Litigation following either a divorce or a paternity/custody/child support case falls into three main categories: (1) collecting the revenue stream that was ordered, (2) adjusting the revenue stream up or down in response to changes in the parties' incomes, and (3) everything else.
One characteristic of America's family law system is the lack of finality. "The court has decided that one healthy adult should be a financial dependent of another adult," summarized one attorney, "but the extent and period of dependency is left open. The Legislature and the court have decided that the child should be a cash-producing asset, but the ownership of that asset is uncertain and constantly reviewable. The court leaves open questions as to who will pay for certain of the child's expenses. The court orders people to go about their daily lives in a certain way, but the only way to get those orders enforced is to keep going back to court and paying my fees."
Litigation does not typically stop after the trial, after the appeal, or even after a second trial following a successful appeal. Parties can go back to court at any time regarding child-related issues. "It isn't like a contract dispute between two companies that ends after the trial," said a business litigator in Massachusetts. "Companies that sue each other usually won't work together again so there is no more cause of action. With divorce, though, as long as there is a kid, the lawyers keep billing until the kid turns 23." Child support or alimony can be brought back to the judge in the event that one party begins to earn more or less than previously. Custody and parenting time decisions can be reviewed at any time after a change in circumstances, though some states require that there be a "substantial and material change."
As noted above, for couples where one ex-spouse has chosen the court system, rather than mediation, as their dispute resolution system, it is virtually inevitable that they will return to court any time they have a dispute. How significant a dispute does there need to be before people are back in court? Professor Margaret Brinig told us "I read a file today of someone in another city spending more than $7000 [in attorneys fees] litigating whether the ex-spouse had violated a court order by failing to replace baseboards and to clean the toilets in the property awarded in their dissolution decree. A reported appellate decision in Virginia deals with whether a custodial parent could forbid a noncustodial parent from letting their son ride a mini-dirt bike." A disagreement about how a child's Christmas vacation will be spent can start with letters back-and-forth between lawyers ($3,000) and end with a motion in front of a judge ($10,000).
A good example of the lack of finality was provided by the Washington, D.C., case of Cameron Kennedy, a senior employee at the management consulting firm McKinsey earning over $350,000 per year as "manager of the public sector management consulting practice at McKinsey & Company." According to the judgment, her household income was further enhanced by a remarriage to a successful “lobbyist and consultant.”
Backstory: Kennedy sued the future Obama Administration official Peter Orszag for divorce in 2006, ending up with a house and some assets worth in the $3 million range. As is often the case in cases where a plaintiff is about to get significant assets via property division, she agreed to share the children 50/50 and to share the children's expenses, with the father paying two-thirds of "direct child care expenses," such as a nanny, and kicking in an additional $400,000 via trust for the children's private school and other expenses. The two parents agreed that neither would pay child support directly to the other.
In December 2010, Orszag became an executive at Citibank, with an expected income & bonus of $4 million in 2014. In 2012, Ms. Kennedy sued Orszag, arguing that his multi-million dollar salary was a "substantial and material change in circumstance". Kennedy sought child support paid directly to her of roughly $264,000 per year (up from $0), based on applying a simple 13.29 percent rate to Orszag's income over $240,000 per year, the top of the D.C. child support guidelines.
After 1.5 years of litigation, culminating in a 6-day trial, the judge, in deciding the case more or less favorably for the defendant, noted that he would have had the authority to give the plaintiff the full amount she sought. However, he said that instead he would try to follow the parties' agreement at the time of the divorce, in which the father paid expenses such as private school and orthodontia directly. Kennedy got some of what she wanted, notably relief from paying for any share of the children's expenses: "the Court will order Mr. Orszag to pay the children’s tuition directly for the pendency of their middle and high school education, as well the costs of all camp expenses, unreimbursed medical expenses, and all costs associated with the children’s extracurricular activities." See http://tinyurl.com/CameronKennedy for the full decision in this case.
Aside from the "bad fact" of the parties' agreement, Kennedy's case was damaged by what one attorney called "over-egging the pudding." For example, she argued that her children, and therefore her child support defendant, were responsible for upgrading her home's central air conditioning system, paying two-thirds of her state income taxes, etc. From the judgment:
The Court finds it curious that [the state taxes] would be included among the children’s expenses. … In 2008, the portion of the monthly grocery bill attributable to the children was $411.33. In 2013, Ms. Kennedy represents that the portion of the monthly grocery bill attributable to the children is $521.42, an increase of $110.09. Further, Ms. Kennedy testified that, as the children age and become more invested in their extracurricular sports activities, they have been eating more and requesting more healthful and higher quality foods, such as additional produce, free-range chickens, and hormone-free eggs. She testified that because of the children’s changing tastes, she shops more at Whole Foods Market, though she also shops at Giant and Safeway. She testified that, to incorporate the additional cost stemming from the increased amount and quality of food, she anticipates a monthly increase in food cost of $433.33, all of which she attributes to the children. The Court surmises that Ms. Kennedy shops at Whole Foods Market because that is her personal preference. Indeed, the facts show that she shopped quite frequently at Whole Foods Market in 2008, some time before the children’s alleged requests for greater quantities of more healthful food. … The Court further notes that
Ms. Kennedy’s 2008 credit card statements reflect approximately 100 charges at Whole Foods Market during that year.
Kennedy and her second husband earned more than 10 times the median U.S. household income. Who paid for a KPMG-level accounting of their trips to Whole Foods? Her children, via what would have been their inheritance spent on legal fees, and the taxpayers of Washington, D.C., to keep the court system operating for years of motions and days of trial.
[Despite the attention given to the supermarket shopping, it is unclear if the accountants determined whether the plaintiff used the conventional technique of purchasing a gift card or getting cash back during every visit to the supermarket. To the extent that plaintiffs seek to obtain above-guidelines child support or secure an alimony entitlement, this helps establish a higher baseline of "need" when credit card or bank statements are examined.]
The combination of federal tax, state tax, child support, and alimony often adds up to close to 100 percent of a defeated parent's income. Economists predict that a person in the 80 or 90-percent tax bracket would cut his or her working hours, perhaps to zero, e.g., by moving in with relatives, and/or emigrating to a country where the tax rates were lower. How do courts and state and federal agencies keep defeated parents working? From our Maryland chapter:
The Maryland MVA web site says "The MVA assists the Child Support Enforcement Administration (CSEA) within the Maryland Department of Human Resources in collecting child support payments by suspending the driving privileges of customers who have not complied with a child support order. … The Child Support Enforcement Administration (CSEA) makes the decision whether or not to suspend your driver’s license. The CSEA can authorize the MVA to suspend your driving privileges after you have failed to comply with your child support agreement for 60 days or longer." The DHR web site says that the government will intercept tax refunds, deny passport applications, suspend professional licenses, withhold wages, intercept lottery winnings, intercept unemployment insurance and worker's compensation awards, and incarcerate people with past-due child support. The DHR site also notes that "all employers must report newly hired or re-hired employees within 20 days of their first day of work. If an employee matches with the child support database, a wage withholding order is automatically sent to the employer."
Without a passport (see above), emigration is not an option. How about prison? A September 26, 2014 article from the Washington Post, "Locking up parents for not paying child support can be a modern-day ‘debtor’s prison’," says that about 2 percent of child support payors were jailed each year in Virginia in 2013; as noted in the History chapter, about 1 in 7 child support payors were jailed in Michigan during the 1980s. "Child Support Enforcement: Incarceration As the Last Resort Penalty For Nonpayment of Support" (Carmen Solomon-Fears, Alison Smith, Carla Berry 2012; Congressional Research Service) explains that generally the people being imprisoned are not represented by lawyers:
Parents can be jailed without a trial because failure to pay child support is usually handled as a civil matter—contempt of court. This means that if the noncustodial parent is found guilty of contempt of court and ordered to appear at a hearing, he or she can be sent to jail unless willing and able to satisfy the child support obligation. As mentioned, these civil defendants generally are not entitled to the constitutional protections that criminal defendants receive, including the presumption of innocence or the right to an attorney.
In contrast, indigent criminal defendants have a right to court-appointed attorneys, who typically are paid with tax dollars. Recently, the U.S. Supreme Court was asked to determine whether the Fourteenth Amendment’s Due Process Clause requires a state to provide legal representation to an indigent noncustodial parent who is subject to a child support order and faces imprisonment due to noncompliance with that order.
In Turner v. Rogers, the Court declined to rule that due process requires legal representation in such instances where other procedural safeguards exist. These safeguards center around a defendant’s ability to pay and include
(1) notice to the defendant that his ability to pay is a critical issue in the contempt
proceeding; (2) the use of a form (or the equivalent) to elicit relevant financial information; (3) an opportunity at the hearing for the defendant to respond to statements and questions about his financial status; and (4) an express finding by the court that the defendant has the ability to pay.
The case at issue was a South Carolina child support case wherein the defendant, Michael Turner, spent a year in jail for failure to pay back child support after a hearing conducted without legal representation. He presented some evidence of his inability to work, but the court made no finding as to the defendant’s indigent status or ability to pay. He was not convicted of a crime; the year in jail was not a punishment, per se. Turner was being held in contempt of court, and the jail time was a means to induce the payment of nearly $6,000 in past-due child support.
The report contains a table in the back showing the maximum penalties for criminal non-payment of child support. Massachusetts and Oklahoma have the harshest penalties, a felony conviction and 10 years in prison. California is at the lighter end of the spectrum, with a misdemeanor conviction and no more than 1 year in prison. [The typical German official who, at the Wannsee Conference, planned the "final solution" of Nazi death camps was imprisoned for between 1 and 6 years for his part in murdering more than 6 million people. See the HBO/BBC movie Conspiracy (2001).]
Walter Lamar Scott, a 50-year-old black man, was a typical subject of the child support enforcement industry. He became newsworthy in 2015 when he was killed by a white police officer. According to "Walter Scott dogged by system that "criminalizes" debt" (Post and Courier, April 9, 2015), he had been imprisoned three times for failure to pay a child support debt that eventually grew to $18,104. His 2003 earnings were $800 per month ($9,600 per year); see also "Skip Child Support. Go to Jail. Lose Job. Repeat." (New York Times, April 19, 2015) in which Mr. Scott's brother noted that "Every job he has had, he has gotten fired from because he went to jail because he was locked up for child support." Knowing that there was an outstanding warrant for his arrest and trying to avoid a fourth imprisonment, Scott ran away from a traffic stop (third brake light out on his 24-year-old car). As he was running, Michael Slager shot him in the back and a citizen's smartphone video recording led to Office Slager being prosecuted for murder.
New Jersey provides a lot of examples of imprisoned child support defendants at the higher end of the income spectrum. Due to a combination of the large child support awards that are available and the volatility of incomes in the financial industry, the state has a lot of defeated parents whose court-ordered payments exceed their current after-tax incomes. Therefore the state has invested in custom-built debtors' prisons: "Across the state, authorities currently have 33,000 active arrest warrants for parents behind on their payments. Some parents are regularly picked up and jailed for weeks or months at a stretch, as they try the patience of judges as well as ex-spouses with their stories of woe. In Bergen County, the jail has a special 65-bed bunkhouse for fathers behind on payments." ("Inside the world of 'deadbeat dads': In and out of jail, unable or unwilling to pay," by Colleen Diskin, July 26, 2014, The Record).
One reason that imprisoned loser parents are typically imprisoned multiple times is "orders do not automatically reduce when a parent enters prison, even if she or she no longer has the ability to pay. If parents wait until they get out of prison [to ask a judge to modify their child support obligation], they will accumulate a past-due balance." (Federal Office of Child Support, Child Support Report 36(5) May 2014).
A Federal Office of Child Support Enforcement graphic (based on FY2015 data) summarizes the scale of enforcement efforts:
Note that these numbers don't include payments from parents who did not have to be coerced beyond the initial court order. Nor do they include costs incurred by employers, for example, to comply with orders garnishing pay. "Who Can Garnish My Wages?" (nolo.com) notes that "Since 1988, all child support orders automatically include a wage withholding order. This means that if you are ordered to pay child support, your wages may be garnished without additional court action."
The U.S. Department of Health and Human Services Office of Inspector General runs a "Status of Deadbeats" web page that provides some insight into how defeated parents try to escape. On October 4, 2014 the top of the page was occupied by Edward Morrill, aged 63, whom the government had been pursuing for $59,800 since 2003: "Morrill was arrested on March 25,2014, in El Paso, Texas, by U.S. Customs and Border Protection agents after attempting to cross the Mexico/U.S. Border. He is currently in U.S. custody." Robert Sand, a 50-year-old who owed $1.2 million in child support after losing a New York lawsuit, was arrested in 2012 "following his deportation from the Philippines"; he had initially fled to Thailand. A 48-year-old who owed $10,000, George Ely, was arrested in Bayonne, New Jersey, and "sentenced to 1 year and 1 day and ordered to pay $8,934 in restitution after pleading guilty." A 53-year-old who owed $1.04 million was indicted on October 11, 2012, arrested a day later, and "on May 16, 2014, Raihan Chowdhury was sentenced to 5 years of probation and ordered to pay $1.5 million in restitution." The "most wanted deadbeat" was Joseph Stroup, a 61-year-old whom Michigan ordered to pay $560,000. He has been on the run since 1998 in "whereabouts: unknown." (He was at the top of the page on Christmas 2016.) Charles Hefner is presented smiling in a suit jacket and tie. Georgia indicted him in 2000 and his "arrears" were up to $213,699. The Feds think that he might be in Sao Paulo, Brazil (contrary to popular opinion, a quick Google search reveals that Brazil will extradite Americans who owe child support back to the U.S.; he was still on the list on Christmas 2016, with the same dollar amount).
Although child support is ordered by state courts, the "charging documents" on the Web site show that the defendants are being charged by federal attorneys in Federal District Court under 18. U.S.C. Section 228(a)(3) (Failure to Pay Child Support). In other words, the same judge that might hear a patent infringement lawsuit between Apple and Google could, the next day, be sentencing a person who either (a) owes more than $5,000 in child support, or (b) is more than one year overdue on paying an amount less than $5,000.
What if the federal government doesn't exercise its authority to step in directly, but instead funds a state office of child support enforcement to go down to the state courthouse? What does that look like? Here are some notes from a morning when two of the authors went down to the Middlesex County Probate and Family court in Cambridge, Massachusetts:
It turned out that we were there on “Department of Revenue (DOR) Day” where the Commonwealth itself sues deadbeat dads on behalf of mothers who had previously been successful custody and child support plaintiffs but hadn’t received the amounts ordered. This saves the moms from having to retain and pay attorneys; the lawsuits are handled by taxpayer-funded attorneys.
The first guy to appear was, not to put too fine a point on it, a genuine bum. He appeared to be in his 50s, with graying hair, shabby clothing, and a physically disabled posture that might have been due to the fact that he was in handcuffs and ankle chains. He had last worked at a biotech company in Massachusetts back in 2010, but it wasn’t clear in what role. He paid child support to a trim, well-dressed plaintiff while he was working and continued to pay child support while collecting unemployment. When that ran out and he still hadn’t found a job he fled to Idaho and worked as a caretaker in exchange for a free place to sleep. “How did you eat?” asked the judge. “Food stamps,” he replied. During this period he called the three children (current ages: 17, 20, and 22 (in Massachusetts it is possible to collect child support for children until they turn 23)) but didn’t send any money to their mother. “Where are you living now?” With his mom in Billerica, it turned out. The DOR attorney railed against this loser who had “abandoned his responsibilities” and “refused to work” and asked that he be imprisoned for 60 days and fined $5000 on top of the $41,000 that he owed his former plaintiff and the money that he continued to owe for the two adults and one minor child. Throughout the proceeding the chained deadbeat was surrounded by five armed sheriffs, each of whom was probably costing the taxpayer $250,000 per year (salary, benefits, pension, etc.). The judge asked him a few questions about the efforts he was making to get a job, e.g., “How many resumes have you sent out?” then lectured him on how it was obvious that he could and should get a job. She ordered that he be imprisoned for 30 days and fined $2000. The deadbeat did not seem surprised by or object to this. The five sheriffs added some additional shackles to his wrists and ankles, then escorted him out.
The second guy was apparently at an earlier stage of the process because he was not in chains. His plaintiff did not appear because, she had written to say, driving made her “anxious”. The subject of the child support obligation was an adult (over 18 but younger than 23). This child lived full time with the father, but the plaintiff mother still had a child support order in place from when the child lived with her at least part-time. It seemed that a second woman had been unwise enough to select this man as the father of her children and he had two preteen girls living at home with him and, due to his lack of employment, there was not enough money to pay the mother of the adult child as well as put food on the table for the adult child (living with him) and the two minor girls. He did not ask for the “adult-child” support to be eliminated going forward, on the grounds that the adult lived with him, but only for it to be reduced and for the judge to order a gradual payment plan for the arrears (more than $10,000). He received a stern lecture on how it should be straightforward for him to find a job and then was allowed to leave without handcuffs.
"Imagine if these two long-term unemployed specimens had walked into the unemployment office," one of us said after the session was over. "They would have been assured that their inability to find work was not their fault, comforted, offered training, and been handed checks funded by taxpayers. But the child support enforcement official and family court judge told them that anyone who wanted to work could easily get a job that paid well enough to accumulate an after-tax surplus of $41,000."
Maryland State Assembly Delegate Jill Carter explained how it worked for her constituents: "A lot of men fall into arrearages and have to live in the shadows. They can't drive, can't work without their entire paycheck being garnished, and are sometimes imprisoned. Even if a man is well-intentioned, unless he wins the lottery he can't get out of it."
See the Rationale chapter for why a country that offers welfare benefits to single parents might choose to invest so much government effort in hunting down child support defendants.
The flip side of prosecuting people who don't pay child support that has been ordered is prosecuting people who collect child support and weren't entitled to it. "Iowa woman fakes birth to collect child support" (Des Moines Register, December 19, 2014) lays out the basics:
Johna Loreen Vandemore collected more than $100,000 over six years from the man who now lives in a Minneapolis suburb. ...
According to court records, Vandemore met the victim on an online dating website in 2007. She met him in person in Bettendorf and again shortly thereafter in Waterloo.
Vandemore contacted the victim several months after their meeting and said she was pregnant. She convinced him to pay her $1,000 per month and sent him a fake birth certificate.
The idea that a defeated parent's primary role in life was to support the winner parent and the winner parent's children was tested at the U.S. Supreme Court and found to have some limits. From Family Law in America (Katz 2014; Oxford University Press): "[in Zablocki v. Redhail (1978) the Court considered the] constitutionality of a Wisconsin statute that required a judicial proceeding to determine whether a divorced man, who had an outstanding child support obligation, could remarry. The proceeding was meant to furnish fathers an opportunity to be counseled about their obligations and to protect their children. Such a requirement would test the extent to which a state can interfere with a man’s fundamental right to marry. The case must be read in the context of the national 1970s problem of the public (federal and state) funding of child welfare economic support programs. From a practical perspective, the purpose of the Wisconsin statute was to reduce public expenditures by requiring divorced husbands to support their children. The Court found the statute to be unconstitutional under the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution."
An adult does not to have a biological child in order to owe child support. The most common situation prior to the 1990s federalization of child support collection was when a married woman gave birth to a child as a result of an affair. Under the law the child was presumed to be the husband's and, in the event of a divorce, he was responsible for child support even if later paternity testing showed that he could not have been the father. "Who Knew I Was Not the Father?" a New York Times article from November 17, 2009, describes a man whose wife had a child as a result of an extramarital affair and, after a divorce, married her lover:
“I pay child support to a biologically intact family,” Mike told me, his voice cracking with incredulity. “A father and mother, married, who live with their own child. And I pay support for that child. How ridiculous is that?”
The journalist notes that "State statutes and case law vary widely, but most judges conclude that these men must continue to raise their children — or at least pay support — no matter what their DNA says." and "Some state-court judges have let nonbiological fathers off the hook financially, but they are in the minority." A cited justification for making nonbiological fathers pay is that the child's interest is paramount, yet the New York Times article notes that the law and the courts provide financial incentives for men who cut off ties with a child who had depended on a relationship with them. "In Pennsylvania and many other states, the only way a nonbiological father can rebut his legal status as father is if he can prove he was tricked into the role — a showing of fraud — and can demonstrate that upon learning the truth, he immediately stopped acting as the child’s father."
With the current streamlined procedures for establishing paternity, a larger group of men are under court orders. "Injustice by Default," a February 2004 article in Reason magazine, explains how it works:
What Pierce [a medium-height light-skinned guy fingered as a "tall, dark black man"] didn't realize, and what nearly 10 million American men have discovered to their chagrin since the welfare reform legislation of 1996, is that when the government accuses you of fathering a child, no matter how flimsy the evidence, you are one month away from having your life wrecked. Federal law gives a man just 30 days to file a written challenge; if he doesn't, he is presumed guilty. And once that steamroller of justice starts rolling, dozens of statutory lubricants help make it extremely difficult, and prohibitively expensive, to stop -- even, in most cases, if there's conclusive DNA proof that the man is not the child's father.
What's the current state of the law? An October 24, 2014 article on the website of the Detroit ABC-affiliate television station, WXYZ, "Detroit man fights $30k child support bill for kid that is not his," describes a man with an 8th-grade education and a negative DNA paternity test trying to fight State of Michigan employees (attorneys and judges) who have established a $30,000 judgment against him. The state's claim against Carnell Alexander rests on a process server's statement that Mr. Alexander was personally served at home with a summons back in the late 1980s. However, the records of a separate state agency showed that he was in prison at the time.
A separate process by which a non-parent can become a child support payor is described in Family Law in America (Katz 2014; Oxford University Press):
… the prevalence of serial marriage and support delinquency begs the question of whether stepfathers have a duty to support their stepchildren. This question commonly arises when a man marries a woman with an infant. Upon his wife’s remarriage, the infant’s father fails to fulfill his child support obligation, and the wife’s new husband, the child’s stepfather, lives with the child and assumes the obligation. After five years of marriage, the couple divorces and the stepfather refuses to support his stepchild for whom he has been the de facto father. If the state has no statute imposing support obligations for stepparents who stand in a loco parentis relationship with the child or if there is no statute and a judge took a particularly narrow view of parental financial responsibility, he or she might very well determine that the stepparent has no financial obligation to the child. Another judge might apply the doctrine of in loco parentis or the doctrine of estoppel to such a fact pattern. She might decide that since the father voluntarily assumed the role of a parent for five years and took financial responsibility for the child, and the mother relied on that conduct, the stepparent should have some obligation to pay child support.
In most states, the amount and duration of alimony is discretionary with the judge. (Some states, e.g., Massachusetts, have guidelines, but judges need not follow them.) "The alimony system was designed back in the days when women didn't work and when women of a certain social class weren't supposed to have sex without being married," said one lawyer. "So her remarriage was a bright line point at which alimony ended. What you see today instead is constant litigation where people argue about whether the boyfriend with whom she spends six nights per week is actually cohabitating with her and/or contributing to her household income. The other main argument is why, despite the fact that she has a college education and used to work, she hasn't found a job." An attorney from another jurisdiction: "I'm in court all the time arguing about whether someone has effectively remarried or should go back to work, but realistically successful alimony plaintiffs get remarried and go back to work on the day that their alimony ends."
In some states, e.g., California, courts retain lifetime jurisdiction over a couple with regard to alimony. In theory, a couple could have been married for a week while in their 20s and return to court in their 60s or 70s with one ex-spouse seeking alimony from the other. The overall uncertainty around alimony creates "stress" according to Susan Williams in our Oregon chapter:
"Alimony is probably the most contentious issue in Oregon. It is psychologically troubling for people. It is hard for lawyers to advise people on what they're going to get, which causes litigation. Judges don't like alimony because it is modifiable and people keep coming back." Getting a check in the mail every month isn't so terrible, is it? "There is a lot of stress on recipients," Williams notes, "because they know that their lifestyle is being scrutinized. Do they have a boyfriend, a new car? Should they buy a more expensive house and take on a bigger mortgage when alimony can go away at any time?"
Collecting alimony involves many of the same procedures as collecting child support, but with less federal funding. A former spouse under an alimony order can be imprisoned for not paying, e.g., after losing his or her job. The alimony obligation continues and accumulates while in prison. Depending on the state, an alimony payor's second spouse's income can be attached to pay the first spouse.
An important distinction compared to child support is that the length of time over which alimony is owed is often uncertain. An alimony award may be "permanent" or "indefinite," which means is the judge expects the parties, with their respective lawyers, to return to court periodically for review. Should alimony continue until death? Until the payor reaches what the Social Security Administration says is a normal retirement age? Until the payor reaches some other age? All of this is subject to modification motions and hearings that are essentially mini-trials and the outcome of which cannot be predicted. Attorneys in Massachusetts told us that Judges may eyeball payors from the bench and decide that a payor's health is sufficiently good that he or she can work for at least a certain number of years beyond normal retirement age.
Unlike with child support, no federal law requires states to establish guidelines for the amount or duration of alimony. The amount is typically supposed to be based on a recipient's "need" and a payor's "ability to pay." These two critical factors may have changed quite a bit 10 or 20 years after a divorce trial in which an alimony amount was established. This leads to post-divorce proceedings that cover substantially all of the same issues that were covered at the original divorce trial. Is the recipient not spending all of the money every month, thus demonstrating a reduced "need"? Is the payor not working as hard as he or she could, thus demonstrating a hidden "ability to pay"? Is there a new partner in the recipient's life who is paying some of the bills, thus reducing the "need"? Is there a new partner in the payor's life who is paying some of the bills, thus increasing the "ability to pay"?
[On the monthly savings issue, one divorce litigator said "Alimony recipients do put money away every month. They stuff cash under a mattress or in a safe deposit box."]
"Divorce puts the breadwinner parent into a role that he never would have chosen," said economist Mark Sarro, referring to the conventional every-other-weekend-and-pay-all-the-bills "secondary parent" role. If a judge orders someone to toil day and night and hand over 95 percent of after-tax earnings to a plaintiff, why doesn't the defendant simply file for protection under bankruptcy law, then start a new life that might conceivably have some appeal? The answer is that alimony and child support debts are not dischargeable in bankruptcy. I.e., a divorce lawsuit loser can file for bankruptcy but will come out of it with essentially just as much debt as before. "You can be driving drunk, kill someone, lost a $25 million judgment, go bankrupt, and start a new life free of your plaintiff," said one lawyer, "but your divorce plaintiff is with you until you die."
The rationale for this is explained in "Divorce and the Dischargeability of Debts: Focusing on Women as Creditors in Bankruptcy" (Alexander 1994; Catholic University Law Review 43:2):
Alimony and similar marital debts became officially nondischargeable in 1903 by an amendment to the 1898 Act.' The new law stated: "A discharge in bankruptcy shall release a bankrupt from all his provable debts, whether allowable in full or in part, except such as... are for alimony due or to become due, or for maintenance or support of wife or child." The amendment was a codification of the then-existing trend in common law whereby state courts denied debtors the right to discharge alimony debts.
Prior to the 1903 amendment, most courts viewed alimony not as a debt founded upon a contract, but as a penalty imposed for failure to perform a duty.
[Note that the article uncritically references Lenore Weitzman's finding that "ex-husband standards of living rose an average of 42% percent while ex-wives suffered a 73% decline." (see the History chapter) Every case cited by Alexander involves a man who has gone bankrupt after a divorce; there are no cases in which the wife went bankrupt. Alexander never expresses curiosity as to why a group of people whose standard of living has risen 42 percent need to file for bankruptcy protection.]
Colbern Stuart, a California attorney, explained to us that "Punitive damages, assigned after you do something wrong, are also not dischargeable in bankruptcy [11 USC 523(a)(6): 'for willful and malicious injury by the debtor to another entity or to the property of another entity'] so it made sense that, under a fault-based divorce system, that divorce-related debts would not be dischargeable. But now that we have a no-fault divorce system it is harder to explain why bankruptcy protection isn't available to lawsuit losers."
"Generally the outcome of a divorce lawsuit is that one person is ordered to pay the other person to be a parent while the paid parent is ordered to produce the child for 'visits' with the loser of the lawsuit," said one attorney. "The government has set up a taxpayer-funded system to force compliance with the order to pay. The 'deadbeat parent' will be brought into court by taxpayer-funded police officers, prosecuted by a taxpayer-funded attorney, and ordered to a taxpayer-funded prison by a taxpayer-funded judge. But there is no practical enforcement mechanism for the order to allow visitation. The loser parent can hire me to go into court and file a motion for contempt but generally all that happens is the winner parent gets a scolding from the judge. I tell clients not to bother."
Attorneys report that post-divorce "removal" or "relocation" cases can be more involved in terms of fees and proceedings than the original divorce trial. Standards for whether or not a victorious custodial parent can move across the country vary wildly from state to state. Some jurisdictions give primacy to the adult's right to move wherever a new marriage or job may take him or her. Others give primacy to the child's right to see the "visiting", "non-custodial", or"secondary" parent. In every state a removal/relocation case can involve a trial with dueling testifying expert witnesses offering opinions regarding child psychology as well as fact witnesses talking about a child's relationship with each parent. The same attorneys and mental health professionals who get paid as Guardian ad litems and custody evaluators in a divorce can get paid again to make recommendations in a removal/relocation case.
Even if the parents stay in the same state, attorneys report plenty of additional custody trials with paid expert witnesses and Guardian ad litems. "The typical person who marries and has kids for financial reasons files a divorce lawsuit when the youngest child is two years old," said one attorney. "and maybe there is one more kid who is four or five. So the kids have almost no memory of the father as a real parent. They get curious about their father starting at about age 12 and press for 50/50 time with their dad. That would reduce their cash value to mom so there is no way she will agree to this. We have a custody modification trial with expert witnesses testifying regarding their theories for how a child saying 'I want to live half time with my father' is a sign of mental illness or manipulation by the dad. Usually I can win this for the mother." Is that the end of the custody litigation? "No," responded the lawyer. "When the kid turns 16 she is finally able to run the numbers and realize how she has been worked by her mom. She adds up all of the child support and realizes that mom has spent it on vacations with the boyfriend, clothes, jewelry, etc. So she plants herself at dad's house and refuses to spend much time with mom. But the custody and child support orders are still in place so she's still yielding $50,000+ per year for the mom. Dad is now supporting mom and her boyfriend while also taking care of an angry and disturbed teenager. He comes to me when the teenager is sixteen and a half and asks me to file a motion to modify child support based on the fact that the kid now lives entirely with him. The modification won't be retroactive so the mom stretches out the litigation as much as possible. GALs and experts get paid again to investigate and testify. The teenager is seventeen and a half by the time the judge rules so at best the father saves $25,000 in child support before it would have automatically terminated at age 18."
Another litigator was more succinct: "I tell clients 'Your child is 3. That means you've got 15 more years of litigation.'"
"Disputes between parents who went through a litigated divorce are inevitable until the non-custodial parent gives up on trying to be a parent," said one attorney. "Remember that people who file divorce, custody, and child support lawsuits are generally terrible parents though nearly always they end up winning custody. Courts grant joint legal custody so that the non-custodial parent thinks that he has some sort of role in the child's life, but in fact the custodial parent has all of the power and control and is the only real parent." What's wrong with the custody loser continuing to exert parental effort? "If someone offered you a unpaid job where you took care of someone else's child every other weekend without compensation or even a 'thank you', there is no way that you would take that job," the attorney responded.
"Why then would you volunteer to do that for your biological child? You and your new wife are already working an extra job to make the alimony and child support payments for the first wife. Why add parenting a damaged-by-divorce child to your weekend do-list? Give how our family courts work, the rational course of action is to walk away from any responsibility other than writing checks. The courts can order a father to write checks, but the court can't order a father to show up at school meetings, pediatrician visits, birthday parties for 6-year-olds, and other tedious events. The court can't order a father to arrange his schedule so that he is available to babysit every other weekend. My clients who lose custody and then refuse to lift a finger as parents are a lot happier than the guys who keep trying to do a good job in a secondary parental role with their ex-wife and a judge as supervisors."
Isn't this kind of behavior tough on children? "The airlines tell passengers 'Put on your own oxygen mask before assisting your child'; I tell my clients 'Be a good destination for your children.' They can't be a good destination if they are resentful about paying someone else to be a parent while simultaneously doing tedious parenting work under the supervision of the person they are paying. They can't be a good destination if they're fighting with the person who sued them about where little Johnny is going to school, what after-school activities he will do, or whether he should see a particular doctor. They can't be a good destination if they're trying to fix a broken child." Isn't the child less likely to be broken if the non-custodial parent maintains his or her involvement? "A divorce plaintiff is someone to whom money is more important than her children. The children of that plaintiff are going to be broken, regardless of what the father does."
Alec Baldwin in A Promise to Ourselves (2008) made essentially the same point:
Foolishly, I walked into a courtroom [as a defendant against a lawsuit filed by Kim Basinger] with the expectation that I would be given some equitable rights regarding my daughter. I ignored the less than subtle message that tells noncustodial parents, especially fathers, to abandon such hopes and face the realities of this system. Walk away, we’re told. Accept your fate as your penance for the poor choices you’ve made. Write off this failed family as the price of learning difficult lessons. The longer you hold out for what should be the right of every parent, the more expensive and painful the process becomes.
(Baldwin betrays at the end the typical fundamental misunderstanding of a U.S. family court litigant. In the typical U.S. state there is no "right of a parent" to spend time with a child. Nor is there any "right of a child" to spend time with a parent. If a judge decides that it is in the "best interests of the child" never to see one parent again, that is the system functioning as designed.)
Litigation following a five-minute sexual encounter can last for up to 23 years. Litigation following a five-year marriage can last until one or both parties are dead.