Massachusetts Prenuptial Agreements

Part of Real World Divorce: web edition | Kindle edition

by the realworlddivorce.com staff, edited by Suzanne Goode; ISBN 978-1-944861-03-2 (Kindle edition)

Copyright 2016 Fifth Chance Media LLC.

Introduction

Absent a prenuptial agreement, family law in Massachusetts gives the lower-income partner a financial incentive to leave the higher-income partner by filing a divorce lawsuit. This financial incentive grows with every day of the marriage. Especially if a couple has children, the financial incentives to filing a divorce lawsuit in Massachusetts may be larger than in any other place on Planet Earth. This brief book is about the extent to which you can increase the likelihood of your marriage enduring by reducing the financial incentives for divorce via a prenuptial agreement or by a post-marriage move to a different state or country.

Does family law matter if people are marrying out of love and a desire for companionship? "You might think you're marrying for love," one lawyer told us, "but as far as the government is concerned marriage is a business transaction." Lawyers in every jurisdiction offering "no-fault" or "unilateral" divorce (initiated by one partner against the other) told us that the commitment aspect of marriage was meaningless: "Marriage lasts until one spouse figures out that he or she can be better off by getting rid of the other spouse." An expectation by both partners of an enduring marriage is no guarantee of an enduring marriage and, indeed, the American landscape is no longer dotted with nuclear families living behind white picket fences:

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

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

Do both partners at the altar typically expect the marriage to be enduring? It turns out that a substantial percentage of Americans would marry someone for the money with the expectation of a lucrative divorce lawsuit. From the Wall Street Journal:

According to a survey by Prince & Associates, a Connecticut-based wealth-research firm, the average "price" that men and women demand to marry for money these days is $1.5 million.

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

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

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

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

Those who do not marry for money to begin with may nonetheless be energetic and enthusiastic about divorcing for money. This is particularly common in Massachusetts, perhaps the most lucrative and litigious divorce jurisdiction in the world. Why the most litigious? Being the most lucrative jurisdiction means that more is at stake. Add to this the fact that Massachusetts judges have more discretion than their counterparts in other states and countries. Except in custody cases, where women are virtually certain to prevail, it is therefore difficult for litigants to predict what a judge will do following a trial. The lack of certainty and predictability leads divorcing spouses in Massachusetts to spend more on lawyers in hopes of persuading judges. Finally there is the fact that Massachusetts, more so than most other states, keeps cases alive by ordering the higher-income spouse to pay some or all of the lower-income spouse's legal fees. A plaintiff who isn't paying any legal bills will have little incentive to settle for less than the hoped-for amount.

[Note that, based on our interviews with attorneys, heavy investment in legal fees may have little effect on the outcome of a case. The biggest factor is probably which judge is assigned to a case (see our "Middlesex County, Massachusetts May 2011 Divorce Lawsuits Analysis"). People expect a "just" outcome from the legal system, but the outcome will be completely different depending on the judge or if the parties had lived two miles away across a state line.]

Remember that in Massachusetts a divorce can be obtained only by going to the court system. Because the court system is less friendly to citizens without attorneys than self-service-oriented courts in Western states, it is virtually guaranteed that the spouse who seeks to improve his or her life by divorcing will talk to an attorney. As we note in our chapter on the divorce litigation process per se, part of the reason that divorce litigation is intense is what tends to happen at parties' first meetings with attorneys. "A lawsuit never looks better than the day you file it," one litigator told us. By definition the attorney who is interviewing only one spouse at the inception of a lawsuit hasn't heard any of the other side's facts. The result is that each litigant develops an expectation regarding the divorce lawsuit that is an unlikely best-case outcome. Both attorneys are giving accurate estimates based on what they've heard from their respective potential clients. These irreconcilable expectations quickly turn into feelings of entitlement. People naturally get upset when they aren't getting something to which they feel entitled. Plaintiffs also hear what they want to hear. When an attorney says "You could get $100,000 per year in alimony for life," the plaintiff client hears "I will get $100,000 per year in alimony for life."

Our statistical study of cases filed in May 2011 indicates that only about 17 percent of Massachusetts divorces are settled via mediation and then presented to a judge in a "joint petition." That leaves more than 80 percent of cases in which one spouse sues the other and, at least until the money runs out, a no-holds-barred lawsuit ensues.

Your prenuptial agreement may itself determine whether or not you get divorced

"The beauty of no-fault divorce is that you get to have sex with new partners, and maybe even get money from new partners, while still getting money from the discarded spouse," is how one lawyer summed up the typical U.S. state's system. An attorney we interviewed for the New York chapter said, "A person's decision to divorce is primarily financial. Of course there are people who are concerned about the kids, but they are not very common. Sad to say it is all about money here in the U.S." A lawyer in Massachusetts: "When I tell the prospect that the facts of her case are different and she is likely to end up with a smaller number, if that number isn't sufficient for her to maintain her lifestyle, she'll typically reconsider the idea of suing. If that number will provide a better material lifestyle than what she enjoys presently, she'll write me a $25,000 retainer check on the spot. A lot of men in Massachusetts would be surprised to find out that they are still married only because they aren't wealthy enough to be worth suing."

[How can a divorce lead to a "better material lifestyle"? The spender married to the saver will enjoy, post-divorce, sole discretion regarding spending and can spend more. The successful divorce plaintiff will have most of their defendant's income plus additional spending power from a new partner's income.]

Academic researchers tend to express themselves less colorfully, but their conclusions are similar to what the lawyers told us anecdotally. The more money that someone can get from filing a divorce lawsuit, the more likely that person is to end the marriage under America's no-fault system ("unilateral divorce" in the parlance of the academics). The key to alimony profits in most states, including Massachusetts, is being deemed "economically dependent" on the other spouse. In practice this simply means having a lower income;thus a plaintiff who earns $300,000 per year would be considered the "dependent" spouse if the defendant were earning $350,000 per year. "Her Support, His Support: Money, Masculinity, and Marital Infidelity," (Christin Munch, American Sociological Review, June 2015) is summarized by the professional society with a headline of "People more likely to cheat as they become more economically dependent on their spouses." Parents who can expect to win custody are more likely to divorce their spouses in jurisdictions where collecting child support is more profitable. See "Child Support Guidelines, the Good, the Bad, and the Ugly" (Brinig and Allen 2011; Family Law Quarterly, v. 45(2), pp. 140-151), for example.

To the extent that a prenuptial agreement reduces the profits available from a divorce it will reduce the lower-income spouse's incentive to have sex outside the marriage and to end the marriage via a divorce lawsuit.

What does an incentive to cheat or an incentive to sue look like? One case that we looked at involved a successful financial services industry fund manager. Due to the Wall Street-style checks rolling into the household, her husband decided to relax at home, watch the nannies raise the children, surf the Web, pursue hobbies, etc. As the wife was getting ready to retire the stay-at-home husband asked "Do I need this woman to earn more money?" The answer was no due to the fact that she was about to stop working. He then asked "Do I need her around to provide a stable environment for our children?" The answer was no because the kids were nearly launched. Did he need her to produce more children? It would have been biologically impossible due to her age. After a bit of litigation it turned out that, under the Massachusetts no-fault system, "I want to have sex with 22-year-olds off Craigslist" is as good a reason for a divorce as any. The husband got paid tens of millions of dollars down at the local family courthouse. Although he only netted half of the money that his wife had earned, his practical spending power had increased due to the fact that the wife, like a lot of self-made people, was a saver while he was a spender.

What if they'd lived together and had children together, but not been married? Massachusetts does not recognize a common law marriage based on cohabitation. Thus, if he'd wanted to keep spending the money that she earned he would have had to stay with her and refrain from indulging his passion for 22-year-olds. Could the high-income woman have used a prenuptial agreement to participate in a traditional or religious marriage without tempting the husband with a multi-million dollar reward for cheating? Keep reading to find out!

Can you agree with your proposed partner about what would be a fair divorce outcome?

The process of developing a prenuptial agreement should begin with a discussion by the potential marital partners regarding what would be fair in the event of divorce. As discussed below, for the agreement to survive a validity challenge, it is helpful to show an email record of discussion, perhaps with exchanges of informal agreement drafts, well in advance of the wedding. A written informal agreement should also streamline the work that attorneys need to do in preparing the final formal agreement.

Most parents are concerned about the welfare of their children. Although there is an industry of therapists happy to collect money for reassuring divorce plaintiff patients that children can be fine following a parental separation, academic research psychologists have concluded that the typical divorce is more harmful to the average child than the death of a parent. "Child Support and Young Children's Development" (Nepomnyaschy, et al, 2012; Social Science Review 86:1), a Rutgers and University of Wisconsin study of children of lower income unmarried parents, found that any kind of court involvement was associated with harm to children: "We also find that provision of formal [court-ordered] child support is associated with worse withdrawn and aggressive behaviors." Attorneys told us that, in their experience, children never recover from the experience of one parent suing the other while the other parent scrambles to defend the lawsuit. Given the potential for harm, one might think that provisions regarding child custody and child support, with the aim of preventing litigation around these issues, would be front and center in any prenuptial agreement. However, by law any such provisions are invalid in every state:

[P]rovisions in a prenuptial agreement purporting to affect the rights of the parties’ children are void as against public policy. Provisions limiting child support are unenforceable, as are provisions that seek to dictate the custody of a child or a parenting schedule unless the disposition is also in the best interests of the child.

-- "Forbidden Provisions in Prenuptial Agreements: Legal and Practical Considerations for the Matrimonial Lawyer" (Fields 2008; Journal of the American Academy of Matrimonial Lawyers, v. 21)

In theory a custody or child support lawsuit is for the benefit of a child and the child wasn't a party to the prenuptial agreement. Thus the prenuptial agreement cannot interfere with the child's right to litigation resulting in court-ordered child support (it will be an adult who sues for child support, of course, and banks the money once paid!). Nor can a prenuptial agreement interfere with the child's right to a court-determined custody arrangement.

What about a clause that binds the adults to go to mediation before suing if there is a child-related issue? Here's an example of a clause examined by a court in 2011:

In the event of the commencement of any action with respect to which the issue of support, custody and access to minor children is at issue, the parties shall attempt to agree upon the same through discussions between them or through a process of mediation with an agreed upon mediator trained in alternative dispute resolution; however, if they are unable to agree, such issues shall be determined by a court of competent jurisdiction.

Judge Maureen Monks of the Middlesex Probate and Family Court found that the plaintiff mother was not required to abide by this clause. (Judge Monks ultimately ordered the defendant to pay the plaintiff nearly $200,000 in legal fees so that the plaintiff would not suffer financially by choosing to litigate rather than mediate.)

Here are example issues that can be addressed in a Massachusetts prenuptial agreement:

If you and your intended can't agree on the fair answer to the above questions, it is probably unwise to get married. You're setting yourselves up for a lawsuit that will consume 100 percent of your assets. For example, suppose that Spouse A earns $100,000 per year but thinks it is fair to receive alimony for a period of time following a divorce because Spouse B earns $150,000 per year. Spouse B insists on a mutual alimony waiver as a condition of marriage and Spouse A agrees. In the cases that we looked at, Spouse A will sue for alimony as part of the divorce and allege that the prenuptial agreement is invalid due to one or more reasons. If two people don't agree on a fair divorce outcome they are likely to have what newspapers call "a nasty divorce" (i.e., one person trying to get as much money as possible out of the other in America's litigation system).

A person's idea of what is fair in the event of a divorce seldom changes. Someone who is marrying with an eye toward the money (roughly half of Americans according to the survey cited in the introduction) and who wants to be paid following a divorce will hold onto that mercenary interest and that desire even after a prenuptial agreement is signed. "Take the most outrageous demand that someone makes during prenup negotiation, multiply it by 5, and that's what you're going to see in the divorce Complaint," said one litigator.

Now that you agree, do you need a prenuptial agreement?

Congratulations. It seems that you are part of a happy couple with shared values that include a shared sense of what would be fair in the event of a divorce. If it turns out that the state where you intend to reside shares the same beliefs then you may not need a prenuptial agreement.

For example, suppose that you think that, in the event of a divorce, the higher-earning partner should pay alimony to the lower-earning partner for a period of time that is a function of the length of the marriage or, if the marriage lasted 20 years, forever. If you planned to live in Germany, Texas, or Indiana you would need a prenuptial agreement to ensure what you consider to be a fair outcome. Those jurisdictions don't generally issue court orders that render one able-bodied adult the financial dependent of a former spouse. However, your idea of fairness is perfectly aligned with Massachusetts family law and thus the prenuptial agreement would be irrelevant. It still might be worth having a prenuptial agreement, however, in case you decide to move to Florida where "permanent alimony" can be awarded after a 7-year marriage or to California where the courts retain lifetime jurisdiction for alimony.

We encourage you to look through the states covered in Real World Divorce. It may well be the case that there is already a place where the legislature's idea of fairness is similar to yours. In that case you won't need to spend thousands of dollars on a prenuptial agreement prior to the marriage and potentially hundreds of thousands of dollars litigating the validity of a prenuptial agreement following the filing of a divorce lawsuit.

How to create a valid Massachusetts prenuptial agreement

You might think of marriage as a romantic enterprise. Under Massachusetts law, however, marriage is primarily a financial arrangement and the most important right that a person obtains by getting married is the right to sue the other spouse for money, real estate, etc. A prenuptial agreement is generally a waiver by both parties of some or all of that right. Thus the Legislature and courts want to make sure that the waiver is an informed one. Furthermore the courts have found that a complete waiver of the right to make money from a marriage may "vitiate" a lower-income spouse's "marital rights" and therefore be invalid as a matter of law. Essentially marriage in Massachusetts must allow one person to obtain cash by divorcing the other person, though the government will allow parties to put some limits around the cash obtainable. A "walk-away" prenuptial agreement that sets up two people to be financially independent, yet married, may be invalid as a matter of law.

[How much money would you need to have before a Massachusetts court would consider you to be capable of financial independence? California is a similar jurisdiction and it turns out that Angelina Jolie, with an estimated net worth of $200 million, was a credible "dependent spouse." She sued Brad Pitt, whose estimated wealth was closer to $240 million, and therefore lawyers and courts were involved in determining "temporary support for Jolie and the kids, and permanent financial support for the family" (Inquisitr, October 8, 2016).]

Full disclosure is critical. Assets acquired prior to a marriage are divisible by a family court judge in Massachusetts. Suppose that Jill has $10 million in savings. Jack marries her on Sunday and sues her for divorce on Monday morning. In theory a family court judge could find that Jack was entitled to some or all of that $10 million. "Massachusetts is unusual in that there is hardly any separate property," noted Sanford Ain, one of America's leading divorce litigators (we interviewed him for our Washington, D.C. chapter). Certainly with every day of marriage Jack's claim to Jill's premarital assets grows stronger. If Jack signed a prenuptial agreement in which previously acquired property was to be kept separate, one of the first questions the court will ask is whether Jack knew what rights he was signing away. Did he think he was giving up the right to sue for $100,000, for example, rather than $10 million? What is conventional is for each party to a prenuptial agreement to fill out the financial statement form that is required of divorce litigants in Massachusetts. This forms may be found at http://www.mass.gov/courts/forms/pfc/pfc-forms-gen.html. Keep in mind that any asset left off the form, no matter how small, allows a future plaintiff a wedge to crack open the prenuptial agreement.

Each party should also be represented by an attorney. Courts will assume that a party represented by an attorney has been informed of what would happen in the event of a divorce, what rights are being waived, etc. There is no requirement that the attorney be competent in this area, but we would strongly advise that only working Massachusetts divorce litigators be retained to work on Massachusetts prenuptial agreements. Only someone who is in the Probate and Family Court every day trying to wring cash out of a Massachusetts defendant can know the practical ins and outs of wringing cash of Massachusetts divorce lawsuit defendants. Working divorce litigators are also typically embroiled in representing parties either challenging or defending the validity of prenuptial agreements and therefore are familiar with current case law (appeals court decisions) regarding what can and can't be done via a prenuptial ("antenuptial" in more formal legal writing) agreement.

As noted above, it is best to be able to establish that negotiations regarding a prenuptial agreement were started well before the wedding or, in the case of a compressed time schedule, immediately after an engagement. Email is helpful here. It is also important to establish that both parties were informed and active participants in the process.

The more that you spend on your wedding the more likely it is that you'll be a party in a divorce lawsuit. See "Why spending less on your wedding could save your marriage" (PBS, January 13, 2015), based on "‘A Diamond is Forever’ and Other Fairy Tales: The Relationship between Wedding Expenses and Marriage Duration," (Francis and Mialon 2015; Economic Inquiry 53:4). Highlights from the PBS article:

Despite their professional credentials as Emory University academic economics, Francis and Mialon failed to consider the body of previous research showing that divorce lawsuits are more likely when plaintiffs can get their hands on more cash. It may simply be that people who are worth suing for divorce also spend more on their weddings, in which case the academic exercise would serve mostly to remind readers not to confuse correlation with causation.

If a simple wedding ceremony won't necessarily protect the higher-income partner from being sued for divorce it may protect the validity of the prenuptial agreement. Judges assume that if a venue, florist, and caterer have been booked for a specific date and invitations have been sent out to 100 people there will be pressure to get the prenuptial agreement done. If one party has signed the agreement under the duress of a potentially canceled expensive wedding celebration then that is an argument for why the agreement is invalid.

Here's part of a 2016 decision by a judge in Essex County:

While the Agreement was signed only hours before the wedding, the ceremony was held at the marital home, with only the Justice of the Peace present. The possibility of canceling a significant wedding reception with out of town guests was not an issue here, and therefore outside pressures were nonexistent.

A quiet civil ceremony with a few friends and family members followed by, a month later, a big party, may foreclose the duress argument.

Veteran Massachusetts litigator Gerald L. 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."

Finding an Attorney

Massachusetts is one of the most litigious divorce venues in the world and one of the dirtiest. If you get divorced in Massachusetts it is likely going to be a no-holds-barred bare-knuckle fight for the last possible dollar. Your prenuptial agreement attorney should be someone who is in the mud pit every day listening to allegations of child molestation, emotional abuse, lurid sexual behavior, etc., all wrapped up as part of a quest for more cash.

Here are some competent Boston-area attorneys whom we've come across in the course of our research:

Working with an Attorney

Although it may be helpful to open email negotiations with your intended prior to hiring attorneys, once the two sides are lawyered up most of the discussions will be lawyer-to-lawyer from that point onward.

You still have a role to play, however, in reviewing the terms. There is no way that you can communicate all of your concerns, goals, and priorities to your attorney in a few emails or phone calls. Ask about any sections that seem needlessly complex or confusing to a layperson. If a section is ambiguous to you it may also be ambiguous to a judge and therefore be the subject of litigation in the event of a divorce.

The cooperative tone of negotiation that prevailed during email exchanges with your intended may not survive the lawyered-up phase. The lower-income or less wealthy spouse who talks to a lawyer will repeatedly hear the phrase "under the law, you are entitled to..." and will come to see that a prenuptial agreement is a waiver of those potentially valuable entitlements. The lawyer won't mention that obtaining alimony and a free house might run up $500,000 in legal fees, of course, so the potential profits of a divorce lawsuit tend to be exaggerated during this as in all pre-litigation phases. The lower-income spouse who previously prized independence and self-reliance now begins to fully appreciate the possibilities of being the "dependent spouse" in a Massachusetts divorce and to see these legal entitlements as moral entitlements. Obtaining a house that someone else paid for and alimony is now perceived as the fair outcome of a divorce (as noted above, that this is "Justice" with a capital J is an accident of jurisdiction; the German who files a divorce lawsuit won't be entitled to alimony or premarital property, nor can a Californian who sues his or her spouse expect to live in a house purchased prior to the marriage by the defendant). If the higher-income spouse doesn't want to offer this via the prenuptial agreement then he or she is behaving in an unjust manner.

If it is hard to reach an agreement, our advice is to either walk away from the idea of marriage or drive away from Massachusetts to live in a jurisdiction where the law provides for whatever you consider to be a fair divorce outcome and therefore you can be married without a prenuptial agreement. "If you think the prenuptial negotiation is contentious," said one lawyer, "just wait for the divorce litigation." As noted above, demands during prenuptial negotiation are a preview of demands that will be made, in a greatly amplified form, during a divorce lawsuit.

The Fine Points

Although your attorney will be primarily responsible for protecting your interests and you'll probably be able to spot the big stuff such as a waiver of alimony, there are some things that might look like harmless boilerplate but can have important implications. When reading every section of the agreement, ask yourself the following questions:

As explained in Real World Divorce, divorce in different states or different countries looks completely different. What might be a quick and low-cost administrative procedure in Denmark will be a fight-until-the-money-runs-out lawsuit in Massachusetts. A divorce lawsuit through trial that costs $10,000 in Europe can cost $50,000 in the least litigious U.S. states and $500,000 or more in the most litigation-oriented U.S. states, such as Massachusetts or New York. A prenuptial agreement that would be invalid in Massachusetts will be considered a binding contract in Texas. Thus provisions regarding jurisdiction and government law may be critical. Let's look at some apparent boilerplate drafted by the attorney representing a woman we'll call "Jill". Although Jack and Jill had comparable incomes at the time of the marriage, Jack had significant savings from prior to the marriage. Thus Jill was plausibly set up to become the "dependent spouse" in the event of a divorce. Here's some subtle brilliance by Jill's lawyer:

Jurisdiction

JILL and JACK do hereby acknowledge, agree and submit themselves to the jurisdiction of the Courts of the Commonwealth of Massachusetts for the present time and the future with regard to the subject matter of the within Agreement, and any and all other matters between the parties concerning their marital relationship, as long as one of the parties continues to reside in Massachusetts.  In the event that neither party resides in the Commonwealth of Massachusetts, then jurisdiction shall be determined in accordance with the laws of the state where JILL resides.  The provisions of this Paragraph shall not, however, change or effect the choice of law clauses and provisions contained in this Agreement, as the parties intend this Agreement to be interpreted by the application of Massachusetts law.

Interpretation and Execution

This Agreement has been executed and completed in accordance with the laws of the Commonwealth of Massachusetts and is to be considered a Massachusetts contract, governed according to the laws of the Commonwealth of Massachusetts.

The above language is highly favorable to Jill, the drafter's client. Even if Jack and Jill moved to another state or country, any court handling their divorce would have to apply Massachusetts law in determining whether or not the agreement was valid, thus giving Jill many more options to challenge the agreement in a state where the law is more supportive of freely entered prenuptial agreements.

The most favorable provision in the above excerpt is that regarding jurisdiction. Suppose that the family moves to Nevada, where child support is capped at roughly $13,000 per year and the law essentially requires a 50/50 shared parenting arrangement for children. However, the family escapes the hot desert summers by coming back to Cape Cod every July and August. Jill can sue Jack in early July in a Massachusetts court, saying that she intends to reside permanently in Massachusetts. The agreement gives her a leg up in litigation regarding venue. If she can hold onto the Massachusetts jurisdiction she now has a more than 90 percent chance of becoming the "primary parent" (by custom Massachusetts disfavors 50/50 shared parenting, especially if a plaintiff alleges the existence of "conflict" with the defendant, and when courts pick a winner parent it is almost always the mother) and the cash value of the children may be $100,000 per year or more.

The provision yields dividends even if nobody uses the Massachusetts courts. Assuming that Jack has also moved out of state, "In the event that neither party resides in the Commonwealth of Massachusetts, then jurisdiction shall be determined in accordance with the laws of the state where JILL resides" gives Jill the opportunity to "forum shop" by moving to a state whose laws are favorable to divorce litigants in her particular circumstances. In short, the above provision, while it seems technical and innocuous in nature, could be critical to Jill's decision whether or not to seek a divorce, to Jill's status as a parent following a divorce, and could make a divorce lawsuit vastly more profitable for Jill.

A world of potential claims waived (or litigation avoided, depending on your perspective) is wrapped up in the following:

Conclusiveness of Legal Title

The ownership of any property interest not listed in Schedules A or B [the parties' disclosure of premarital assets] shall be determined exclusively by legal title thereto, subject to any written declaration of trust pertaining to such interest. The earnings, personal skills, contributions, services or efforts of either party shall not be used at any later time to determine the ownership interest in any money or property, irrespective of the fact that either party may have directly or indirectly enhanced or contributed to the appreciation of the value of the property of the other.

In the old days, divorces could be done with less litigation because courts could look at the title to a bank account or a piece of real estate and say "It belongs to whoever's name is on the title." A premarital asset then would generally stay with the person who had previously owned it because it would be titled in that person's name. A vacation house purchased during the marriage, if titled solely in one spouse's name, would go to that person following a divorce. Modern day family law is interested in fairness above all, without consideration for what it costs in legal fees to arrive at a fair outcome. Suppose that Jill buys a vacation house in Maine with money that she inherited. It is titled in her name. Without the above provision, Jack can try to get hold of a share of the vacation house's value, or the house itself, by arguing that he spent every weekend fixing it up, that he paid for a new roof, etc. Exploring all aspects of this dispute via document discovery and depositions and then bringing this dispute to the courthouse could end up costing more in legal fees than the house is worth. With the above provision, however, Jack can't even try to get hold of the vacation house. He needs to be aware that, during the marriage, if he is going to be able to claim part or all of something, he needs to persuade Jill that it should be jointly titled.

Make sure that disclosure includes potential liabilities from other family court plaintiffs. One Massachusetts marriage was, um, disrupted when the mother of a 15-year-old girl sued the father for 15 years of child support (see Real World Divorce; depending on the state, the opportunity to obtain retroactive child support may be limited to just a few years or may extend back decades). This child was the product of a brief acquaintance between the biological parents that preceded the father's marriage. The father had a written agreement with the mother in which, in exchange for him not asserting parental rights, she would not seek child support. This kind of agreement turns out not to be enforceable, however, because the child support, though payable to the mother, was technically for the benefit of the child. The mother could not waive the child's rights to child support. The father's marriage was further strained when the 15-year-old, having a strained relationship with her mother, decided to move in with him and the father's wife (i.e., the teenager's stepmother). When it was time for college, the father was successfully sued for the full cost of tuition, room, and board. Adding up retroactive child support, child support going forward, and college expenses, the child that preceded the marriage was a nearly-$1 million financial liability and failure to disclose her existence could have invalidated any prenuptial agreement.

The Prenuptial Agreement in Action

If you don't get divorced the prenuptial agreement is typically irrelevant until and unless one partner dies and then any provisions regarding property distribution at death come into effect. Suppose that a divorce lawsuit is filed. In that case the first fight may be about where to fight and under what rules to fight (see our "Relocation and Venue Litigation" chapter). If a couple has moved away from Massachusetts, for example, the agreement might yet require that Massachusetts law be used to interpret the agreement.

The simplest, quickest, and best-for-children way to obtain a divorce is via mediation. Certainly this is what all of the attorneys we interviewed for Real World Divorce said that they would want for their own children, themselves, or their friends. Mediation becomes less common as (a) there is more money to be won, and (b) there is more uncertainty about what a litigated outcome would look like. The Massachusetts winner-take-all system in which one litigant obtains the house, the kids, and the cash, combined with the wide discretion afforded to judges, means that mediation is uncommon here. Who is going to voluntarily agree to take on the loser role, even if Census and courthouse data show that a father has a greater-than-90-percent chance of becoming the loser? Our "Middlesex County, Massachusetts May 2011 Divorce Lawsuits Analysis" showed that only about 17 percent of divorces are "joint petitions" in which the spouses show up with a prepackaged agreement worked out with a mediator. In other words, 83 percent of the time one spouse sued the other.

Generally it is the person who has a lower income and therefore is on track to become "the dependent spouse" and then "the winner parent" who files a divorce lawsuit. Our statistical study showed that, after excluding a same-sex divorce lawsuit, 72 percent of the cases were a wife suing a husband. A prenuptial agreement typically narrows a divorce lawsuit and limits what a plaintiff can obtain. Thus it is rare for the Complaint, the document that kicks off a divorce lawsuit, to request that a judge enforce a prenuptial agreement. It would typically be the defendant who asks for this in an Answer and Counterclaim.

A litigated divorce in Massachusetts can take anywhere from 24-36 months. Suppose that Paul Plaintiff thinks that, at some point prior to the trial, his case isn't going well. He can drop the lawsuit. This leaves Doris Defendant still married to someone who filed a lawsuit against her, imposed hundreds of thousands of dollars of legal fees on her, and who probably no longer lives with her. If she wishes to be rid of Paul Plaintiff she could file a lawsuit against him but the 24-36-month clock would start over. Meanwhile, due to the longer "marriage," Paul Plaintiff has built up additional years of alimony entitlement and a stronger claim to Doris's assets and earnings. Thus it is conventional for a divorce lawsuit defendant in Massachusetts to ask, via a counterclaim, for a divorce. Here's what it may look like:

Counterclaim Plaintiff certifies that no previous action for divorce, annulment or affirmation of marriage, separate support, desertion, living apart for justifiable cause, or custody of the child(ren) has been brought by either party against the other except Counterclaim Defendant’s Complaint for Divorce.

On or about **whatever date the original divorce plaintiff used***, an irretrievable breakdown of the marriage under M.G.L. c. 208, § 34 occurred and continues to exist.

Wherefore, Counterclaim Plaintiff requests that the court:

Grant a divorce for irretrievable breakdown pursuant to M.G.L. c. 208 §1B;

Enforce the terms of the Prenuptial Agreement between the parties dated ***Prenup Date***;

One thing that Massachusetts litigators like to do is "bifurcate" the divorce lawsuit into two trials: one regarding the validity and meaning of the prenuptial agreement and one for the divorce itself. In theory this could be advantageous to a defendant seeking to enforce a prenuptial agreement. If the prenuptial agreement is valid, for example, and puts premarital property out of the plaintiff's reach, there is no need to have discovery regarding the current value of premarital property. Discovery can cost hundreds of thousands of dollars in a divorce lawsuit and involves attorneys supplying the other side with documents, looking at documents, and conducting depositions in their offices in which witnesses, including the parties, are asked questions in front of a court reporter. Another purported advantage to a bifurcated proceeding is that, after the first trial, the parties have a better idea of their likely profits and losses from the ultimate divorce and therefore are more likely to settle before going all the way to trial.

A disadvantage from a defendant's point of view is that Massachusetts law prevents the trial regarding the prenuptial agreement from being final. Remember Nissenbaum's comment above, "The standard is that it has to be fair when signed and not unconscionable when enforced." A trial in the middle of the divorce can answer the question of whether or not the prenuptial agreement was "fair when signed" but, as the enforcement date is the divorce itself, which may be years into the future, the question of "unconscionable when enforced" is unanswerable. Suppose for example that a plaintiff had a $100,000 per year income at the time that a prenuptial agreement was signed. It is possible that a judge could find that it was fair for the plaintiff to waive alimony in exchange for some other right under the prenuptial agreement. But suppose that this plaintiff stopped worked during the marriage and became disabled shortly before the final divorce trial. It might then be unconscionable, from a judge's perspective, to deny the plaintiff the opportunity to continue to be a financial dependent of the defendant. A further disadvantage is that the legal costs may be increased because lawyers have to prepare for two trials rather than one.

The hoped-for savings on legal fees from bifurcation may not materialize due to the nature of what makes a prenuptial agreement valid or invalid. For example, did a defendant disclose all of his or her assets? The only way to answer that question is to look at documents from prior to the marriage and depose witnesses who have knowledge of the defendant's pre-marital financial situation. How much can this cost? In one case that we looked at, the prenuptial agreement was a simple document keeping a house as the defendant's separate property. The plaintiff sued after just six years of marriage and therefore wouldn't ordinarily have been entitled to a house purchased prior to the marriage. At best, without a prenuptial agreement, she could have hoped to obtain, via the property division claim of her lawsuit, half of the house value or about $300,000. She argued that the defendant had not disclosed all of his assets and that he had made a lot of money approximately 10 years prior to the marriage, which he had salted away somewhere. A layperson might have asked "If this guy was so rich why was he living in a $600,000 house and driving a 10-year-old car?" Getting an answer to this question burned up approximately $200,000 in legal fees. How is that possible? Aside from the in-court theatrics, business associates from 15 years earlier were defrosted and deposed, sometimes for multiple days.

Due perhaps to the fact that the plaintiff had no credible evidence to present, the defendant ultimately prevailed, but, as noted above, the lawyers billed $200,000 to argue about a prenuptial agreement that at most could have moved the needle on the divorce lawsuit outcome by $300,000 and, more likely, didn't have any effect at all. Why not? Because the judge could not give the plaintiff a free house, she was instead awarded above-guidelines child support revenue, to the tune of 80 percent of her defendant's after-tax income. Had the defendant lost half of the house value he might have lost only the guidelines amount of his income, closer to 50 percent of his income. This turned out to be an illustration of the general principle that we learned from one attorney: "Defending a divorce lawsuit is like using an Asian martial arts weapon. You're more likely to hurt yourself than your opponent."

Another reason why a bifurcation may not reduce overall legal fees is the practical fact that legal fees in the Massachusetts divorces we looked at seemed to be a function of how much a couple had saved. If there were $1 million in liquid assets, for example, the lawyers on the two sides found a way to consume most of that $1 million one way or another.

What does a motion to bifurcate look like? Here's an example:

The defendant, pursuant to Mass. R. Dom. Rel. P. 42(b), hereby moves this Honorable Court to bifurcate this action and to set the matter for an evidentiary hearing:

To adjudicate the validity of the parties’ Prenuptial Agreement dated January 1, 2016 (“Agreement”);

  1. To determine whether the plaintiff is liable to the defendant for her breach of the agreement.
  2. The defendant further moves for a stay of the divorce action, except for issues related to support, custody and visitation of the minor child, pending resolution of the validity of the  Agreement.  

As grounds therefor, the defendant states that the court has the authority to bifurcate the proceedings; that doing so will serve the interests of judicial economy and justice, as the Agreement, if upheld, is dispositive of all issues of spousal support and property division; and that there is a substantial likelihood that the validity of the agreement will be upheld by the court.

 

A memorandum in support of this motion and an affidavit of the defendant in support of this motion are submitted herewith.  

The affidavit from the defendant will typically lay out the timeline of prenuptial agreement negotiations and when the agreement was signed. The memorandum from the attorney will restate this history for the judge and cite case law about how it is fair and proper for a court to bifurcate. This document can be more than 10 pages in length. Thus simply asking for the bifurcation will run up $5,000 in fees for a defendant. The plaintiff may spend a similar amount opposing the bifurcation and, as noted above, a Massachusetts defendant is often ordered to pay a plaintiff's fees as well. So it is $10,000 before the judge says whether or not there will be two trials.

Here's an excerpt from an example memorandum:

The Wife has filed a complaint for divorce requesting alimony and a division of property pursuant to G. L. c. 208, ' 34.  The Wife's complaint conflicts with the Agreement, which addresses the issues of alimony and property division.  The standard adjudicating the validity of prenuptial agreements, which must be judged fair and reasonable at the time of their execution, and not unconscionable at the time of entry of the Judgment of Divorce, does not involve the consideration of the Section 34 factors.  See Rosenberg v. Lipnick; 377 Mass. 666 (19790; DeMatteo v. DeMatteo, 436 Mass. 18 (2002).  Before the court can decide whether to admit or exclude any evidence on the G.L. 208, ' 34 factors raised on the Wife's complaint, it must first determine whether the Agreement controls.  If the Agreement is upheld, the Wife's alimony and property division claims are moot, obviating the substantial time and expense that would otherwise be required for discovery, trial preparation and the trial itself.

Moreover, determining the enforceability - or non-enforceability - of the Agreement prior to a full trial benefits the court and the parties in other ways.  Until this issue is resolved by the court, resolution of the entire case by agreement is highly unlikely.  The point is that, even if the Court were to find that certain provisions of the Agreement are not enforceable, bifurcation will still have assisted the court (and the parties) by identifying for the parties those terms that will (or not) be enforced by the Court.  Such guidance before the parties embark on extensive discovery could spare the parties the substantial expense of legal fees and will more likely lead to a settlement in a case where the parties have been married for only three years. [emphasis in original]

Therefore, bifurcating the issue of the enforceability of the Agreement prior to the divorce action will serve judicial economy by conserving the resources of the court and the parties and by averting the precise type of "unwieldy litigation" contemplated by Rule 42(b).

If the judge says that there will be two trials, a "four-way" meeting must be held. "Four-way" refers to a meeting in which the plaintiff, the defendant, and their respective lawyers sit in a conference room and try to settle their differences out of court. As with mediation, this tends not to work in a winner-take-all state, and the only result of these conferences is to run up the legal fees on both sides and further sap the time and energy of the parties (one reason children of litigated divorce do so poorly, on average, may be that their parents have used up all of their time and energy on either pursuing cash via litigation or defending against that pursuit).

Regardless of whether the prenuptial agreement issues are heard at a separate trial or during the main divorce trial, the lawyers have to prepare pre-trial memoranda stating (a) that the required four-way meeting was held on a certain date at a certain place, (b) "uncontested facts," e.g., the ages and educational backgrounds of the litigants, when they were married, whether they have children, (c) "contested issues" of fact, (d) contested issues of law, (e) potential witnesses, (f) proposed exhibits (documents), (g) estimated length of trial, (h) procedural background (remind the judge what has happened in the case so far), (i) a theory of the case.

Here are some examples of contested issues from a plaintiff:

The Wife believes principle [sic] factual issues involve the amount of Husband's income and assets, and where the latter are currently located.

Whether the Husband made full, accurate, and adequate disclosure of his financial circumstances to the Wife prior to the execution of the prenuptial agreement.

Whether the Wife was effectively and unfairly coerced into signing said prenuptial agreement, given that Husband did not even broach the subject of a prenuptial agreement until…

Whether the Husband's foregoing conduct amounted to extreme and unacceptable duress in terms of forcing the Wife to sign a prenuptial agreement that she did not understand and clearly did not want to sign;

Whether the Wife signed the prenuptial agreement freely and voluntarily;

Whether the provisions of the prenuptial agreement were fair and reasonable as of the date of execution;

These memoranda are discussed at a pre-trial conference with the judge. This is called a "conference" but it happens in the same courtroom used for trials. The judge may say "You can't call all of those witnesses" or "If you need four days of trial my calendar isn't open until next year."

A trial regarding a prenuptial agreement operates more or less the same as any other trial. Lawyers bring in witnesses to testify as to the authenticity of documents, answer questions about those documents, and their memory of events that are now at least several years in the past. The lawyer who brings the witness to support his or her case gets "direct" testimony. The opposing lawyer then has an opportunity for a Perry Mason-style cross-examination, perhaps obtaining contradictory testimony. The first lawyer then can "re-direct" the witness to try to fix any problems highlighted during the cross-exam. A court reporter prepares transcripts of everything that is sad.

Working from the transcripts, which may not become available until weeks after the trial, the opposing lawyers prepare post-trial memoranda suggesting to the judge how to rule and, more importantly, how to support that ruling using the testimony of various witnesses. The judge is encouraged to cut and paste from these memos. Here is an excerpt from a Defendant's Proposed Judgment and Rationale:

After consideration of the credible evidence and the reasonable inferences therefrom, the Court FINDS AND ORDERS as follows:

The parties’ Premarital Agreement … was valid and enforceable at the time of execution.

The Premarital Agreement contains provisions that were fair and reasonable at the time of the execution.  At the time of the marriage, the Wife had a higher income than the Husband and more retirement funds than the Husband.  Each of the parties waived the right to claim any assets either inherited during the marriage in the event of divorce.  

RATIONALE

The Wife testified [her prenuptial attorney] did not advise her “at all about Massachusetts divorce law in general” and did not advise her “at all with respect to Massachusetts inheritance law for surviving spouses.”  [Wife, Day 1, 46: 17 – 23; 65: 14 – 24, emphasis added].

[her prenuptial attorney] testified credibly that he did advise the Wife as to his understanding on how prenuptial agreements worked.  He advised her as to specific changes he believed should be made to the draft agreement, including deleting the waiver of alimony provision, the Wife’s right to remain in the marital home if the Husband pre-deceased her, and that income received post-marriage should not be considered separate property.  [[Prenup Attorney], Day 2: 15:2 – 16:22].

Depending on the judge's workload and energy level, the final judgment may not arrive for 6-9 months following the trial. The Memorandum of Decision that corresponds to the above proposed judgment was issued by a fairly new judge, i.e., one without a large backlog of work. Thus it was issued only 3 months after the two-day trial. This 13-page document includes a procedural history, e.g., when the agreement was signed and the date on which "Wife filed a Complaint for Divorce". There are findings of fact such as when the parties were married, how old they are, when their children were born, and when the parties contacted lawyers regarding a prenuptial agreement. A section titled "Independent Counsel/Negotiation and Review of Agreement" describes work done by attorneys and concludes "I find that Wife signed the agreement freely and voluntarily. … Both parties received the independent advice of counsel prior to signing the Agreement. As the Agreement does not prevent Wife from requesting alimony, and does not strip Wife of substantially all marital assets, I find the Agreement fair and reasonable at the time of execution." (emphasis added; see above for how Massachusetts courts may invalidate a prenuptial agreement that removes all of the profit opportunity from a marriage)

The judge's decision contains a "Conclusions of Law" section citing appeals court decisions favoring the upholding of prenuptial ("antenuptial") agreements. It ends with a "Rationale" section saying that "... Wife did not present credible evidence that Husband engaged in fraud, failed to disclose assets fully and fairly, or took advantage of his relationship with Wife when the Agreement was executed. Wife was not stripped of substantially all marital interests, which would warrant finding the Agreement invalid. Wife reserved her right to seek alimony based upon Husband's income from sources other than his defined Separate Property. … I find the parties' Prenuptial Agreement to be VALID at the time of its execution."

Remainder of the Divorce

Divorce litigation in Massachusetts can go on until both parties are dead. Here's a story one of us wrote up in 2015:

I ran into a divorce and personal injury litigator at a party in Cambridge the other day. Her most recent trial concerned the amount of alimony that a defendant who had reached full retirement age (67 currently) should pay. Under a 2011 law ("alimony reform") the defendant should have been able to stop paying the plaintiff. What did the judge decide?

First, a little background… about 30 years ago the plaintiff sued her husband. As is typical in Massachusetts, the plaintiff prevailed (obtaining the house, kids, cash) but the profitability of the whole enterprise was limited by the defendant’s below-average income. Stripped of daily contact with his children, his domicile, and most of his spending power, the defendant went over the border and moved in with his brother in a neighboring state, thus saying goodbye to the plaintiff and severing his ties with the children (consistent with the research results summarized in "Children, Mothers, and Fathers": "Ten years after a marriage breaks up, nearly two-thirds of the children report not having seen their fathers for a year"). The plaintiff eventually learned that the defendant, together with his brother, had won his local state’s lottery and thus 20 years of substantial annual payments. She went back to court and sued for increased alimony and child support payments based on the new cashflow. “We were able to get almost 100 percent of the net lottery proceeds transferred to us,” said the litigator, “in a combination of child support and alimony. But there were a lot of hassles due to the interstate nature of the litigation.” My companions and I at the party congratulated her on winning what seemed like a complete victory. “My client did make one mistake,” she said ruefully. “She should have gone back to court to get her alimony increased when her children turned 23 and the child support payments stopped.”

The latest court proceeding was started by the former husband. “His income from wages was zero,” said the plaintiff’s lawyer, “and the lottery payments had ceased, but he was still under a court order to pay the same amount out of his Social Security and retirement savings.” The former husband sought to have the alimony terminated in accordance with the headline language of the new alimony statute. The former wife, who had never worked and therefore was not entitled to Social Security, sought to have the court order her ex-husband to keep sending checks in the same amounts, regardless of his new lower income or advanced age. The judge split the difference and ordered the man to keep paying the woman indefinitely, but at a reduced rate. (The fine print of all of these laws gives judges discretion to do more or less whatever they want.)

Although Massachusetts family court litigation between two opponents can stretch over decades and proceedings may blur together in the minds of parties, most attorneys divide litigation into two phases: divorce and post-divorce.

In a divorce lawsuit involving a prenuptial agreement, the actual divorce will typically occur 6-9 months after the second trial or roughly 3 years after the lawsuit was originally filed. At this second trial the judge will issue orders regarding (1) who gets the kids, (2) the cash value of the kids to the victorious parent, (3) alimony, (4) who gets the house, (5) how the rest of the property is divided, (6) how any pensions or retirement funds are divided, etc. The divorce becomes "final" 90 days after the judgement and the parties are therefore free to, for example, remarry. As shown by the example above, however, there is nothing final about the amount of alimony to be paid, the length of time for which it will be paid, the profitability of children, or the schedule of time that children will have with their parents.

The process leading up to the second trial is more or less the same as to the first. Discovery is conducted, with one side asking the other side to produce documents or witnesses for depositions. Lawyers prepare memoranda. Four-way meetings and then pre-trial conferences are held. The post-trial process is also the same: lawyers wait for a transcript and then prepare suggested rulings for the judge to cut and paste.

Some other countries and states have moved divorce, or least the child-related parts of divorce (see Delaware, for example), into non-adversarial administrative hearings. The Legislature in Massachusetts, however, promotes litigation as the right solution to disputes under family law. Why does getting to a divorce end up taking 3+ years and costing perhaps more in legal fees than the total assets that a plaintiff is attempting to win? Roderic Duncan, a retired California divorce judge, explains in A Judge's Guide to Divorce (2007, Nolo Press):

Divorce courts operate with the same basic rules used by the courts that deal with car accidents, disputes between giant corporations, and criminal charges from petty theft to murder. … Unfortunately, the traditional adversary system works very poorly when the issue before the court is the breakup of a family. In such cases, hours spent preparing for trial and parading witnesses on and off the stand could be spent much more productively… any contested divorce is expensive and can be as costly as one spouse wants to make it. … the present legal system needlessly heightens the negative emotions of the divorcing spouses by purposefully pitting one side against the other. Many more people than you would guess maintain at least some sort of a friendly relationship with a former spouse after a divorce. But that is highly unlikely if the two of you go through a contested trial. … a contested divorce trial ultimately ends up causing terrible damage to any children…

Angie Hallier, a top litigator in Arizona:

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

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

Hallier writes from a state that has substantially less litigation over child ownership and child profitability due to the legislature's imposition of a 50/50 shared parenting default. However, her basic points remain applicable to Massachusetts. The same careful plodding cost-is-no-object procedures used to decide if someone is guilty of murder, and therefore needs to be imprisoned for 20 years, will be used to decide if a defendant should pay a plaintiff an extra $100 per week in child support or alimony.

A prenuptial agreement whose validity when signed has been upheld at a first trial can simplify a second trial, but remember that arguments about whether or not the prenuptial agreement is unconscionable when applied ("second look") can still be presented. Also keep in mind that litigation tends to fill the time and money available.

What happens in the "second look"? Take a look at Rebecca Kelcourse v. Lawrence Kelcourse, 87 Mass. App. Ct. 33 (2015). The plaintiff wife, who earned only $15,000 per year, would have been left with a crummy house if the prenuptial agreement had been followed to the letter so a judge gave her $400,000 in addition to the house.

A prenuptial agreement whose validity has been upheld may end up having more practical value after a divorce per se. If the agreement provided for a lump sum in lieu of alimony, for example, that prevents the 30 years of alimony litigation described above. However, as explained below, it can't prevent up to 23 years of child support litigation.

Child Support is the New Alimony

As noted above, because children cannot be parties to a prenuptial agreement, the agreement cannot limit the rights to children to be the subject of custody and child support lawsuits. This enables a cash-motivated plaintiff to seek via custody and child support what a prenuptial agreement precludes obtaining via property division and alimony. Massachusetts family court judges may take a holistic view of how much cash they would like to transfer from the "breadwinner" to the "dependent spouse." Here are some notes from a 2014 presentation on the alimony law that took effect in 2012: "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." Nothing stops a judge from going above the child support guidelines to give a plaintiff two-thirds of a defendant's pre-tax income via child support. Due to the fact that child support, unlike alimony, is not tax-deductible, the effect of such an award is to transfer 100 percent of a defendant's after-tax income to a plaintiff. As a practical matter these decisions are not reviewable by an appeals court. Lawyers told us, and our courthouse research confirmed, that plaintiffs targeting the wealthiest defendants tend to sue when children are young. Coupled with Massachusetts offering plaintiffs 23 years of child support (most states offer only 18), this means that a prenuptial agreement may have little effect on the total amount of cash transferred via a divorce lawsuit. In fact, due to the fact that custody litigation has a potentially unlimited scope, the legal fees and intensity of the litigation maybe be increased by requiring a plaintiff to work on profiting from the children. It isn't relevant in a property division lawsuit to assert that the defendant is a child molester, for example, or has threatened domestic violence. But when seeking sole custody of a child, and the accompanying child support profits streaming into one's bank account, is it very convenient to have a defendant who is a child molester.

As noted above, for a prenuptial agreement to be valid in Massachusetts, the lower-income spouse has to be able to profit from the marriage. We looked at one case where the prenuptial agreement would have left Jessica Kosow, who sued her husband after a four-year marriage,  living in a $1 million house with all house-related expenses paid for 21 years. In addition, Ms. Kosow got $50,000 per year in alimony via this prenuptial agreement. The Massachusetts child support guidelines, which are among the most lucrative in the world, are intended to cover at least some of the winner parent's housing and living expenses as well as all of the child's basic expenses (additional direct expenses, such as for private school or health care, are ordered by judges on top of the child support cash). Thus you might think that a judge would award less in child support to a plaintiff with a paid-for house, especially when the house was being paid for by the defendant. Let's see how it played out.

Ms. Kosow sued her husband on February 19, 2010 in Middlesex County (Kosow v. Shuman, 10D0588). Ms. Kosow was an Ivy League graduate who chose not to work. Her husband was a high earner with $2.4 million in savings. Their joint child was two years old. The plaintiff mother kicked off her litigation by arguing 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 "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 later point in the litigation the plaintiff voluntarily agreed to let the father that she had previously accused of sexual abuse, child molestation, etc., take care of the daughter on 6 out of 14 nights per week. That left one remaining issue for trial: "How profitable should it be to take care of a child 8 nights out of 14 given that a plaintiff already has a free house and alimony?"

Here's Judge Maureen Monks of Middlesex County explaining 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 of June 22, 2011 status conference in Kosow v. Shuman, 10D0588

Judge Monks applied the Massachusetts child support guidelines, which top out at $40,000 per year, and then extrapolated from the top of the guidelines for any additional income that the father was earning above $250,000. The plaintiff ended up with $98,808 in tax-free annual child support (about $2 million tax-free total). There was no adjustment for the free house that the plaintiff had obtained via the prenuptial agreement. Although the prenuptial agreement that the plaintiff had signed stipulated that, in the event of a divorce, each side would pay his or her own legal fees, the defendant was ordered to pay for half of the plaintiff's fees.

Summary of this section: (1) a prenuptial agreement may not change the profitability of a divorce lawsuit if there are children, (2) a prenuptial agreement that blocks property division and alimony profits may increase the intensity of litigation over custody, (3) anything that a plaintiff gets via a prenuptial agreement, such as a free house, will be considered "gravy" and likely won't inspire a judge to cap a plaintiff's profits at the top of the child support guidelines, (4) a provision that a divorce lawsuit plaintiff must pay his or her own legal fees is unlikely to be enforced.

[A little more color from the Kosow v. Shuman case… One of the ways that a plaintiff can block shared parenting in Massachusetts is to assert the existence of "conflict" between the plaintiff and defendant. Legislatures and judges in other states assume that if Person A sues Person B for millions of dollars it is likely that Person B is not going to be too thrilled about it, but in Massachusetts the expectation is that Person B has to treat Person A like a best friend or Person A will also need to have sole custody of the children. Here's a text message exchange from roughly one year into the litigation, in which Jessica Kosow is seeking $5 million in tax-free child support. The parents are living about 15 minutes' drive time apart, she in the million-dollar house that her defendant purchased for her:

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

From Judge Monks's Findings and Memorandum of Decision, June 30, 2012:

This case shows that it might be wise for anyone considering a family move to go to the courthouse in the proposed new location and see how a typical divorce lawsuit plays out in that jurisdiction. See our Georgia chapter for how divorce outcomes can be completely different even within the same state (Metro Atlanta versus small towns and rural areas).]

You Cannot Contract Out of the Massachusetts Custody System

We trust that you've seen that a prenuptial agreement provides only limited protection for the higher-income or higher-wealth partner in Massachusetts. Assuming that the agreement isn't simply invalidated, wealth that a prenuptial agreement blocks from immediate transfer, for example, may be transferred gradually via child support.

If the prenuptial agreement can't address concerns regarding wealth-preservation it is of even less value when it comes to concerns regarding children. If you think that you will benefit from the way that Massachusetts handles custody and child support, but want to move to another state, for example, you cannot preserve your rights under Massachusetts law via a prenuptial agreement. Similarly, if you believe that you or your children would be harmed by the way that Massachusetts handles custody and child support, you can't change that with a prenuptial agreement. Your only option is to move to a different state or country.

Unless parents are actually hitting each other ("physical violence or severe abuse"), research psychologists have come to the conclusion that children are best off in a two-parent home. The parent who leaves a marriage "for the sake of the children" is behaving in accordance with American 1970s popular psychology but contrary to experimental research. The Divorce Culture (Barbara Dafoe Whitehead 1996) summarizes the wave of popular books and academic research that followed the implementation of no-fault divorce across America:

According to a representative 1974 book, The Courage to Divorce, "divorce can liberate children." Its authors, social workers Susan Gettleman and Janet Markowitz, emphasize the psychological goods and benefits for children. … The authors approvingly cite one mother's positive announcement of divorce: "Children, I have good news for all of us. There is going to be more happiness in this house from now on."

The Courage to Divorce also claims that divorce will result in better relationships between nonresidential fathers and children, noting that divorced fathers can pay more attention to their children than unhappily married fathers. … divorced fathers have visitation privileges which provide "a number of undisturbed hours in which parent and child may be left alone with each other, to share thoughts, feelings and experiences." As for the concern that father-absence is harmful to boys, it is exaggerated. "When fathers are not available, friends, relatives, teachers and counselors can provide ample opportunity for youngsters to model themselves after a like-sexed adult."

… marital dissolution can spur the career development and economic advancement of divorced mothers: "Divorce often impels a nonworking wife into gainful employment, while child-support payments (and often even alimony) continue. This may mean augmented income for the wife and children."

"Future generations of women may not have to look forward to the humiliation of taking alms from men who do not love them and whom they do not love."

… Most influentially, this rationale established a new measure of child well-being: the individual marital satisfaction of each parent. … the new view tied children's interests to the emotional well-being of each parent but particularly of the mother. … This rationale for divorce also offered a reprieve from the ethical imperative for parents to preserve the marriage for the children's sake. In their intimate and family relationships, parents' first responsibility was to themselves; if they sought their own satisfactions, then their children's happiness would follow.

Massachusetts firmly subscribes to the 1970s pro-divorce attitudes described in The Divorce Culture. The state offers large financial incentives for filing divorce lawsuits, offers plaintiffs the opportunity to be the "winner parent," with all of the pre-divorce benefits of being a parent held intact, and subscribes to a trickle-down theory of happiness: if the winner parent is happier, e.g., by being allowed to move to California, 3000 miles away from the loser parent, then the children will be happier.

Research started in the 1980s and continuing through the present, however, shows that the benefits of a divorce accrue to the plaintiff parent while the costs are borne by children. This is consistent with anecdotal reports from the attorneys we interviewed, e.g., "It a mistake to think of divorce lawsuits as being Parent 1 v. Parent 2. In the cases where anyone has enough money to hire me, the parties who are opposed are the plaintiff parent and the children. … You have to start by considering the interests of the children. From their parents they can get love, time, energy, devotion, necessities during childhood, money for college, wealth via inheritance. A divorce won't help the children get any of these things. The parent who launches a litigated divorce has a lot to gain. He or she can enjoy the freedom of spending the former spouse's money without having to get the spouse's approval. He or she can spend time with lovers. The plaintiff parent will no longer have to consider the comfort or happiness of the former spouse or any of the in-laws. This gain comes primarily from a loss to the children." Do children figure this out? Yes, according to "The Unexpected Legacy of Divorce: Report of a 25-Year Study" (Wallerstein and Lewis; Psychoanalytic Psychology 21:3 2004):

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

In a study of 124,114 fathers in Denmark, whatever a mother gained financially from child support (limited to a range of $2,000 to $8,000 per year per child) came at the expense of reduced investments of time by the father in the child(dren). See "Parental Responses to Child Support Obligations: Causal Evidence from Administrative Data" (Rossin-Slater and Wust; December 8, 2014 American Economics Association Conference). This tradeoff between extracting money or a father's time and energy is starker in a litigation-oriented society. Attorneys told us that their defeated-father clients (i.e., most of their defendants) had less to contribute to children. "They have less money," one lawyer said, "because they paid me and they paid most of their plaintiffs' fees too. They have less time because they spent years assisting me with their defense. They have less energy because they put so much of it into a losing battle that nobody had the heart to tell them could not have been won by any man."

In a study of all Swedish children aged 12 or 15 (172,000 children total), the highest levels of well-being were experienced by children within intact families. Children who were in Alaska/Arizona/Colorado/Delaware/Nevada/Pennsylvania-style 50/50 shared parenting arrangements came in a close second. Children who were in a Massachusetts-style primary/secondary parenting arrangement had substantially lower levels of physical and psychological well-being. (See papers by Malin Bergstrom, et al.) A Massachusetts child with every-other-weekend access to the loser parent, however, would be far more damaged than a Swedish child with a similar schedule. Child support in Sweden is typically around $2,000 per year and the Civil law system there is much simpler, cheaper, and faster. Thus the Swedish child is unlikely to have been the subject of a no-holds-barred lawsuit that consumes most of a family's savings.

Attorneys told us that, in their experience, litigation over who was going to become the winner parent and collect profitable child support ended up harming children more than any marital discord. Here's a veteran divorce litigator's perspective: "Why have we set up a system where the American dream is to find the right fortunate person to marry and then divorce? Attorneys will go to the mat to defend litigation because we're so fucking important, but the reality is that everyone who can afford a real litigator can support a child. If you already have enough money to support a child you shouldn't be able to use the courts to fight for more. What we do supposedly to advance the best interest of children is devastating to children."

Consider two parents, each with an income of $125,000 per year, and one child. Following a parental separation they will have approximately the same child-related costs, primarily the real estate expense of an additional room in the house or apartment. The Massachusetts court will look to find who has been the "historical primary caregiver" and award "primary parent" status to this person. Along with "primary parent" status will come approximately $400,000 in tax-free child support over a 20-year period (plus the value of any new federal tax breaks for parents; by IRS regulation these accrue to the winner parent as well). Thus the primary or "winner" parent will end up $800,000 richer than the secondary or "loser" parent. Given reasonable forecasts of future federal and state tax rates, that's equivalent to earning roughly $1.6 million on a pre-tax basis. You and your intended might get along now, but suppose that your future spouse has a new lover and is done with you. How hard would you expect that spouse to fight for $1.6 million (equivalent to 13 years of wage income at $125,000 per year)? That's how hard your future plaintiff will fight for primary custody of the kid(s).

U.S. Census data from 2014 show that a mother has a 97-percent chance of being the winner parent and collecting child support. However, high-income women should be cautious. "Judges will generally try to arrange things so that a dependent spouse doesn't leave empty-handed," was a representative perspective from Massachusetts litigators. There are an increasing number of judges who are applying the law in a gender-neutral fashion (see our statistical analysis of divorce lawsuits filed in May 2011 for how the definition of "justice" will vary depending on which judge is assigned to a case). A woman with a somewhat higher income than her husband can be identified as the "breadwinner" while he becomes the "dependent spouse." Due to the limits on alimony, as discussed above, and the limits on property division following a short-term marriage and/or imposed by a prenuptial agreement, the only way for the judge to enrich the husband is to give him primary parent status or at least order a 50/50 schedule so that the lower-income husband is entitled to a river of child support cash. At a July 2015 hearing at the Massachusetts Senate, a mom with a well-paid management job testified about losing custody of her daughters to their firefighter father. Because a "full time" firefighter works just two 24-hour shifts per week and he made a little less than she did, it made sense for the judge to decide that she was the breadwinner. She periodically babysits her former children and hands over about half of her income to her former husband that he can spend on dates with younger women. If he remarries he will have the spending power of his new wife's income as well as most of the spending power of his old wife's income--unlike alimony, his child support revenue won't be reduced in the event of a remarriage.

[The hearing at the State Senate was to decide whether or not to tweak some of the statutory language so that judges would arguably be encouraged, though not required, to consider "shared parenting." Note that a "shared parenting" schedule could be that children would be with the loser parent every other weekend. The profitability of obtaining a primary share wouldn't have been reduced. Mostly the result of the bill would have been that the "loser parent" would be officially renamed from "noncustodial parent" to "secondary parent." The hearing was presided over by Cynthia Creem, a $500+/hour divorce litigator, and William Brownsberger, another attorney. One of us offered testimony. The bill died in committee.]

If you want to ensure continued status as a parent, rather than "secondary parent," following a separation or divorce, and you want to spare your children what research psychologists and attorneys have found to be the permanent damage of a custody and child support lawsuit, our advice is to move to a jurisdiction in which 50/50 shared parenting is the norm and, ideally, where collecting child support is not especially profitable. Check Real World Divorce for a continuously updated view of statutes and customs around the country and the world. Currently within the U.S. the states where 50/50 parenting is a customary outcome include Alaska, Arizona, Colorado, Delaware, Nevada, and Pennsylvania. Sweden favors 50/50 parenting by law while Denmark and Germany favor 50/50 parenting by limiting the profitability of being the primary parent.

Be Careful not to Intensify a Custody Lawsuit with a Poorly Drafted Prenuptial Agreement

One potential prenuptial agreement pitfall is any clause that could intensify a custody lawsuit. As noted above, the Massachusetts child support guidelines turn children into cash cows ("little bags of money," is how some local divorce bar veterans refer to kids). Suppose that it were legal to sue neighbors for custody of their children. A person could go down to the local Probate and Family Court to say "Bob and Jane aren't great parents. They park their kids in front of the TV while they drink wine and barbecue with friends. They let the kids eat pre-sweetened cereal for breakfast. The kids would be a lot better off living with me and, by the way, to ensure that the kids don't suffer a reduction in lifestyle I need you to give me Bob and Jane's house plus 60 percent of Bob and Jane's after-tax income." Plainly there would be plenty of cash-motivated litigation over who is the best parent in the neighborhood, even without any plaintiff having a sentimental or biological connection to the subjects of these custody lawsuits.

If a typical Massachusetts custody lawsuit therefore already involves (a) enough cash to make seeking primary custody rational even if the plaintiff doesn't like the kids, (b) lurid allegations of child abuse or deviant sexual practices in an attempt to sway the judge, and (c) a biological or sentimental connection between plaintiff and children, how could it possibly get more intense?

Imagine a prenuptial agreement that gives a victorious custody plaintiff a free house or yet more cash on condition that he or she wins custody. Here's an example:

In the event that either party files an action for separation, separate support, or divorce during marriage, the parties agree to the following disposition of the principal residence: If there is a child of the marriage with respect to whom a party has primary custody, that party shall be entitled to live in the principal residence until the child reaches the age of emancipation.


This may sound reasonable at first glance, especially if you're not a full-time Massachusetts divorce litigator. If the kids, post-divorce, are living primarily with one parent, wouldn't it be nice if they could all stay together in the same house as during the marriage? Yet viewed through the lens of predictable litigation, the above language translates to "free house for up to 23 years [the age of 'emancipation' in the Massachusetts child support system] conditioned on winning primary custody." To a divorce litigator this clause plainly gives a plaintiff an additional and powerful motivation to reject a 50/50 shared custody arrangement.

Signs that a Divorce Lawsuit is Imminent

Massachusetts rewards divorce plaintiffs for pre-lawsuit planning. Many of the lawyers that we interviewed described being retained by plaintiffs well in advance of filing a divorce lawsuit and providing them with advice regarding how best to position themselves for future litigation. The defendant was usually caught on the back foot and never truly caught up. (See: a funny 30-second Nevada video about pre-divorce planning.)

One of the most frequent and critically important pre-divorce actions is a lack of action: not taking a job. "I tell clients who are planning to sue for alimony and child support that they should absolutely avoid any kind of paid employment," said one attorney. "For every dollar that they might earn during the marriage they could be giving up 10 dollars in alimony and child support. Courts tend to get anchored on a number, either for alimony or child support and whether the number is in a settlement agreement or in a judgment after trial. Even if a mother gets a high-paying job post-divorce, the father will likely have a tough time getting a modification, especially if the case was settled by agreement." Note that the "don't take a job" advice is not just for women. We interviewed a 50-year-old Florida resident, between managerial jobs at the time, regarding his first consultation regarding defending a divorce action commenced by his wife. The attorney advised him to start seeing a therapist who would testify at trial that he was clinically depressed and unable to work. This would bolster his bid for "permanent alimony" from the $220,000-per-year ex-wife. If your partner has always been a hard worker but suddenly steps back into a lower-paying job or no job at all, watch out!

Due to "historical primary caregiver" standard that Massachusetts uses for awarding "primary parent" status, a future plaintiff may volunteer to take on a greater proportion of child-rearing tasks, encourage the future defendant to take a job requiring more travel or hours away from the home, and create an email record of taking children to doctor's appointments, etc.

When a future plaintiff is concerned that just being the more important parent won't be enough, a common tactic is to establish a record as an abused spouse. "Allegations of abuse raised after a divorce lawsuit is filed tend to lack credibility," said one attorney, "which is why women are well-advised to establish a record starting 6-12 months in advance." What does that look like? "Provoking the husband in arguments, recording those arguments, calling the police to the house, and injuring themselves and photographing the bruises if the husband cannot be provoked into actual physical violence."  Note that recording a spouse surreptitiously is legal in "one-party recording" states, which Massachusetts is not. Watch out for a provoked argument while on vacation and also keep in mind that a recording could be played for a Guardian ad litem making a custody decision even if the law would prevent that recording from being used as evidence in the courtroom. Women are also advised to begin seeing a therapist and to tell the therapist about abuse that they are suffering so that the therapist can later come to court and testify, thus getting around the "he-said, she-said" problem that causes many judges to throw up their hands. See our Domestic Violence Parallel Track chapter for more about how this works in practice. If your partner is shoving you out of the way in the kitchen, it might be more about the future lawsuit than about the meatloaf.

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

We learned about a Boston-area wife who managed to transfer money to her boyfriend, a contractor, by paying him for work on the house from joint assets. "She claimed that the payments that she had made to him were for work that he had done on our house and, therefore, were legitimate," said her defendant. "I guess that could be true if a new asphalt shingle roof costs $200,000, and a brick firepit costs $150,000. She even claimed the $70,000 Mercedes that she bought for him was a payment -- coincidentally on his birthday. My best estimate is that roughly $1.1 million was embezzled and moved offshore. The boyfriend admitted in deposition that he was withdrawing $10,000 at a time in cash in order to avoid IRS scrutiny. The judge fully acknowledged that the evidence indicated that large amounts of cash from the marital assets were misappropriated.  A subpoena was issued for the boyfriend's bank statements, but the offshore accounts were never provided.  In addition, she purchased a substantial amount of expensive furniture (and, presumably, other items) that she covered with tarps in the basement in anticipation of the divorce.  I didn't find out about that until the au pair mentioned it several years later."

[After she did sue her husband, the wife got an additional $10 million in assets (half of the money he'd earned during the dotcom boom, which coincided with the marriage), $60,000 per year in child support through age 23, 100 percent of the two children's expenses such as private school and horses, 100 percent of college expenses, and $60,000 per year in alimony for 10 years, which was considered "nominal" and required by the judge to approve the settlement. Given that the marital assets were the only source of income for the two parents and they'd been split, what was the rationale for making the defendant husband pay alimony and all of the children's expenses? "The judge found that, because she had never worked, I was in a better position to make money," he responded. "I could just find another dotcom boom and make another $20 million."]

One of the most effective pre-divorce financial activities is simply spending a lot. "A good general rule is that anything that is condemned as immoral outside of family court will turn out to be profitable once you get in front of a judge," said one attorney. Spending the family's savings like a drug dealer? That's helpful for establishing a need for above-guidelines child support or maximum alimony. Family courts use alimony to ensure that a plaintiff's lifestyle isn't affected by a divorce. Prior to "alimony reform," which took effect in 2012, the fundamental basis of alimony was the plaintiff's "need" and the defendant's "ability to pay." These factors are still important, though the new statutes suggest some limits around alimony, especially the duration as a function of the length of marriage. If a future plaintiff suggests a few "once-in-a-lifetime" trips it may be to establish a pattern of expensive vacations and therefore greater "need". If the children come along on these trips that helps establish a need for higher-than-guidelines child support ("the guidelines are just a starting point for most judges," one downtown Boston attorney noted). If a future plaintiff buys a new wardrobe, that also helps. From Judge Maureen Monks of Middlesex: "Wife primarily purchased designer clothing during the marriage. She has clothing and shoes from such brands as Prada, Hermes, Versace, YSL, Henri Bendel, Armani, Gucci, Anne Fontaine, Valentino, Chanel, Ferragamo, and Manolo Blanik." Unable to grant this well-dressed plaintiff alimony because of a prenuptial agreement, Judge Monks went beyond the top of the guidelines in awarding child support (the plaintiff also got roughly $1 million in home equity following a three-year marriage).

[Note that sometimes it is possible to spend a lot without actually spending a lot. A standard procedure used by Massachusetts plaintiffs is get a gift card during every visit to a grocery store. By law the value of the gift card can never expire and these gift cards are stockpiled for post-divorce use. Either due to gift card purchases or simply obtaining cash back at the register, bank statements will show an extra $100 or $200 per week in spending.]

When Prenups Go Bad: Malpractice

Prenuptial Agreements aren't typically examined that closely until one spouse decides to sue the other. At that point it may become clear that one of the attorneys involved made a serious mistake. Based on our study of lawsuits filed in May 2011, it is likely that the first round of litigation is approximately 10 years after the prenuptial work was done. (However, lawyers told us that the most cash-motivated plaintiffs tend to sue when the youngest child reaches age 2, which might be less than 10 years after the marriage.)

To preserve a malpractice claim against the lawyer or law firm that worked on the prenuptial agreement, a consumer should make sure to keep that firm advised of the divorce lawsuit and offer the firm the opportunity to assist with enforcing the prenuptial agreement. The consumer should also appeal any adverse rulings regarding the prenuptial agreement, again offering the attorneys who represented the consumer for the prenuptial agreement the opportunity to work on the appeal. This prevents the prenuptial drafter from saying "Well, it was just one crazy judge and everyone knows that Probate and Family Court judges in Massachusetts can do whatever they want. If you had appealed it the decision would have been overturned." The cost of an appeal should be approximately $25,000 in legal fees and we recommend John Foskett of Deutsch Williams for doing this work.

Note that, at least in Massachusetts, a three-year statute of limitations may begin to run as soon as a party to a prenuptial agreement learns that it may be defective (see a 2012 case, Allenby v. DeWitt, 82 Mass. App. Ct. 1117). So any malpractice lawsuit should be filed within three years of an event such as (1) a spouse's attorney writing a letter saying "this prenup is invalid" or "this prenup, interpreted correctly, gives my client the following rights," (2) a temporary order from a judge or a ruling after a bifurcated trial, e.g., suggesting that a prenuptial agreement is invalid.

What are possible scenarios for legal malpractice in the context of a prenuptial agreement? A client might provide a lawyer with a list of assets, which the lawyer failed to include in the final documents, thus leading to a finding of invalidity. A client might instruct a lawyer to ensure that any agreement protected a certain asset but the lawyer did not follow that instruction and the agreement was either silent or defective on this point. A lawyer might create an agreement that was invalid as a matter of law in Massachusetts, e.g., a "walk-away" agreement in which neither spouse could profit from the marriage.

K.O. Herston, a Tennessee attorney commenting on a malpractice case that arose from an invalidated prenuptial agreement: "lawyers who are not proficient in family law should refrain from drafting prenuptial agreements. They are fraught with danger. The drafting lawyer is all but guaranteed the prenuptial agreement will be scrutinized and likely challenged by a motivated lawyer if the parties divorce. (I should know — I represented Wife at the trial court level and succeeded in invalidating the prenuptial agreement in this case.) If the prenuptial agreement is invalidated, the drafting lawyer may be on the receiving end of a legal malpractice lawsuit, like Attorney was here. Lawyers who dabble in family law should consider referring clients seeking prenuptial agreements to lawyers who focus exclusively on family law. I’m sure the attorney in this case wishes he had done so."

As we noted above, we agree with Attorney Herston. Consumers should hire a Massachusetts divorce litigator to write a Massachusetts prenuptial agreement.

The Postnuptial Agreement

As we hope that you have learned, when it comes to divorce, jurisdiction is everything. A Massachusetts divorce lawsuit that yields $10 million in alimony may barely be worth filing in Texas or Germany. Suppose that a Massachusetts wife has a slightly lower income than her husband. After 10 years of marriage they have three young children. Under Massachusetts law, in the event of a divorce, she is entitled to 7 years of taxable alimony. She has a better-than-90-percent chance of obtaining "primary parent" status with respect to the children, thus guaranteeing her roughly 20 years of lucrative tax-free child support payments. Even if she chooses to end the marriage, her financial security is assured; she will get the lion's share of the combined incomes.

Suppose now that the husband gets a great job offer in Philadelphia and proposes moving there. Under Pennsylvania family law, the children are likely to be granted equal time with both parents. As their incomes are similar this eliminates the possibility of substantial child support profits. The wife would be well advised to insist on a postnuptial agreement giving her ownership of existing joint assets or guaranteeing her, in the event of a divorce, either a lump sum payment or 20 years of alimony. This will compensate her for the rights that she is giving up by leaving Massachusetts.

Postnuptial agreements are similar to prenuptial agreements but, in order to be valid, carry the additional requirement that spouses act in accordance with a fiduciary duty toward each other. Thus the agreement can't simply take away rights or money from one spouse without giving something in exchange. (In the above hypothetical scenario, the agreement by the wife to move to Pennsylvania would be exchanged for a payment by the husband.)

Serving in the Military

If you are serving in the U.S. military and based in Massachusetts, be aware that if you are ever deployed overseas you are virtually guaranteed to lose any custody lawsuit filed during the deployment. Attorneys described active-duty military personnel in jurisdictions like Massachusetts as "sitting ducks" for divorce, custody, and child support plaintiffs. "If you were serving in Iraq for the last year," noted one lawyer, "how could you possibly show that you were the historical primary caregiver?" If you are overseas when you get sued, a judge will have no choice but to designate your plaintiff, via temporary order, as the primary parent (this will also start a child support cash flow roughly double what it would be in most other states). When you get home, due to the arrangement put in place via temporary order, a judge or Guardian ad litem would have no choice but to find that the plaintiff had been the "historical primary caregiver" and a preference for continuity would dictate that the primary/secondary parent arrangement be continued.

Conclusion

Summarizing the main points of this short book...

If your concept of a fair divorce is aligned with that of the Massachusetts Legislature, you may not need or want a prenuptial agreement. The main result of a prenup may be simply an extra $200,000 of legal fees or, if one of the attorneys made a mistake in drafting, an unexpected transfer of property from one former spouse to the other.

If your concept of a fair divorce is not aligned with the prevailing system in Massachusetts, it is much safer to move to a different state than to rely on a prenuptial agreement. The cost of a divorce lawsuit in most other states is a small fraction of what couples pay in the Boston area. The law is more certain in some other states, especially those in the West, and therefore mediation is more common.

If your goal is to stay married, Massachusetts may not be the best place to settle. Perhaps more than any other jurisdiction in the world, the state provides tremendous financial incentives to the lower-income spouse to file a divorce lawsuit.

If you are the lower-income spouse in Massachusetts and have a colorable claim to becoming the "primary parent" post-divorce, your children are your main source of financial security. A move to another state can substantially reduce the opportunity to collect child support, through a combination of the new state mandating shared parenting, the new state having less lucrative child support guidelines, or the new state capping child support. You can protect what you have earned through a Massachusetts marriage by insisting on a postnuptial agreement prior to any move.

If you're a married entrepreneur intending to stay in Massachusetts, be aware that you are at much greater risk for both legal fees and an ultimate judgment compared to a W-2 employee with a salary. A prenuptial agreement, if upheld, can limit alimony to a fixed and predetermined amount, but child support litigation will continue unabated. Plaintiffs typically sue when a spouse's business is prospering. Judges are encouraged to explore the question of whether a self-employed defendant could be earning more money and/or could continue to earn the same amount as during a peak year. Quite a few entrepreneurs end up being ordered to pay more than 100 percent of their after-tax incomes and therefore their retirement savings are gradually eroded by alimony and child support payments. The legal fees expended to figure out the earning capacity of a self-employed defendant typically exceed any additional income that a person might earn compared to holding a 40-hour-per-week W-2 job.

If you are planning to have children and are the higher-earning spouse, especially a male higher-earning spouse, recognize the risks of staying in Massachusetts. The state will offer your spouse the opportunity, at any time and for any reason, to sue you and (a) take the house, (b) take the kids, and (c) take most of your savings and earnings via child support.

If you are reading this book after having already been sued, remember that defending the lawsuit won't move the needle too much. If you're in front of a judge who adheres to the standard-for-Massachusetts primary/second parent concept, you are not going to be a parent anymore, unless your plaintiff wants you to be. Most of the money that you earn going forward is going to be paid to your plaintiff via court order. You can save yourself a lot of time, energy, and money if you remember the wise words of an attorney in Wellesley whose friend kept defending post-divorce lawsuits by his original plaintiff (she'd won the "primary parent" sweepstakes decades earlier). The child was 22 years old at this point. The father was heading down to the courthouse to oppose a demand by the mother for more cash. The Wellesley business lawyer said "I'm not a Probate court attorney but you know that the game is rigged. Why are you swinging at every pitch?"

Parting words: If you know someone who is considering filing a divorce lawsuit in Massachusetts, encourage them to contact Tracy Fischer, a mediator with a great track record. Legal fees in a litigated Massachusetts divorce are so high, and children are so damaged by litigation, that it is wise to remember the old adage "A bad settlement is better than a good lawsuit."

Appendix: A Brief History of Divorce in America

Our main source for the history of divorce in the U.S. was The Divorce Culture (Barbara Dafoe Whitehead 1996; Vintage). The author, a PhD historian, was co-director of the National Marriage Project at Rutgers University. Her book quotes historian Nancy Cott writing about the number of women suing for divorce in Massachusetts nearly doubling from 1775-1786 compared to the previous decade and that "the overall trend in the early years of the Republic was toward liberalizing divorce provisions." Whitehead writes about the beginning of commercialized "divorce colonies in western states" in the 1860s: "As western legislators and entrepreneurs discovered, short residency requirements could attract divorce-seekers from states that required a year's residency or more before granting divorce. … With legal residency periods lowered to as little as ninety days, remote states like Nevada and South Dakota could attract Easterners... "

Note that these early divorces were prior to our "no-fault" system and required cooperation between the spouses, e.g., with potentially both moving to a "quickie divorce" jurisdiction or one admitting to adultery. Thus any questions of property division or alimony would have been settled by private agreement and the person wanting the divorce would have to offer terms that were acceptable to the person who had wanted to stay married.

Whitehead writes that "public concerns were deepest when it came to divorces involving dependent children. In fact, even the most ardent defenders of divorce consistently pointed to its harmful impact on children. … During a polio epidemic one social-work professor argued that divorce posted a greater threat to children than this dread infectious disease: 'Imagine 300,000 children stricken in one year by infantile paralysis. Yet the chances of these children in divorce being crippled emotionally are far greater than the chance for physical crippling by poliomyelitis.' The view of divorce as a source of disadvantage to children persisted until the mid-1960s."

In a section titled "Vulgar Divorce," Whitehead writes about the divorce rate increasing in the 20th century, rising to 7.7 per 1000 marriages in 1920. Simultaneously alimony awards were increased to cover "'personal recreation,' one sign that courts recognized consumption and amusement as necessities of life for modern women. The redefinition of wants as needs influenced expectations about acceptable levels of support."

We interviewed Karen Straughan, a Canadian gender counter-theorist, who pointed us to the 1848 Declaration of Sentiments from the first American women's rights convention, in Seneca, New York:

"He has so framed the laws of divorce, as to what shall be the proper causes of divorce, in case of separation, to whom the guardianship of the children shall be given; as to be wholly regardless of the happiness of the women - the law, in all cases, going upon a false supposition of the supremacy of a man, and giving all power into his hands."

"Originally fathers got custody because they remained responsible for the child's support," Straughan said. "Early feminists decided this did not serve women's happiness and convinced lawmakers in the United Kingdom to change the default to custody for the mother and financial responsibility to the father. The idea eventually spread across the West and became the 'tender years doctrine'. Women could now get the benefit of the child without the cost and that definitely contributed to women's happiness as well as a 15X increase in divorce rates over a 50-year period."

What kind of financial responsibility did men have in this new era? Whitehead quotes historian Elaine Tyler May: "By 1920 it was no longer clear precisely what constituted adequate support on the part of a husband, and a number of bitter conflicts erupted over the issue." May noted that the husband's failure to provide sufficient money during the marriage was itself the ground for the majority of divorces granted between 1890 and 1929. From The Divorce Culture:

One blue-collar wife's divorce petition argued: "You have had ample time to make a man of yourself in all these six years, if you are cared for your wife and baby, instead of driving a wagon for twelve dollars a week [about $15,000 per year today]. You would not take work offered you at twenty-one dollars a week, so it is not because you could not find better." [emphasis in the original]

Whitehead explains that until World War II, divorce was associated with "the newly and boisterously rich." People criticized divorce because it was an "invasion of middle-class family life by marketplace values" and it was "corrupting the virtuous middle class with capitalist values." By contrast, the Nation wrote that middle class people would put effort into "the plodding task of domestic compromise and adjustment."

Edith Wharton's 1913 Custom of the Country portrays Undine Spragg marrying for money and social advantage, ignoring her son, and divorcing twice in hopes of achieving a higher income via marriage to a different man.

Emily Post, the etiquette authority, was divorced from her unfaithful husband in 1906. She later wrote "the epidemic of divorce which has been raging in this country for the past forty years must be rated as a catastrophe along with floods, dust bowls, and tornadoes." There don't seem to have been any better answers back then for children's schedules, nor was the idea of 50/50 parenting novel. Emily Post in 1940: "There is no use pretending that there is any good side from the children's point of view to divorce, excepting in a case where they are protected from a cruel parent or from the influence of a dissolute one… But to the thousands of children who love both parents equally and who can therefore never have more than half a home at a time, the feeling of devastation is quite as great as that caused by enemy bombings of mere buildings abroad." Post wrote that "There could never be any argument with the fact that if there is any chance of maintaining a civil relationship, if not a deeply loving one, it is far better to do so, not only for the couple but most especially for the children."

Property Division Becomes Complex

At some point in the 20th century, states abandoned straightforward and therefore simple and inexpensive to litigate rules regarding property division. This process is explained in Family Law in America (Katz 2014; Oxford University Press):

The common law property system is based on evidence of title. In other words, under the common law property system the motto: “He who holds title takes the property” has a ring of truth to it. Under the community property system, found in nine states in the western and southwestern part of the country, the distribution of marital property (accumulated during marriage) upon divorce is theoretically based on the principle that each spouse owns an undivided one-half interest in each community property item. While four of the community property states jurisdictions seem to conform to the fifty–fifty split (assuming there has not been a prenuptial agreement that assigns property differently), the other five incorporate equitable distribution principles (that is, a judge considers the equities of a case), which may result in a different formula than an equal split. Over the past four decades, there has been a major decline in the number of states that adhere to the old common law property system, whether by statute or case law. Now, the prevailing method of assigning marital property upon divorce is called “equitable distribution.” Basically, equitable distribution has changed the nature of the judicial inquiry when assigning property. Instead of asking who holds title, the court considers: which property is marital and which is separate; when and how the disputed property was acquired (while the parties were single or before marriage but while the couple was living together, during the marriage, or after the separation); who has contributed to the enhancement of its value or who has depreciated the property; when should property be valued (e.g., at the time of separation, initial court petition for divorce, or the time of the divorce trial) and what is its value; whether parties themselves or experts should value the property; if the property was acquired by gift or inheritance, should it be considered separate; and finally, if either of the parties enhanced the value of the gifted or inherited property during the marriage by keeping the property in good repair or rehabilitating the property, whether those activities were sufficient to change its nature from separate (if that was the case) to marital. The key to equitable distribution is “contribution,” and the ultimate question is: who should be assigned the property?

… even though judges are governed by statutory provisions, there is still wide discretion in interpreting statutory factors and applying them to a particular set of facts. One commentator has gone so far as to label equitable distribution as a “discretionary” exercise.

The factors that are considered in the assignment of property are not weighted equally. Nor do equitable distribution provisions provide a precise formula. Rather, the statutes merely state that certain factors are to be considered, thus allowing the judge to set his or her own priority of importance

The old system enabled a sophisticated spouse to take advantage of an unsophisticated spouse, e.g., by keeping assets solely rather than jointly titled, though lifetime alimony limited the effectiveness of this tactic (the asset-rich spouse would simply have to pay a larger amount of alimony to the asset-poor spouse). The new system will result in fairer outcomes in certain cases but vastly larger legal expenses in all cases since the question of "who holds title?" can be answered by a clerk but the questions of "who contributed to the increase in value of Item X" and "what is Spouse A's fair share of Item Y" must be answered by a judge after potentially extensive testimony by witnesses and attorney arguments. Anything that is "discretionary" with the judge will necessarily be potentially ruinous in terms of legal fees because there is no way to know what the judge might find persuasive.

World War II and Beyond

The divorce rate doubled between the start and end of World War II, fueled to some extent by the long separations imposed by the war, then dropped back to its previous level in the 1950s and 1960s. Roughly 80 percent of all Americans born between 1933 and 1942 would enjoy a first marriage that lasted at least 10 years, a rate that is comparable today for the subpopulation of college-educated Americans who wait until 25 years of age to get married.

Whitehead says that the big change came in the late 1960s: "Before that time, divorce was contained within a system of marriage and subject to its jurisdiction. After that time, divorce outside the government of marriage and established its own institutional jurisdiction over family relationships. Before the mid-1960s, divorce was viewed as a legal, family, and social event with multiple stakeholders; after that time, divorce became an individual event defined by and responsive to the interests of the individual. … divorce moves from the domain of the society and the family into the inner world of the self."

Whitehead chronicles the rise of the "personal happiness" business of psychotherapy in the 1970s. Instead of talking to friends, family, medical doctors, and clergy about problems, Americans would pay mental health professionals. In the therapist's office patients would learn that "one's first and most important obligation was to oneself," perhaps by reciting the 1969 Gestalt Prayer by Fritz Perls:

I do my thing and you do your thing.
I am not in this world to live up to your expectations,
And you are not in this world to live up to mine.
You are you, and I am I,
and if by chance we find each other, it's beautiful.
If not, it can't be helped.

Whitehead writes that "Just as rising economic expectations had bred material dissatisfaction earlier in the century, so now rising emotional expectations fostered a sense of emotional dissatisfaction and restlessness in marriage. … This was especially true for women, who placed greater emphasis on the relational and affective side of marriage than did men."

Sociologist Jessie Bernard wrote that "To be happy in a relationship which imposes so many impediments on her, as traditional marriage does, a woman must be slightly ill mentally." Whitehead writes that Bernard's writings "reflected the feminist view of the marital state as an institution of patriarchal power and dominance which kept women in a subordinate and inferior status." Bernard wrote that she was influenced by "the message of radical young women" in coming to her conclusions regarding marriage. Statistical surveys found a "high level of reported happiness among married women" but that they were "more likely to be irritated and resentful of their spouses' lack of help in meeting the responsibilities of housework and child care" and women were more likely than men to approve of divorce.

Whitehead calls the new no-fault initiated-by-women divorce era "the rise of expressive divorce": "After the psychological revolution, however, divorce became a subjective experience, governed by the individual's needs, desires, and feelings." (The "individual" here is the plaintiff who initiated the divorce.) Whitehead summarizes self-help books of the 1970s: "Written mainly by divorced therapists or women who had been through therapy during their divorces, this literature locates divorce in the inner life of the individual and depicts the breakup of a marriage almost exclusively as a set of bewildering and disorienting feelings. … [but] the bad feelings of divorce can lead to good things. … As the author of one popular divorce book writes, 'After being in a long-term marriage in which they tended to deny so much of themselves, divorce gives many women their first chance to validate their reality, to explore who they are, to cherish newfound identities, to heal old wounds, and ultimately to take care of themselves.'"

What about for men? Whitehead says that books aimed at guys would point out that they were no longer bound to conform to the "norms of monogamous marriage and responsible fatherhood" but could instead enjoy the freedoms of the sexual revolution (this was prior to the 1981 arrival of HIV/AIDS in the U.S.). She quotes from Winning Your Divorce, A Man's Survival Guide (1994), by Timothy Horgan, an attorney in New York. Horgan talks about likely outcomes rather than dwelling on feelings. He starts by describing a typical client, a man who meekly provides for a wife and two children for 10 years of marriage and then, after the wife divorces him, pays 78 percent of his income in alimony and child support. The wife marries the doctor with whom she had been having an affair. "Jack was left to live a diminished life, divorced not only from his wife but also from his children, his neighbors, and the community activities that had meant so much to him." Horgan talks about how the divorce system worked in the 1990s (and still does in many states, according to our interviewees): "the wife almost invariably gets the house and custody of the children … a divorced father [has] little or no voice in how his children are raised… the system [works] on the automatic assumption that the man is the bad guy." He exhorts men to make the wife fight for every inch of ground (and pay an attorney such as himself for that fight!): "Maybe this approach makes you feel that you're being unduly harsh and that you're depriving your children of proper support. The first thing you must understand is that the divorce system is unfair to men. The system is not there to help you and, contrary to feminist rhetoric, there are few protections afforded you. … if you fight the system, you are not fighting your children. … your children did not leave you voluntarily; the system takes them away. Your children do not destroy your standard of living. But the system will destroy you economically if you let it." Horgan reminds men that the family law world is a club: "The consideration your case will receive in court--and the respect of your wife's attorney--often is directly related to your attorney's reputation in the legal community."

Horgan's book shows that the pre-lawsuit planning that our interviewees described was alive and well in the 1990s. For the man who has some warning that a divorce is coming, he advises them to "gradually usurp your wife's role with the children in order to later prove that you are the principal nurturing parent" via encouraging the wife to "go to aerobics class while you stay home with the children or take them on an outing." Horgan reminds his readers that a divorce lawsuit is a war, e.g., "preparation wins battles."

Horgan's book states that the use of the domestic violence system grew dramatically starting in the mid-1980s: "Ten years ago child abuse rarely surfaced as an issue in a custody dispute. Yet one study claims that today fully 30 percent of all custody cases in the United States involve allegations of sexual or physical abuse by the father." Horgan notes that the man "is faced with the task of 'disproving' a life and proving his wife a liar. … There is no easy way to mount a defense against these charges." [What do social scientists say about the prevalence of sexual abuse of a child by a father? The best study is perhaps "The prevalence and context of incest abuse in Finland" (Sariola and Uutela 1996; Child Abuse & Neglect 20:9). Given a surveyed population of 9,000 15-year-old girls, the authors found that "Girls reporting experiences with their biological father was 0.2%," or about 1 in 500.]

Horgan tells men that "child support is probably the most troublesome area of divorce law" and "support enforcement procedures have proved very effective against delinquent parents, but at the expense of due process. A man's right to be heard [following the loss of a job, for example] has been sacrificed to the desire to impose punishment."

His printed-in-1994 book shows that arguments about equal parenting for the sexes are not new: "Because alimony and property awards are no longer gender-based, it is only fitting that every state should enact a law decreeing joint physical custody of the child. This would certainly be in 'the best interests' of the child, because parents would be forced to redirect their energies from fighting to cooperating, from court battles to kitchen-table conferences. The child obtains two equal parents, both available, and both participating in the child's upbringing. … Although women were once treated as mere chattels, that attitude has changed [over 200 years]. … But it is imperative that in our haste to remedy old wrongs we do not deny men their birthright--equality under the law."

Do men have this "birthright" to which Hogan referred in the early 1990s? "No in the U.S.," said one attorney. "The definition of a 'right' is something that you can go to court to get enforced. By this standard, at least in my state, children do not have a right to spend meaningful time with their fathers and fathers do not have any right to a parental role with children." What about the "fathers' rights" groups that periodically lobby Legislatures? "They are asserting rights that do not exist, that the public does not recognize, and whose recognition is opposed by a multi-billion dollar industry in most states. The only right that is real is the right for a plaintiff mother to get money from a defendant father while simultaneously keeping the children away from the father. You know that it is real right because you can go to court and get a judge to order it."

The rise of single mothers

Statutory and judicial preferences for awarding sole custody plus child support to women led to a growing number of single mothers. The Divorce Culture titles a section "single motherhood as an expressive pursuit." Previously "the hardships of postdivorce life for mothers and their children" had been emphasized and "the notion of a shared plight had its roots in nineteenth-century notions of motherhood that saw the mother-child bond as the most important and durable of all family attachments." Receiving child support payments was a source of conflict, resented by the ex-husband and "too little or too late" from the ex-wife's point of view. A 1956 study of divorced mothers by sociologist William J. Goode opined that "at every developmental phase of childhood, the child needs the father (who is usually the absent parent) as an object of love, security or identification, or even as a figure against whom to rebel safely. This is the case for both boys and girls." Mothers would feel guilty about having brought this calamity down on their children's heads and making their children unhappy.

"With the rise of expressive divorce, this view of divorced motherhood change," says Whitehead. Starting in the late 1970s, popular literature emphasized the opportunities for career and personal growth that came with single motherhood and an overall improvement in life quality.

This view was exemplified by a woman whom one of the authors encountered at a 2014 aviation event in Florida. She had flown down there in a $700,000 Cirrus SR22. "I had always wanted to learn to fly," she said, "but with a full-time job and kids there was just no way to carve out time for lessons. After I got divorced, though, I had every other weekend free and the child support was enough to pay for a factory-new airplane." Who was caring for the two children while she enjoyed the show in Florida? "My ex-husband."

The therapy industry adapts

Given that changes in the law allowed a marriage to be dissolved unilaterally and there was no longer a need for an unhappy partner to invest time and energy in marriage therapy, how did the therapy industry adapt to this loss of revenue? Aside from the fees obtained from serving as parenting or custody investigators and expert witnesses in lawsuits, Whitehead says that American therapists shifted from "marriage counseling" on how to improve a marriage to "divorce therapy" on how to "accept responsibility for the failure of the marriage and thereby to achieve a new level of self-understanding." What about Horgan's example, above, where the partner to whom one has been faithful is having an affair with a rich doctor and divorces you to harvest the house, children, and child support? "Counseling established a joint-fault system aimed at persuading each individual to accept responsibility for the breakup. … 'To view oneself as 'innocent victim is thus to engage in fundamental distortion,' the study goes on, 'the consequence of which is a high probability for an equally bad remarriage.' … Many husbands and wives who did not seek or want divorce were stunned to learn from their therapists that they were equally 'at fault' in the dissolution of their marriages."

According to Whitehead, psychiatrists and therapists made money with face-to-face sessions and books reassuring adults who wanted to divorce for personal reasons that they need not feel guilty about any suffering caused to their children. Constance Ahrons, a (divorced) sociology professor at University of Southern California, wrote The Good Divorce (1994) where she blamed negative stereotypes and "old moralities" for any remaining public perception that children were harmed by divorce. The problem was not divorce and the separation of children from fathers but rather public disapproval of divorce. The New York guy unhappy because he pays 78 percent of his income to his adulterous ex-wife? Ahrons proposes a "a wedding ring smashing ceremony invented by a New Mexico entrepreneur specializing in 'Freedom Rings: Jewelry for the Divorced.' … If such rituals were to become more common, Ahrons argues, they could become part of the emotional healing process."

Child psychiatrist Robert Coles, a professor at Harvard, wrote a 1994 paper "On Divorce" for the New Oxford Review:

[during his childhood] Divorce was a rare step, a drastic one, an occa­sion for a good deal of soul-searching and regret among neighbors, never mind the two adults involved, and never mind any children they might have.

Now divorce is everywhere -- one of two marriages ends in it. Now the intensely felt sense that a marriage is a lifelong commitment no longer dominates most neighborhoods, as was the case in the one where I grew up and learned what to value and why. Now, in fact, my profession of psychoana­lytic psychiatry is often summoned to defend particu­lar divorces, even the more general phenomenon of divorce, as a readily available and far from objection­able alternative to what is often called a "bad" mar­riage, meaning, of course, one in which psychologi­cal pain is to be found.

... many, many mar­riages (the great majority, I suspect, of those headed for divorce) that held together in my parents' genera­tion wouldn't stand a chance these days, when half of all newlyweds are headed for lawyers and the breakups they help negotiate. I have in mind, really, the social and cultural climate in which we live: a world that tells us in countless ways that our individual psychology matters, our "autonomy" matters, our "rights" matter, but is far less interested in em­phasizing the obligations and responsibilities that go with living in this world, a world that has knocked down a million constraints, scorned any inhibition in sight, doted on what used to be called the weird, the aberrant, the preposterous, to the point that such words, with their implied moral judgments, have given way to others -- how interesting or how cool. … why should two individu­als who are married, and going through a spell of trouble, feel they ought to stay together? They live in a society that celebrates the validity and importance of impulse, of feeling, of desire, a society that prom­ises (through pills, through palaver, through pur­chases) an end to pain: swallow this, talk about that, buy everything in sight with every credit card thrown your way…

I sat in a courtroom a while back, listening to ordinary men and women convey their reasons for wanting a divorce through lawyers, who were all too glad for the paid chance to be of help as spokesmen. … I re­alized what a bonanza those courts are for my ilk -- we are the ones who get the patients, who are ap­pointed mediators, who decide when the children should visit which parent: mediation in the name of something called "mental health."

Watching, listening, I wondered who "we" are, all those counselors and therapists, all those court-appointed mediators and supervisors -- what do we believe in, what do we stand for, uphold? We are the "value-free" ones, who in the name of 20th-century relativism summon psychological and sociological words that have become pervasive pieties: "do your own thing," "let it all hang out" -- as Christopher Lasch so tellingly called it, "a culture of narcissism," wherein standards and values are as various as the individuals who may (or may not) choose them. God forbid that someone in that courtroom (the judge, one of the doctors or psychologists, one of the social workers who worked in a nearby clinic, or one of the lawyers feeding off the trough of assembled family disarray) stand up and cry in sorrow and horror -- remind all of us that we all have our ups and downs, with ourselves, with one another, and that marriage is a solemn and sacred step, taken (as the old vow says) for life, "in sickness and in health, 'til death do us part." God forbid that someone point out what di­vorce can do to people. Even social scientists have had second thoughts about the matter -- Judith Wallerstein's extensive, pioneering work (Surviving the Breakup) has reminded us of the long-term con­sequences a divorce has for children.

I wonder whether we are well served today by the prevalent notion that the institution of divorce, so highly developed, so readily summoned by us, is a measure of our progress. Many marriages would last and last were all encouraged to regard divorce as a serious, a grave step, indeed -- and a moral tragedy, rather than as evidence, merely, of the psychological hang-ups two individuals happen to have.

Once we healers felt im­pelled to try at all costs to help marriages work, now all too many of us regard ourselves as there to heed the call of mood and instinct, of changed minds and casually errant hearts. Conscience and its necessary demands become a quaint, obsolete construct, while we negotiate the practicality of the passions -- how to permit them to have their day, their sway -- and let our nation's moral life, its family life, its children pay the costs.

The Child Support Revolution

Roughly 20 years after the no-fault revolution began, the system of determining child support was revolutionized. The federal Family Support Act of 1988 requires states to develop and use child support guidelines that would substantially reduce the discretion of judges regarding financial awards to a parent who had been victorious in a custody lawsuit. As covered below, one big change was that child support revenue would be the same whether a child resulted from a 20-year marriage or a one-night encounter.

Child support varies from state to state to the point that a baby with a cash value of $20 million in Wisconsin would generate only about $200,000 in profits across the bridge into Minnesota (child support capped at about $25,000 per year, resulting in $450,000 in revenue of 18 years from which USDA-estimated actual costs of child rearing must be subtracted).

How did children come to be so potentially profitable for a parent who could win custody? Professor of Economics Douglas Allen, the scholarly partner of Margaret Brinig on a series of classic papers, attributes the change to popular books and press reports regarding post-divorce women. "It was a 1985 book, The Divorce Revolution [by Lenore Weitzman, a sociologist], that gave people the idea that women are subjected to poverty after a divorce while men enjoyed an improvement in their standard of living," Professor Allen told us. "It turned out that she had used a biased sample of divorces in Los Angeles and her conclusions were false but they were very influential." Allen's perspective was supported by one of our California interviewees who said that in the late 1980s it became "public policy that California will always be ranked among the top 5 states [in potential profits from child support]."

What does the The Divorce Revolution actually say? Weitzman is a sociologist whose focus was on long-term stay-at-home mothers. "Even women who have been housewives and mothers in marriages of long duration, and who are fifty years old at the time of the divorce, are routinely denied the support they were promised. … [courts] are treating the husband's income [going forward] as 'his' rather than as 'theirs'. … Mothers of young children also experience great hardships as a result of the new rules. Courts award inadequate amounts of child support which leave the primary custodial parent, who is the mother in 90 percent of divorce cases, with the major burden of supporting the children after divorce. The research shows that … divorced women and the minor children in their households experience a 73 percent decline in their standard of living in the first year after divorce. Their former husbands, in contrast, experience a 42 percent rise in their standard of living." Weitzman goes on to say that "The net effect of the present rules for property, alimony, and child support is severe financial hardships for most divorced women and their children. … The major economic result of the divorce law revolution is the systematic impoverishment of divorced women and their children. They have become the new poor."

"A Re-Evaluation of the Economic Consequences of Divorce" by Richard Petersen (American Sociological Review 1996) says that "[the 73 percent decline] is particularly striking when one considers the maximum possible decline is 100 percent. … The Divorce Revolution received considerable attention in academic, legal, and popular publications. … From 1986 to 1993 it was cited in 348 social science articles ... and in more than 250 law review articles … and in at least 24 legal cases in state Appellate and Supreme courts … and was cited once by the U.S. Supreme Court. … the California State Senate Task Force on Family Equity was formed in response to The Divorce Revolution, and some of its recommendations were enacted in 1987 and 1988. … I reanalyze Weitzman's data and demonstrate that the results reported in  The Divorce Revolution are in error." Petersen concludes that, had Weitzman properly interpreted her own data, some of which had been inaccurately transcribed from paper records, the numbers should have been a 27-percent decline for the women and a 10-percent improvement for the men. However, even these numbers are probably wrong since "in Weitzman's study, and in [Petersen's] paper, new spouses, cohabitors, and other includes are included in the calculation of economic need, but are not included in the calculation of income." In other words, if a divorced woman had a second marriage with a physician earning $700,000 per year, Weitzman would have counted this Beverly Hills resident as "poor."

That the sociologist couldn't do arithmetic as well as an economist doesn't make the book uninteresting. Weitzman gives her own history of marriage and divorce describing "the married woman's subordination" and noting that "upon marriage the wife became … a legal nonperson." She notes that "Traditional divorce laws also reaffirmed the sex-based division of roles with respect to children: the husband remained responsible for their economic support, the wife for their care. All states, by statute or by case law, gave preference to the wife as the appropriate custodial parent after the divorce, and all states gave the husband the primary responsibility for his children's economic support." Weitzman notes that one cited problem with "fault divorce" was "the lure of substantial property awards encouraged heated charges and countercharges between spouses," since the party found innocent would get more of the couple's assets than the party found guilty.

Weitzman says that along with no-fault came a reduction in the tendency of judges to award permanent alimony. She notes with disapproval that one justification for less alimony is that a woman who "could not support herself" could remarry and then be supported by a man other than her original husband. Weitzman says that this assumption is valid only for young women because "if a [divorced woman] is forty or older, she has only a 28 percent chance of remarriage" and that employment opportunities are limited for older women who have been out of the workforce for decades.

She notes that "Although the legal rules now [1985] give fathers an equal legal right to child custody after divorce, custody is still awarded to the mother in the vast majority of the cases--close to 90 percent--throughout the United States." She notes that this was supported by psychologists of the day, e.g., "Bruno Bettelheim cautioned against the unnaturalness of fathers raising children--even in cooperation with the mother." In 1968, an attorney-psychologist team recommended that states retain a statutory maternal preference on the grounds that women were going to win lawsuits anyway and fathers knowing that they were certain to lose would be more likely to abandon custody without a damaging-to-the-children fight. Weitzman notes (page 223) that the nasty fights about fault that used to occur regarding property division had simply been shifted to nasty fights about fault regarding custody: "allegations of a wife's promiscuity or adultery, which would be considered irrelevant in a divorce action, could be discussed in court if her fitness as the child's custodian was at issue. Similarly, a husband's physical abuse of his children would normally have no bearing on a no-fault divorce. But it could be used as evidence to deny his request for for custody…."

Weitzman quotes William Goode: "the relationship with children contains one of the most important weapons in the conflict of wills between ex-spouses, both during the divorce conflict and afterwards. This exploitation of the parent/child relationship may, of course, be unconscious, since few parents can admit that they use their children as punitive instruments." She adds "women may find it easier to restrict the husbands' visits, and fathers may find it easier to skip a planned visit than to constantly argue about the plans." What if the combination of being ordered to pay the bills and having an irritating ex-spouse as "primary parent" causes a father to decide to do something else with his weekends? Weitzman quotes "feminists [who] … suggest that courts apply some form of negative sanctions to fathers who consistently fail to visit their children."

How prevalent was shared custody back then? Weitzman reports a rise from 1 percent of Los Angeles County judgments in 1972 to 2 percent in 1977. Weitzman interviewed judges and found that "they were reluctant to 'take little children away from their mothers' and sincerely believed that maternal custody was usually in the child's best interest. In fact, 81 percent of the Los Angeles judges we interviewed said that they thought that there was still presumption in favor of the mother for preschool children…." Weitzman quoted a judge: "I think mothers make better mothers." She interviewed attorneys and found that 98 percent thought that judges acted as though the explicit maternal presumption was still part of the law. Where did the states get the idea of looking for a "primary caretaker"? Weitzman says that it was from a 1981 West Virginia Supreme Court decision "which has gained widespread attention." (See Linda Nielsen's comments in the Citizens and Legislators chapter for what modern-day psychologists think of this.)

Weitzman says that California was a leader in favoring joint custody "with its appealing promise that the children of divorce could 'keep both parents.'" Weitzman says that she favors joint custody only where parents agree on it voluntarily and describes a joint custody presumption as "coercive" because "most children need the security and stability of one home." I.e., if the choice was between losing a parent entirely and having to alternate between households it was better to give up a parent. Weitzman cites a study by Pearson and Thoennes indicating that 90 percent of mothers were satisfied with their sole custody awards while only 70 percent of mothers were satisfied being joint custodians. The same study showed that joint legal custody had increased conflict between former spouses.

Weitzman concludes that "our findings indicate that despite the major changes in the California divorce law over the past fifteen years, there has been little change in the actual distribution of child custody awards." What does she advocate? Sole custody to the mother, both legal and physical: "as joint legal custodians, men not only have more control over their children; they also have more control over the postdivorce lives of their ex-wives" and "a rule that would create a presumption that custody will be awarded to the primary caretaker … would ensure optimal continuity and stability for the child."

What about the cash that comes with custody? Weitzman contrasts California post-no-fault unfavorably with England: "In England it is assumed that a divorced woman with young children should be supported so that she can provide the children with the care and attention they need." Weitzman decries the deadbeat dads that were common prior to 1984 when federal law changed to require "mandatory income withholding and the interception of federal and state tax refund checks." Weitzman points out that a woman who won a custody case involving a single child might collect only 25 percent of a man's after-tax income in a child support award and that this amount was likely to be her only income because she wouldn't work and wouldn't have been married long enough to collect alimony. Why wouldn't judges award enough in child support for both the child and the woman to live at least as comfortably as the ex-husband? Weitzman quotes judges as saying that they did not want to de-motivate the father from going to work: "you can't touch the goose that lays the golden egg." Rather than rely on men pursuing economic self-interest, Weitzman advocates for larger court-ordered transfers and harsher penalties for men who can't or don't pay. She says that an "essential component of an effective deterrent system appears to be a high probability of jail for continuously delinquent fathers. … those counties [in Michigan] which most often used jail had the highest rates of compliance" and notes with approval that "Michigan, which ultimately jails one out of seven divorced fathers, collects more child support per case than any other state in the country."

Weitzman notes that college-age children of divorce "saw their fathers as more distant, judgmental, and selfish, and often felt psychologically (as well as financially) abandoned by these men who were now pursuing 'new lives.'" Her proposed solution was that California law be amended so that judges could order men to continue to pay child support to the mothers who had won custody and also college tuition, room, and board at least "until children complete their education."

The Divorce Revolution is based on 1000 divorce cases from 1968, 1000 from 1972, and 500 from 1977. The 1968 and 1972 cases were from Los Angeles and San Francisco; the 1977 cases were from Los Angeles alone. Weitzman doesn't say who filed these cases, but if Brinig and Allen's classic "These Boots are Made for Walking" paper applies, as well as our own research from Middlesex County, Massachusetts (72 percent of lawsuits filed by women), most of the divorces that she studied were initiated by the wife. Weitzman does not explain why women would hire a lawyer for $400 per hour in today's dollars so that they could obtain a 73-percent drop in their standard of living. The Divorce Revolution does not explain why, if the kids were such an economic drag, the mothers wouldn't hand them over to the fathers or put them up for adoption. The Divorce Revolution talks about the sometimes vigorous defense that fathers would put up against divorce, custody, and child support lawsuits that had been filed by their wives. Weitzman doesn't explain why, if being an every-other-weekend parent and paying the then-prevalent child support rates was such a great deal, the fathers would bother with any defense at all.

The Divorce Revolution is tough to square with the behavior of mothers in today's world of litigation. For example, we interviewed a mild-mannered engineer who was the father of four children. HIs wife, a PhD college professor, sued him for divorce in Massachusetts with the standard arguments that he was unfit to have shared custody because he was abusive, a child molester, etc. Then her millionaire boyfriend agreed to marry her on the condition that she move to California. She obtained approval from the judge to take her four children out there, 3000 miles away from their father, while continuing to deposit child support checks at the higher Massachusetts rates. The new husband didn't appreciate having four non-biological children underfoot so the mother put them on a plane back to Boston. A few years later she divorced her second husband, collecting millions of dollars from a California judge, and tried to get the kids, and the child support payments, back. By now, however, the children were old enough to express their distrust of mom and a desire to stay with the father so the mom was unsuccessful. Attorneys told us that oftentimes custody lawsuit plaintiffs were happy to agree to 50/50 shared parenting or even sole custody to the father as long as they got paid as much or more cash as would come with a sole custody victory.

As you read our chapters you'll learn that though The Divorce Revolution may contain flawed arithmetic, Professor Allen was right about its political influence. In many states collecting child support for a single child can be more lucrative than going to college and working. Fathers are regularly jailed in all states for nonpayment of these awards. Mothers continue to be victorious in the vast majority of custody lawsuits nationwide and shared custody is generally only something that can be obtained if a mother agrees to it. A mother can collect child support for as long as 23 years (Massachusetts) as well as impose 100 percent of college costs on a father. The depth of Weitzman's influence is summarized by Professor Allen: "Family courts treat the noncustodial parent as purely a financial input."

What Weitzman did not predict is the tremendous variation in child support profits from state to state, despite the fact that federal law requires each state to follow a similar procedure in developing child support guidelines. How profitable can it be? A professor of economics in Massachusetts, a typical "winner take all" state, said, "The best career advice that I could give to a female freshman would be to drop out and stop paying tuition. Get pregnant with a medical doctor this year. Get pregnant with a business executive two years from now. Get pregnant with a law firm partner two years after that. She'll have three healthy kids and a much higher after-tax income than nearly all of our graduates in economics."

American Divorce in the 21st Century

Except in the handful of states that have adopted a 50/50 custody presumption or guideline, such as Alaska, Arizona, Delaware, and Nevada, matters are only slightly changed from where they were in 1996 when Dr. Whitehead published The Divorce Culture. As you'll learn from our chapters, no-fault divorce is available in nearly every state, women typically initiate the divorce lawsuit (i.e., are the plaintiffs), women always prevail in these lawsuits in the sense that the divorce will be granted and the vast majority of the time the woman will be awarded the children and, if the man has sufficient income, a revenue stream of child support.

As child support awards were increased, alimony awards tended to be decreased in duration if not amount, according to the veteran attorneys whom we interviewed. This decrease in alimony duration, particularly from short-term marriages, was attributed to the retirement of older judges and a belief among younger judges that women are capable of working.

Domestic violence allegations in divorce court seem to have grown in nearly every state in nearly every decades. On the other hand, the U.S. Bureau of Justice Statistics reported that "Between 1993 and 2002 the rate of family violence declined [from 5.4 per 1000 persons aged 12 or older to 2.1 per 1000]. … The downward trend in the rate of family violence mirrored the overall downward trend of all violent crime during the same period." (Family Violence Statistics, June 2005 (most recent available), NCJ 207846). As of 2008, Americans actually charged in criminal courts with domestic violence were more likely to be prosecuted, convicted, and incarcerated than other kinds of felony defendants (BJS press release). Despite the fact that domestic violence is increasingly uncommon and the perpetrators of actual violence are increasingly in prison, attorneys report that accusing a wealthy defendant of being an abuser remains a very effective weapon in their arsenal.

How many Americans are affected in some way by the divorce, custody, and child support industry? Roughly half of America's children today are children of divorce and/or never-married-and-no-longer-together parents. This implies that close to half of America's fathers are subject to court orders requiring them to make payments to former wives or girlfriends.  The Federal Office of Child Support Enforcement's statistics show that roughly half of these fathers are targets of state and federal agency coercion regarding child support payments and, as noted in Weitzman's book, statistics from Michigan indicate that about 1 in 7 fathers will be imprisoned for non-payment.

Our interviews show that middle-class divorce in some Civil law countries, such as Denmark, is a relatively inexpensive process marked by cooperation between co-parents. Why, when the parties have middle-class incomes, is it typically an expensive war in the U.S.? "Americans can't agree on what's fair," was a representative response from our attorneys, "One interest group may get a statute passed that seems fair to them but that doesn't mean it will seem fair to litigants. For example, all of my defendant clients accept as fair that they should pay a share of children's actual expenses. But most believe that it is unfair for them to pay the plaintiff's post-marriage lifestyle costs via alimony and the new style of alimony that we call 'child support.' That's why defendants fight so hard to avoid what plaintiffs and judges consider to be a fair outcome. That's why we need agencies and prisons to chase down divorce lawsuit losers. We've ordered them to do something that they wouldn't do voluntarily because they don't think it is fair for the plaintiff to get the kids and also a huge profit from the kids."

Interviewees report that, with men having been completely defeated by statutes and judges, the political battleground is shifting to women versus women. Women who work full time and find out that non-working child support plaintiffs earn more than they do are becoming a political force. The women who are most involved in lobbying for changes to statutes are those who are married to or partnered with men who pay substantial alimony and/or child support. "Why should my husband and I work 60 hours a week so that a woman who has never worked can relax at home, go to the gym, and take a lot of vacations?" is how a New England "second wife" critiqued the current system.

Another political rift is black-white. Legislators and attorneys told us that in many states the divorce laws are overseen by legislators who are themselves divorce litigators. The litigators who become legislators or committee members tend to be those who are the most successful and who charge the highest fees. Thus they tend to represent wealthy white people (Asian-Americans can be wealthy but they have a very low divorce rate and therefore don't represent a substantial market for the family law bar). "The laws are great for rich white female plaintiffs and their rich attorneys," a legislator told us, "but they are of little value to black women, most of whom aren't collecting from a father with substantial resources. The laws have a devastating effect on black men because any period of unemployment following a child support judgment tends to result in imprisonment and black men are more likely to suffer unemployment. They have a devastating effect on black children because fathers who've been defeated in the family courts give up on participating in the child's life."

Divorce Courts in the Larger Economy

If Texas is typical, family law is about 15 percent of all litigation. The Annual Statistical Report for the Texas Judiciary, Fiscal Year 2013, reports that Texas had 1.17 million child support cases and 386,000 other types of family law cases, about 1.56 million cases combined. This represents about 15 percent of the total of 10.1 million cases "disposed of" by the Texas courts in 2013. The federal government's Bureau of Economic Analysis calculates that for 2012 the "gross output" of the Legal Services sector of the economy was $294 billion. Assuming that divorce, custody, and child support cases generate the same amount of legal fees as the average case, and that family law has a similar mix of litigation and other work as do other parts of the law, the total fees paid by American consumers to fight with each other in these areas is about $44 billion. This is consistent with an often-quoted statistic that divorce is a "$50 billion industry" because mental health professionals, accountants, and other expert witnesses also get paid when a person sues his or her spouse. It is also not too far from the "$30 billion in attorney fees alone" statistic cited in an April 10, 2013 Forbes article ("Can This Y-Combinator Startup's Technology Keep Couples Out Of Divorce Court?").

How does the Texas/BEA-based estimate of $44 billion compare to other sectors of the economy? The BEA says Americans paid $46 billion in 2012 for child care services. The $44 billion is more than the $39 billion that the BEA says we spent on "elementary and secondary schools" or "spectator sports". Parents spent more suing their co-parents (and defending those lawsuits) than Americans spent on books ($39 billion), dairy cows and milk ($38 billion), bread and other bakery products ($36 billion), building aircraft engines and parts ($36 billion), veterinary care ($30 billion), manufacturing heavy trucks ($30 billion), or drilling oil and gas wells ($29 billion).

We asked Professor Allen what the effect of this spending was for macroeconomic growth. "You're creating transfers," he responded, "rather than new wealth. So it is a deadweight loss to the economy." Does that mean any time someone is paying a lawyer the economy is shrinking? "No," said Allen. "If you're in a complicated world you may need lawyers to settle disputes." Thus a principal difference between divorce in the U.S. compared to divorce in a Civil law jurisdiction is that we've turned the break-up of a two-income middle class couple with children into a "complicated world" that requires the same amount of attention (and fees) from lawyers as a contract lawsuit between two large companies.

Certainly whatever American parents are currently spending on divorce litigation is money that they could have spent on their children instead.

How big are the alimony flows? A May 15, 2014 U.S. Treasury Inspector General for Tax Administration report said that "In Tax Year 2010, 567,887 taxpayers claimed alimony deductions totaling more than $10 billion" and further noted that recipients of alimony reported at least $2.3 billion less in alimony income than payors reported paying. This result is that the Treasury lost tax revenue on $2.3 billion and general taxpayers have to make up the balance to keep the government funded. What other U.S. industry is comparable to collecting alimony? The U.S. Bureau of Economic Analysis says that manufacturing "Apparel and leather and allied products" is roughly a $10.5 billion industry. In other words, the total payments to all clothing factories in the U.S. is roughly equal to the total alimony paid (depending on whom you think is telling the truth to the IRS).

Divorce Courts in a Post-Marriage Era

Attorneys interviewed noted that an increasing proportion of their business is working with plaintiffs and defendants who were never married to each other.

"The Supreme Court made abortion legal with Roe v. Wade in 1973 and Congress made abortion profitable in 1988 with the federal Family Support Act [that required states to develop child support guidelines]," is how one attorney summarized the evolution of law in the last quarter of the 20th century. The new state guidelines made an out-of-wedlock child just as profitable as the child of a marriage. Our interviewees report that it did not take long for people to put these two legal innovations together and thus began the age of women selling abortions to men. "If the child support guidelines make having a baby more profitable than working," a lawyer noted "it only makes sense that 5-10 years of the average person's income is a fair price for having an abortion."

In the event that a child is not aborted for profit, attorneys and government employees will work for 18-23 years to manage the cash flow that results from the child's birth. Some of our interviewees report that they handle just as many paternity and child support cases as divorces.

Divorce Courts in a Gay Marriage Era

None of the attorneys interviewed expressed opposition to gay marriage. "That's inventory," a divorce lawyer was reported to have said (in the Divorce Corp. movie) every time he drove by a wedding. Attorneys generally looked forward to having a larger base of clients and some expressed the opinion that judges hearing gay divorces might ultimately revisit their gender biases when handling divorces between men and women. "If they get used to the idea of awarding shared custody to two moms," one lawyer said, "then they might start thinking that it was okay for a mom and a dad to do 50/50 shared parenting."

What do they make of the public fight over gay marriage? "What would surprise people from 100 years ago the most is not that two people of the same sex wanted to live within a framework of laws that were designed for two people of the opposite sex," said one attorney. "What I think would surprise them is how the benefits of civil marriage cited by gay marriage advocates have nothing to do with marriage per se. The public discussion is about potential tax or Social Security benefits from being married or that it isn't necessary to execute a health care proxy to get control over an unconscious person's health care. But nobody talks about what used to be considered the main benefit of a civil marriage, i.e., that you had a life partner on whom you could rely."

An attorney who'd been practicing for nearly 40 years said "Today's civil marriage is a shadow of its former self. In the old days, if your partner was having an affair you could have him or her arrested on charges of adultery. If your partner decided to repudiate his or her marriage vows, the state would assist you in trying to enforce those vows. He or she could negotiate with you to end the marriage but there was no equivalent to no-fault divorce in which your partner could sue you and be guaranteed of winning the lawsuit. Gays and straights today are fighting over the scraps of marriage."

What about the moral and philosophical dispute regarding gay marriage? "When I read arguments by opponents of gay marriage," said one attorney, "I don't recognize their description of straight marriage as some sort of sanctified institution. With no-fault statutes that kept the old alimony, property division, and child support rules, straight people made a mockery of civil marriage a long time ago. Marriage today is a way for a smart person with a low income to make money from a stupid person with a high income. What difference does it make whether the gold digger and mark are of the same sex?"

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