Most U.S. states hold out powerful economic incentives for Americans and visiting foreigners to seek cash via out-of-wedlock pregnancy or short-term marriage and divorce. A completely rational economic actor would, by age 25, be tapping into the income of five other Americans: three co-parents of out-of-wedlock children, one alimony payor, and one current (unmarried) partner.
Why isn't that what we see in our neighborhoods? As noted in the Introduction and in the Child Support Litigation Without Marriage chapters, there is widespread ignorance regarding family law among both Americans and foreigners visiting the U.S. Consumers continue to believe, erroneously, that short-term marriage is a superior path to financial success than obtaining custody of out-of-wedlock children. An intelligent 15-year-old from Massachusetts, asked about career plans, volunteered that "Everyone knows that if you want to make money you marry and divorce a rich guy. That’s why my parents sent me to a school full of rich boys with low self-esteem. All that they need is an understanding wife. Then, oops, divorce after six months."
A Facebook status from a parent in the same town, quoting an elementary school child:
A [9-year-old] girl in school said today “When I grow up, I will marry Bill Gates, then quickly divorce him, and take half of his money! Mua-ha-ha-ha-ha!”
Even if Bill Gates were not already married, due to legislation that took effect in 2012, Massachusetts law no longer provides for lifetime alimony following a short-term marriage. If, on the other hand, this girl were to have a child with Bill Gates, she would be on track to become one of the wealthiest people in the state.
As noted in the History chapter, starting around 1990 collecting child support from an out-of-wedlock encounter became more lucrative in most U.S. states than a marriage. Litigation between formerly married individuals is a shrinking percentage of family court cases. Yet most Americans continue to think of marriage as the precursor to getting money in family court:
[in a survey of Americans] Fully two-thirds of women and half of men said they were "very" or "extremely" willing to marry for money. … when the mercenary marriage proves disappointing, there's always divorce. Among the women in their twenties who said they would marry for money, 71% said they expected to get divorced -- the highest of any demographic. Only 27% of men in their 40s expected to divorce.
-- "Marrying for Love ... of Money," Wall Street Journal, December 4, 2007
For awarding custody, and therefore child support, states can be roughly lumped into three categories. The first category we call "Preserve and extend the status quo," which almost always turns into "winner take all." The court's job is to figure out what the roles of the parents were during the marriage and then force them to continue in those roles until the youngest child turns 18, 21, or 23. If one parent was out earning money while the other was at home with the children, the court will award alimony and child support sufficient to allow that parent to continue staying at home.
The second category is "Don't take sides." These states recognize that divorce justice is inherently rough. A judge is not going to be able to look into two parents' souls during a one-day trial and figure out which person should become the sole parent for the next 16-18 years. If the parties can't agree the courts will assign 50/50 parenting. If both parents have jobs, child support and alimony will be minimal.
The third category is "Craft a new optimum". Compared to the "Preserve and extend the status quo" states these states have just as much faith in the ability of a single judge to look into the souls of two parents and determine what each can give to a child. However, the "craft a new optimum" states allow roles to change following a divorce. Regarding our Scenario 4, in which a stay-at-home mother of an 8-month-old child sues a medical doctor who works full time, our Arizona litigator said "Nobody cares if he didn't participate in the infant's care for the first 8 months. His role in the marriage was to work. Our judges would assume that he could assume half the child care responsibilities if needed given the life changes they are going to go through." Our Michigan interviewee gave the following example: "If the wife says 'the husband didn't have anything to do with the kids,' the court can respond 'that's not necessarily what he will do once he has the kids. Maybe he didn't come home because he didn't want to be around you.'"
Within a category there can be still a tremendous amount of state-to-state and judge-to-judge variation. In each area of divorce law, each state is different in terms of what is rigidly determined by statute, what is suggested by guideline, and what is entirely up to the judge's discretion. The stakes and therefore intensity of litigation may be very different in two adjacent states simply due to one state having a cap on child support, for example, while the other offers the potential for millions of dollars in profit.
Even where statutes haven't been changed, there seems to be a gradual drift in many U.S. states toward 50/50 or 60/40 parenting time arrangements being the norm (see Colorado and Pennsylvania, for example). This has been a relatively recent trend and one that was resisted by judges and attorneys. "Nobody in the divorce industry here changed his or her mind," said one attorney. "It is just that the judges who habitually awarded custody to the mother retired or died. The younger judges think differently about a man's potential to be a parent."
The trend in solidly winner-take-all states is changing language. While keeping the 1950s-style outcomes that designate a plaintiff mother as the winner parent, these states are typically changing the language that they use to try to make the loser parents feel better. What had been a "custodial parent" or a "parent with sole custody" becomes a "primary parent" or a "parent with whom a child has primary residence." What had been a "noncustodial parent" or a "parent who lost custody" becomes a "secondary parent", a "non-residential parent", or a "parent with whom a child does not have a primary residence." (Attorneys may continue to refer to "winner parent" and "loser parent.") Massachusetts is so devoted to custody litigation and the winner-take-all approach that there is no box on the official state divorce complaint form to seek shared custody. Nonetheless, in July 2015 the state senate took up S. 834, which would codified the "primary parent" language that judges were already using. The bill was opposed by litigators and ultimately killed by a committee presided over by attorneys, including Cynthia Creem (below), a $500-per-hour divorce litigator.
The one thing that all states except Texas share is the casual nature with which children or parents are disposed. One person, whose decision is not appealable as a practical matter, will decide what the next 18 years of a child's life are going to be like and whether or not that child will have one parent or two. Typically the "one person" is a judge but sometimes the decision is essentially delegated to a custody evaluator or guardian ad litem. Whatever the case, minimal time will be spent before a decision is made. A Colorado attorney pointed out that "it is easier for a person with whiplash to get a two-week jury trial than for a divorce litigant to get a two-week trial in family court." An Arizona lawyer told us "You beg for more than a half-day trial after a 20-year marriage. If you beg and scream you might get two days of trial." (Texas is an outlier because it is possible to obtain a jury in a custody dispute.)
In most states the children's future has been determined at a "temporary hearing" that occurs 1-6 months after a divorce or custody and child support lawsuit is filed. Depending on the jurisdiction, the hearing will usually last less than one hour (and as little as 5 or 10 minutes), may be presided over by a magistrate or "master" rather than a judge, and will be free of evidence or witnesses. Attorneys on each side speak for a few minutes. Children are then assigned either to a shared parenting arrangement or to a single "primary parent." In theory the decision from the temporary hearing is not binding at the trial but nearly all attorneys interviewed said that a custody decision is extremely unlikely to be revisited. In a typical case, the only function of the trial is to establish the profitability of the children and the marriage by determining precise child support and alimony (a.k.a. "maintenance") amounts.
Based on our interviews, in most states women who seek sole custody of children, and the child support revenue that accompanies the award, should sue their husbands when children are young. Due to Constitutional problems, most states have abolished the black letter "tender years" doctrine that automatically gave mothers custody of young children. Nonetheless, lawyers told us that three factors operating together have replaced the tender years doctrine with a functional equivalent.
The first factor is the idea an infant will be primarily attached to one adult and must wake up in the same crib every morning until somewhere between 18 and 36 months (research psychologists don't agree on this, but that's not relevant as long as judges believe this to be true). The second factor is that judges are invited to use their discretion to identify a primary or more important parent and lawyers told us that judges have no difficulty in finding that "mothers make better mothers" when children are breastfeeding or toddling. The third factor is a systematized preference for the historical "primary caretaker" to have a primary role going forward. This tends to be part of the statutes or case law in "preserve the status quo" (winner-take-all) states. Even if a child is just a few weeks or months old when a lawsuit is filed, and therefore the history of primary caretaking is necessarily brief, judges are encouraged to extrapolate that the mother who cared for the infant will be the most important parent for the next 18-23 years.
Family Law in America (Katz 2014; Oxford University Press):
The 1980s saw the emergence of the “primary caretaker preference” in child custody disputes … The primary caretaker is defined as the person who, before the divorce, managed and monitored the daily activities of the child and met the child’s basic needs: feeding, clothing, bathing, and arranging for the protection of his or her health. ... In a law review article that has been instrumental in advocating the primary caretaker rule and providing insight in divorce negotiation, Chief Justice Neely of West Virginia wrote that such a rule spells "mother." After reviewing the research in the field and using his own experience as a lawyer and judge, he concluded that mothers are "more likely than fathers to feel close to their children." …. he stated that having the presumption minimizes elaborate and time-consuming custody trials where a costly battle of experts dominates the litigation …. He also believed that determining who is the primary caretaker is a simpler task than delving into the elaborate factors used to determine who was and will be a good parent. For him, the answer is basically: mother.
The primary caretaker presumption once again focuses custody disputes on custodians rather than on the child. It also fuels political fires by declaring even before a case is heard that one parent has the advantage. If that parent is the mother, one might ask whether the primary caretaker presumption is "a thinly disguised form of the tender years presumption."
Some feminist writers have felt that an award of joint custody may reflect a minimization of the role a mother has played in rearing her children. These writers have called for major changes, some recommending the revival of the maternal preference rule and others for statutory enactment of the primary caretaker standard.
As noted above and in the introduction, child support from a brief encounter with a high-income American can be more lucrative than a long-term marriage to a middle-income partner.
How many Americans are profiting from child support? There is no official or comprehensive data source and courthouse records are often sealed. The U.S. Census Bureau conducts Current Population Surveys (CPS) that sample about 57,000 households at random and include data on over 139,000 people. From a survey in April 2012 they estimated that approximately 500,000 Americans are receiving more than $10,000 per year in child support and therefore potentially earning a profit over the USDA-estimated cost of child-rearing. Using UCLA Professor William Comanor's calculation of actual spending by parents (see the Methodology chapter), we would use a threshold of about $4300 per year. The Census Bureau estimated that approximately 2 million Americans are receiving more than that amount.
Are the Census estimates right? We downloaded the March 2014 data, more than 139,000 records, and did our own analysis. Considering that the U.S. Treasury says that 567,887 reported on their IRS 1040 returns that they were paying alimony, the Census CPS data under-counted alimony recipients by approximately 50 percent. Apparently people are not forthcoming when asked "Are you living off alimony?" Timothy Grall, a U.S. Census Bureau expert in this area said in an email "Historically, we've also noticed differences between what survey respondents stated they receive in child support versus what the payers report, versus what administrative records show."
Census 2014 data yield an estimate of 7 million Americans receiving child support, inconsistent with the Federal Office of Child Support Enforcement FY2015 data indicating that officials were collecting money on behalf of 16 million children and that 55 percent of parents entitled to child support "have just one eligible child." Attorneys interviewed reported that the most lucrative child support orders were against higher-income parents and, because the payors did not fall behind, the scale is much larger than the 16 million children and $32 billion in cashflow that went through the FY2015 government collection system.
Thus when trying to determine how many Americans profit from collecting child support, we can choose from the following numbers:
How significant is 500,000 people? According to Bureau of Labor Statistics data, that's about the same number as combining America's dentists (147,000), architectural and engineering managers (194,000), biomedical engineers (19,000), airline and commercial pilots (104,000), and judges (43,000). What about the 2 million Americans that we get starting from Professor Comanor's analysis? That's the number of physicians and surgeons (691,400) plus all of the high school teachers (995,800) plus about half of the Americans who work in agriculture (749,400). What about the 4 million that comes from correcting this number by the same factor as known underreporting of alimony? Then it is 4 million Americans collecting profitable child support. That's roughly the same as all of America's nurses (2.7 million), physicians (0.7 million), medical and health services managers (0.3 million), dentists (0.145 million), and EMTs/Paramedics (0.239 million) put together.
To accommodate the public's idea that two working parents should somehow share the cost of rearing the child of divorce (or a one-night encounter), state child support committees have generally moved from a "percentage of obligor's income" formula to an "income shares" formula that theoretically takes into account the income of both custody winner and custody loser. "Percentage of obligor [loser]" remains the standard in Wisconsin, for example, at 17 percent of the loser's pre-tax income. With income shares in most states if there are two incomes the total amount of child support will nearly double and half of that amount will be close to the "loser-only" calculation (see New York, for example, for where the rate is a constant 17 percent and therefore "income shares" leads to exactly the same number as "percentage of obligor").
We can look at the Massachusetts 2013 Guidelines as a typical example of the "income shares" approach. If the plaintiff and defendant each earn $125,000 per year and are fighting over one child, the winner will collect $20,072 per year from the loser or $461,656 over 23 years (but going to $0 in the event of 50/50 custody, which creates an incentive to fight for "primary parent" status). If, on the other hand, the winner has zero income and the loser remains at $125,000 per year, the winner collects $24,596 per year as long as the winner can get at least 50 percent parenting time. Both of these numbers are comfortably over any estimate of actual child-related costs and therefore the loser is paying all of the winner's child-related costs plus any costs incurred related to the time that the child is with the loser parent, e.g., having to rent an apartment with an additional bedroom.
One thing that we learned was that we couldn't learn anything about likely legal fees from talking to lawyers. Attorneys who charge over $800 per hour talked about the cost of one side of a custody lawsuit through trial as "very expensive, at least $50,000." Yet simple arithmetic shows that it would be impossible for an $800 per hour attorney to handle two years of litigation and a multi-day trial for anywhere near the cited $50,000 figure. The estimates that we got from attorneys are also contradicted by anecdotal reports from divorce litigants. In Massachusetts the cases that went to trial in which at least one spouse was reasonably successful, e.g., a medical doctor, cost between $500,000 and $2 million in fees for the two sides combined. Usually close to $100,000 was spent by attorneys on each side before the first motion hearing in front of a judge.
People can save 90 percent or more by mediating, but the winner-take-all states make this unlikely. Who is going to volunteer to be the loser parent? Why does the person on track to win everything via litigation want to compromise? See our Mediation chapter.
Roughly 93 percent of the Americans collecting child support in the March 2014 U.S. Census Current Population Survey were women. The sample includes states that have gone to a 50/50 shared parenting system. In other words, men lose the custody-and-child-support fight more than 93 percent of the time in the winner-take-all states. This leads to the perception that courts are biased against men.
For example, a Massachusetts entrepreneur who'd been sued after two years of marriage and the birth of a daughter said "For 16 years now I've been paying about $130,000 per year, tax-free, to my plaintiff. I'm supporting the woman who sued me, her new husband, and the boyfriends that she is cheating on the new husband with. I estimate that no more than 10 percent of the money trickles down to my daughter [in public high school at the time]. I wish that I had moved to Texas before [the child] was born. Undoubtedly my life would have been better without having to deal with an entitled ex wife." How about the process? "You have to remember that it is like a Nazi show-trial. You can spend a lot of money hiring a lawyer and a lot of time trying to defend yourself but the outcome is predetermined. A divorce in Massachusetts is not a trial but a feel-good dog and pony show to keep some kind of appearance of law and order."
[Follow-up: His plaintiff divorced her second husband, winning a large house, the lion's share of the family cash, alimony, and a profitable stream of child support on a second batch of children. Although college-educated, she has not earned any income, except from divorce and child support litigation, for twenty years.]
Asked to explain how a system like this could come about, he explained "Nobody takes a job as a divorce judge unless they enjoy taking money from men and giving it to women." Our research revealed a more nuanced picture.
Most plaintiffs are women and most lawsuit losers are men. This was reflected in our interviews. Whenever attorneys provided us with examples beyond our scenarios they would start with the situation of a custodial mother receiving child support from a non-custodial father who'd lost a bid for 50/50 custody. In most jurisdictions attorneys predicted that women would win sole or "primary" custody in the scenarios that we posited. Attorneys in most jurisdictions said that judges would be sympathetic to a woman's desire to stay home with children and remain, post-divorce, a financial dependent on a high-earning man, but hostile to the mirror image situation. If a woman was at home with a nanny doing most of the heavy lifting, she would be a stay-at-home mom on track for a "slam-dunk" custody victory; a man with a nanny, however, would not be recognized as a parent.
Some of the bias in favor of women is systemic rather than personal. In states with a "preserve and extend the status quo" custody system, i.e., the winner-take-all states, mothers are virtually guaranteed to win "primary parent" status in any household in which there has been a traditional division of labor. If there is any doubt of this, most states favor awarding primary parent status to victims of domestic violence. Women are better positioned to make credible domestic violence allegations and get temporary orders that create a pre-trial "status quo" in which children are primarily or exclusively with the mother.
Attorneys in quite a few states describe decades of working on cases in which nearly every outcome was "mom gets the house, the kids, and the cash." Is that Constitutional? The Alaska Supreme Court said no, thus imposing a 50/50 custody presumption on lower courts. But in most states it is not a violation of Constitutional rights to run a system in which nearly every woman who sues a man will prevail. We asked Jeannie Suk, professor at Harvard Law School, how this could be legal. "What if a state ran a system in which white people sued black people and, in every case, the white person was able to take away the black person's house, children, and money? Would that be Constitutional?" Suk replied that "As long as there is a rational basis for the standards, even if they happen to result in unequal outcomes, there is no Constitutional problem."
Women are in a better position than men to obtain profits from the children of casual encounters, but not because of any court system bias. Women can control whether or not to terminate a pregnancy and whether to ask the potential fathers to give them cash in exchange for an abortion. By moving while pregnant, women can control the state in which the child will be born and therefore potentially the jurisdiction under which child support will be calculated. In many states a plaintiff can collect child support revenue going back to the child's birth, thereby enabling a woman to spend a few years as the sole caregiver of the child before informing the father of the child's existence and asking a state agency to collect retroactive child support from him.
Commenting on "Nobody takes a job as a divorce judge unless they enjoy taking money from men and giving it to women," an attorney said "He's almost right except that in my experience what divorce judges enjoy most is taking money from very wealthy people and giving it to slightly less wealthy people. They call this 'social justice.'"
What kind of person would enjoy a job redistributing wealth and income? "Most of us" is the answer according to Steven Landsburg, professor of economics at the University of Rochester, interpreting research conducted by Vernon Smith, winner of the 2002 Nobel Memorial Prize in Economics. Landsburg explains in an October 10, 2002 article in Slate magazine, "Phony Generosity":
Let me tell you about two people I'll call A and B. No, on second thought, let me tell you nothing about them at all, beyond the fact that they are strangers to you and to each other, and that none of you will ever meet or learn any more about each other than you know right now.
I have three questions: Would you like to give some money to A? Would you like me to force B to give some money to A? And would you be willing to pay me to force B to give some money to A?
In one series of experiments conducted by Smith and his former colleague James Cox, the subjects effectively answer my original three questions not with the expected "no, no, no" but instead with a "no, yes, yes." No, I do not want to give money to A. (Understandable.) Yes, I want B to be forced to give money to A. (Weird.) Yes, I am willing to pay someone to force B to give money to A. (Very weird.)
"Once a judge gets the idea that the defendant is richer, he or she spends the rest of the case looking for creative ways to give the plaintiff money," responded the lawyer. "Judges think it is unfair any time that one person earns more money than another person. Usually the marriage was too short for alimony and there wasn't much accumulation of joint property so that leaves the child. The judge starts by finding that the plaintiff, though she has a full-time job and is no more available than the defendant, should be the sole custodial parent. Then the judge, who earns $120,000 per year, will find that a plaintiff who earns $175,000 per year cannot afford to support herself and a toddler so she needs to collect extra paychecks for her part-time child care efforts from a guy who earns $300,000 per year. To ensure that the child support money is pure tax-free profit, the defendant will be ordered to pay all of the kid's real-world expenses, such as health insurance, babysitters, day care, and private school tuition." Why isn't that kind of story evidence of an anti-father bias? "Because with some younger judges it would work just as well if the genders were reversed," replied the lawyer. "I would simply have to convince the judge that mom was the rich person who needed to pay." Why don't we see more cases where men sue women? "It is a cultural thing," the attorney said. "There are a lot more women who want to live off a man than there are men who want to live off a woman."
The "rich parent" designation seems to be sticky. After being ordered to give her male plaintiff $1 million, a female entrepreneur in Massachusetts found herself ordered to pay 100 percent of the two children's expenses, and child support to the father, despite the fact that, post-divorce, he ended up far wealthier and with a higher income than she. While her once-promising company failed, his post-divorce income grew to $400,000 per year and he got remarried to a woman earning $200,000 per year. He kept cashing the child support checks every week.
"It doesn't matter how rich you are," said one lawyer. "If you can find someone a little richer to have a kid with, the $40,000-per-year taxpayers will pay to build and staff a courthouse so that you can go in to complain about how you can't afford to take care of a child half the time."
Depending on the jurisdiction where the two future parents live, marriage can be tremendously costly for a child support plaintiff. Marriage limits a child support plaintiff to the courts and law of the state where the couple reside. If that state is, for example, Nevada, child support will be capped at $13,000 per year per child. An unmarried child support plaintiff, however, may be able to launch a lawsuit from California or Massachusetts and turn the $13,000-per-year child of Nevada into a $1-million-per-year California or Massachusetts child.
Alimony following a short-term marriage is usually less valuable than child support. Across a wide range of states, collecting five years of alimony after a 10-year marriage is a typical outcome and the alimony is usually roughly one third of the difference between the parties' incomes. "The kind of people who enter a marriage just for the money don't usually have the patience to wait a long time to collect," said one attorney. "So they're going after child support rather than alimony."
Depending on the state, a person who obtains custody of three children with three different co-parents will collect roughly 1.5 and 2X as much child support as a person who obtains custody of three children with the same co-parent, assuming that all of the child support defendants have the same income.
In many states, a parent who is better-positioned to be the winner parent in a win/lose outcome can avoid the possibility of a shared parenting award, and therefore reduced child support profits, by demonstrating an inability to get along with the other parent. "Conflict" is a magic term in many jurisdictions and it works even when the person seeking to benefit from the conflict started it. From a Massachusetts:
Jessica: She gets picked up at noon if she were to go to school. Drop her off at noon.
Michael: I won't be home till 12:45. I can drop her off at 9:30 if you u want but she will prob sleep late
Jessica: Ok well WTF. School is out at noon.
Jessica: U r fucking a selfish fuck
Jessica: And u r no role model
Jessica: I wont even say it and it is sooooooo vile
Michael: I can drop her off at 1 or u can pick her up earlier. What is ur problem?
Jessica: Fuck u
Jessica: I have had it with u and ur abuse
Partly as a consequence of asserting "conflict", the plaintiff finished her four-year marriage with a free $1 million house, paid health insurance, all of her child's actual expenses paid, including health insurance and a nanny. In addition, she got $50,000 per year in taxable alimony and roughly $94,000 per year in tax-free child support (about $2 million through the child's 23rd birthday).
An analysis of 24 studies of shared parenting, "Shared Residential Custody: Review of the Research (Part II of II)", Linda Nielsen, in American Journal of Family Law, 2013:
conflict is highest during the time when couples are separating—the time when custody decisions are being discussed or disputed. … regardless of how it is defined, “high” conflict almost always declines after the divorce is finalized, meaning that conflict during divorce proceedings is not a reliable predictor of future conflict. Third, the term is used in overly broad, inconsistent, and inappropriate ways by lawyers, judges, and mental health professionals in the family justice system. That is, “conflict” becomes the weapon that parents use in their attempt to deprive one another of legal custody or parenting time. There is ample motivation, therefore, for one or both parents to portray their conflict as far higher and far more intractable than it actually is. … it must be remembered that conflict is inevitable for all parents over childrearing issues. Even the most happily married couples argue and disagree over parenting. Divorced parents, therefore, should not be expected to be “conflict-free” in order to share the parenting.
For all of these reasons, many experts on children of divorce concur that conflict should never be used as the reason for limiting the amount of time that children spend with either parent—unless that conflict involves a documented history of physical abuse or violence.
"I can't imagine anything more damaging to a child than a parent making false abuse allegations against a co-parent," noted one attorney. How often does something that damaging actually happen? "I see some type of abuse or domestic abuse allegation in 3 out of 4 cases that are filed [by women]," was a typical answer.
"A woman doesn't have to be a Harvard graduate to understand that reporting the father to social services as a child molester is going to permanently poison her relationship with him, de-motivate him from putting time and energy into parenting their joint children, and make any kind of real cooperation going forward unlikely," noted one attorney. Why then would they do it? "For the house, kids, and cash. A sexual abuse or domestic abuse allegation can end a divorce lawsuit after a few weeks. The alleged perpetrator is out of the house, no longer has any contact with the kids, and is paying all of the bills. Most defendants will cave in at that point." We interviewed one lawyer who said that, whenever possible, she likes to start a divorce lawsuit only after obtaining a domestic abuse protection order that gives her client the exclusive use of the house and exclusive contact with the children.
States have established a variety of explicit incentives for bringing abuse allegations into family court. One incentive is lowering the standard of proof in family court from the "beyond a reasonable doubt" standard of criminal court to a "preponderance of evidence" (51 percent) standard that an attorney described as a "coin flip." Another incentive is to provide explicit benefits in custody statutes to successful allegers of abuse. For example, in Alaska a plaintiff who does not allege that the defendant is abusive will get only 50/50 custody of children and, if both parents are working at similar wages, no child support. A plaintiff who tells a convincing story of abuse to a judge, on the other hand, will walk out of the courtroom with sole custody and a stream of tax-free child support. Our Alaska interviewee said that the advent of this law motivated roughly 25 percent of women to make abuse claims.
A Maryland legislator explained to us that the divorce laws in Maryland were driven by legislators who are themselves successful divorce litigators and represent wealthy litigants. Delegate Kathleen Dumais was cited as an example of a legislator who both makes the laws and profits from them via fees charged to private litigants. She was a member of a 2014 Commission on Child Custody Decision Making considering possible changes to Maryland's statutes. Delegate Dumais declined our requests for an interview.
A Massachusetts attorney who'd been chief counsel for a legislative committee said "Cynthia Creem is a very powerful senator and was the Chair of the Revenue Committee. She's also a divorce lawyer." [We verified that, in addition to her work as a legislator, she hangs out a shingle as a partner in Stone, Stone & Creem.] "You're not going to see her backing any legislation that would reduce fees for divorce lawyers. And remember that a lot of other legislators are attorneys." Based on his decade of experience in the State House, what motivated legislators? "They don't care if you're frying babies. The only thing that matters is 'How will this look in the Boston Globe? How will this affect my chances of being reelected?'"
As noted in our Rationale chapter, Illinois General Assembly Representative Kelly Burke told us that the bar association (i.e., divorce litigators) and public employees involved in divorce litigation were the most influential groups in shaping divorce statutes in Illinois. André Katz told us that the bar association in Illinois "fought tooth and nail" against a 35-percent parenting time presumption in the 2014 redraft of the state's family law. "Most litigators would not support a presumption because it cuts down on the number of things that can be litigated." The 35-percent presumption was dropped and, under the new law, a custody lawsuit in Illinois will remain one in which 100 percent of the child's time is at stake rather than 30 percent. Divorce litigators in North Dakota put $60,000 into a "grass roots" organization to oppose a 2014 ballot measure that would have added a 50/50 shared parenting presumption (voters rejected it).
When the Florida Legislature tried to enact guidelines for alimony, a change that lawyers nationwide tell us reduces the length and intensity of litigation, an April 11, 2013 column in the Tallahassee Democrat said "Thomas Duggar, an attorney in Tallahassee and a member of the Florida Bar’s Family Law Section, said last week at a Tallahassee Bar Association meeting that the section has a $100,000 war chest to sway public opinion against the legislation." We were told that attorneys in Colorado and Illinois generally opposed alimony guidelines as well.
Attorneys are persuasive in general and, when arguing for preserving current legislation, are persuasive and sound well-meaning. Guidelines, presumptions, and limits reduce the uncertainty in a lawsuit and also oftentimes reduce the stakes, both factors that promote early settlement and mediation. Although lawyers spend a lot of time complaining about arbitrary, biased, and unfair rulings from judges exercising discretion, they will often argue against legislative reductions in judicial discretion by pointing out the potential for an unfair outcome in an unusual case. For example, should it be possible for a person to be married for an hour, sue for divorce, and collect 80 years of alimony? The Florida bill referenced above would have prevented that. But what if someone trips and falls during the first dance at a wedding, becomes disabled as a result of that fall, and simultaneously becomes disenchanted with the new partner? Perhaps 50/50 shared parenting is what attorneys would want if they themselves were sued for divorce, but we were given the hypothetical of parents who live a two-hour drive apart yet still within the same state. What if a shared parenting statute and a failure by the parents to negotiate an alternative resulted in the child spending four hours in the car each day during half the school weeks? (Note that attorneys in the states that actually do have 50/50 shared parenting guidelines or presumptions did not tell us about any outcomes like this.)
Assuming that the loser parent is of at least middle income, the winner parent in an American divorce or unmarried child custody dispute will earn a profit from child support. That profit will be further enhanced by tax regulations. Here's an explanation from http://www.eitc.irs.gov/:
Generally, only one person may claim all the child-related tax benefits for a child, including the dependency exemption, the child tax credit, the dependent care credit, the exclusion for dependent care benefits, head of household filing status, and the EITC.
The Internal Revenue Service considers the custodial parent, a.k.a. the winner parent, to be entitled to all of these tax benefits. Thus the winner parent will pay taxes at a lower "Head of Household" rate while the loser parent files "Single" and pays taxes at the highest possible rates. The winner parent will get a $1,000 child tax credit. The winner parent will be able to get an additional credit of up to $6,000 for day care expenses even if all of those expenses are actually paid for by the loser parent via court-ordered child support transfers.
On the lower end of the income scale, the winner parent gets the Earned Income Tax Credit (EITC).
"My clients who have won divorce lawsuits do very well with the charitable contribution deduction," said one accountant. "When they donate a child's outgrown clothing and toys to charity, they are able to claim a charitable deduction even if the stuff was paid for by the parent who lost in court." State financial disclosure statement forms include entries for "charitable contributions" (see the Massachusetts Long Form as an example; there are actually two places for including such contributions). Attorneys told us that a need to continue making charitable contributions can be used as a justification for additional child support or alimony: "You can be generous with someone else's money, just like a politician."
The world of divorce operates with two parallel sets of rules. Legislators, policy makers, and litigators on committees speak like officials at a lawn tennis tournament. It is first and foremost about the child, then there are considerations of fairness for adults. Consumers interviewed, however, describe the process as more like mud wrestling. For example, a 50-year-old business manager who was between jobs told us about his first consultation with a top practitioner in Florida, a state that offers permanent alimony. His wife earned $220,000 consulting to government agencies and was divorcing him after more than 20 years of marriage (the youngest child had just turned 18 and thus aged out of the child support system). "The [defense] lawyer told me to go out immediately and rent the most expensive apartment in Tampa [to establish a baseline need]. She said 'Start seeing this therapist right now. She is going to come testify that you are clinically depressed and will never be able to work again. My retainer is a non-refundable $10,000.'"
Divorce is a grim business in the Northeast and a staid one in the Midwest. Our Southern trial lawyers, on the other hand, could spin a spellbinding yarn from almost any one of their cases.
States offer financial incentives to have children with multiple partners, to marry and divorce multiple partners, and to have children with high-income sex partners who are already married. This is sometimes characterized as an attack on human tradition, but from a genetic point of view this is helping to return the human race to its origins. "Genetic Evidence for Unequal Effective Population Sizes of Human Females and Males" (Wilder, et al. 2004; Molecular Biology and Evolution, 21:11) concludes that the ratio of females to males in our genetic history is roughly 2:1. In other words, for every 100 women who had at least one baby there were only 50 men whose genetic material has survived. Assuming that fewer than 100 percent of women were able to have a child, that means more than half of men never reproduced. "A recent bottleneck of Y chromosome diversity coincides with a global change in culture" (Karmin, et al. 2015; Genome Research) suggests that, 8000 years ago, the ratio was as high as 17:1.
The era of "there's someone for everyone," a prohibition on polygamy, and people pairing up for life meant that many women were precluded from having children with the partners of their choice, e.g., because the chosen partner was already married to a different woman and there was no reliable mechanism for getting financial compensation for an out-of-wedlock child. An anthropologist told us that "rising divorce rates turned the U.S. into what is effectively a polygamous society. The higher-quality males will have multiple female partners and sets of children, but serially rather than in parallel. The lower-quality males will have their babies aborted, if they are even conceived in the first place."
Statistics support the theory that removing the stigma against single parenting and enacting a reliable system of child support guidelines and enforcement enables women to reject low-income men. For example, "The Marriage Gap: The Impact of Economic and Technological Change on Marriage Rates" (Greenstone and Looney 2012; Brookings) notes that 83 percent of men who were among the top 10 percent of earners in 2010 were married (it was 95 percent in 1970) while only 50 percent of men at the 25th percentile of earnings were married, compared to 86 percent in 1970. The authors note that "while the share of men who have been divorced has increased across the earnings distribution, an increase in the share of men who have never been married is the largest contributor to lower marriage rates."
"I've never understood why a woman planning children would marry a low-income father," said one attorney. "If she has a kid with a successful guy who's already married, her claim to his income will take precedence over the wife and kids' claims. What's not to like about that deal?"
"I'm dating a rich older [married] man and lying about my birth control," is the update a young Jacqueline White gives to her parents in Unbreakable Kimmy Schmidt. She advises Kimmy to bring "a condom and a pin" on a date with a wealthy young man. Certainly an out-of-wedlock pregnancy is a simpler way to profit from the U.S. family law system than a marriage and, if the income of one's date is higher than the income of potential fiancés, in quite a few states it will be likely be more lucrative. A typical big-city lawyer comment: "If you can’t get into a college that graduates investment bankers, you can make just as good money by banging an investment banker, preferably one who is already married."
What about traditionalists who actually do get married? The ambiguous and discretionary nature of family law means that both winners and losers of U.S. divorce lawsuits are can be unpleasantly surprised with the outcome. In the winner-take-all states, the victorious parent gets the house, the kids, and much of the loser's income going forward but not as high a percentage as had been hoped for. The losers are more or less destroyed as human beings and are about as unhappy as one would expect given that, as one lawyer put it, "they lose their identity as a spouse, their identity as a parent, and their financial security."