Part of Real World Divorce: web edition | Kindle edition
Cleveland-based Randy Perla must know a thing or two about parenting because he has managed to convince his daughter Elizabeth to join him in his firm. Perla has been practicing law in Ohio since 1974, served as the chairperson for the Family Law Section of the Ohio Academy of Trial Lawyers for 13 years, and has won all of the usual honors, such as Super Lawyer, for our interviewees. Perla tries about 5 to 10 percent of his cases and says that custody matters are the most likely to be litigated to the end.
Unusually among our interviewees, Perla has served as a judge: "I was hired just two years out of law school, at about age 25. I heard very few divorce trials from beginning to end, but I decided interim and post-decree money issues as well as heard custody trials." See http://www.randallperla.com/ for a full biography.
The person who starts a "dissolution of marriage" lawsuit in Ohio is a "petitioner" and what would be a defendant in another state is a "respondent." As case without children that isn't tried within 12 months must be reported to officials higher up in the bureaucracy; with children, after 18 months. "Generally judges work within these limits," says Perla.
What if a person doesn't want to wait that long for a decision on custody, who stays in the house, who pays whom? "The method of resolving temporary motions varies from county to county," said Perla. "Most interim orders are resolved on affidavits and attorney argument. A financial dispute, for example one involving interim support, could be resolved just with documents going back and forth." What about custody? "The decision at a temporary hearing has such a strong bearing on the overall result that courts are reluctant to give one parent an edge simply based on attorney argument. There would generally be witnesses and cross-examination if custody is to be decided on an interim basis." The outcome of such a hearing would be either an "interim possession schedule" or a "temporary custody arrangement." Who wins these? "If the child is less than three years old," Perla responded, "moms are still in the driver's seat and likely to obtain the dominant position." What would a child's schedule with the father look like? "Since about 2012 there have been guidelines that each country publishes regarding visitation depending on a child's age." So a "child's best interest" regarding contact with the parent who loses custody varies by country? "They're fairly close," said Perla.
What if someone wants to get custody without going through the Perry Mason-style process of witnesses and cross-examination? "It has become more common to work through the domestic violence system," said Perla. "If domestic violence is alleged then the court has the authority to determine custody on an ex parte [the other not in the courtroom] basis without even a hearing. The respondent then has 10 days to request a hearing." Do people fabricate allegations to get the house, the kids, and the cash flowing? "If there is a will there is a way," responded Perla.
Perla says that consumers can accurately calculate child support using state-published online materials up to $150,000 in combined gross income ($15,218 per year in child support; compare to $13,000 in Nevada, $25,500 in Wisconsin or New York, and $28,392 in Massachusetts). A table appears in the Ohio Code 3119.021. Beyond that amount of income, child support is up to the judge. Is there any consistency from judge to judge? "Some," responded Perla. "Most judges will extrapolate at a 7 percent rate of gross income from the top of the table. Others will try to look at the actual expenses of the child." Could a petitioner get the $100,000 per year that would be common in California or Massachusetts? "Triers of fact rely on their own experience. Some judges are very liberal with support because they are familiar with more money," said Perla. "But you might get a blue collar judge for whom a $100,000 per year request would be out of the normal range."
Child support cash stops flowing at age 18 or upon high school graduation, but no later than age 19 unless a child is disabled. Courts cannot order a parent to pay for college. The cash flow used to be at risk when a child turned 12 and could make an election regarding which parent to live with, but Perla said "starting about 15 years ago the child can indicate wishes but the court doesn't have to listen. It depends on the judge and the maturity of the child."
How about day care? Is that included within the child support amounts or ordered in addition? "It is additional and prorated in proportion to the parents' respective incomes," said Perla.
What would happen with a "walk-away" prenuptial agreement in which the parties waive alimony and keep separate property separate? "We don't have a definitive statute on that," said Perla. "Ohio is not part of the Uniform Premarital Agreement Act. It is less likely that an agreement will be enforced if it deals with support [alimony]. An agreement regarding property would be enforced. Remember that the original reason for prenup was death. Then people started including divorce, but divorce laws already protect premarital holdings. You can get to same result by following statutes."
The average hourly wage in Ohio is $20.52 per hour. Census 2014 data show that the median income for a 22-36-year-old college-educated woman working full time is $40,000 per year ($31,313 after income taxes). The corresponding man earns a median $45,000 per year ($34,854 after tax). Attending Ohio University in Athens for four years will cost $100,444. Ohio collects 9,8 percent of state residents' income to run state and local government, roughly the national average (source: Tax Foundation).
The average annual cost of child care is $7,889 for an infant and $6,376 for a four-year-old. The total cost of child care from age 0 through 12 is about $44,843 in commercial settings or $40,651 in a family care setting.
The male college graduate will have an after-tax spending power of $387,512 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 greater personal spending power by collecting child support at $2,544 per month or more ($30,528 per year). Depending on how a judge chooses to extrapolate, this would require suing a mother earning over $300,000 per year. With two children from two different mothers, however, he could have an after-tax spending power larger than from going to college and work if each mother paid $1,647 per month ($19,764 per year), which will require a mother earning slightly over $150,000 per year and a judge will to extrapolate.
The corresponding female college graduate will have an after-tax spending power of $327,938. She would be better off collecting child support when that exceeds $2,315 per month. This would require finding a father earning at least $230,000 per year, depending on how a judge chooses to extrapolate. If she is suing two fathers, however, she is financially better off compared to the college/work case when she can get $1,533 per month from each one. This is more than the $1268/month at the top of the guideline chart, corresponding to a defendant's income of $150,000 per year. Thus she would need to sue fathers earning more than $150,000 and also rely on a judge extrapolating.
Among Ohioans surveyed by the U.S. Census Bureau in March 2014, 89 percent of those collecting child support were women.
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.
"The overall theme to remember is that courts favor shared parenting plans," said Perla. How did they come to have more or less opposite beliefs regarding "the best interest of the child" from courts in New York? "Ohio courts are ruling based on studies that have been done that parents who have shared parenting are more likely to pay support and be involved," Perla responded.
How does a shared parenting plan actually get decided? Can a plaintiff propose "two hours per week for the defendant parent" as a "shared parenting plan" as would be common in Massachusetts, expecting the judge to split the difference with the defendant's 50/50 plan by assigning the defendant to every other weekend? "No," said Perla, explaining that the Ohio courts work a little bit like Major League Baseball arbitration, in which the arbitrator tries to pick the submitted proposal that is closest to what the arbitrator has decided is fair. "Each parent submits a plan to the court, complete with the child's schedule and who makes decisions on which issues." How balanced does a plan have to be in order to qualify as "shared"? "You're dealing with semantics," said Perla, "and there's actually nothing in the statutes that says the courts should favor it. It is society that has changed rather than the law. Shared parenting could in theory be 360 days per year for one parent and 5 days for the other and one parent makes all of the decisions." Is that likely to appeal to the judge? "Each judge is different," Perla responded. "We used to have judges who were mostly older men, but our judges are all elected and women are winning the elections. They're younger and they try to be even-handed to men and women partly because they want to get reelected."
Can the mother's plan be "This is a horrible father so the child should be at my house with the nanny instead of neglected in a photo studio while the dad plays Xbox and entertains young women"? No, says Perla, "if it is the nanny versus the dad, the courts are generally going to favor the dad. If you propose time where you're going to delegate to a nanny or day care then you're unlikely to get it."
Perla said that he expected a roughly 50/50 schedule to be awarded in this case. How can child support be calculated given that he has no profit from his business? "A judge would impute income to the photographer based on his income history," said Perla, "and if her attorney were creative she would bring in a vocational expert to assign an income to him." What does the cash flow look like? "She will have to pay him," said Perla, "though a judge will probably deviate down from the guidelines based on the 50/50 schedule. At the same time the judge will try to equalize their financial positions."
The financial stakes here start with the guideline-plus-extrapolation number of $27,468 per year, based on the doctor's income. Over a 17-year period, that's potentially $466,956 in after-tax dollars that the doctor can keep if she can successfully argue for sole physical custody.
What about legal fees? Can the photographer get the doctor to pay his fees to defend this lawsuit? "It is discretionary with the judge," said Perla.
Property division? "He will get pretty close to 50 percent of assets accumulated during marriage," said Perla.
Alimony? "Very little," said Perl. "There are fifteen factors considered by the court. It is very subjective." What if the photographer takes the advice that a Florida litigator offered a consumer we interviewed and starts to see a therapist who can come to court and talk about how his fragile psyche prevents him from getting off the sofa and working. Is there a cash value to developing a mental health problem in Ohio? "I'm currently appealing a case for a cardiologist," Perla responded. "He was married for 3.5 years and the petitioner was awarded indefinite alimony based on a finding by the court that she had mental health issues."
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 these people both come to court demanding to be made the primary parent, can the judge order 50/50 custody despite neither party asking for it? "Yes," said Perla, "though along with 50/50 parenting time the court might award sole decision-making in a particular area to one parent."
Can a litigant here blow up the possibility of shared parenting with a Massachusetts-style "I have conflict with the person on the other side of the lawsuit" claim? "No," said Perla, "it doesn't help to allege or generate conflict because a judge will say 'everyone who gets divorced is in conflict.' At the same time a judge could threaten to pick one in order to force parties to settle and some judges would hint at which parent was going to prevail."
What might the schedule look like? "Probably a 5-2-2-5 schedule based on the age of the youngest child," Perla said, "possibly transitioning to week-on, week-off, which many judges prefer due to less bouncing around for the children."
The financial stakes can be calculated by looking at the combined income of $130,000 per year, which corresponds to a total child support obligation of $26,390 per year. As the parents have equal incomes, this means that the loser parent will pay the winner parent $13,195 per year. If both parents need five bedrooms to accommodate the children on a part-time basis, the loser will be doing it on about $34,000 per year in after-tax income and the winner will be doing it on nearly $65,000 per year in after-tax cash (based on ADP Paycheck Calculator using "head of household" filing status for the winner parent).
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.
"With children under three, the woman has an edge as a practical matter but not by statute," Perla said. "There probably would be a graduated schedule of increasing time with the father." How does it start out? "They would accommodate him if he wants to take care of and bond with the children. If he doesn't have to work on Wednesdays then a judge would give him every Wednesday. He would get every other weekend." Do Ohio courts listen sympathetically to custody victors who want a child back home on Sunday afternoon to prepare for school? "No," said Perl, "with most judges the weekend would be Friday afternoon until Monday morning."
What would her child support revenue be? "Extrapolating from the guidelines," Perla responded, "it would be about $35,000 per year if she has no income. But remember that spousal support would be calculated first and then fed into the child support calculation."
What would spousal support [alimony] look like? "About 3.5 years of spousal support is most likely," Perla said, "though the length varies by county. Typically in Cleveland it will be a 3:1 concept where 3 years of marriage results in 1 year of alimony. The next county west uses a 5:1 concept though judges might award more dollars per year. Judges use various software packages to try to equalize the parties' position after taxes, though the shorter the marriage the less likely a judge is to use this. Alimony might be 35-40 percent of the doctor's income in Lorraine County and somewhat less in Cleveland, though it depends on the judge."
Can she get the majority of the property given that she has a lower earning potential? "No," said Perla. "It will be a 50/50 division." Can she get the house given that she has won the primary parent role? "A court would give her preference in use of the house but only for a period of time, e.g., three years. After that she will have to refinance and then factor the costs into the spousal support calculation. Courts favor dividing assets rather than tying them up for a long period."
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.
Can the petitioner here say that she needs to have sole physical custody because she is breastfeeding the child? "That argument is used all the time," said Perla. Does it work? "It depends on the judge, though mothers are in the driver's seat with young children." What kind of schedule would the child have with the respondent father? "Judges will favor frequency rather than duration of visit," Perla responded, "Perhaps an every-other-weekend overnight and short mid-week visits."
What kind of cash will this petitioner receive? "Child support will be close to $25,000 per year," Perla said, "based on the doctor's salary, plus 6-12 months of transitional spousal support. However, there are provisions in the law that would allow a judge to award her spousal support until the child went off to school."
Can she get a share of the $2 million? "It is untouchable if he can trace it to premarital assets," says Perla, "but if she can demonstrate that he used his energies to invest the money then the appreciation can be a marital asset and subject to division. But $2 million in a blind trust wouldn't work."
What if a low-inflation environment has caused the interest and dividends earned on the $2 million to be minimal. Can she argue that income should be imputed to the assets as though all of the money were invested in junk bonds or other high-yield instruments? "No," said Perla. "Alimony and child support will be calculated based on the actual income received."
Suppose that the doctor had three different assets, each worth $1 million and therefore totalling $3 million, prior to the marriage but at the time he is sued one asset has gone up to $3 million while the other two have gone bust. Can the petitioner argue that she should get half of the $2 million in appreciation on the good asset while ignoring the bad assets? "Yes," said Perla, "volatility helps the 'poor spouse'."
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.
How often does Perla work on a case like this? "More frequently in the last 10-15 years than ever before."
Can the mother wait until the child is 17 years old and get child support retroactive to the birth? "That's decide on a case-by-case basis," said Perla, "and it may depend on whether the mother knew where the father was." How about legal fees and medical expenses of birth? "Yes on the medical expenses," said Perla, "but legal fees are discretionary."
Does she need to hire a lawyer? "No," said Perla, "the state agency will do it all for her." We checked the Ohio Department of Job and Family Services web site and found the Office of Child Support, which describes each country having a Child Support Enforcement Agency (CSEA). The web site says that it can "all parties to submit to genetic testing and will issue an administrative paternity order based on the outcome of the genetic test" and then "will schedule a support hearing to establish a support order for the child(ren)." Is the father entitled to a state-funded attorney while defending against this state-funded process? "No," said Perla.
Can the father get visitation with the child without a lawyer? Is there a state agency for that? "No," said Perla.
Suppose the mother marries a rich person. Does that affect her child support revenue going forward? "No," said Perla.
"We call it 'relocation'," says Perla, "and this is a big area of the law right now with rulings all over the board." Perla told us that the official standard is a pure "best interest of the child one" but decisions are in fact made "balancing mobility for the mother against the relationship between the father and child." What do the mechanics look like? "It could be a week of trial and typically in front of a magistrate rather than a judge. The outcome might be to reduce child support or make the relocating parent pay travel expenses. The parent who stays in Ohio might get the child for the whole summer." What if the parenting schedule had been 50/50 prior to the relocation request? "Getting approval in that case would be way harder," said Perla.
Ohio assigns different cash values to children from the same co-parent. The worksheet allows the subtraction of "annual court-ordered support for other children" as an "adjustment to income." Therefore the first plaintiff to sue a parent will get the most money and each subsequent plaintiff will get a lower amount since the gross income on which the support is figured will be lower. Curiously this is not done in a mathematically rational manner because child support is not tax-deductible to the payor and therefore a person paying, for example, $50,000 per year in child support actually has nearly $100,000 per year less in gross income.
Ohio assigns a particularly small value to the child of an intact marriage. When a married-with-children defendant is sued for child support, the worksheet allows for an "Adjustment for minor children born to or adopted by either parent and another parent who are living with this parent; adjustment does not apply to stepchildren (number of children times federal income tax exemption less child support received, not to exceed the federal tax exemption)". In 2014 the federal tax exemption per child was $3,950 per year. So the child of the intact marriage has an entitlement to cash of $3,950 in pre-tax dollars (might be only about $2000 after taxes for a high-income defendant) while the extramarital child would be worth $15,000 per year in after-tax dollars at the top of the table or, potentially, vastly more.
Asked what he would do if he could wave a magic wand, Perla said that he would switch from elected to appointed judges because currently the citizens of Ohio are not getting "the quality of bench that people deserve." Should there be guidelines for alimony and parenting time as have been proposed or implemented in other states to reduce the variability of outcomes from judge to judge? "No," said Perla, "if you have qualified judges then you want to give them discretion. Look at the reduction of discretion in criminal sentencing and the impact has been negative."
What else would Perla like to see? Contradicting to some extent his answer above, he suggested that child support guidelines should extend to $250,000 per year in combined gross income and, after that, be considered by judges on a case-by-case basis. Perla also thought that it was "ridiculous that courts don't have the authority to award college expenses."
Together with neighboring Pennsylvania, Ohio shows that an elected judiciary is more responsive to changes in society than an appointed judiciary. The statutes have not changed to favor 50/50 parenting time outcomes but judges seeking to appear fair in front of the electorate are awarding such schedules in both Pennsylvania and Ohio. Our research shows that the general public is more supportive of 50/50 shared parenting than are people who work in the divorce industry and that, indeed, many members of the general public mistakenly believe that they live in a state that awards 50/50 shared parenting.
Ohio encourages litigation by leaving so much open to judicial discretion, e.g., the amount of child support when a spouse earning $80,000 per year sues his or her $80,000-per-year partner.
Ohio provides a good illustration of the variability of the laws across the U.S. A casual encounter with a high-income physician in Youngstown, Ohio would be nearly twice as profitable as doing the same thing across the border in Pittsburgh, Pennsylvania (top-of-the-table plus 7 percent of additional pre-tax income in Ohio; top-of-the-table plus 8.5 percent of after-tax income in Pennsylvania). Had the night of fun occurred in Wheeling, West Virginia, the child support would be comparable to Ohio's, but the destination of the funds would be different (to a parent in Ohio; above $24,000 per year, into a trust fund for the child in West Virginia). The border with Kentucky provides an even starker contrast. An encounter in Cincinnati, Ohio could yield $100,000 per year for a custodial parent while the same encounter at a hotel next to the Cincinnati International Airport, across the river in Kentucky, might run up against the $14,700 per year top of the guidelines there.