Massachusetts

Part of Real World Divorce: web edition | Kindle edition

Our questions regarding Massachusetts law and customs were answered by Gerald L. ("Jerry") Nissenbaum, a graduate of Boston University Law School (JD 1967, LLM Taxation 1985), who was admitted to the bar in 1967.  Some ninety-five percent of Nissenbaum's practice has been in high-value, highly contested, often-international divorce cases. Over more than 46 years, he’s had a 50/50 mixture of male and female clients. Nissenbaum believes that he has handled "well over 8,000 cases" and, in estimating the number that went to trial, gave us the following breakdown:

Consistent with what we heard from Massachusetts appellate attorneys and other divorce litigators, Nissenbaum notes that "most family law cases are won or lost in hearings on contested motions" and thus roughly 94 percent of cases settle prior to trial. Of the remaining 6 percent, he estimates that about half are tried on the identification, valuation, and division of assets while the other half are tried on custody and parenting time. Nissenbaum has been a prolific published author, won lots of awards, and has served in many family law-related organizations. See http://www.nissenbaumhickey.com/ for his full biography.

In addition to Nissenbaum's perspective, two of the authors live in Massachusetts and we had access to perspectives from other Massachusetts attorneys, most of whom requested anonymity so that their candid comments would not be held against them by judges.

At the upper-middle-class income levels that we used in most of our scenarios, Massachusetts offers the highest child support revenue of any state. Although a handful of states, e.g., Wisconsin, may offer slightly more cash per year, the money can flow in Massachusetts for 23 years compared to just 18 in most states (Nissenbaum notes that "payments for the years 21-23 occur only if the child lives with and is dependent upon parents for support and the child is attending a 4-year college, and then only until graduation"). For a single child, the child support guidelines top out at $40,000 per year, roughly double the top in most states, but Nissenbaum noted that "in Massachusetts judges have the right to exercise their 'discretion', and most routinely do so, to increase that baseline award. The increase is supposed to be based on the child’s needs, but typically solid findings are missing or minimal." His perspective was confirmed by cases we pulled from the Middlesex County records in which judges routinely extrapolated beyond the top of the guidelines without regard to a child's actual needs.

Unlike with legal custody, there is no statutory presumption regarding physical custody: "those who are politically correct now want everyone to call this 'parenting time'; it is based on the judge’s decision of what is the child’s best interests," said Nissenbaum. There is no statutory formula for the amount of alimony, but Nissenbaum notes that, since "revisions to the Massachusetts alimony law went into effect in 2013, alimony is presumptively valid if the amount ordered is between 30 and 35 percent of the difference in the parties' incomes. Because the law is new, there are several cases winding their way through the probate and appellate courts to get the highest Massachusetts court to rule whether the presumption, of itself, is enough to support the award or if the recipient must still prove his or her need for whatever amount of alimony is ordered. Before this new law went into effect, the amount of alimony was left to the discretion of the judge.  However, most judges informally used the 30-35 percent range now formalized in the new statute."

According to "How Your City Influences Your Spending" (New York Times, December 13, 2014), people who live in the Boston metropolitan area spend a larger percentage of their income on alimony (3.3X the national average) than do residents of any other region within the U.S. The article shows results from Elizabeth Currid-Halkett, a professor at the University of South California, and is based on U.S. Government Consumer Expenditure Survey data.

"Massachusetts is unusual in that there is hardly any separate property," noted Sanford Ain, a Washington, D.C.-area litigator. In other words, a person could be married for a day and sue to collect a division of property that the spouse had earned 10 or 20 years prior to the marriage. Nissenbaum says that "the typical reality is that the parties each get half of what was earned (including earnings on inherited assets if the spouse was actively involved in managing those assets) during the marriage and, depending on how much money is involved, perhaps, as well, half of whatever was put into joint or the sole name of the other spouse." (I.e., after much litigation, a Massachusetts couple usually ends up with a similar result to what California couples get by statute and formula.)

At the levels of income that a successful professional, such as a medical doctor, might earn, the millions of dollars that are available in child support and the uncertainty regarding everything else lead to more intensive and expensive divorce litigation than in any other state. Nissenbaum estimated spending of between $500,000 and $700,000 per side (i.e., between $1 million and $1.4 million total) for a custody lawsuit, including legal fees and fees for experts and a guardian ad litem. This is consistent with what we learned from talking with parents who'd started or defended divorce lawsuits in higher-income cases, e.g., where the husband was a partner in an accounting firm. Nissenbaum notes that "cases involving high-value inherited assets or assets earned or created during the marriage which are difficult to value will often pay their respective lawyers over $1 million."

Who starts a divorce lawsuit in Massachusetts? We hired an attorney to pull all 243 divorce lawsuits filed in Middlesex County in May 2011 (full study available from http://www.realworlddivorce.com/MiddlesexMay2011 ). We excluded a same-sex case, leaving 242 lawsuits. Of those 242 cases, 175 were filed by women (72.3 percent) and 67 by men (27.7 percent). In other words, at least for that month in that county a wife was more than 2.5 times as likely to file a divorce lawsuit than was her husband. Nissenbaum noted that "other than having the right to present your side of the case first, being the plaintiff doesn’t mean the end result will be any different than if the other side filed first."

The first step in a Massachusetts divorce lawsuit is making sure that it stays in Massachusetts, where the law and the typical outcomes are much more favorable for a plaintiff than if a divorce were to be decided in, for example, Maine, California, or Florida. According to Nissenbaum, one tactic that plaintiffs use to keep a case here is to allege that "cruel and abusive conduct" occurred in Massachusetts. This can become an issue when a couple has multiple residences and spends most of their time in a different state.

The time between a lawsuit being filed and a trial being held can be 2-6 years in Massachusetts. Thus, as is common in other states with sluggish court systems, the state has a mechanism for de facto resolution of cases via temporary orders issued after brief hearings. A lawyer at a screening of the movie Divorce Corp. said that Massachusetts custody cases were typically over after just a few weeks, but only the lawyers and the judges knew it: “The mom gets a Temporary Order awarding her the house and the kids. The dad is cut back to every-other-weekend visitation. We tell him that he can pay us to fight this case through the trial but in 20 years I can’t remember a case where a man was successful in overcoming that first order. We tell the woman that she has to keep paying us, but really at that point she could go pro se [representing herself].”

Our analysis of the May 2011 lawsuits revealed that the intensity of litigation depends on which judge is assigned to a case. A litigated divorce assigned to Judge Katharine Field, for example, was likely to be finalized after an average of 1.85 motions. Cases heard by Judge Maureen Monks, on the other hand, went through an average of 4.4 motions before disposition.

Note that effectively resolving a case via temporary order is a custom rather than a law. An attorney explained "In theory a judge is not supposed to favor one parent until evidence has been heard, where that evidence will be subject to cross-examination. Nor is a judge supposed to give the house to a plaintiff unless she can show that there is imminent danger of physical harm. But in practice judges simply ignore these statutes and lean heavily in one party's direction at the first hearing."

How is it done? On June 27, 2012, Judge Maureen Monks ordered that two litigants share the use of a house and share parenting of a child. The defendant-father was asking for 50/50 parenting and the plaintiff-mother was asking to be the sole parent. Here's the schedule that she laid out: "The Mother shall have sole and exclusive use of the marital home … during her parenting time… Father shall have sole parenting time each Sunday at 9:00 a.m. through Monday morning by 8:45 a.m. … Father shall have sole parenting time each Tuesday and Thursday [from] 2:30 p.m. to 7:30 p.m. … Mother shall have sole parenting time at all other times." So the "joint custody" until the trial was that the plaintiff mother got the child and use of the house all but one night and two afternoons per week.

Massachusetts stresses the historical pattern of child care during the marriage and, under the rubric of "preserve the status quo," tries to identify a "primary parent" and a "breadwinner parent" then use court orders to freeze those roles until the child turns 23. Unlike in the "craft a new optimum states" (e.g., Michigan, Missouri and Nevada), there is no recognition that the division of labor likely will change following a divorce. "This tends to favor the mother," noted one attorney, "because women who enter a marriage for the purpose of profiting from child support will usually file a lawsuit before the kids enter kindergarten and oftentimes before the child is out of diapers. For better or worse, in our society it is still women who do the greater share of infant care. The father is more likely to be at work, especially when he has enough income to be worth suing."

We asked Julie Ginsburg, an experienced Guardian ad litem, what she would recommend in the following circumstances: after two years of marriage, a woman gives birth to a child and is primarily responsible for feeding and diapering that infant during his first month of life, then sues for divorce with the one-month-old infant in her arms. Ginsburg said that she would find that the wife had been the primary caregiver during that first month and therefore should be awarded sole custody. What would happen if the child was four years old and the husband asked for a review of the situation? She replied "I would find that the mother had been the primary caregiver for the preceding four years and therefore should continue to be the primary parent." How about when the kid turned eight? "I would find that the mother had been the primary caregiver for eight years and therefore should continue with sole custody." [Nissenbaum commented "Ginsburg's views are well-known. If you represent the dad you do not want to agree that Ginsburg can serve as the GAL."]

Massachusetts does not have a statutory presumption regarding physical custody following a trial, though lawyers told us that courts have strong biases. "The adage is that unless the woman has a hypodermic needle sticking out of her arm when she comes into the courtroom, she is getting sole physical custody and the father will be a visitor," said one attorney. Given the unofficial "mom wins" rule, it is surprising how many custody fights that there actually are. Part of the answer may be that the one-page official complaint form that is used to start divorce lawsuits has a checkbox to ask for sole legal and physical custody of minor children but no checkbox for seeking joint legal or physical custody. (The same one-page form that invites a divorce plaintiff also to start a custody lawsuit has a checkbox for starting a domestic violence lawsuit as well; the plaintiff can ask the judge to "prohibit defendant from imposing any restraint on plaintiff's personal liberty," i.e., issue a restraining order against the defendant.)

To see if the attorneys we contacted were exaggerating and/or if the bias towards sole custody indicated by the official state form did not reflect outcomes, we hired an attorney to pull and analyze all of the cases for one judge, Maureen Monks in Middlesex County, for 2009, 2010, and 2011 (approximately 350 cases per year, though not all of them involved disputed custody). Judge Monks awarded custody via temporary order to the mother in nearly all of the cases examined except for one case where the mother was a drug addict and another where the mother was in a mental hospital (and as soon as the mother was released from the mental hospital, Judge Monks awarded custody of the children back to her). During the three-year study period no father was successful in going to trial and obtaining a 50/50 shared physical custody situation from Judge Monks in the cases that our attorney-analyst examined. Our attorney-analyst for the May 2011 study concluded that one plaintiff mother was "objectively unfit" due to alcoholism; Judge Monks awarded her sole physical custody of three children. The record of Judge Monks is consistent with March 2014 U.S. Census Current Population Survey data suggesting that over 90 percent of custody lawsuits in Massachusetts are won by women (Census data doesn't track the lawsuits themselves, but shared parenting is uncommon in Massachusetts and the Census found that 97 percent of the Massachusetts residents collecting child support are women). This is consistent with our May 2011 analysis, which found that roughly 91 percent of the "primary parent" winners were women and only 7.5 percent of children were assigned to shared parenting.

If a plaintiff ends up in the courtroom of a judge who does sometimes award shared physical custody, Massachusetts allows a divorce litigant to make claims for sole custody on the grounds that he or she has "conflict" with the other parent. One lawyer explained it as follows: "A person can file a lawsuit against another person and then say to a court 'I am not getting along very well with this person that I sued and therefore our child should have just one parent… me. Oh, and it would be nice to have $100,000 per year so that I can do a really good job taking care of our child.' Once the money starts flowing, it will turn out that the 'conflict' does not prevent the plaintiff from asking the defendant to take care of the child for a week so that she can go on vacation with her new boyfriend."

What does manufactured conflict look like on the ground? Here's a text message exchange contained in an exhibit to a motion in the Kosow v. Shuman case below. The mother of a 2-year-old sued the father in February 2010, following four years of marriage, hoping to secure physical custody and then collect approximately $5 million in tax-free child support through the child's 23rd birthday. It is March 10, 2011. The child is now three years old. The parents, who live about 15 minutes' drive apart from each other, are trying to coordinate an exchange:

Jessica: She gets picked up at noon if she were to go to school. Drop her off at noon.

Michael: I won't be home till 12:45. I can drop her off at 9:30 if you u want but she will prob sleep late

Jessica: Ok well WTF. School is out at noon.

Jessica: U r fucking a selfish fuck

Jessica: And u r no role model

Jessica: I wont even say it and it is sooooooo vile

Michael: I can drop her off at 1 or u can pick her up earlier. What is ur problem?

Jessica: Fuck u

Jessica: I have had it with u and ur abuse

Once custody is awarded, what revenue comes with it? The Child Support Guidelines, published in August 2013, provide for a defendant earning $250,000 per year to pay $40,144 per year ($772 per week) to a successful non-working plaintiff. However, judges can order a defendant to pay 100 percent of a child's actual costs, such as health insurance and day care, in addition to the guideline child support amount. For higher income defendants judges will typically extrapolate from the top of the guidelines, adding 11 percent of the defendant's pre-tax income above $250,000. Note that this makes Massachusetts an "income shares" state when combined income is less than $250,000 per year and a "percentage of obligor's income" state for income above $250,000 per year. The "income shares" effect is, in any case, small. If the plaintiff and defendant each earn $125,000 per year and are fighting over one child, the winner will collect $20,072 per year from the loser. If, on the other hand, the winner has zero income and the loser remains at $125,000 per year, the winner collects $24,596 per year as long as the winner can get at least 50 percent parenting time. In other words, the $125,000 in earnings by the winner parent resulted in a reduction in child support revenue of less than $5,000.

Massachusetts courts can and do order parents to pay for college. "Massachusetts is a state that doesn't mind telling parents what they must do with their money," said Nissenbaum. At the same time that the loser parent is paying for college, the winner parent "may and probably will still collect some, if not all, of the prior child support amount until the child turns 23 or earns an undergraduate degree, whichever comes first." This is a substantial difference compared to typical states, in which child support terminates at 18 and a child of divorce does not have superior rights to force a parent to pay for college compared to a child of an intact marriage (see our chapters on Western states, for example, including California). The five extra years of potential child support leads to disputes regarding who pays for children not living with either parent. "Suppose that the father is paying 100 percent of little Stacy's college expenses in Chicago, where she lives in a dormitory," explained one attorney. "And the father paid for Stacy to go to Florida for Spring Break. And the father paid for Stacy to go to France for the summer and she plans to go directly from France back to school. The mother will still be entitled to the court-ordered child support payments. The father can argue that Stacy doesn't live with her mom, is not planning to spend any time in her mom's house, and in fact, does not like her mom. Stacy will show up in court to confirm this. The mother will argue that Stacy might change her mind and come back from France a week early and want to stay with mom so she needs to keep her room ready. And the only way to keep the room ready is to keep the four-bedroom house in Belmont, so she needs the $8,000 per month in child support to continue. With most judges, I can win that case for the mother."

Massachusetts gives a custodial parent an explicit incentive to try to cut the non-custodial parent's role to the minimum possible: "If parenting time is less than one-third for the parent who is not the residential parent, the Court may consider an upward adjustment to the amount provided under the child support guidelines." (August 2013 guidelines) In other words, there is a cash value to a custodial parent or "primary residential" parent convincing the court that the non-custodial parent is in some way unfit and the child should seldom be with the non-custodial parent. For example, if each parent earns $125,000 per year, for example, child support would be $0 in a 50/50 arrangement, $10,000 per year in a 60/40 arrangement. $20,000 per year in a 67/33 custody arrangement, and $30,000 per year or more in a 100/0 arrangement (discretionary with the judge). Over a 23-year period, therefore, the parent who earns $125,000 per year and has roughly the same expenses (a dedicated bedroom) regardless of the timeshare can collect anywhere between $0 and $690,000 tax-free depending on the outcome of the custody fight (i.e., the cash value of having the child sleep over more often is about 10 years of after-tax income).

What could justify the 100/0 time share that motivated plaintiffs seek? "Best case for the mom is when dad is a child molester," said a Massachusetts attorney, "which is why reports to DCF are so popular. But realistically nearly every guy worth suing could have started his own day care center if he actually had wanted to engage in funny business with children. So it is tough to cut the father back to less than every other weekend."

Child support revenue is more secure in Massachusetts than in most other states. "Depending on the maturity of the child, a preference regarding where to live might be considered starting when the child is 13," says Nissenbaum. "When children attain age 14 to 16, they can often 'chose their custodial parent with their feet' by moving into that other parent’s home. Sure there’ll be court action, but if the kid refuses to move back, the Judge is not going to put that kid in jail."

According to the applicable statute (M.G.L. chapter 208, sec. 28), once granted, a parent cannot be stripped of profitable custody of a child unless a judge finds a "substantial and material change" of circumstances. "The fact that a child has simply lived from age 1 to 13 is not considered a material change since it was predictable." Thus when we visited the courthouse we saw a lot of custodial mothers, represented by the state's Department of Revenue, suing fathers for payments relating to teenagers and adults who were theoretically the property of the mother but were actually living with the father.

A "walk-away" prenuptial agreement is potentially invalid in Massachusetts. An agreement that does not enable the less wealthy party to earn money via marriage, however short-term, is subject to the attack that it "vitiates the marital rights" of the less wealthy party. The profit from a marriage need not be large but it should be certain. Nissenbaum, asked about the question of walk-away validity said "That's a definite maybe. The standard is that it has to be fair when signed and not unconscionable when enforced. One that was upheld was an agreement that gave the wife the house that she lived in (worth over $1 million), a new car, and $30,000 per year for the rest of her life (actuarial value over $1 million), leaving the husband with the more than $125 million he had at the time of marriage. One idea that I have suggested to my wealthier male clients is to give the less wealthy spouse a marital gift. Say it is $500,000.  Then also provide that if the marriage lasts three years another $500,000 is paid. The burden of proof is on the person who wants a prenuptial agreement enforced. However, challenging well-drafted prenups is getting rare; and getting them kicked out is even more so."

As in other states, a prenuptial agreement cannot limit a court's ability to award custody or child support. See our separate book, Massachusetts Prenuptial Agreements, for more on this topic.

Nissenbaum says that post-marital agreements are more difficult to enforce and looked at more closely by courts because a spouse has a fiduciary relationship with the other spouse. He described an agreement between a man who had inherited great wealth and married in California. There the wife would not be entitled to his property due to that state's community property rules. After moving to Florida, the couple signed a post-marital agreement that required the husband to pay $8 million to the wife, which was in addition to about $5 million in cash and property that she'd received earlier. "She is smiling on video when getting the check," Nissenbaum said. The wife sued for divorce in Massachusetts (where the Florida-based couple had a house) and challenged the agreement. "The man was ordered to pay his wife’s lawyers $1 million towards her legal fees and Judge [Edward] Ginsburg ordered she get another $5 million, over and above the money she already had." [Note that Judge Ginsburg, now retired, is married to Julie Ginsburg, the divorce litigator and Guardian ad litem quoted above.] However, Nissenbaum said, his client was “very happy because she’d asked for half of his more than $350 million."

State background

The average hourly wage in Massachusetts is $26.73 per hour. A person who goes to college at the University of Massachusetts, Amherst, will spend approximately $100,728 over four years to earn a bachelor's degree. Census 2014 data show that 22-36-year-old college-educated women working full time earn a median income of $35,000, $26,779 after taxes. The corresponding man earns $45,000 per year, $33,874 after taxes.

The average annual cost of child care is $14,980 for an infant, $11,669 for a four-year-old, and $5688 for a school-age child. Thus the total cost of child care from age 0 through 12 is $76,912.

For a man who goes to college and then works for 19 years, his total after-tax spending power, net of college expenses, would be approximately $542,878. The corresponding woman would have a spending power of $408,073.

Over the 23-year period during which child support could be collected in Massachusetts, a recipient could collect a maximum of $923,312 at the top of the guidelines. Generally judges in Massachusetts will order a defendant to pay most of the actual cash costs of a child in addition to "child support," so a recipient who places a child in full-time commercial daycare will still be able to spend the full $923,312. Excluding child care, 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 after paying the child's housing, food, transportation, clothing, health care, and other expenses, the child support recipient would have a personal after-tax spending power of $752,312, higher than both the expected male ($542,878) and female ($408,073) earnings from going to college and then working.

The man who obtains primary or 50/50 custody of a child must collect $32,603 per year to have a higher personal spending power than his college/work peers. He can do this by suing a mother earning at least $184,600 per year. If he has two children with two different women he will have a higher spending power than a college/work peer if he collects at least $37,692 per year total over the 23-year period. He can do this by suing women who each earn at least $91,000 per year. (Note that USDA-estimated child-rearing costs are factored in for only the first 18 years; the assumption is that the child spends most of his or her time living and eating in a college dorm at the defendant's expense.)

The women who obtains 50-percent or primary custody of a child need collect only $26,742 per year in tax-free child support to outperform her peers who attend college and work. She can achieve this under the Guidelines by suing a man earning at least $140,000 per year. If she has two kids with two different fathers, she needs to get $31,824 to be financially better off their her college/week peers. That's obtainable if her defendants earn at least $75,000 per year.

How many Massachusetts residents actually do follow the incentives set forth in the Guidelines? "There are a lot of women collecting child support from more than one man," Nissenbaum noted. "I remember one enterprising young lady who worked as a waitress at Boston’s Logan airport.  She targeted three airline pilots, had a child by each of them, and back then was collecting $25,000 in tax-free child support from each pilot. Of course, instead of serving food and beverages, she did have to care for those children." Using the USDA-estimated actual costs of children and the 2013 Massachusetts child support guidelines, compared to the college/work alternative a woman would have more spending power collecting child support from two men when each had an income of at least $95,000 per year (sufficient to generate $39,264 per year in tax-free income or $377 per week from each defendant).

Taking care of your own child is more profitable in Massachusetts than in any other state, but being the foster parent of someone else's child is not especially lucrative. Massachusetts pays $8541 per year to foster parents, only 1/11th of what Jessica Kosow got paid (see below) and slightly less than foster parents receive in Kentucky.

As noted above, 97 percent of those collecting child support in Massachusetts are women. The same Census 2014 data set shows that approximately 18 percent of women aged 30-40 in Massachusetts receive child support (close to the national average of 17 percent).

Scenario 1: Professional Wife and Slacker Husband

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

"There is a statutory presumption of joint legal custody," Nissenbaum noted, "but primary residence will probably go to the wife/nanny because the father hasn't demonstrated that he has hands-on experience."

Can the father ever work his way up to 50/50? "If the secondary parent wants to increase his time, that parent has to pick up the child and spend every moment that he has with the child and be punctilious about getting the child there on time, etc. If the mother is going away, he has to be available to take care of the child. He has to establish a long-term plan if he wants to become a parent with a significant role. As the child gets older and has to be taken to soccer games, ice skating, tennis, etc. the father must always be there to schlep the kid around and bring the kid back to the mother's house. Some fathers will get a dog or a horse that the child can see when visiting the father. One of my clients had goats."

How many years would it take before this man could expect be more than an every-other-weekend father? "Possibly as early as 9 years old, but more likely 12," said Nissenbaum. "If the mother remarries and has another child, the first child will often come to feel secondary and gravitate more toward the father. But remember with that remarriage often comes a request to the court that the mother be allowed to remove the child to another state so she can live with her new husband. It is easy for most women to meet the 'real advantage test' and show that the move will be a benefit to themselves, if not the child. The father will then have to buy a house in the new state and either move or travel out there regularly to maintain his relationship with the child."

Although there could be income imputed to the photographer ("young judges feel that people should have to work"), for calculating child support initially the most important factor would be alimony received from the wife. The father in this case would get alimony, according to Nissenbaum, though it would be limited by statute to half the length of the marriage (i.e., about one year, though the husband could get temporary spousal support during 2-3 years of litigation). "Most judges use a formula is 32.5 percent of the payor's income, assuming the recipient can prove he or she needs that much money to live on." ($105,635 per year pre-tax in this case.) From the after-tax residual of the alimony the husband would probably have to pay the wife about $329 per week ($17,108 per year) in child support. After the alimony stopped, Nissenbaum said that the father could ask for a reduction in his child support order, though never below $50 per month.

There would not be a property division but "the husband might have to reimburse the wife for the photography equipment."

How much of a financial incentive would the father have to try to get 50/50 custody? If his income remains minimal, he could collect $40,000 per year (top of the guidelines) in the event that he is able to obtain a true parental role.

Scenario 2: 14-year marriage of equals

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

"In order to get a 50/50 parenting time split, the parents have to demonstrate that they can cooperate." In Nissenbaum's view, either parent can block the potential for a 50/50 parenting time award simply by creating conflict. "If it is a war zone, the judge will pick just one parent, though it is possible that a judge would award two kids to one parent and the other two to the other parent."

If there is a Guardian ad litem involved in the case, the custody decision will come down to the GAL's personal preference, according to Nissenbaum. "Some GALs simply never recommend 50/50." (Julie Ginsburg, the GAL quoted above, said that she considered 50/50 parenting to be "impractical" and that "the child never feels that she truly has a home.")

Nissenbaum said that there would be "little financial incentive" for a parent in this divorce to fight for sole physical custody. "If mom got full custody, she'd receive $392 weekly child support [$20,384 per year] from dad; and then she'd need to spend most of that to feed and buy clothing for the children." Note that if the father needed to run a five-bedroom house to accommodate regular visits from the children he would be doing that on $46,424 in after-tax income (filing singly) minus the $20,384 paid to the mother, a below poverty guidelines number of $26,040. The mother, on the other hand, would have $50,707 in after-tax income (head of household, four children as dependents) and, with the revenue from the father, a total of $71,091 per year to spend after taxes on her five-bedroom home.

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

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

"The mother will stay as the primary parent," says Nissenbaum. Before calculating child support it is necessary to look at alimony. Nissenbaum calculates that the wife would receive $89,375 per year in taxable alimony and then an additional $41,132 per year in tax-free child support.

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

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

"Seek and ye shall find works only if one believes in God and then finds her. It does not work that way in a divorce courtroom in Massachusetts," notes Nissenbaum, "Statutory provisions say this wife can get alimony only for half the time between the date of marriage and the service of the summons of the complaint for divorce. That means the wife will get alimony for about 10 months. She might get an award of rehabilitative alimony – which could be a lump sum or be paid over longer than 10 months." What about a substantial property division? "In a short marriage, the court tries to put the parties back into the situation they were in prior to the marriage. Thus it is not likely that wife will be awarded any part of husband's pre-marital assets, although to be practical and avoid paying lawyers, perhaps the wife would be given $100,000 or more in a lump sum. After all she needs a place for her and the baby to live in."

Nissenbaum thought that the wife would surely get custody and tax-free child support of approximately $43,316 per year ($952,952 over the next 20 years "so long as the child lived with her and was primarily dependent on the parents for support").

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

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

"She automatically gets custody. If the father wants to be involved as soon as the child is born he could ask for access to the child for one hour twice per day so that he starts to bond with the baby." The mother may have an income of $12/hour imputed to her, but also a child care cost if she were working. The man is likely to be ordered to give her a tax-free payment of about $45,000 per year (almost exactly $1 million over 23 years).

How long can she wait before suing? Nissenbaum says that there is no statute of limitations. In theory a woman could wait until a child is 17.99 years old and file a lawsuit to establish paternity and seeking 18 years of back child support, 5 years of potential future support, plus the expenses of birth, college, and legal fees. A child support plaintiff in Massachusetts may not need to retain an attorney, depending on her circumstances. The Massachusetts Department of Revenue lists a wide range of taxpayer-funded services that may be available including establishing paternity, establishing a child support order, and collecting the money every week. They'll do multiple cases simultaneously but say "you need to complete an Application and Agreement for each parent." What happens if the defendant tries to escape to another state? "DOR will pursue collection of your child support using all available resources." If the defendant flees the United States? "Massachusetts has agreements with many foreign countries to enforce child support orders made here or in the other country."

Based on real-world Massachusetts examples, Nissenbaum notes that "Mom is now getting more than she made before. Mom gets an idea. I'll meet up with another guy who makes $275,000 per year and he'll have to pay me $45,000 a year too. Mom gets an idea. Hey, I'll do that with a third guy and ends up with $135,0000 per year in tax-free money for herself and three kids. She can make that work! The court doesn't punish the child for the sins of the parents."

What if the mother marries a man earning $100,000 or much more per year? "The husband's income should have no impact on the child support paid by the father of the first child."

Life Insurance

The obligation to pay child support or alimony does not terminate when a defendant dies: M.G.L. Ch. 208, Section 36: "When alimony or support is adjudged for the spouse or children, the court may require sufficient security for its payment according to the judgment."; M.G.L. Ch. 208, Section 55: "(a) The court may require reasonable security for alimony in the event of the payor’s death during the alimony period. Security may include, but shall not be limited to, maintenance of life insurance. (b) Orders to maintain life insurance shall be based upon due consideration of the following factors: age and insurability of the payor; cost of insurance; amount of the judgment; policies carried during the marriage; duration of the alimony order; prevailing interest rates at the time of the order; and other obligations of the payor."

"If you're married in Massachusetts you're subject to the risk that your partner will die and you may have to get by on what you earn," explained an attorney. "But if you sue someone for child support, you can get the judge to lock in 23 years of profits by ordering the defendant to purchase life insurance. You can also get an order of life insurance if you're collecting alimony."

With so many older parents and older couples splitting up, how does this work in practice? Here are some notes from a November 12, 2013 visit to the Middlesex County courtroom of Judge Maureen Monks:

First motion is called at 10:21 am. The first case is a couple who are jointly petitioning, without a lawyer, for a no-fault divorce. They are soft-spoken, pear-shaped, and in their 50s. Both exude integrity and reasonableness and speak with an accent (Brazilian?). Judge asks them a bunch of questions regarding the agreement, if they understand it. Wife is on unemployment insurance. Husband is going to pay some alimony. Judge points out that the agreement does not provide for a specific amount of life insurance and that the husband could reduce the amount of insurance while keeping the same policy number. Judge tries to persuade the parties that there should be an agreement for a fixed amount of life insurance. Man points out that he is neither young nor in great health and therefore he might not qualify for the current amount indefinitely.  Judge Monks refuses to approve their agreement. They are sent away to renegotiate.

Can the judge put him in a position where he goes to prison for contempt of court if he is turned by life insurers? "Yes," said a lawyer. "judges have the power to order consumers to purchase a product that may not be available in the conventional insurance marketplace."

"The life insurance awards show you that judges simply ignore the Legislature and the Guidelines," pointed out one attorney. "In theory we're an 'income shares' state, where each parent is supposed to contribute towards the child's expenses. Let's consider a typical higher-income case where two $300,000 per year management consultants are married and leave the child care to the nannies. One of them sues the other. Because she's a woman and this is Massachusetts, she gets the kids at least 51 percent of the time and $50,000 per year in child support plus the husband has to pay for the nannies. The judge also requires him to buy life insurance. But the judge doesn't require the mother to buy life insurance because in fact the judge knows that all of the expenses are being carried by just one parent." Nissenbaum notes that "the judges do not take into consideration many other factors, such as the child dying at a young age, getting married or going into the armed forces at age 18, each of which would otherwise end child support."

Above-guidelines Child Support

The Massachusetts Guidelines provide that a non-working plaintiff can collect a tax-free revenue stream of more than $920,000 based on 50/50 or sole custody of a single child, as long as the defendant earns at least $250,000 per year. As noted above, the judge has discretion whenever the combined income of the parties exceeds $250,000 per year. "These are pretty much the only cases that I see," explained one attorney. "People who are shrewd enough to see the cash value in a child have probably made some financially-savvy educational and career choices prior to their marriage and lawsuit."

In theory, for a judge to go above the $40,000 per year top of the Guidelines, he or she would have to find that the child had some unusual needs. How does it work in practice? Here's one case decided by Judge Maureen Monks in May 2014:

As part of this judgment, the defendant-husband, who earned about $300,000 per year, was ordered to give the plaintiff-wife $727,500 in home equity (from a house that he purchased solely) and to pay 100 percent of her legal fees at up to $400 per hour. The defendant was also ordered to pay 100 percent of the child's day care, after-school care, and uninsured medical/dental expenses. The plaintiff's $203,541 annual income was approximately three times the median 2013 household income in Massachusetts. With a child who was going to be attending public school, the potential for a fully paid-for house, and a child whose direct expenses were covered 100 percent by the father, why couldn't the plaintiff support herself and a child? The only hint in the findings is the designer clothing budget.

Judge Monks then applied the Guidelines to the first $250,000 in combined income. "This resulted in an order of $486 per week from Husband to Wife." That's $25,272 per year, tax-free, or more than the USDA estimates that intact high-income families in the Northeast spend on a child. Judge Monks then increased this amount by applying a flat 11 percent rate against the Husband's additional income above his share of the first $250,000. Based on the defendant's IRS 1040 income, this would have resulted in an order of about $750 per week or $39,000 per year. Some of the defendant's income was self-employment income, however, which, as in other states, opens the door for judges to find that a defendant earns a different amount than what is calculated for tax purposes. The guidelines invite a judge to "include as income" items such as "personal use of business property" while at the same time the standard financial statement form has lines for capital expenses ("Machinery/Equipment" and "Other business property"). Although there was no evidence presented at trial of any personal use of business property, Judge Monks used her discretion to add back into the defendant's self-employment income all capital expenses.This exclusion enabled Judge Monks to make an extrapolated-from-the-formula-based award of $865 per week or $45,000 per year.

Thus did a plaintiff earning over $200,000 per year collect cash for a mortgage-free house, the child's direct expenses, and her legal fees, plus more in child support than the guidelines mandated for a zero-income, rent-paying plaintiff. This was in a case with a prenuptial agreement that called for personal assets to remain separate and for legal fees, in the event of a divorce, to be paid by each party.

Removal

As in some other states, removal is much easier for a parent with sole physical custody. Effectively that makes Massachusetts a relatively easy state from which to secure removal because it is one of the easiest states in which to win sole physical custody.

Removal when one parent has sole physical custody does not require showing that the move is in a child's best interest. It is sufficient to show that the move will be advantageous for the parent who is moving. The book Family Law Advocacy for Low and Moderate Income Litigants, 2nd Edition (2008) explains this on page 370: "The judge needs to know that you have “good, sincere reasons” for wanting to relocate. The judge will want to hear how the relocation will benefit you and your child emotionally, economically, and socially. If the move is good for you, or what the court refers to as an 'advantage' to you, the custodial parent of your child, the judge will assume that the move will also be good for your child." The only other hurdle to be cleared is that there cannot be evidence that the reason for the move is to prevent the noncustodial or secondary parent from seeing the child. The authors give "good reasons for moving" as including "you have a home or apartment waiting for you in the other state" and "you are remarrying and your new spouse lives out of state."

A typical case is Amy Rosenthal v. Paul Maney (51 Mass. App. Ct. 257) from April 2001. The father agreed to give physical custody to the mother at the time of the divorce in January 1997, with the father visiting on a standard every-other-weekend schedule. Six months after the divorce, the mother remarried and filed a new lawsuit asking to remove the child from Massachusetts so that she could live in another state with her new husband. At the trial court level the father succeeding in blocking the removal and even won an award of sole custody of the child, with the mother now visiting every other weekend. However the appeals court found that the trial judge erred in not continuing a pattern of care that predated the divorce lawsuit: "The probate judge's finding that the mother was the child's primary caretaker during the marriage is consistent with the original award of physical custody to the mother." Rather than send the case back to the trial judge for reconsideration, the appeals court reversed the decision, granted custody to the mother, and allowed the mother and child to relocate.

Yannas v. Frondistou-Yannas, 395 Mass. 704 (1985) illustrates the power of sole physical custody and explains the "real advantage" [to the moving parent] test. The Greek-American couple divorced in 1984 with children aged 7 and 11. The children wanted to stay in the United States for the school year and continue to go to Greece in the summer as they had been doing throughout their lives. The mother won sole physical custody at trial and the right to relocate to Greece, along with the children. The judge did not find anything inadequate regarding the father, only that the mother "was the parent who took care of most of the daily housework and the children's physical needs. He found, therefore, that the wife had assumed primary responsibility for the children's care." The husband made an argument that "there should be a presumption in favor of joint custody of minor children" and the Appeals Court explicitly rejected that argument within the context of a removal case, saying that should have been a separate issue raised by the father in the trial court. The appellate court affirmed the decision to let the mother remove the children from Massachusetts to Greece.

Mason v. Coleman, 447 Mass. 177 (2006) shows the difficulty in removal when parents share physical custody. The mother wanted to relocate to neighboring New Hampshire, about a two-hour drive from the father's house, but was prevented from doing so by both the trial court and the appeals court on the grounds that the move would not be in the best interests of the child.

Given that women are overwhelming the ones who win primary physical custody in Massachusetts, what advice does Nissenbaum offer to fathers? "The mother has to think ahead and seek joint legal custody.  If joint legal custody is awarded, the Court must determine if the move is in the child’s best interest.  If mother has sole legal custody and primary physical custody, the father has to has to accept the inevitable – that if the mother wants to move to London or elsewhere, to live with her new husband, the Court is going to let her take the children with her. That's the normal result when applying 'the real advantage test.'"

See the "Relocation" chapter for how custody and child support orders might change following a move of one or both parents from Massachusetts. Due to the fact that judges in Massachusetts are more likely to award sole physical custody than in other states coupled with the higher-than-other-states child support guidelines, a victorious Massachusetts parent would have to be cautious in planning any move. "When one of my child-support-paying clients tells me that his ex- is threatening to move," one Massachusetts attorney notes, "I ask him 'Why would she quit working a gold mine in order to start working a tin mine?'"

A typical divorce trial

A typical divorce in Massachusetts involves a couple with somewhere close to the median household income of about $66,658 per year (2008-2012), but a typical divorce trial in Massachusetts involves a couple where at least one of them can afford the kind of fees that Nissenbaum describes above. This is, of course, a minority of divorcing couples even in a wealthy state such as Massachusetts. However, this minority takes up a disproportionate share of court time due to the fact that a trial might take up literally 100 times the amount of a judge's time as would be spent handling a motion for temporary orders, which is typically the point at which middle- and lower-income litigants run out of money to pay attorneys.

Let's look at Kosow v. Shuman, 10D0588, filed in Middlesex County on February 19, 2010. The couple had been married for about four years and had a 2-year-old child. The female plaintiff was a non-working 38-year-old while the male defendant was a high earner with $2.4 million in savings. The case followed what attorneys have told us is the typical pattern in Massachusetts, with a plaintiff initially taking the position that the father is a child molester but dropping the abuse angle after sole custody has been secured via temporary order. Here the plaintiff argued that the defendant was unfit and "should not have any overnight custody of [the daughter]". On June 8, 2010 she called the Weston Police Department to the house [Weston is one of the wealthiest suburbs of Boston] "to request an emergency restraining order against her husband … on the basis of verbal argument and alleged past sexual abuse." It turned out that Grandma and Grandpa were actually at the house at the time of the alleged abuse. From the police report: "We then asked [the plaintiff] if she had any where to go and she said no and when asked she said she did not have any money. … About 2230 hrs [the plaintiff] came home and started yelling at [the defendant] and calling him a rapist, pedophile, and molester. [The defendant] stated that he did not say anything and both of his parents agreed to that. … I think informed [the defendant] and his parents that [the plaintiff] stated that she did not have any place to go and [the defendant] quickly stated that he had just bought her a million dollar house … I then asked informed him that [the plaintiff] said that she did not have any money and all 3 laughed out loud all at the same time. I then asked what was so funny and [the defendant] told me he had just given her $25,000. … Sgt. Kasprzak arrived to the scene with a[n] abuse prevention order and had [the plaintiff] fill out the affidavit. After it was filled out Sgt. Kasprzak called the on duty Judge Jeffery Locke. The Judge was made aware of the fact that [the parents] have a divorce hearing on Friday 6/11/2010 in Cambridge, .., no physical abuse occurred tonight, the 2yr old was not in any danger, [the defendant's] parents were staying in [the] house. … At this time the emergency 209A was denied. While Sgt. Kasprzak explained this to [the plaintiff] she was lying on the couch with her feet up, doing something on her phone, she then went upstairs."

At some point in the litigation the plaintiff voluntarily agreed to let the father that she had accused of sexual abuse, child molestation, etc. take care of her helpless 2-year-old daughter on 6 out of 14 nights per week. The taxpayers of Massachusetts then paid the judge and court officers to sit through two days of trial on only two questions: (1) should the child yield the $52,000 per year profit offered by the defendant or a higher amount? (2) should the defendant have to pay the plaintiff's legal fees?

In a June 22, 2011 status conference for this case, Judge Maureen Monks explained her philosophy in setting child support for high income defendants:

Now, the 20 percent [of defendant's income] is probably along the lines of what I would be looking for in terms of, you know, when I set a percentage. Based on the bonus, when I look at how the current guidelines play out against most parties' income it comes around between 20 and 25 percent, sometimes it's a little higher. If there's a big disparity it's closer to 28 percent. Does that mean it makes sense is that what to assess up to a certain amount on his income. Maybe there is no limit right now…"

[Transcript from an audio recording made by the court. From the case file.]

The parties then submitted pre-trial briefs. In the plaintiff's "proposed judgment of divorce" she asked for $235,080 per year in child support ($4,935,000 through the child turning 23). How was the plaintiff proposing to use the $5 million? Not paying for the 4-year-old's lunch or buying 5x7 glossies for Grandma: "The Husband shall be responsible for all expenses associated with [the child's] pre-school, including but not limited to: lunch bunch expenses; field trip expenses; class gift expenses; and school pictures." The defendant, for his part, proposed to pay for all of the child's actual expenses, including college tuition, room, and board and give the plaintiff $52,080 per year in child support ($1,093,680 over 21 years) on top of the free house and $50,000 per year in alimony. (Coincidentally, the amount of child support that he offered was almost exactly the same as what she would have gotten under California's guidelines, $52,064 as calculated by attorney Steve Wagner using the the defendant's income as found by Judge Monks and $0 in income for the plaintiff.)

The answers, from Judge Monks, turned out to be $93,808 in tax-free annual child support and "yes" on the legal fees. In addition to that, the defendant would pay for health insurance for the plaintiff and child, tuition costs for the child, and the costs of a nanny. Based on the parties' prenuptial agreement, the plaintiff also received $50,000 per year in alimony, a $150,000 cash bonus, and 21 years of free use of a $1 million house in one of Boston's most expensive suburbs (the husband to pay real estate taxes, condo fees, utilities, insurance, and repairs until the child becomes "emancipated"). In case the defendant died before the plaintiff received all of this cash, he was ordered to purchase $1 million in life insurance. Although the defendant did not file the lawsuit, was not found to have contributed in any way to the costs of the lawsuit, made a settlement offer that was actually larger than what the plaintiff won at trial, and had a prenuptial agreement saying that each side would pay his or her own fees, he was ordered to pay half of the plaintiff's attorney's fees.

Some other interesting aspects of Kosow v. Shuman, taken from the Judge's Findings and Memorandum of Decision, June 30, 2012:

While researching this case it transpired that one of the authors asked "Why didn't she just stay married to him if she wanted to spend his money?" Aside from the boyfriend mentioned in the post-trial Findings, the defendant noted that "The Plaintiff's spending was a source of controversy in the marital relationship. The Defendant tried to reason with her regarding both the amount and nature of her expenses but she did not alter her behavior. Consequently, in order to limit the amount of her spending, the Defendant terminated the use by the Plaintiff of her credit card, and instead provided her with $2,500 each month to spend as she desired. She was not required to use any of these funds for any household expenses, for [the child's] expenses and/or the defendant's expenses, all of which the defendant paid in full." By filing a lawsuit, in other words, the plaintiff managed to increase her personal spending power from $30,000 per year to over $100,000 per year.

How did she do compared to her University of Pennsylvania classmates? payscale.com reported that in 2014 the median "mid-career" salary for a graduate of this Ivy League college was $112,200. If that graduate stayed in Pennsylvania, his or her earnings would be approximately $77,240 per year after taxes (ADP Paycheck Calculator). Kosow's after-tax earnings, on the other hand would be approximately $132,786 in cash plus the free $1 million house (assume a rental value of $6000 per month), health insurance, and nanny services. Her total after-tax earnings from the Massachusetts divorce and child support system therefore would be about $250,000 per year, 3.2X what a Penn graduate working full-time would earn.

Appeals

As in most other states there is no practical right of appeal in Massachusetts for custody, child support, or alimony decisions. "The abuse of discretion standard is too hard to meet," said an experienced appellate attorney. "And in reality the case was won or lost at the temporary order stage."

Can temporary orders be appealed? "You've got maybe a 1-percent chance with an interlocutory appeal," said a litigator. "Generally you have to wait until after a trial, which could be two or three years after the temporary order, to file an appeal. Since it takes two years for an appeal that means whatever harm is inflicted on a child or a parent by a temporary order is in place for at least 4-5 years." Here are a young attorney's notes on a rare example of where an interlocutory appeal was successful:

An interesting case came up in the statistical study: John Halpern v. Mika Nitta, Docket No. MI11D1447DR.  This case involves a mother who is a native of Japan who brought forth a Temporary Order requesting the court permit her to take the five year old child of the marriage on a two week trip to Japan prior to the divorce trial.  There was concern that the mother would abscond with the child.  Japan is not a party to the 1980 Hague Convention on the Civil Aspects of International Child Abduction [i.e., it would be much harder to get a child back from Japan than from most other countries].  During her earlier deposition, when asked about whether her intention was to return from Japan or to abscond with the child, Mother stated "Well, I'm willing to promise that I will bring Noah back from Japan, and then I don't know, in case that I won't come back with Noah, but if something happens because of bad side of myself, I think it is right to kind of apologize in the right way, which is probably financial compensation...Because of bad side of myself, which I don't think I have, I don't think I will change my mind, but I don't think it will happen, but if I change my mind, or if I did something bad, it is right to apologize and make it even."

Nonetheless, Judge [Maureen] Monks allowed Mother’s motion.  Interestingly, the judge’s order contradicted an earlier written order which provided that the issue of traveling to Japan with the child would be reviewed at the conclusion of the divorce after a trial on the merits.  Father petitioned the appeals court for temporary appellate relief from an interlocutory order pursuant to G.L. c. 231, s. 118.  The Appeals Court vacated Judge Monks’s order permitting Mother to travel to Japan with the child and remanded the case in its entirety back to Judge Monks’s earlier order providing that the issue would be reviewed after a trial on the merits.  

The standard of review was whether the judge committed an abuse of discretion under the circumstance (abuse of discretion defined as "action outside the range of reasonable alternatives in the circumstances" which may also be "an order unsupported by findings").  In determining whether an abuse of discretion was committed, the Appeals Court measured the "balance of hardship" between the parents, and also considered the child's welfare.  The Appeals Court analogized its balance of hardship measurement to the equitable considerations applied when considering the appropriateness of temporary injunctive relief.  The Court ultimately weighed the balance of hardship between the parents by considering three factors:  (1) an assessment of the presence or the risk of irreparable harm to Father in the absence of an order in his favor; (2) the countervailing presence of risk of irreparable harm to Mother in the absence of an order of her favor; and (3) the role of public interest in the instant litigation, if any.

Official Economic Analysis of the Massachusetts Child Support Guidelines

"Massachusetts starts from the assumption that the best way to make a child rich is to make his or mom rich and, not incidentally, make his mom's lawyer rich," one lawyer told us. What is the evidence for a bias towards mothers? The Report of the Child Support Guidelines Task Force, October  2008, says "The Task Force believes that a child’s economic welfare is inextricably tied to the economic wellbeing of her or his caregivers." Isn't that gender-neutral? "In any case where the two parents have equal incomes the mom will win custody and she'll get paid by the father every week despite the fact that they'll split the kids 67/33 or 60/40 and, in reality, have almost the same expenses."

The 2008 report went on to say that the task force had not tried to determine the actual costs of child-rearing and that, even if it had, the economic models and data for doing so were to some extent in conflict (i.e., the task force did not attempt to do the economic data-based review required by federal law). At the lower end of the scale, the task force decided that "it was inappropriate public policy to treat incarcerated individuals more favorably than other low income payors" (i.e., people in prison should pay the same child support as people not imprisoned and therefore free to accept employment). At the higher end of the scale, the guidelines were extended to a maximum of $250,000, up from $135,000, "to provide predictability in higher income cases," with no explanation of why it would be in the best interests of children of parents whose combined income was above $250,000 for the parents to engage in full-scale litigation to obtain a judicially determined child support amount.

In June 2012, economists Mark A. Sarro (a member of the 2008 task force) and R. Mark Rogers were commissioned by the Chief Justice of the Trial Court to conduct an analysis for the child support guidelines task force. They issued a report in June 2013: "Economic Review of the Massachusetts Child Support Guidelines".  This compares the Massachusetts 2009 guidelines to a variety of other measures of the cost of rearing a child, including United States Department of Agriculture estimates and guidelines in neighboring states. The economists found that the Massachusetts guidelines for a single child were 50 percent higher than the average of guideline amounts in neighboring states. Compared to USDA estimates, the Massachusetts guidelines were lower for parents collecting child support from low-income defendants and higher when collecting from high-income defendants.

Using 30 times as many words as the attorneys who made the same point, the economists note that parents who split child care 67/33 have pretty similar costs:

"Also, to the extent child costs in Massachusetts are higher than in other states, then that is true for both households in which such costs are incurred, a recipient’s household and a payor’s household alike. However, the current Guidelines do not account for the common economic reality in the context of child support of two separate households, each of which incurs both: (1) fixed overhead expenses, such as rent/mortgage and utilities, and (2) variable costs to the extent a child spends time in each household. Even at the one-third/two-thirds parenting presumption in the current Guidelines, those costs are material and may be no less in the payor’s household than they are in the recipient’s household. In practice, some payors could end up paying several of the same costs twice, once in each household.

"The standard Income Shares child cost tables do not reflect the fact that the payor’s available income in many cases is reduced by the cost of a separate mortgage or rent payment and a second set of household utilities. Instead, the Income Shares tables yield guidelines amounts based on data from an intact household applied to a payor in a second single-parent household, but who is presumed to have the same available income as in the non-existent situation of shared expenses in one household rather than two. Also ignored is the fact that when intact households take on new or higher costs, such as child care or health care costs, they frequently cut back on other spending accordingly to stay within their budget constraints. Thus, although household costs in Massachusetts appear to be higher than the benchmarks, it may not be equitable or economically realistic for the amounts payors pay under the Guidelines to be higher as well. The current Massachusetts Guidelines do not fully address the interaction of these factors."

The conclusion of the report is that collecting child support from a middle- or high-income payor in Massachusetts is profitable compared to the costs of a child and more profitable than in neighboring states: "Based on our analysis of current child cost benchmarks, including the latest Betson-Rothbarth estimates, the latest USDA estimates, and guidelines amounts in neighboring states, the current Massachusetts Guidelines amounts for one child are relatively high."

We interviewed Dr. Sarro in October 2014 and asked him if people on the committee expressed concern that collecting child support in Massachusetts could be more remunerative than attending college and working. He said that "There is a substantial amount of continuation bias. Where a state starts affects where it ends up. There was a huge change in the guidelines with the 2008 revision but if you look at what judges awarded the outcomes were not very different." Were people troubled by the amount of litigation that was spurred by the fact that Massachusetts guidelines make children so much more profitable than in other states? "[The task force members were] smart well-meaning people who truly have the best interest of children in mind," Sarro responded, "but they weren't willing to go very far because of concerns about how changes would affect people with existing child support orders." (Child support is not, in theory, supposed to be profitable. Therefore a change to the guidelines affects not only new cases but  also plaintiffs and defendants whose first custody and child support fight was 20 years earlier (assuming the child is not yet 23). So a parent who had been getting $200,000 per year for one child, for example, for 20 years would find his or her revenue drop by a factor of 10 had Massachusetts installed a Minnesota-style cap.)

Trends

Based on interviews with consumers, there seems to be a trend towards more equal parenting time while a litigant's profits from being a sole parent are preserved. For example, a 12-year-old girl decided that she wanted to spend at least 50 percent of her time with her remarried father. For ten years the girl had been generating $27,000 per year in child support revenue for her mother. The mother opposed the parenting time modification. The resolution turned out to be that the child would get her wish for 50/50 parenting time while the mother, holder of a master's degree from M.I.T. and working in the software industry, would continue to profit at nearly the same level (reduced from $27,000 to $25,000 per year).

A father proudly told us of his successful outcome after a year of lawsuit defense in which he had been reported to authorities as a child molester, reported to the police for allegedly assaulting his plaintiff, etc. He would take care of his son 3 nights per week while the mother would take care of the child 4 nights per week. The two parents had very similar incomes. Each rented a two-bedroom apartment. They had never been married. He would pay her 30 percent of his income. "I know that it doesn't seem fair when you're taking care of the kid roughly half the time and she makes the same as you. You can keep paying me," his lawyer explained, "But this is how the system works in Massachusetts."

Multi-family scenarios

As in many other states, the Massachusetts Legislature has made it more profitable to have three children with three different co-parents than to have three children with one co-parent. For example, suppose that a person who doesn't work obtains custody of three children who share a single parent earning $250,000 per year. The child support worksheet says that the revenue will be about $55,200 per year. What if each of the three children has a different co-parent? Now the three children are worth $120,000 per year, i.e., more than twice as much. This works out to a difference of $1.5 million over the 23-year duration of child support.

What about a situation where one's spouse has been unfaithful and is responsible for some extramarital children? Who has superior rights, the legal spouse and children of the marriage or the unmarried child support plaintiffs? It turns out that the plaintiffs have first claim. For example, suppose that you share a house and three children with a spouse who earns $250,000 per year. Your spouse is then deemed responsible for child support, resulting in a $772 per week subtraction from your after-tax spending power ($40,144 per year). If your spouse slips again and is targeted by a second plaintiff, that will be a second award, under the guidelines of $687 per week, or $35,724 (i.e., under the law the second extramarital child has a lower cash value than the first). What if your spouse slips yet a third time? That plaintiff will get $605 per week, $31,460 per year. So the after-tax income for you, your spouse, and your three children has fallen from $153,244 per year (source: ADP paycheck calculator) to $45,916.

Quirks

As in some other states, there is no statute of limitations on child support. Nissenbaum says that it is possible for woman to give birth without informing the father, take care of the child for 17 years, and then sue the father for child support going back to the child's date of birth (at the top of the guidelines, this could be $923,312). "In such a case, however, the father will raise a claim of 'laches'," noted Nissenbaum, "meaning the mother sat on her hands too long to now collect child support that would have been due when the child was younger. More commonly, the mother’s claim for support comes shortly following a split of the parents or, if no marriage, shortly after the birth of the child.. That’s due to the mother’s need for support for the child.  But if the mother does not need child support right away, in Massachusetts, with its stress on preserving the historical pattern of child care, it makes sense to wait until the child is about age 3 to seek child support. On those facts the mother is virtually guaranteed to win sole physical custody, and the child support profits that accompany it, all because she has been the historical caregiver. And, she will probably also get retroactive child support and money for her out-of-pocket medical expenses in connection with the child’s birth."

Due to the $40,144 number at the top of the guidelines, the 23 years over which child support is payable, and the convention whereby a higher-income defendant must pay a plaintiff's legal fees, Massachusetts is one of the most lucrative states for the marketing of abortions. In our interviews we learned about a 40-year-old entrepreneur who was dating a seemingly carefree 25-year-old. Two months later, the young woman presented the man with a positive pregnancy test result, a Microsoft Excel spreadsheet showing the $923,312 in child support that he would owe over 23 years, plus a likely $300,000 college budget and additional amounts for health insurance, day care, etc. Her attorney offered to sell her abortion for $250,000 plus legal fees and the cost of the abortion itself. The man paid the $250,000, which was tax-free to the woman. Could that be considered extortion? "It is not extortion nor illegal to threaten to have a baby," responded Harvard Law School professor Jeannie Suk, when asked to consider the facts of this incident. Asked to comment on the prevalence of abortion transactions in Massachusetts, another attorney said "This is a good state in which to work your mind and education, but it is a great state in which to work your body and child." Nissenbaum noted that "of course, a second pregnancy test should be performed, but that does not guarantee that this man was, in fact, the father of that embryo.  Indeed, one may envision the same woman going to more than one prospective male friend."

Alimony Reform Act of 2011

An area in which Massachusetts differs from most other states is that the length of potential alimony was codified by statute (Massachusetts General Laws Ch. 208, section 49) in 2011. "It was formerly the case that a person could be married for one day and receive alimony for 75 years," a local lawyer told us. "and judges were forcing men to defer retirement past the standard age so that they would continue to pay alimony. Alimony plaintiffs were also able to tap into second wives' incomes, e.g., if their ex-husband became unemployed they would get judges to order that their alimony be paid by the new wife." Under the 2011 statute, a marriage that lasts 5 years or less yields alimony for no longer than 50 percent of the length of the marriage. A marriage of 15-20 years can yield alimony that runs for 80 percent of the length of the marriage. For longer term marriages alimony must end "at retirement age as defined by the Social Security Act." This change was characterized by proponents as "reform" but similar measures in other states are opposed by the litigators with whom we spoke.

What has been the practical effect of this law? "None," according to one lawyer. "You have to remember that judges are smarter than legislators. A Probate court judge has enough discretion to do whatever he or she wants. If the judge wanted to give a plaintiff lifetime alimony but can't because of the statute, the plaintiff now gets a larger share of the marital assets, 100 percent of her legal fees paid, etc. It works out to the same thing. If there is a child involved, the judge doesn't even have to work at this. If the judge had wanted to give $50,000 per year in alimony for 20 years, but can't because the plaintiff was married for only a couple of years, now the plaintiff will get an extra $50,000 per year in child support for 23 years. It actually works out better for the plaintiffs because child support is tax-free. Child support is the new alimony."

The new law has generated substantial litigation and consequent fees for attorneys. An example case involves an acquaintance of one of the authors. A woman was married for 15 years and had three children before she sued her husband. She received a house worth more than $1 million, a multi-million dollar share of the family savings, custody of the children, and substantial monthly child support profits. In addition, she received lifetime alimony worth over $200,000 per year. The $2 million in legal fees for both sides were paid by her husband. This plaintiff established a new household with a long-term boyfriend but refrained from getting married because, under the old law, a formal marriage would have terminated her alimony. She collected so much alimony that she and her "gentleman friend" tore down their shared house and spent more than $2 million building a 7000-square-foot palazzo on the same lot. Under the new law, however, "General term alimony shall be suspended, reduced or terminated upon the cohabitation of the recipient spouse when the payor shows that the recipient spouse has maintained a common household, as defined in this subsection, with another person for a continuous period of at least 3 months." Her ex-husband filed a motion to terminate her alimony based on the fact that she very plainly was cohabitating. The boyfriend explained why he considered this unjust: "[the woman]'s ex-husband treated her horribly. She deserves to keep getting the alimony." What was the worst thing that he did? "One weekend [more than 10 years previously] his parents came to visit. Instead of entertaining them, he went off to a golf tournament and left [the wife] to entertain them."

[This confirms what one psychologist working in the divorce industry told us: "People are very good at coming up with reasons for why someone else should keep sending them checks."]

Two of us [authors] attended a July 16, 2014 talk by Jerome Aaron, a Newton, Massachusetts family law specialist, and Steve Hitner, a member of the committee that drafted the legislation, on the implementation of the new alimony law by judges. Here are some of our notes (quotes and paraphrases except in brackets) from the talk:

Under the old system, alimony was simple to express and difficult to apply. A judge would look at need and ability to pay. Within that exists an entire world of facts and possibilities, which generated an enormous amount of litigation.

The new statute clarifies that the marriage ends when the defendant is served with a complaint. The length of the marriage used to be figured through the end of the trial, which would be two to six years after a case was filed.

The cohabitation provision will likely go up on appeal for interpretation. A judge can but does not have to reduce, suspend, or terminate alimony if he or she finds that the recipient is cohabitating.

The new law is a boon to private investigators who can establish cohabitation and what the boyfriend is earning. [Note the assumption that it is a woman collecting alimony from a man] There will be cat and mouse games where the cohabitant pays for vacations and luxuries but not the mortgage so that there is no reduction in "need". It gets very expensive to litigate. And you can litigate for a year trying to get an alimony reduction because the boyfriend pays for part of the mortgage. Then if you're successful she will get it all back by separating from the man.

[Aaron has had] mixed results getting judges to allow men to stop paying once they reach the full Social Security age (66 or 67) built into the law. Judges are getting around this provision by saying that there needs to be a change of circumstances to justify a modification. Reaching retirement age isn't sufficient. The alimony ends only if the payor actually retires. This was not the intent of the law because everyone knew that it was impossible to save for retirement while paying 30 percent in alimony. The committee expected men to stop paying at 67 and then work for another 10 years, to age 77, in order to build a retirement nest egg for themselves.

What judges in Massachusetts traditionally liked to do was give one third of a man's income to a plaintiff via child support, give an additional third to the plaintiff via alimony, and leave him with the remaining third. Judges look for any possible ambiguity in the law to arrive back at this result, which is what they consider fair. For example, the new law says that income used to calculate child support cannot also be used to award alimony. The intent of the committee was that, for example, if a man earning $250,000 per year was ordered to pay guidelines child support of $40,000 per year based on that $250,000 he couldn't also be ordered to pay $83,333 in alimony. Since money already considered for child support can't be considered for alimony, judges run the alimony calculation first, awarding $83,333 in alimony and then awarding $40,000 per year in tax-free child support. [Judges in the Middlesex Probate Court were specifically mentioned as using this tactic, including Judge Edward Donnelly. Judge Maureen Monks, mentioned above, was described as a pioneer in developing this interpretation of the new law in a September 11, 2013 training session sponsored by the Massachusetts Council on Family Mediation.]

Judges are also using their discretion for cases involving older divorce lawsuit defendants. If someone is sued at age 64 the judge will look at him from the bench and say "You're healthy so you have to work until age 72 at least."

Most people are making deals because they are afraid of what a judge might decide. The statute says that a defendant who remarries "shall not" have his spouse's income considered for calculating alimony paid to the first spouse. But plaintiffs are successfully getting increases by arguing that the alimony defendant is now part of a household with reduced expenses because, for example, the new spouse may pay part of the mortgage.

The limits on the length of alimony based on the length of the marriage can be deviated from by a judge. One example is if the partners are gay and could not legally get married. In that case a longer marriage was imputed to them from the point at which they began cohabiting. Judge Maureen Monks was cited as an example of a judge who ignored the alimony duration limits of the statute on the basis that the receiving former wife had mental health problems.

How do consumers feel about it? The Boston Globe ran an article on the Supreme Judicial Court taking up some questions on the extent to which judges can use their discretion to ignore the new law ("Massachusetts top court to review alimony reform," October 6, 2014). Here was one reader comment: "The party may finally be over for the alimony-fattened hyenas living off the sweat of long divorced spouses. The institution of marriage is a fraudulent contract, which one party may dissolve at will, taking children, home and assets." Another reader, "estelle79", pointed out "Alimony reform will happen, but why should it be allowed to be retroactive? Most laws are not. As usual laws were passed before due diligence was performed."

Luck Favors the Prepared

According to the attorneys we talked to, the heavy weight that Massachusetts places on preserving the "status quo" means substantial financial and emotional rewards for a parent who plans a lawsuit in advance.

One litigator explained the procedure and benefits as follows:

"When a woman comes into my office and wants to cash out her marriage and children I tell her to slow down. Maybe she wants to start living with her boyfriend. Maybe she wants to start spending her husband's money without having to get his approval. I tell her 'A Massachusetts divorce is probably the most lucrative thing that you are going to do in your entire life. Slow down. Take a year to lay the foundation.' It used to be that the woman automatically got the kids, but if she has a full-time job she is at risk from some of the new judges of being stuck with 50/50 custody and, if her income is close to his, minimal child support. The Guardian ad litem and the judge will look back only about a year so this is my client's chance to establish an expensive lifestyle for herself and the kids and a pattern of being the primary caregiver. I tell her to plan two or three 'once-in-a-lifetime' vacations for the family, get a new luxury car, go to expensive restaurants and theater twice a week, and start gold-plating the lives of the kids: designer clothes, private lessons for everything, a horse, whatever. She should encourage her husband to take a bunch of trips with his buddies or for work. If he's been doing a lot of stuff with the kids she should try to steer him toward maintaining the house, cars, and yard instead. She can cut back her working hours so that she is home before he is. Maybe switch to a job that pays less. She can also hire an au pair and have the au pair take over driving the kids to soccer or whatever the husband was doing before. It will add color to a case if the defendant is having an affair, so I recommend that my client find an au pair who is smokin' hot, who is towards the upper end of the age range [18-26], and who comes from country like Germany or Sweden where they take a more flexible view of marriage than the Latin Americans do. If he's been banging a 22-year-old that is something that I can use in court to discredit his judgment and fitness to be a 50/50 parent. If the guy is getting on my client's nerves I tell her to swallow all of her irritation for a year so that he doesn't suspect what is coming, though truthfully it is rare for a man to suspect anything. Guys generally take commitments and the marriage contract more seriously than do women. Even if the marriage isn't all they'd hoped for, guys don't want to go back on their word. They imagine that the woman takes the commitment just as seriously. They also imagine that they are likable and that the woman married them for some reason other than their high income. Men are basically idiots. Anyway, we surprise the guy by serving a Complaint. Then my client goes into mega-bitch mode so as to establish 'high conflict', an additional reason for her to have sole custody. If it relates to the kids, whatever the father wants to do after being sued, she objects and obstructs. For my clients who have been willing to do the groundwork I have had a 100 percent success rate in getting them the kids, the house, and ongoing cash (call it alimony, child support, or whatever) to maintain their new high-end lifestyle at least until the youngest kid turns 23."

Spending a Day in Court

Courtrooms and generally open and visiting them is the only way to learn about a large percentage of the custody and child support cases in Massachusetts. If the parties are not married, for example, that is no bar to getting millions of dollars in child support over a 23-year period. But the judgment will be sealed from the public eye ("impounded") and even the existence of the case cannot be discovered by searching public records. What are we missing? Here's a case that could have become known to the public only if a citizen were sitting in the back of the courtroom of Judge Dorothy Gibson, appointed to the bench in 1997:

A father comes in seeking custody of his 3-year-old child. He has a police report filed by the mother, who currently has custody of this child and is collecting child support. The mother has four children in total, each by a different child support-paying father. She was attempting to supplement this income by consummating a drug deal. She loaded the four kids into a vehicle and left them there to observe as she was robbed at gunpoint in a parking lot by the counterparties in the drug deal. She reported this robbery to the police, including the facts that she was attempting to deal in illegal drugs and that her children were witnesses to the events. Judge Gibson says that this is a matter of deep concern and that the 3-year-old should be with the father for the next 30 days.

[Follow-up: After 30 days, the child was ordered back to the mother's custody on the grounds that the father's two Rottweilers were dangerous to the child. That the dogs had not harmed the child and the father's mobile phone videos of the child happily playing with the dogs were not persuasive.]

See also the Post-Divorce Litigation chapter for an account of deadbeat dads in the Massachusetts courthouse.

Judicial Selection Process in Massachusetts

We interviewed Marilyn Petitto Devaney, an elected member of the Governor's Council, to learn about how judges are appointed and approved in Massachusetts. Devaney is a Democrat who had just been elected to her 8th two-year term represented 32 towns and cities on the Council. She explained that candidates are put forward by the governor and then approved by the Council. "The Founding Fathers assumed that the lieutenant governor, who breaks ties, would be from a different party than the governor," she explained, "but the law was changed decades ago so that the lieutenant governor is elected along with the governor. It is thus no longer a check-and-balance system." An April 27, 2011 article on wbur.org, "Newly Feisty Governor’s Council Has A Shaky History," confirms her perspective: "It's been 18 years since [the Council] last rejected someone." Who gets to be a judge? "A lot of times it is people who've donated money to the governor's election campaign funds." Why would that be a sensible financial move? "A judge makes $189,000 per year," replied Devaney. (Plus a government-guaranteed defined-benefit pension that might be worth almost as much as the salary.) The nominating process is opaque. Devaney says that even councillors aren't able to get information collected prior to a candidate being put forward. An October 15, 2014 story by a Boston TV station and posted on myfoxboston.com notes that "Nearly half of the 18 judicial nominees Gov. Deval Patrick has put forward in the waning months of his administration have donated to either the governor or his former lieutenant governor, campaign finance records show."

What's the review process once judges are appointed? Is it like other states where the judge must earn re-appointment every six years? (see the Hawaii chapter, for example) Or run for re-election periodically? "No," said Devaney, "a judge can keep his or her job until the mandatory retirement age of 70. There is no practical way to remove a judge, though in theory the Legislature could do it. I haven't seen it happen once in 15 years. It is very discouraging. I would love to see judges in Massachusetts held to the same standard as appointees to the Industrial Accident Board. They come back six months following their appointment with a report card and we can decide whether or not to reappoint."

Devaney described the work that she put in to meet with every candidate personally. Why would she work that hard when there is no requirement to do anything more than show up at occasional meetings? "I had a friend who was abused," Devaney said. "She had been to court eight times. The abuser was released on $200 bail. Two weeks later, my friend was dead. I didn't know how judges got their jobs and I found out. That's why I ran, not for the $14,000/year salary [today it is $25,000/year]." As noted by interviewees in our chapter on the domestic violence prevention system, Devaney's experience is that the Massachusetts system works best for people who are not actually being abused: "I can't tell you how many attorneys have told me that women are encouraged to file 209A domestic violence restraining orders to strengthen their divorce cases."

Words of Wisdom

A general practice attorney in Newton, Massachusetts, on hearing that a man had been sued for divorce asked "What county are you in?" The answer was "Middlesex", which covers towns north and west of Boston. "Give up on your house, your kids, and your income. The judges in Middlesex are man-hating lesbians." Given that he was stuck with this venue, what was the man's best strategy for ensuring a fair hearing? "Grow a vagina," the lawyer advised. Nissenbaum confirmed that everything depended on the judge and how that judges exercises his or her discretion: "When you become president of an organization or appointed as a judge you get to make your personal prejudices the rule of law. Good judges follow the law, not their personal prejudices to keep this as a system of law."

An attorney in Wellesley, Massachusetts described a friend of his who was going to court to defend against his plaintiff's demands for more money based on her being the "primary parent" of a 22-year-old daughter. The mother had been earning a healthy profit from this child for more than a decade and the father had been ordered to pay 100 percent of college costs (which he had in fact paid). Our Wellesley attorney said to his buddy "I'm not a Probate court attorney but you know that the game is rigged. Why are you swinging at every pitch?"

A litigator summarized the system:

"The Massachusetts Legislature practically guarantees that family lawyers will bill until the family's assets are exhausted. The Legislature gives the judges almost infinite discretion to do whatever they want. Suppose that some guy is having an affair with an office hottie. The angry wife comes into my office. I tell her 'I can get you 100 percent of his savings and 100 percent of his income going forward. I can get you 100 percent custody and control of the children so that this guy that you hate will never see them again. Just give me $50,000 as a retainer.' I'm not lying, but what I didn't say is that, depending on what the judge had for breakfast, it could also be zero, zero, and zero. Meanwhile the defendant goes into a lawyer's office and the lawyer says 'You have to give me 100 percent of your money.' The guy asks how come? The lawyer says 'If you don't give me 100 percent of your money, your wife could get it from the Probate court judge and you might never see your kids until they turn 18.' After the house has been triple-mortgaged, the 401k accounts emptied, and the mutual funds transferred to the lawyers, the woman's lawyer says 'The case isn't going as well as I thought. This judge just isn't sympathetic to our case. Your husband doesn't look like such a bad person. I think you should settle.' Then there is a boring settlement that looks like every other divorce settlement or judgment. The woman stays in the fancy house. The dad turns over most of his after-tax paycheck to the woman, moves to a studio apartment, and sees the kids every other weekend. He behaves like a 'Disney Dad' because, realistically, why would he want to spend his limited time with the kids nagging them to do their homework? You don't have to worry about property division at that point because there isn't anything left. The litigating couple could have gotten the same result from a mediator for $3000 and the kids would still have had their college fund."

Wishlist

One lawyer suggested that because the first order typically determined the children’s future it should not be decided based on attorney representation: “In 99 percent of cases the plaintiff’s lawyer is either lying or repeating lies. The standard should be an immediate evidentiary hearing before the house and kids are given away to one parent. It would be tough to pull it all together in a couple of weeks but it would be a lot better than the current system where the attorney representations cannot be challenged or subject to cross-examination.” (Note that some other states, such as Illinois, do have evidentiary hearings any time that the future of children is being decided.)

The economists who were consultants to the child support task force suggested implicitly that Massachusetts adopt a child support calculation system that recognizes that both the primary and secondary parents have similar fixed costs related to their parenting time, e.g., dedicated bedrooms for each child.'

Summary

Massachusetts courts work harder and more expensively than any other state's courts at the activity Linda Nielsen, the psychology professor quoted in the "Citizens and Legislators" chapter, says that states shouldn't be doing, i.e., picking a primary parent based on the pattern of child care during the marriage.

In terms of custody determination methods and outcomes, Massachusetts is similar to West Virginia, Alabama, and Mississippi. This tends to favor pre-lawsuit planning and the generation of conflict so as to forestall shared parenting. In terms of the number of "sole physical custody to mom" awards, Massachusetts circa 2014 works the way that a typical U.S. state would have operated in the 1950s.

Massachusetts gives the maximum amount of power to judges to rule based on personal biases by (1) not offering litigants the opportunity to get a new judge, as they would have in Alaska or Idaho, (2) appointing judges for life rather than having them run for election periodically as in some states, (3) offering no practical appeals process.

For most plaintiffs Massachusetts offers more child support profits than any other state. Partly for this reason Massachusetts is one of the jurisdictions in which selling abortions seems to be most common.

Due to the high stakes involved and the relatively long time periods between filing and trial, divorces in Massachusetts are more costly in terms of damage to children and fees to litigants than in any other state surveyed.

Massachusetts encourages divorce litigation against high income defendants and increases the chances that such lawsuits will go to trial by regularly forcing such defendants to pay the legal fees on both sides.

If you are the high-income partner in a Massachusetts marriage (especially the male high-income partner), based on the research of Brinig and Allen, you can dramatically increase your statistical chance of staying married by moving to another state.

See also:

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