2004):

No child of divorce in our study was invited by both parents, either separately or together, to discuss college plans. … Only 57% of the divorce group achieved their bachelor's degree as compared with 90% in the comparison group. … Unhappy, [those who did attend college] settled for fields of study that were not their first choice, at lower ranked institutions than their parents had attended. It was at this time that one young person, echoing the emotions of many others, commented bitterly, "I paid for my parents' divorce."

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