For each state plus the District of Columbia, we identified a top divorce litigator and then set up email and phone interviews with that attorney to explore the following five scenarios.
Scenario 1: A 35-year-old female hand surgeon earning $325,000 per year marries a 33-year-old photographer. She sets up her husband with a photo studio and $100,000 of equipment, but he works just a few hours per week. They have a one-year-old child who is cared for by a nanny. The father is often home with the baby and nanny, but he spends most of his at-home time watching TV and surfing the Internet, leaving the child-rearing chores to the nanny. With the mom at work and/or taking care of the baby, the dad begins an affair with a young fashion model. After two years of marriage, the mom sues for divorce, custody, and child support.
Scenario 2: A 22-year-old woman marries her 22-year-old college sweetheart. After 14 years of marriage, they have four children, ages 3, 7, 9, 13. Both parents are public school teachers earning approximately $65,000 per year. They have shared child care duties roughly equally over the years. Now they can't stand to be in the same room together. He accuses her of having an affair. She accuses him of being verbally and emotionally abusive to her, but not to the kids. After a stormy argument in the kitchen, he moves in with a friend and she files for divorce, requesting sole custody and child support. The father answers the Complaint by requesting sole custody, but no child support. Both parents agree that the marital assets can be split 50/50. Both parents prefer as little post-divorce contact with the other as possible.
Scenario 3: An 18-year-old woman marries a medical resident. She spends the first four years of the marriage as a college undergraduate, earning a bachelor's degree, and then becomes a stay-at-home mother to two children. She files for divorce after 10 years of marriage. The kids are 5 and 2 years old at the time the divorce commences. The plaintiff does not allege any misdeeds on the part of the father, only that they drifted apart in the time that she aged from 18 to 28. The mother has very obviously been the primary caregiver. The father has now completed his medical training and is earning $275,000 per year. The family has home equity of $300,000 and additional savings of $200,000.
Scenario 4: A 25-year-old woman marries a 40-year-old never-married medical doctor earning $275,000 per year. She had been earning $50,000 per year working as a receptionist in a medical office. She has a child after a year of marriage, quitting her job during the 7th month of pregnancy due to fatigue. She files for divorce when the child is 8 months old (after 1.75 years of marriage), alleging that the father did not participate in the infant's care, e.g., he did not change diapers or get up in the middle of the night to soothe the baby. The mother will allege that the father was verbally demanding and abusive, though there won't be any witnesses to corroborate. The father had savings of $2 million that he accumulated prior to the marriage but there was no significant accumulation of assets during the less-than-two-year marriage. The mother seeks a division of assets as well as alimony.
Scenario 5: An 18-year-old woman goes to a music festival and meets a 38-year-old medical doctor earning $275,000 per year. Things get a little crazy and a few months later she calls him up to say "I am going to have a baby." The 18-year-old does not go to college, quits her $12/hour job during the pregnancy, and does not wish to return to work.
Sub-scenario 5: At age 25, with the child receiving child support in elementary school, the woman receiving child support payments decides to marry a man earning $100,000 per year and becomes a stay-at-home mother to additional children. Will her child support payments be reduced because she is now part of a household with $100,000 per year in income?
For average hourly wages paid in each state we relied on 2013 data from the U.S. Bureau of Labor Statistics. See http://www.bls.gov/oes/current/oessrcst.htm
We used U.S. Census Current Population Survey (CPS) data to establish the median wage of a 22-36-year-old worker with a Bachelor's degree. The data set we used was collected in March 2014 and provided to us as a CSV file by Jean Roth at the National Bureau of Economic Research. We limited the sample to those respondents who reported both (1) working at least 30 hours per week and (2) receiving at least some wages. We loaded this into the MySQL database management system. We make a virtual machine, including the CPS data set and our software, available as a free download by following the instructions at http://www.realworlddivorce.com/CensusData. The virtual machine can be run on any Windows, Macintosh, or Linux computer with the free VirtualBox software. To turn these pre-tax numbers into after-tax wages we used the Paycheck Calculator at www.adp.com for filing singly with 1 exemption.
For data on the cost of attending state-run universities we relied on the "college cost" section of money.cnn.com. We used the lower in-state tuition rates.
We obtained day care costs from http://www.naccrra.org/sites/default/files/default_site_pages/2012/cost_report_2012_final_081012_0.pdf. The most current data that we were able to obtain were from 2012. Note that the "NACCRRA" seems to be rebranding itself "Child Care Aware of America" and the same web site is available at http://childcareaware.org/. The site says that this organization is "partly funded by the Office of Child Care(OCC), Administration for Children and Families (ACF), U.S. Department of Health & Human Services."
For the actual costs of rearing a child in the home we relied on the United States Department of Agriculture's survey of "Expenditures on Children by Families". While this is a generally accepted source, an analysis of the same U.S. Census Bureau data by Professor William Comanor of UCLA (see the slides presented at a November 2014 conference) comes up with much lower numbers. The economic cost of rearing a child is critical because, by Federal law, it is supposed to be a factor when states create child support guidelines. Cost is also important because it affects the profitability of child support, which attorneys have told us is an important determinant of custody litigation (parents are more likely to sit down and negotiate a schedule for an unprofitable child).
Comanor’s talk, and a forthcoming journal article, relates to figuring the actual cost of children in intact families, which is the starting point for many child support calculations (“Put yourself in the child’s diaper,” one California attorney said, saying that the relevant question for the judge is “How much would have been spent on the child if these two people, instead of just meeting for one night in a bar, had gotten married and stayed together until the child turned 18?”). Big components are food, housing, and transportation. How much does a married couple with one child spend on transportation for the child? The conventional approach has been to take what they spend on transportation and divide by three. Comanor used the same U.S. Census Bureau data regarding consumer expenditures that the USDA uses and found that the actual number is pretty close to $0: married couples with and without children (except low-income families with three or more children) spend about the same on transportation. Similarly for housing. Some approaches take the cost of a house or apartment and divide by the number of people occupying it. Other conventional approaches have been to estimate the housing cost of a child by looking at the marginal cost of a two-bedroom apartment compared to a one-bedroom apartment. Professor Comanor looked at what American couples, with and without children, actually do spend. It turns out that on average a married couple with no children will spend the same as a married couple with one child. Maybe a guest bedroom or den turns into a nursery but the actual dollars spent doesn’t change until the second child comes along. Similarly, spending on food is about the same before and after the first child arrives. Comanor finds that the basic cost of a child in an American household with less than $56,000 per year in pre-tax income is about $4300 per year. That’s about half of the USDA-estimated cost and only 10 percent of the top of the Massachusetts child support guidelines, which means that a Massachusetts plaintiff suing a $250,000-per-year earner could expect a 90-percent profit on $40,000 per year in child support revenue, assuming that the child’s clothes are purchased at Target.
A smaller issue with child support guidelines is that spending by single-parent households may be overstated. Since child support is not "income" a single parent with a $50,000-per-year job who collects $50,000 per year in tax-free child support may fall into the "$50,000 per year" income category, though he or she would have a spending power closer to that of a person with $135,000 per year in taxable income. There would still be a lack of comparability if the example single parent were considered to have a "pre-tax income" of $100,000 per year because a married couple with $100,000 in income would pay taxes on all of it. Comanor wasn't sure which conventional approaches, if any, were adjusted for these factors. His own analysis shows higher spending on children in "single households" than "married households" with the same "income".
Note that when state child support guidelines committees get together they generally ignore all of the problems with the underlying data. Kansas, for example, publishes a child support formula with with 10 digits of precision. For a person who was going to collect $30,000 in annual child support, the formula would be precise to 1/1000th of a penny. This is based on data that the Census Bureau says is precise only to about 2 digits.
When attorneys interviewed told us that a child support award in a scenario would likely be made in accordance with a guideline, we would generally ask them to verify calculations that we made using tables and forms on websites run by state court systems. In some cases an attorney would tell us that special software was required to calculate child support in their state, in which case we relied on that attorney and his or her firm to perform the calculations.
We used Census March 2014 data on how many people responded with "I am receiving child support payments" corrected with the same 2X factor by which alimony recipients under-report.
States have two processes in which the cost of rearing a child is estimated. One is for producing child support guidelines, updated every four years, as required by federal law. The other is in setting payments to adults who take care of foster children.
When we quote foster care payment rates in the chapters our source is a table from "Family Foster Care Reimbursement Rates in the U.S.; A Report from a 2012 National Survey on Family Foster Care Provider Classifications and Rates" (Kerry DeVooght, et al; April 9, 2013; available at http://www.childtrends.org/wp-content/uploads/2013/04/Foster-Care-Payment-Rate-Report.pdf )
We used Table 4 from the preceding report, and the data are summarized below:
(may vary by age)
District of Columbia
New York City Metro Area
New York, Upstate
Varies by county
(Note that Hawaii, Missouri, Montana, Vermont, and Wyoming data were excluded from our source.)
Note that generally there is no relationship between the foster care numbers and the child support guidelines. In Wisconsin, for example, a foster child yields roughly $4380 per year in payments while it is straightforward to obtain $100,000 per year for one's biological child. Neighboring Minnesota offers far more for the foster child ($7665) but child support is capped at $22,596 per year cap on child support. Alaska has some of the highest available foster care payments (up to $14,600 per year) but a cap of about $24,000 per year in child support. Connecticut pays more for a foster child than does neighboring Massachusetts, but Massachusetts orders defendants to pay roughly twice as much to child support plaintiffs.
Generally if we think that it would be easy to find an article by searching for its title with a Web search engine, such as Google, we provide the name of the article, the author's name, and the date of the article. We also try to link to the article from within our online and Kindle edition text. Readers of a hardcopy version can use the web version to follow these links.
Most of our interviewees requested that we not quote at least some portion of our discussion with them, typically because they were fearful that a judge finding an attributed quote would compromise their ability to represent a client in front of a judge one day (email response from one attorney: "Perfect quote but anonymous is better. I'm always fighting an uphill battle in court anyway."). The not-for-attribution comments that we heard are sprinkled into the introduction and conclusion chapters of this book.