Part of Real World Divorce: web edition | Kindle edition
Jackie Stebbins is one of our youngest interviewees, but has already been selected as a "Rising Star" by the Super Lawyers folks. She speaks about twice as fast as the average lawyer and adds disarming rural idioms to every third sentence. Plainly she would be a formidable advocate. Stebbins grew up on a farm about a three-hour drive from Bismarck and was educated at the University of North Dakota where she was an editor on the law review. Her full biography is at http://www.blisslaw.com/JackieStebbins.asp
Stebbins represents a mixture of male and female clients in cases where the woman is typically the plaintiff: "In my own caseload right now, which is close to 50 cases, I can only think of three where a man is the plaintiff." She goes to trial about five times per year in divorce and unmarried custody cases. "A lot of cases do settle out by the grace of God and the parties walk away mostly happy," she observed. It can take as long as two years from the time a divorce lawsuit is filed until it is tried, though 12-18 months is possible as a "fast track for a simple divorce."
What if someone wants to get the house, the kids, and cash without waiting for a trial? "We have 'interim orders', and they can decide who gets the house, who has primary residential responsibility for the children, child support, spousal support, and personal property division." said Stebbins. "The biggest headache is personal property." How long does it take to get to the interim order stage? "After the Summons and Complaint is filed there is some back and forth between attorneys," says Stebbins. "Then I can get the affidavits done. You're supposed to get a hearing 30 days after filing affidavits, but the courts' calendars are backed up due to our oil boom. I would expect the hearing a good three months after a lawsuit is filed." How long does a judge spend deciding an interim order request? "It's a one-hour hearing," says Stebbins, noting that the judge decides based on attorney arguments and affidavits, rather than testifying witnesses.
As in the rest of the U.S., people use the domestic violence system to get a de facto divorce more quickly. "A domestic violence protection order is only for household members. A disorderly conduct restraining order is for anyone," notes Stebbins.
As in some other Western states, a person who believes that a judge is likely to be prejudiced can simply request a different judge within 10 days. NDCC § 29-15-21:
Subject to the provisions of this section, any party to a civil or criminal action or proceeding pending in the district court may obtain a change of the judge before whom the trial or any proceeding with respect thereto is to be heard by filing with the clerk of the court in which the action or proceeding is pending the original of a written demand for change of judge ...
2. The demand is invalid unless it is filed with the clerk of the court not later than ten days after the occurrence of the earliest of any one of the following events:
a. The date of the notice of assignment or reassignment of a judge for trial of the case;
b. The date of notice that a trial has been scheduled; or
c. The date of service of any ex parte order in the case signed by the judge against whom the demand is filed.
… It must indicate the nature of the action or proceeding, designate the judge sought to be disqualified, and certify that that judge has not ruled upon any matter pertaining to the action or proceeding in which the moving party was heard or had an opportunity to be heard.
As noted elsewhere in the book, this option tends to greatly increase citizens' confidence in a judicial system.
At the time of our 2014 interview, child support in North Dakota was capped at $2,102 per month ($25,224 per year), a little higher than neighboring Minnesota's cap of $22,596 per year. The cap was reached when a defendant had $12,500 per month ($150,000 per year) in after-tax income. The cap was nearly three times the USDA-estimated cost of a child in the home ($9,000 per year) or what North Dakota will pay a foster parent ($9,490 per year). Under a 2015 revision of the guidelines, revenue from suing a $150,000/year earner is about the same, $2,063 per month, but the top of the table is now $3,500 per month, reached with a defendant earning $300,000 per year.
"Day care is always litigated because it is not included in child support," says Stebbins. "though health insurance has to be included in any residential responsibility judgment." Is there any predictability to the question of a day care cost award? "Day care is up for grabs," says Stebbins. "A party in jerk mode will say 'child support is all we owe'."
As in the neighboring states, child support can be collected only until a child turns 18 or, if not graduated from high school, 19. Courts cannot order a parent to pay college expenses. "That's been contested," says Stebbins. "It is even questionable as to whether a court would enforce an agreement between parents for one to pay college expenses." Unlike in some states, a North Dakota court does not have jurisdiction to extend child support when a child is disabled.
Stebbins says that though the North Dakota Department of Human Services (DHS) publishes an online calculator for child support, calculation is "an art form."
A "walk-away" prenuptial agreement in which separate property is kept separate and alimony is waived would be enforceable in North Dakota. "North Dakota just redid the statute on prenups and post-nups," said Stebbins.
Stebbins was more candid regarding the human costs of divorce litigation than most of our interviewees. "I have had two cases [in five years of practice] where the defendant killed himself after we sued him. One had a prenuptial agreement from 15 years earlier and I was trying to unwind it."
The average hourly wage in North Dakota is $19.64 per hour. Census 2014 data show that the median income for a 22-36-year-old college-educated woman working full time is $35,000 per year for a college-educated woman ($28,104 after income taxes) and $39,000 for a man ($31,150 after taxes). Attending University of North Dakota for four years will cost $57,544. North Dakota collects 9 percent of state residents' income to run state and local government (compare to a national average of 9.9 percent; source: Tax Foundation).
The average annual cost of child care is $7,705 for an infant and $6,807 for a four-year-old. The total cost of child care from age 0 through 12 is about $52,012 in commercial settings or $43,474 in a family care setting.
The male college graduate will have an after-tax spending power of $378,556 after 14 years of working (14 years of income minus taxes and the cost of college). After adjusting for USDA-estimated costs of caring for a child, he would have a higher personal spending power by collecting child support when that support is $2,502 per month or more. He can get this by suing a mother earning $189,600 after taxes. With two children from two different mothers, however, he could have a spending power larger than in the college/work scenario if each mother paid $1,627 per month, which is possible when each mother earns $115,200 per year in after-tax income.
The female college graduate will have an after-tax spending power of $335,912 over the same time period. She would be better off collecting child support when that exceeds $2,305 per month. She can get this by suing a father earning $171,600. If she is suing two fathers, however, she is financially better off compared to the college/work case when she can get $1,528 per month from each one. This should be possible within the guidelines if each defendant earns at least $108,000 per year after taxes.
Of North Dakotans surveyed by the U.S. Census Bureau in March 2014, 92 percent of those collecting child support were women. Among women aged 30-40, approximately 34 percent collect child support. (Compare to a national average of 17 percent.)
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.
"Shorter term marriages are tough cases but I've gotten people a lot of property and support after short term marriages," says Stebbins. "This guy's going to get something from her. She's going to try to crucify him by saying that he was home all day. If I represented him I would say 'he married a surgeon, he didn't have to work or change diapers'."
Stebbins predicted that there would be an award of joint decision-making in this and the rest of our scenarios, what other states would call "joint legal custody." Regarding the child's schedule she said "It could be anywhere from primary to her, 50/50, or primary to him. It depends on the judge and a possible parenting investigator." [Stebbins's answer was consistent with what we heard from attorneys nationwide; the same facts and argument presented in front of different judges would yield completely different results, even within the same courthouse.]
What's a parenting investigator? "They investigate the best interests of the child, "responded Stebbins. "They may start with a background in psychology, social work, or criminal justice. A teacher would also be qualified. A paralegal in my office was qualified by virtue of having children and raising them to adulthood. Regardless of their background they have to take a class and become certified." What do they charge? "It could be as little as $3,000," says Stebbins, "and the fee may be split between the parties or paid by the party who requested the investigation. Judges want a parenting investigation in a disputed custody case."
If she is on track for primary parenthood can she block joint physical custody by generating conflict with the father? We showed Stebbins the text message exchange from the Kosow v. Shuman case (see the Massachusetts chapter) and she said "that kind of antagonism between the parties is absolutely standard in North Dakota and would not cause a judge to deny shared parenting."
What are the financial implications of the decisions by the parenting investigator and the judge? "If it is primary to her, he has to pay her," says Stebbins. "He could ask for a deviation because her income is so high, but even if the incomes are lopsided North Dakota wants both parents to pay. They think that a parent will be more loving if they contribute to a child's support. It is pretty rare that a parent would pay $0."
If she had to guess as to the most likely outcome, what would it be? "Maybe primary to the mother because he's not plugged in enough." What about the fact that she has to be at work 5 am to 3 pm every weekday? "Most of the time judges and parenting investigators try not to penalize a parent for working," said Stebbins.
Given that his photography business isn't profitable, how will his child support obligation be computed? "Minimum wage will be imputed to him," says Stebbins. "About $14,000 per year." [The table shows that the father would then pay the mother about $3,000 per year.] What if the father takes care of the child a significant percentage of the time? Is there a reduction in the child support paid to the mother? "No," responded Stebbins. "Even if he takes care of the child 49 percent of the time, as long as the court has awarded primary residential to the mom, he pays the same. If it were joint then you'd run the child support calculations both ways and calculate an offset." [$325,000 pre-tax works out to roughly $214,500 after taxes, $17,875 per month for calculating child support. This corresponds to the mother paying the father $2,760 per month.]
What do cases cost? Stebbins charges over $200 per hour and says "a $50,000 litigation budget [on one side] would not be a stretch." How much can it cost? "If you have a problematic lawyer and a problematic client you are off to the races for fees without any real result. This district has a case with a physician that resulted in a 10-day trial after years of litigation that's still ongoing. Sometimes I pull their docket just to review what's going on."
How is this guy going to afford a real legal defense then? "She will probably have to pay his fees."
What about alimony? "He will have an angle at spousal support based on a pre-marital standard of living. The court has jurisdiction over her separate property and he can get a house and a car from that. Courts are more inclined to give people a fair amount of property rather than spousal support," noted Stebbins. Is that a practical expectation from such a short-term marriage? "He has a pretty good shot. I represented a gal with a two-year marriage," said Stebbins. "She was awarded a new house, a car, and half of his 401k during the time they were married."
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.
What if both parents come in asking to be made primary? "The judge can order them to have 50/50 residential responsibility," said Stebbins. "This is a pretty classic example. Under the statutes you can argue a fault factor, such as adultery. But if you want a judge to fall asleep, just start in on someone's affair." How about the abuse allegations? "Every woman accuses the guy of being verbally abusive." How would it go in the courtroom? "Most judges would say 'thanks for coming here, thanks for trashing each other; joint residential responsibility.'"
Due to the equal incomes, in a shared parenting situation there would be no alimony and no child support paid.
What are the financial implications of winning primary parent here? A pre-tax income of $65,000 per month for a person filing single in North Dakota works out to after-tax income of $4050 per month (ADP Paycheck Calculator). The defeated parent would then pay the victorious parent $1,539 per month ($18,468 per year).
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.
Stebbins predicted a slam-dunk victory for the mother on custody, child, support, and alimony. "She can get the house, all of the home equity, and most of the cash," noted Stebbins. On what kind of schedule would the children see their father? "Some parenting investigators recommend Friday to Sunday evening and then two hours on a Wednesday for dinner every week." Summer schedule? "There is no rule of thumb," responded Stebbins. "It might be as little as seven days in the summer." [I.e., a custody dispute in North Dakota could be a New York style fight over 83/17 versus 17/83-percent time rather than a Texas-style 57/43 versus 43/57 fight.]
At a minimum the mother is entitled to guideline child support, more than $40,000 tax-free per year.
What if the father wants to cut back on his work so that he can spend more time with the children, now that he is not part of a voluntary breadwinner/stay-at-home partnership? "Gender issues are alive and well and young moms can do pretty well at shutting dads out," says Stebbins. "Typically men are trapped because they have to work to maintain the child's standard of living but if they're working 10 hours per day the wife can say he can't take care of the kids."
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.
"The mother will receive primary residential responsibility and child support [roughly $28,000 per year, tax-free, under the 2015 revised guidelines]," says Stebbins, "but given her young age the judge will expect her to go back to work, so she is unlikely to get much spousal support." How about property division? "She could get a house and a decent chunk of change. She could try to say that the $2 million in savings is a marital asset. Even if he defends against that argument he will have to give her money from somewhere."
What if the father goes back and says "Now that the child is six years old I'd like to cut back on my working hours and spend more time with the child"? "He has to prove a material change of circumstances and that it is in the best interest of the child to change a parenting schedule," says Stebbins. "There's also a two-year moratorium after a judgment unless there is child endangerment, or a few other high-burden issues. He could cut back on his hours as long as he pays the same. Otherwise the court will require him to keep working as hard until the child turns 18 as he worked during the marriage, however short it might have been." Stebbins says that this is where a negotiation with the mother would probably work better than going to the judge. "Some women say 'if you keep paying you can have time with the child.'" (Note that this is consistent with what research psychologists looking at shared parenting have found.)
An 18-year-old woman goes to a music festival and meets a 38-year-old medical doctor earning $275,000 per year. Things get a little crazy and a few months later she calls him up to say "I am going to have a baby." The 18-year-old does not go to college, quits her $12/hour job during the pregnancy, and does not wish to return to work.
"She can go to the state agency and they will get her support and health insurance," says Stebbins. "All that she has to do is point the finger and say 'That's Dr. Smith and I had sex with him on April 15th and missed my period two weeks later.' If she is using a private attorney she can also get her medical expenses."
The plaintiff will get roughly $28,000 per year, tax-free, under the revised 2015 guidelines.
Can she wait 18 years and then sue for child support back to the birth as in some states? "No," says Stebbins. "Typically it will go back only for six months if the State brings the action, but you can try to go back much further if you have private counsel."
What if the mother later marries one of North Dakota's oil rich? Can the father ask that child support be reduced? "Technically the tycoon's money doesn't count," responded Stebbins, "but a court might deviate if the judge were sympathetic."
"We call it 'relocation'," says Stebbins. "and the cases are incredibly fact-intensive." What facts matter? "The Stout v. Stout and and Hawkinson v. Hawkinson cases set forth the factors, which are called the Stout-Hawkinson factors. It can be tough if dad wants to be a stickler and says 'I want to see the child every other weekend.' North Dakota does promote the use of Skype and cell phones following relocation, however, so she might be able to go." What if the father had prevailed in obtaining 50/50 shared parenting? "Then there would be no way for the mother to get permission to move," responded Stebbins.
We looked up Stout v. Stout, a 1997 case decided by the Supreme Court of North Dakota.
The decision starts by citing an article by a psychologist in which divorce is assumed to be a mutual decision:
When parents consider divorce, they inevitably confront the question of whether they should stay together in the marriage for the sake of the children. If they divorce, it may be presumed that they have decided it is more important to part and re-establish separate, more fulfilling lives. By proceeding in this fashion, they effectively establish, with or without legal consent, a new kind of family unit in which the child resides. Within that unit, when the parents opt for sole custody and visitation, the child looks primarily to the custodial or caretaking parent, and secondarily to the visiting parent, for nurturance, protection, and guidance.
This assumption is world's apart from the reality described by the attorneys we've interviewed. Parents do not "consider divorce." One parent unilaterally decides to divorce the other. The idea that "it may be presumed that they have decided it is more important to part and re-establish separate, more fulfilling lives [than to consider their children's interests]" is nonsensical in a country where no-fault divorce is the rule, particularly in light of the fact that the appeals court is setting forth rules for trial judges to following. There are some mutually-agreed divorces, of course, but these don't reach trials and judges. In virtually every case that does reach a judge for decision only one parent decided on the divorce and the other person is there to defend the lawsuit as best he or she can.
1. The prospective advantages of the move in improving the custodial parent's and child's quality of life,
2. The integrity of the custodial parent's motive for relocation, considering whether it is to defeat or deter visitation by the noncustodial parent,
3. The integrity of the noncustodial parent's motives for opposing the move,
4. Whether there is a realistic opportunity for visitation which can provide an adequate basis for preserving and fostering the noncustodial parent's relationship with the child if relocation is allowed, and the likelihood that each parent will comply with such alternate visitation.
This starts out similarly to the standard in Massachusetts, in which an advantage to the custodial parent is the #1 consideration. Note that during what in theory is just a modification hearing following a divorce, the court must look into the souls of both parents and try to ascertain their motives, as might happen in a murder trial.
The dissent from the opinion points out that "here the majority substitutes the happiness and comfort of the custodial parent as a primary factor in deciding whether the custodial parent should be permitted to move the child" and "the majority apparently supplants the child's interest in the love and companionship of both parents with the happiness of the custodial parent."
North Dakota opens up a rich field of litigation whenever anyone self-employed is sued. 75-02-04.1-05 invites the court to recalculate "net income from self-employment." If there is a mom-and-pop business and one of the two is being sued for child support, that triggers an analysis of
Payments made from the obligor’s self-employment activity to a member of the obligor’s household, other than the obligor, to the extent the payment exceeds the fair market value of the service furnished by the household member; and
Add an extra day of trial so that evidence can be heard regarding what each person does in the business and what the "fair market value" might be for that contribution. What if the mom-and-pop business is run by two people who aren't married? Add a day of trial to deal with the following question:
"Member of the obligor’s household" includes any individual who shares the obligor’s home a substantial part of the time, without regard to whether that individual maintains another home.
Suppose that the defendant owns some shares in a C corporation?
With respect to a corporation that pays its own tax over which the obligor is able to exercise direct or indirect control to a significant extent, the taxable income of the corporation, less the corporation’s federal income tax, multiplied by seventy percent of the obligor’s ownership interest in the corporation.
Add another day of trial to figure out what "indirect control to a significant extent" means and whether a defendant's share interest is sufficient to exercise that.
Want to try to get a share of two incomes rather than just one? Consider 75-02-04.1-08:
Income of spouse. The income and financial circumstances of the spouse of an obligor should not be considered as income for child support purposes unless the spouse’s income and financial circumstances are, to a significant extent, subject to control by the obligor as where the obligor is a principal in a business employing the spouse.
What's "a significant extent"? Add another day of trial.
North Dakota is unusual in that the misery typically accorded to self-employed defendants is extended to unsuccessful people with W-2 jobs. Suppose that you were blighted by Fortune to the point that your intelligence and skills are below average. Consequently you will probably suffer the misfortune of being paid less than average within your occupation. At that point you will surely suffer an additional misfortune if your partner decides to take the kids and trade you in for someone more capable. You'll may pay child support as though you were a smarter, better worker and had a higher salary:
An obligor is "underemployed" if the obligor’s gross income from earnings is significantly less than the statewide average earnings for persons with similar work history and occupational qualifications.
As do most other states, North Dakota provides financial incentives to have children with multiple co-parents. At the top of the guidelines, for example, three children with one co-parent will yield $1.08 million over 18 years compared to three children with three different co-parents where the revenue is a tax-free $2.27 million.
What changes did Stebbins expect to see? "North Dakota has an equal custody presumption on the ballot. The voters will decide in November [2014]." What did Stebbins think about the idea? "I'm against it," she said, consistent with some other litigators whom we interviewed, "Family law is too fact-intensive for a one-size-fits-all presumption."
Did that mean that she thought the custody disputes heard by the courts, where 17/83, 50/50, or 83/17 outcomes were all possibilities, were actually helpful to children on average? "Too much of the time the residential responsibility fight is about the child support cash," responded Stebbins. "$2,102 per month surely isn't bad for simply raising your child as a mother, especially if you're a nurse or a teacher on top of it. On the flip side, it might be really hard for a young father to pay $300-500 a month when he’s hard working, but undereducated. It is hard for many of us [divorce litigators and judges] to admit that a lot of these battles are really about money, but they are." [Under the 2015 guidelines, the $2,102 per month figure at the top is now $3,500.]
North Dakota will effectively strip an infant of 18 years of significant involvement by one parent in a 60-minute "temporary" hearing whose results will tend to be permanent. The same court system will lavish significant time and effort on trying a plaintiff's claim that a self-employed defendant's income is higher than what was figured by accountants and the IRS.
North Dakota allows for more extreme divisions of parenting time than most other states. Whether or not a child is subject to such a division comes down to the personal biases of a single individual, who might be a judge or a parenting investigator.
Compared to the average state, North Dakota offers smaller financial rewards from winning custody of children and larger rewards from short-term marriage. That said, children are still profitable enough in North Dakota to generate plenty of litigation.
North Dakota is similar to other states in rewarding divorce and custody plaintiffs who use the domestic abuse prevention system, even when allegations of abuse cannot ultimately be proved.
By looking at patterns of child care during the marriage, however brief, when making custody decisions, North Dakota rewards spouses who secretly prepare in advance to sue the other (unaware) spouse.