The Maryland-Delaware border is a good place to see the importance of jurisdiction. A one-night encounter with a successful dermatologist (earning $500,000 per year) in Glasgow, Delaware would result in a 50/50 shared parenting arrangement and a payment from the doctor of $27,000 per year. The same one-night encounter five miles away in Elkton, Maryland would result in obtaining sole physical custody of the child and, very likely, more than $50,000 per year in child support. The child support in the Delaware scenario is determined by formula. The child support in the Maryland scenario is determined by the mood of the judge and therefore the litigants could spend hundreds of thousands of dollars presenting evidence to persuade the judge. A decision by one partner to terminate a marriage after 10 years in Maryland could result in no alimony, alimony until death, or anything in between, depending on the mood of the judge. Thus potentially hundreds of thousands of dollars in legal fees would be spent arguing about the fair duration of alimony. In Delaware the alimony would be limited by statute to half the length of the marriage.
Our questions regarding Maryland 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."
We also interviewed a legislator, Delegate Jill P. Carter, who has represented a portion of Baltimore in the General Assembly since 2003. Carter is a criminal defense attorney with some experience at the intersection of the domestic violence prevention system and divorce law.
As in other states, it can take a year or two to get to trial in Maryland. A plaintiff can get the house, the car, the kids, child support, alimony, health insurance, and attorneys fees at a "Pendente Lite" hearing in front of a "Master" (attorney but not a judge) several months after a divorce lawsuit is filed. As in other states, whatever is decided in one of these brief temporary hearings tends to be kept in place following a trial due to judges' preference to maintain the status quo, especially with regards to custody.
What if one doesn't want to wait three or four months? As in other states, Maryland operates a parallel domestic violence prevention system that will grant de facto divorces instantly. Delegate Carter explains "There is an organization called the House of Ruth. They represent the woman for free and get her an automatic ex parte order barring the man from the house, the kids, and her place of work. He can come back five days later to challenge the order." Then the House of Ruth lawyer and his lawyer argue about whether it was a legitimate order to have granted? "No," says Carter. "A lot of my constituents can't afford lawyers and this is a civil proceeding, not a criminal one. So he is not entitled to a public defender. Thus she is represented by an attorney and he is not." Then what? "The Court asks 'Would you like to sign this consent form?' and the man is usually intimidated by the situation and doesn't want to appear argumentative in front of the judge. He's smart enough to know that if he were to display any anger at having been accused of abuse that would only make things worse. So he agrees to stay away from the home, the kids, her job for a year. Meanwhile the House of Ruth is also working on a divorce lawsuit for her. When that comes to trial in about a year they can say 'He hasn't been around the kids for a year. He's been out of the children's lives.' A factor that the judge is supposed to consider is what a child is accustomed to. So the court reduces the father to a support payor. If he has visitation it will be limited and supervised." What about the idea that judges are wise and fair and that they have enough discretion to do what is best for a child? "These fathers are not getting due process," responded Carter. "The rules of evidence are often ignored. I have seen judges in district court let the House of Ruth lawyers testify."
[The House of Ruth Maryland Inc. is a relatively small part of the domestic violence industry, whose overall payroll is estimated at between $4 and $5 billion annually. We retrieved the organization's 2012 Form 990, filed with the Internal Revenue Service, from guidestar.org. The group's mission, as disclosed to the IRS, is "to end violence against women and their children and provide victims with tools to rebuild their lives". The Form 990 shows that the group receives about $6 million per year in funding, the majority of which is "Government grants", and Sandi Timmins, the executive director, received approximately $180,000 in compensation in 2012. Other than her work experience with the House of Ruth, no qualifications or degrees were listed for Ms. Timmins either on her LinkedIn profile, in the press release announcing her appointment, or in the biography downloaded from the House of Ruth's web site.]
Unlike in neighboring DC, Maryland does not have a statutory presumption of joint physical custody, but in recent years judges have been more prone to award 50/50 custody, according to Ain. "Twenty or thirty years ago it was mother got custody, father got every other weekend and dinner one night during off week. There has been a 180-degree turn where many more fathers gain more custody because they've become more active in the children's lives. Judges look at who can provide stability and a role model. Smarter judges will look at the family dynamics."
Ain's statement presumably reflects his experience with rich white Marylanders in Montgomery County. Carter paints a different picture of what happens to lower-income black citizens in Baltimore. "Judges are clearly biased," she observed. "I've seen cases where everything was in favor of the father and the judge denied the father's request for 50/50 shared parenting and gave sole custody to the mother. Men come to the Assembly to testify that they paid hundreds of thousands of dollars to a lawyer because they were told that they could fight for shared custody and get a fair hearing. Then right before the trial they were told to settle for every other weekend because 'this is the best you can get.' You can't blame them for thinking that this is a racket."
Statistical data tend to support Carter's perspective more than Ain's. Among Marylanders surveyed by the U.S. Census Bureau in March 2014, 98 percent of those collecting child support were women. Carter added, "Five years ago we [at the General Assembly] got data regarding what happened when both parents were fit and the father asked for shared custody. 85 percent of the time the judge awarded sole custody to the mother." Sole legal and physical or joint legal and sole physical? "Joint legal custody is a fiction," Carter noted, echoing what we were told by litigators in many other states. "If a parent doesn't have the kid around he doesn't even know about the issue."
Maryland allows a parent to collect child support until a child turns 18, typically, or to age 19 if the child is still a full-time high school student. The child support guidelines are found on the court's web site or in the Maryland Code, Family Law, section 12-204, with the top of the guidelines being for a payor with an income of $180,000 per year and resulting in a monthly payment of $1942 per month ($23,304 per year) for a single child. Judges will tend to extrapolate beyond the top of the guidelines 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. A typical extrapolation for a single child seems to be about 10 percent of pre-tax income.
Maryland law requires that day care costs be added to child support: "Subject to paragraphs (2) and (3) of this subsection, actual child care expenses incurred on behalf of a child due to employment or job search of either parent shall be added to the basic obligation and shall be divided between the parents in proportion to their adjusted actual incomes." If one parent earns sufficiently more than the other parent, then, the parent who pays child support will pay virtually all of any day care costs as well.
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 (128 overnights). 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." Note that a child who has reached the age of 16 may file his or her own petition with a court for a change in custody.
Unlike in some other states, such as Illinois, New York, Massachusetts, and Connecticut, Maryland courts cannot order a parent to pay for a child's college expenses. Nor can a parent continue to collect child support for him- or herself during those college years, unlike in Massachusetts, for example, where a parent can continue to profit from $100,000 per year or more in child support for the five years between 18 and 23.
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 Maryland 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." [Note that Maryland has not adopted the Uniform Premarital Agreement Act.]
The average hourly wage in Maryland is $25.17 per hour. A person who goes to college at the University of Maryland, College Park will spend approximately $92,948 over four years to earn a bachelor's degree. Census 2014 data show that the median income for 22-36-year-old college-educated women working full time is $37,000 per year, $28,363 after taxes. For a corresponding man it is $51,000 per year or $37,802 after taxes.
The average annual cost of child care is $12,878 for an infant, $9278 for a four-year-old, and $5236 for a school-age child. Thus the total cost of child care from age 0 through 12 is $64,586.
Over the 18-year period during which child support could be collected in Maryland, a recipient could collect a maximum of $419,472 at the top of the guidelines. Excluding child care, which is likely to be paid for by the parent who was ordered to pay child support, 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 $9000 times 18 years of childhood = $162,000). Thus some of the $419,472 would be consumed by the child's housing, food, transportation, clothing, healthcare, and other expenses, leaving a profit of just $257,472.
For a man who goes to college and then works for 14 years, his total after-tax income, less college expenses, would be approximately $436,280. For a woman who goes to college and then works for 14 years, the comparable number is $304,134. Only a person who obtained custody of multiple children and/or obtained an above-guidelines award based on judicial discretion (or judicial extrapolation) can earn more by collecting child support at the guidelines level than by attending college and working at the average wage for a college graduate.
What are the actual numbers? The man with a single child needs to collect $2,770 per month from the mother to be able to enjoy a greater personal spending power than the man who goes to college and works. This happens when he is suing a mother who earns roughly $250,000 per year. If he has two children from two different mothers he needs to collect $1,760 per month from each, corresponding in the guideline table to a defendant's income of $163,200 per year.
The woman with a single child needs to collect $2,158 per month to make child support an economically superior alternative to college and work. This happens when suing a man earning over $200,000 per year. If she has two children from two different fathers, she needs to collect at least $1,454 per month from each. This is a guideline number that can be obtained by suing men who earn at least $135,000 per year.
Taking care of one's own children is substantially more profitable than taking care of a foster child. Maryland pays foster parents a higher rate than most states, about $10,220 per year, but it is less than half of the top of the guidelines.
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.
Ain gave the same answer that he did for DC: "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 along with the nanny."
So the defendant mother will owe child support to the plaintiff mother? Ain says that he will. How does that work given that the father currently has no income? "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."
[From Maryland Family Law Section 12-201: "'Potential income' means income attributed to a parent determined by the parent’s employment potential and probable earnings level based on, but not limited to, recent work history, occupational qualifications, prevailing job opportunities, and earnings levels in the community." Note that each word in that section of the statute could correspond to several hours of evidence at a trial.]
What if the stay-at-home father were to prevail in obtaining custody? The mother would then likely owe $23,304 per year in child support from the top of the guidelines plus an additional 10 percent of her income over $325,000 per year, i.e., $37,804 total. Thus for each parent the custody fight is worth about $725,000 (assuming 17 years of payments and that $5,000 per year can be extracted from the father if he were to pay).
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? "He would win only rehab alimony unless there is an unconscionable disparity. Given the brief duration of the marriage and his lackadaisical ways, I don't see a judge finding an unconscionable disparity and giving him permanent alimony but it is possible.
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.
Ain gave the same answer that he did in DC: "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 parenting time split, child support would be in accordance with published guidelines, about $14,664 per year flowing from the loser parent
to the winner parent.
Delegate Carter didn't address our scenarios but she did observe that "the majority of judges statewide still believe that they are supposed to give primary physical custody to one party. They carry a belief that joint custody is not a good idea." She didn't see a trend toward shared parenting? "There is a trend toward calling every other weekend and 2-4 weeks in the summer with maximum child support paid 'shared parenting' but that's really disingenuous," Carter responded. "Just try to get a schedule where the number of overnights results in any reduction in child support payments under the guidelines."
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.
"It is likely that primary custody would be awarded to the mother. Home equity and savings would be split 50/50. The doctor's medical practice would be valued and then a division of that value given to the plaintiff."
The answer regarding child support and alimony is the same as in DC: "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 child support would likely be calculated at the top of the guidelines even if the doctor's income is a little bit over. 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."
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.
Custody and parenting time yielded the same answer as in DC: "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." As in DC, the Maryland father/defendant would be able to work towards a 50/50 parenting time arrangement. "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 at the top of the Maryland guidelines, plus some extrapolation.
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.
As in DC, the woman is likely to get primary custody and top-of-the-guidelines child support. "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 $4,000 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? As in DC, "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."
Unlike in some other states, a Maryland plaintiff cannot wait until a child is 17 years 11 months old and file for 18 years of retroactive child support. Generally child support liability starts when a lawsuit is filed. As in other states, a plaintiff can use a state agency to have a taxpayer-funded attorney get a child support order for her but the defendant cannot get a taxpayer-funded attorney either to defend the child support lawsuit or to ask for parenting time. "A woman can pop up and find the father after seven years," says Delegate Carter. "The father never knew about the child and says 'That's great news. When do I get to see the child?' DHR responds 'We don't need you for that.' In the eyes of the state fathers have no value except to pay."
The Maryland Child Support Enforcement Administration publishes a web page regarding their paternity litigation services:
Paternity Establishment is Important!
Your child deserves all of the advantages in life that two parents can give. There are some special reasons to establish paternity.
Benefits For Your Child: Your child may be eligible for some benefits because you have established paternity. These benefits may include Social Security, veteran’s benefits, health insurance, life insurance and inheritance. Establishing paternity ensures you can provide for your child even when the unexpected occurs.
Family Medical History: Knowing the family’s full history of diseases, illnesses and birth defects will help your doctor if your child becomes sick. It’s important to know the father’s medical history for this reason.
Child Support: Your child needs and deserves both emotional and financial support from both parents. You may think that you can get by on your own and live without any help from your child’s father. But you may change your mind some day. A court can’t order child support without legal proof of paternity. It’s easier to get that proof today than to wait.
Confirming Delegate Carter's perspective, "your child can spend time with Dad" is not one of the benefits described by the state agency.
Maryland uses a "best interests of the child" standard to determine whether or not a parent may relocate to another state with a child. However, a custodial parent getting a better paying job could be sufficient reason for a judge to allow a move, on the theory that a wealthier parent is going to provide a benefit to the child that is greater than continued frequent contact with the non-custodial parent.
Maryland provides cash incentives to have children with multiple co-parents. At the top of the guidelines, three children with one co-parent yield $729,864 over 18 years. Three children with three different co-parents, however, yield a tax-free $1.26 million.
Maryland assigns different cash values to different children from the same parent. The first person to sue a parent gets child support based on the defendant's full income. The second person to sue a parent gets child support based on the defendant's "adjusted actual income," which is the gross income minus "preexisting reasonable child support obligations actually paid" (Family Law Section 12-201). Each subsequent plaintiff gets a smaller amount of money.
Maryland assigns no cash value to children of an intact marriage. Unlike some other states, when suing a married-with-children defendant for child support, the plaintiff in possession of an extramarital child gets the same amount of money as if a single defendant would yield. Child support plaintiffs and their children have priority over the children of the intact marriage in being supported by a parent's income.
Maryland invites additional litigation whenever a self-employed person is sued. Family Law Section 12-201 states "For income from self-employment, rent, royalties, proprietorship of a business, or joint ownership of a partnership or closely held corporation, 'actual income' means gross receipts minus ordinary and necessary expenses required to produce income." and "'Ordinary and necessary expenses' does not include amounts allowable by the Internal Revenue Service for the accelerated component of depreciation expenses or investment tax credits or any other business expenses determined by the court to be inappropriate for determining actual income for purposes of calculating child support." Is a corporation in which a defendant owns shares "closely held"? Did the machine shop need to buy a new lathe? Lawyers will argue about it, parents will be billed for the argument, the judge (who may never have worked for a corporation or seen a lathe) will decide, the kids will have a smaller college fund an inheritance.
One of the authors lives in Bethesda, Maryland. An acquaintance was 46 years into a marriage when his wife suddenly encouraged him to retire from the federal government. "We can travel, relax, and have fun," she said. He responded that they already had plenty of leisure time and that he had more than a month's paid vacation annually. He retired a few years later, as previously planned. Immediately upon his retirement, the wife sued him for divorce. She explained that she had gone to the Montgomery County Commission on Women seminar seeking advice on how to divorce her husband as soon as possible, while maximizing her financial gains. The taxpayer-funded leaders of the seminar advised her to wait until her husband was retired so that she could immediately collect a portion of his pension and so that she would continue to receive benefits if her ex-husband were to die. The author met this gentleman almost a decade after his divorce. While he was blindsided by her actions, once he attended a Commission on Women seminar himself (held fairly frequently throughout the year), he began to understand the careful strategy his wife had adopted. He noted that several attorneys were present, eager to represent some of the women in attendance. A cottage industry in Montgomery County, Maryland is born. Gentleman noted ruefully that he had at one point worked 2 jobs in order to support his wife and 3 sons when his wife was home with their young children. Also, author sadly noted that one of his adult sons had a nervous breakdown leading to hospitalization subsequent to his parents’ divorce, and that this father of 2 young children cited his parents’ divorce (along with some other issues) as precipitating his mental breakdown. The grandfather in question has not re-married, but on a positive note, maintains a relatively cordial relationship with his ex-wife, who invites him to Thanksgiving dinners, etc., with their 3 children, spouses and grandchildren. He was not financially ruined by the divorce, and does not appear bitter in spite of his tax dollars funding an organization which helped his ex-wife strategize their divorce after a long-term marriage. When author asked whether his ex-wife was involved with someone else at some point toward the dissolution of their marriage, he said, “No, and she has not re-married.”
At the $180,000 per year payor level, children in Maryland are about average in terms of profit potential. The $23,304 per year provided at the top of the guidelines for a single child is more than the $13,000 per year cap in Nevada and the $20,520 per year cap in Texas. But it is less than the $32,136 per year that the child would yield in Massachusetts.
The convention of Maryland judges to apply a straight percentage rake of income above $180,000 per year, however, makes Maryland a dramatically better state than many when suing a high-income defendant. Neighboring Virginia, for example, also uses a straight percentage rake but it is by statute just 2.6 percent of the defendant's income. A child in Potomac, Maryland, therefore, might have a cash value 4X larger than the same child a few miles south across the American Legion Memorial Bridge into Fairfax County, Virginia.
Unlike many other states, Maryland does not reward a parent for instigating conflict with a co-parent. The existence of conflict is not a reason for Maryland judges to award sole physical custody and the child support profits that accompany it.
Maryland has a weaker emphasis on preserving the pre-divorce status quo than do some other states. Nonetheless, the fact that judges look to determine who was the "primary caregiver" and then give the kids and the child support cash to that person tends to favor pre-lawsuit planning. A future plaintiff who wants to ensure court-ordered custody of the children can be extremely energetic on child care tasks for a year prior to suing. To ensure above-guidelines child support, the future plaintiff can also engage in lavish spending on behalf of the children during the year prior to the planned lawsuit.
Changes on the Horizon
Delegate Kathleen Dumais, who represents a wealthy Montgomery County district and is a practicing divorce litigator, has introduced a bill that would enable a woman to ask that a man's parental rights be terminated if a court finds that the child was conceived due to rape. The biological father would still be forced to pay child support to the mother but the child wouldn't be able to see the father anymore. Delegate Carter explains her opposition to the bill: "A mother could, at any point in the child's life, say 'my child is a child of rape' without ever having previously complained or the father having been convicted of anything in a criminal court. A court would decide based on a civil standard, such as 51 percent preponderance of the evidence, that a rape more likely than not occurred."
Given that attorneys nationwide have told us that judges tend to rule based on personal prejudice and in a predictable manner given their previous rulings, we asked Delegate Carter if it wouldn't be helpful for the state to publish the records of individual judges. Then consumers could see what the likely outcome of a case was going to be before spending a lot of money on lawyers. "I cannot see that happening," responded Carter.
In common with a lot of litigators whom we've interviewed, Carter thinks that the amount of discretion given to judges is excessive, particularly in custody cases where a child's future is often decided in minutes and typically according to the personal bias of a judge. Carter agrees with Professor Linda Nielsen (see the Citizens and Legislators chapter) that even if the courts did a good job at identifying a primary parent at the time of divorce it would be the wrong job to do. Carter has sponsored a bill for a rebuttable presumption of 50/50 shared parenting. What are its chances? "The Women's Caucus staged a walk-off the last time the bill got out of committee." Why does Carter keep introducing this kind of legislation? "I'm not married and I don't have kids," she responded. "I don't have a dog in this fight. But from working with my constituents and clients in my law practice I can see how unfair the current system is." Who benefits from leaving things the way they are? "Wealthy lawyers who represent people in Montgomery County," she responded.
What about a cap on child support? Do legislators talk about the fact that it makes better financial sense to have a one-night encounter in a bar in Bethesda than to attend University of Maryland and work? "That's never been discussed by legislators," said Carter, "and it would not be a popular subject because it might cast women in a negative light."
How is it that proponents of 50/50 custody legislation have been so unsuccessful? Why do people who work all day every day want to keep a system where a woman can quasi-automatically prevail in court due to her sex and where a person who stays at home with kids gets paid vastly more than the average household income in Maryland? "The fathers' rights groups aren't organized and don't put money behind this" responded Carter. "Whereas people on the domestic violence side are organized. They give money to legislators. They hire full-time lobbyists. At one point same-sex marriage was deemed a heavy lift but they poured money into it and it passed. That's the example that the fathers' rights groups should be following."
Legislative Process in Maryland: 2013-2014 Custody Law Committee
In April 2013, the Maryland Legislature formed a Commission on Child Custody Decision-Making to recommend statutes and procedures for resolving child custody disputes in Maryland going forward. Most of the committee members selected were attorneys or people who get paid to serve as custody evaluators or expert witnesses in divorce lawsuits. Note that this commission was not asked to look into Maryland’s child support guidelines, which determine the cash stakes in custody disputes.
After five public hearings and an additional year of work, the commission issued a final report on December 1, 2014. They recommended as a guiding principle “there should be no presumed schedule of parenting time.” In other words, a judge can impose any schedule between 0/100 and 100/0 on the child of two fit parents. Attorneys we’ve interviewed nationwide say that this kind of discretion for judges leads to the most litigation and the highest total fees billed. (Most attorneys that we've interviewed are, like the Maryland commissioners, similarly opposed to presumptions and guidelines in any aspect of divorce law.)
The commission’s proposed statutory language enables a judge to use virtually any conceivable basis for an award of a 0/100 or 100/0 schedule, or any schedule in between. Judges are encouraged to investigate the share of parenting responsibilities “performed by each party … before the initiation of litigation," i.e., to focus on finding the historical primary caretaker (see the Guide for Citizens and Legislators for the academic psychologist perspective on this approach). Attorneys that we interviewed said that this custody dispute resolution system leads to substantial rewards for people who engage in pre-lawsuit planning. If Parent A expects to sue Parent B, Parent A will eagerly volunteer for all kinds of child-related tasks while asking Parent B to shop, cook, work extra hours, and do other non-child-related tasks in the marital partnership.
The commission’s proposed statutory language encourages judges to deny shared parenting to parents who are in conflict by making “the ability of each party to effectively communicate with the other party” a factor. In nearly every state where this is a factor litigators told us that parents who thought that they had a good chance to win primary custody, and the child support profits to accompany it, would simply generate conflict with the other parent. (See the Kosow v. Shuman case in the Massachusetts chapter for how this works in practice.)
The commission proposes changing some language so that it is more gender-neutral and rubs less salt into the wounds of loser parents (who will have “parenting time” rather than “visitation” under the proposed statute). Our interviews don't support the idea that changing names affects the amount of litigation. As long as it as a state makes it plain to litigants that there will be a primary parent collecting money every month and a secondary parent paying the money, custody lawsuits can continue until all parental resources are paid over to attorneys, psychologists, and other segments of the divorce industry.
In something of a side-note on page 29, the commission recommends “statutory or rule change” so that it is easier for judges to make the higher-income parent (usually the defendant) pay the lower-income parent’s attorney’s fees in an “adequate and predictable” manner. This would encourage more people to file lawsuits and would ensure that litigation could continue until the savings and income of both parents had been consumed.
In some ways the most interesting thing about the commission is how much work was invested to draft a new law that functions exactly like the old law. Children are cash-producing assets whose ownership is uncertain. The profits from ownership of these assets may be greatly in excess of what a typical college degree will generate. Ownership of these cash-producing assets will be determined by a single person, the family court judge, based on pretty much any factors that the judge chooses to use. Thoughtful litigants who engage in pre-lawsuit planning and post-lawsuit conflict generation will be rewarded with more time with their children and enhanced cash profits. When litigation consumes 100% of a family’s assets and parental energy for several years, attorneys will be able to explain the phenomenon by saying that there was some sort of psychological defect in the litigants. “They were high conflict people,” a litigator will say about a case that went to trial over custody of children with a cash value of $5 million, not “Our legislature, with input from working divorce litigators, set up a completely unbounded winner-take-all system and both parents tried hard to be the winner rather than the loser.”
The feelings that we heard expressed regarding Maryland divorce law were in many ways predictable in light of our other interviews and the published research. Mothers are violently opposed to shared parenting to the extent that it reduces profits from child support. A hard-working professional woman, Delegate Jill Carter, is tired of seeing non-working women get everything that they want from divorce courts just by showing up and saying "I'm a woman." Women's advocacy groups want women to have maximum power to exclude fathers from children's lives and simultaneously maximum ability to extract men's wages as tax-free child support. Men wanted the statutes changed so that they didn't keep losing. Litigators billing $800 per hour are very satisfied with things just the way that they are.
The lower income men represented by Delegate Carter seemed to fare the worst. "A lot of men fall into arrearages and have to live in the shadows," she told us. "They can't drive, can't work without their entire paycheck being garnished, and are sometimes imprisoned. Even if a man is well-intentioned, unless he wins the lottery he can't get out of it." [The Maryland MVA web site says "The MVA assists the Child Support Enforcement Administration (CSEA) within the Maryland Department of Human Resources in collecting child support payments by suspending the driving privileges of customers who have not complied with a child support order. … The Child Support Enforcement Administration (CSEA) makes the decision whether or not to suspend your driver’s license. The CSEA can authorize the MVA to suspend your driving privileges after you have failed to comply with your child support agreement for 60 days or longer." The DHR web site says that the government will intercept tax refunds, deny passport applications, suspend professional licenses, withhold wages, intercept lottery winnings, intercept unemployment insurance and worker's compensation awards, and incarcerate people with past-due child support. The DHR site also notes that "all employers must report newly hired or re-hired employees within 20 days of their first day of work. If an employee matches with the child support database, a wage withholding order is automatically sent to the employer."]
How does it work out for the women? One of us (authors) uses a gym near Potomac, Maryland, listed by CNNMoney.com as the most affluent town in the United States. The gym is packed during weekday working hours with women in their 30s and 40s who have their entire days available to work out, get massages and beauty treatments, eat lunch with girlfriends from spin class. Asked how they can afford a home in Potomac, high quality child care for their children while they are at the gym or out at lunch, and not to work, a typical response is "Oh, I'm divorced." Their only constraint is to be a presence from 3 pm onward for their school-age children, mainly to chauffeur their children to extracurricular activities paid for by the ex-spouse. (At least in Kennedy v. Orszag, former OMB budget chief was ordered to pay for private school tuition, all unreimbursed medical & dental, summer camp in its entirety -- but limited to Orszag’s childhood summer overnight camp -- and all extracurricular sports & pursuits, which included a recent school-sponsored spring break trip to Quebec for one child at a cost of almost $500/day.)
"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," noted Ain. Delegate Carter observed, regarding the popularity of working the abuse system, "the victims have become the bullies."