Part of Real World Divorce: web edition | Kindle edition
Lori Nelson is a Utah divorce litigator who has been selected by her peers nationwide to be the Chair of the American Bar Association's Family Law Section. She has also been president of the Utah State Bar Association. She has been practicing since 1992 and has been an innovator in Utah on a range of issues, including mediation, collaborative law, and a variety of legislative issues. During law school at University of Utah, Nelson founded the Women's Law Caucus scholarship lecture with a panel that presented a Gender and Justice Task Force Report. She also has won the usual (for our interviewees) range of awards including a "Super Lawyer" designation. See http://www.joneswaldo.com/ for a full biography.
To find out what happens when people "negotiate in the shadow of the law," we also spoke with a full-time Utah mediator, Tamara Fackrell (see http://www.utdivorcelawyer.com/). Fackrell also handles roughly 50 litigation cases per year. What leads people to mediate in Utah? "At least one session is mandatory following the filing of an answer to a divorce complaint," said Fackrell, "but we also have people come to mediation prior to filing." Does it work? "Our firm is able to solve most cases through mediation," she responded, adding that the main motivations for people who mediate are concern for the welfare of their children and, when no children are involved, a desire to reduce the cost of the fees in the divorce.
Divorces in Utah are started by a "petitioner" against a "respondent" and Nelson says that, consistent with nationwide statistics, women are more often petitioners than men. The time from filing to trial is typically about 18 months or close to the nationwide average. Consistent with what we heard from other attorneys, most of Nelson's cases settle but she does go to trial 3-4 times per year and these typically last 2-5 days. As in other jurisdictions the trial days may not be consecutive: "One trial last year was three days of trial spread over three months."
Judges in Utah are appointed, unlike in some Western states that have elections for judges. "There is a pretty strict and mostly public review process every three years," said Nelson, "run by the Judicial Performance Evaluation Commission (JPEC) that includes laypeople, legislative appointees, members of the bar, and active judges. Before the commission was created the review was handled by the administrative office of the court. The Legislature became concerned that the judiciary did not get as much examination as it should, so it created the JPEC." [Note: compare to the lifetime-job-without-review system in Massachusetts or the every-six-years process in Hawaii.]
We were told by attorneys in other states that appeals are of little practical value following an upsetting family law trial outcome, e.g., "For the most part the court of final determination is the trial court, right or wrong. Absent abuse of discretion or error." (Indiana) Nelson told us that the appeals situation is the same in Utah: "They're difficult because the abuse of discretion standard is so high, but our appellate courts work very hard to give appellants a fair review."
Utah offers a temporary orders process similar to those of other states. "You can get a temporary order hearing within 4-5 weeks when you file a motion," said Nelson. Where does Utah sit on the "separate the litigants versus let them stew together under the same roof" spectrum? "It is common to get exclusive use of the house in a temporary order," said Nelson, "and usually it is the parent who has more time with the children." Fackrell concurred and noted that "as an attorney I always recommend that one side leave the house in order to protect against entanglement with the criminal domestic violence system."
What about on the spectrum of "pick a primary parent versus 50/50 parenting time until evidence has been heard"? "Although the parent time schedule depends on the facts of each case, most temporary orders select a primary parent," said Nelson. Nelson told us that temporary order hearings are typically 20-45 minutes in length and are decided by a commissioner based on attorney proffer (lawyers talking, generally supported by affidavits) rather than on witnesses testifying and being cross-examined. Unlike in some other states that dispense this kind of quick decision, Utah offers an immediate appeal option from the temporary order stage to a 2-3-hour evidentiary hearing in front of a judge. Is the outcome of a temporary order hearing, e.g., regarding custody, de facto permanent as we were told it is in many states? "That was more true in the past," said Nelson, "but now it might change dramatically depending on the report from the custody evaluator."
Fackrell noted that the most compelling argument regarding custody at the temporary order hearing stage is to "preserve the status quo." In other words, a stay-at-home parent will be almost automatically entitled to become the primary parent under this backward-looking system. Nelson agreed with this but told us that there is a trend in Utah toward being more forward-looking with a reliance on the past "as an indicator for how people will behave in the future."
Do custody litigants try to improve their case by using the domestic violence prevention system? "Some still try to do that," said Nelson, "but courts have become increasingly skeptical. They're still very strict about domestic violence but now try to look at the nexus of domestic violence and parenting." Nelson agreed with our other interviewees that victims of true physical domestic violence have a tougher time convincing judges who are fatigued by all of the false or exaggerated claims made by people seeking a leg up in custody disputes. Fackrell said "Of course I have heard of divorce litigants strategically using the domestic violence process," but added that it wasn't typical in her mediation practice.
Utah has adopted the Uniform Premarital Agreement Act and therefore prenuptial agreements are relatively easy to enforce and a waiver of alimony would be possible. See our companion short book California Prenuptial Agreements for more on this subject.
Child support in Utah terminates at age 18 or "or graduates from high school during the child's normal and expected year of graduation, whichever occurs later." An adult disabled child may still be eligible for support based on the definition of "child" including "a son or daughter of any age who is incapacitated from earning a living…". Child support guidelines in Utah cover up to a combined parental income of $1.2 million per year. Nelson and Fackrell agree that judges tend to regard the top of the guidelines as a cap. Nelson points out that "case law says that a judge cannot extrapolate, but you may see the higher earner ordered to pay for a child's expenses, such as private school, in addition to top-of-the-guideline support."
What's the scale of child support in Utah? At the top of the chart, a parent can collect $70,896 per year for a single child, compared to $13,000 per year in neighboring Nevada or roughly $80,000 per year in nearby California. For a more modest income of $250,000 per year, child support obtainable in Utah is $28,896 per year for a single child. If the pregnancy occurred as a result of a ski resort encounter with an out-of-state visitor, a plaintiff might earn more by moving to the visitor's home state before giving birth and filing a lawsuit. For example, the child that yields $28,896 for 18 years ($520,128) will yield at least $923,312 over a 23-year period in Massachusetts.
At the bottom of the chart, Utah is a financially painful place to lose a custody lawsuit. A parent earning a poverty-line income of $751 per month would have to pay $141 per month, 19 percent of income, to a non-working co-parent whose spending power might be much higher. Utah's guidelines explicitly exclude from "income" the following: "welfare benefits received by a parent," including free housing, food stamps, SSDI, Medicaid, and cash assistance. Thus a person with a relatively high spending power (from welfare) could be collecting cash every month from a person with almost no spending power.
Utah ties child support revenue to a child's schedule, a system that attorneys in other states told us leads to litigation over the child's schedule. The adjustment starts when a child spends less than 70 percent of overnights with one parent. Do parents who win custody litigate hard to keep the schedule to at least 70 percent? "Oh yes," said Nelson. "Sadly it is a money-driven process a lot of the time. There is a move afoot to completely separate the money from parenting time." One of the quirks of Utah's current system is that there can be a significant difference in child support paid depending on whether a child spends 183 versus 182 overnights per year with a parent.
Once established, child support revenue in Utah is fairly secure. According to Nelson, the parent paying alimony or child support will typically be ordered to purchase life insurance with the recipient parent as the beneficiary, though for "for the average earner it may have to be available through employment at a reasonable cost." A parenting time adjustment that might affect the child support cash flow cannot be made without a party showing a "substantial and material change of circumstances". A child growing older is not a material change, according to Nelson, and moreover the change must be in the home of the primary parent and be such that the child is "no longer thriving." Can a child's preference become relevant? "Legally the child cannot choose," said Nelson, "and courts hate to interview children. On the other hand, 14-16-year-olds will be making their own decisions. I'm involved in a case now with a 15-year-old boy who chose to live with the father. This has upset the mother so much that she has been alienating the 12-year-old girl against the father." How could that work, we asked, given that when we tell 12-year-olds to do something they never listen to us? "The mother tells this girl that the father abandoned her." But wasn't the mother the petitioner in the original divorce lawsuit and can't the girl figure that out? "Yes, but also remember that children can be sort of mercenary. They ask 'which parent is going to give me what I really want.'" [In other words, kids don't fundamentally change after the American Girl doll stage!]
The average hourly wage in Utah is $20.12 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 ($29,721 after taxes). The corresponding man earns a median $62,500 ($43,750 after taxes). Attending Utah State University for four years will cost $65,996. Utah collects 9.6 percent of residents' income to run state and local government, close to the national average of 9.9 percent (source: Tax Foundation). Utah imposes a flat 5 percent tax on individual income.
The average annual cost of child care is $7,848 for an infant and $5,988 for a four-year-old. The total cost of child care from age 0 through 12 is about $40,313 in commercial settings or $32,989 in a family care setting.
The male college graduate will have an after-tax spending power of $546,504 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 one child, he would have a larger personal spending power by collecting child support when that support is $3,280 per month or more. This can be obtained from a mother earning $528,012 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 working if each mother paid $2,015 per month, which is possible when each mother makes $288,012 per year.
The female college graduate will have an after-tax spending power of $350,098 over the same time period. She would be better off collecting child support when that exceeds $2,371 per month, obtainable from a father earning $336,012 per year. If she is suing two fathers, however, she is financially better off compared to the college/work case when she can get $1,561 per month from each one. This should be possible within the guidelines if each defendant earns at least $228,012.
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.
Nelson predicted joint legal custody ("decision-making") for all five of our scenarios, including this one.
If the father asked for a 50/50 arrangement and the mother sought primary custody, Nelson expected the mother to prevail in this scenario. "The standard parenting time statute provides for every other weekend, Friday at 5 pm to 7:30 pm on Sunday. A court would probably give Dad Thursday after school to Monday morning plus every Thursday overnight. We call this a 'fat weekend.'" (Note that this is the same as the statutory schedule in Texas, available, at the custody lawsuit loser's option, without any attorney argument or judicial discretion.) Would a child this young actually be away from the mother for four nights straight? "No," said Nelson. "The order would be for a progressive schedule with the fat weekends starting at age 5."
What are the financial stakes in the custody fight? Nelson calculated that the father would pay the mother $72 per year if the child spends at least 70 percent of overnights with her. The mother would pay the father $13,728 per year or $13,236 with a 50/50 schedule, depending on who hosted the child for 183 overnights. Note that this is a $8,364 difference over the 17 years of child support generated by this scenario. If the father wins 70 percent custody he can collect $26,892 per year from the surgeon. Thus the surgeon is $458,388 better off, after taxes, if she can prevail on the custody front and has a $234,600 incentive to obstruct a 50/50 parenting time schedule.
Given that his photography business is not profitable, what is his "income" for child support purposes? "Our courts are imputing income to everybody," replied Nelson. "The statute says minimum wage but we almost always hire a vocational evaluator who assesses the individual. If he is a college graduate with a business background, the court might impute $60,000 per year in income to him."
Compared to attorneys in the Northeast and California, and considering her national profile, Nelson's hourly rate is remarkably low at $325. How much might it cost the doctor to hire Nelson to handle this case through trial, assuming all issues remain disputed? "It could be $100,000," she replied. Can the photographer get the doctor ordered to pay his fees as well? "Probably not because he has been sort of a bad actor," Nelson responded. "Although there is a lot of discussion about not considering fault, courts will look at it when deciding whether to award fees."
Can he continue his stay-at-home lifestyle at the doctor's expense? "He would probably get alimony, but by statute it can't be for more than the two-year duration of the marriage," said Nelson. "The court will look at his reasonable and necessary living expenses rather than the marital standard of living, for which they would have had to be married for 8-10 years." Both parties will be punished for thrift by the Utah courts. The doctor because her ability to meet his needs will be increased if her own expenses are modest and the photographer because he will get less if he can't come up with a way to spend $6,000 per month.
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 Nelson. If one parent here thought that he or she was on track to get primary custody, could generating conflict with the co-parent be helpful? "No," said Nelson. "Courts say 'Of course you're fighting; you're getting a divorce. We expect you to grow up and co-parent.'" What about the custody lawsuit itself, which in many states is accepted by judges as evidence that the parents are not suited to 50/50 shared parenting? "Utah courts don't expect people to be best friends and therefore custody fights do not forestall shared parenting. Judges tend to think people are going to fight because that's the nature of the [divorce] beast."
Given the equal incomes and 50/50 custody there would be no child support, right? "Wrong," said Nelson. "Because of the difference between 183 and 182 overnights, one parent would be ordered to pay the other $21 per month." The government would actually issue this court order, which potentially could result in firing up the $4 billion child support enforcement apparatus and the imprisonment of one parent, for a child support award that might just barely cover a single meal for these children at McDonald's? "Yes," said Nelson, "but few people would expend the attorney fees to pursue the other for non-payment."
In the event that one parent did manage to get 70/30 custody, the secondary parent would pay the winner $1,121 per month, a transfer of roughly $201,780 over 15 years from one five-bedroom household to the other. Might a strategically-minded parent, knowing that a lawsuit was coming and hoping for that 70/30 award, spend the year before filing subtly taking over a greater proportion of parenting duties? "Yes," said Nelson, "that's a common tactic, but courts are skeptical if there has been a dramatic recent change and the trend toward looking forward vitiates the value of a parent having done extra chores in the year prior to litigation."
No alimony would be paid due to the equal income.
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.
What's the implication of the voluntary breadwinner/stay-at-home partnership that these two established during the marriage? "He will be the breadwinner for quite some time to come," said Nelson, "and she will be the primary parent." What if he says that now that they're splitting up he will cut back to four days per week and care for the children on a 50/50 basis? "Courts don't like it when people say 'I've changed my mind and don't want to do this anymore.' They don't like that kind of unilateral decision by a parent. It would be different if he had made the change a year prior to separation."
How long could she get alimony in order to continue her stay-at-home lifestyle? "She could get 10 years," said Nelson, "but the court will expect her to do at least some work and they will impute minimum wage." Why impute minimum wage when she is taking care of a two-year-old and the guidelines say that income won't be imputed if "the reasonable costs of child care for the parents' minor children approach or equal the amount of income the custodial parent can earn"? "You have to remember that this is like triage in a trench warfare situation," responded Nelson. "Courts are trying to solve problems, Stat, without a ton of information. She could prove that day care cost more than she could earn. In that case the court will not impute income."
How does the child support vary depending on the custody award? Nelson calculated that if the mother prevails in obtaining 70/30 or more she will collect $35,964 per year. In the unlikely event that the doctor prevails in obtaining 50/50 custody, the mother would collect either $18,360 or $17,700 per year depending on where the children spend 183 overnights. This presents her with a roughly $292,240 incentive to fight against 50/50 shared parenting.
Can the mother get a disproportionate share of the savings based on her lower earning capacity? "No," said Nelson. "In 99 percent of cases there will be a rigid 50/50 division of marital property with premarital property being off the table." In other words, it works exactly like people's perception of the California community property system but it is called "equitable distribution."
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.
Nelson predicted the mother here would win primary custody, $23,052 per year in child support based on the doctor's wages, and up to 1.75 years of alimony (the length of the marriage). If the father were able to work his way up to 50/50 custody one day, her child support would fall to $11,340 per year. In addition, the mother would be entitled to child support based on the interest from the doctor's premarital savings.
Even if premarital property is not within the court's jurisdiction to divide, can the mother get a share of any appreciation in the $2 million in premarital savings? What if she had suggested the purchase of particular stocks that later went up in value? "She would have to show active management of the account," said Nelson.
Interest on the $2 million would be fed into the child support formula. As in most other states, if you look just at the text of the guidelines inflation would work to this mother's advantage. A high inflation rate would push up the nominal yield on the savings even though the real (inflation-adjusted) value might be declining. In an environment of 12 percent inflation and a 15 percent interest rate (3 percent real), that would be an additional $300,000 in income for the doctor from which a percentage would be paid out in child support. Nelson says that Utah courts can use the real return on assets to calculate child support rather than the nominal return and therefore inflation wouldn't necessarily provide the boost to child support that it does in other states.
Suppose that the money is invested in low-yield tech stocks, can the petitioner here argue, California-style, that a higher income should be imputed to the savings? "No," said Nelson. "The court won't make him change the investment strategy of his separate premarital assets and case law says the court can't speculate as to what these assets might earn."
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 commonly is Nelson involved in a case with unmarried parents? "More often than I'd like," she responded.
Nelson predicted custody to the mother, along with $416,016 in child support over 18 years, and the child having the statutory "minimum schedule" of parent-time with the father. This is found in 30-3-35.5: "For children under five months of age: six hours of parent-time per week … For children five months of age or older… nine hours of parent-time per week… For children nine months of age or older… one eight hour visit per week…" and then, after the child turns five years old, in 30-3-35, an every-other-weekend schedule. In addition to equally divided holidays, Utah's statute provides a four-week opportunity in the summer for a child, five years or older, to catch up with the noncustodial parent.
Can the mother get the state to do establish paternity and obtain a child support order on her behalf even if she isn't on welfare? "Yes," said Nelson. Why would she hire a private attorney then? "Often you're dealing with someone on other side who is not a W-2 employee. The state is not effective against a self-employed father. She would need an attorney to prove income and income potential."
What if her life changes for the better and she marries a wealthy high-income partner? "The doctor's obligation to her would not be changed," said Nelson. What if her life changes for the worse and she begins to abuse drugs or otherwise expose the child to a chaotic living situation? "That, plus the child being older, would help the father in seeking 50/50 parenting time or even primary custody."
"Relocation cases are the most difficult," said Nelson. "The court will look at the reason for the move and require the moving parent to pay the costs of parenting time." Is it easier if a parent has won a 70/30 schedule? "Yes," said Nelson, "but still not a guarantee, especially if the dad is a superhero during his parent-time. It is judge-dependent and also evaluator dependent. Sitting judges do not like to hear relocation cases without an evaluator and some evaluators are very anti-relocation, claiming that it is traumatic for the child." Does Nelson agree that children can't handle this? "Look at children of military personnel," she responded. "They move all of the time and they do fine." [“Residential Mobility, Well-Being and Mortality" (Oishi and Schimmack 2010, Journal of Personality and Social Psychology) says that the difficulty of moving depends on the child's personality and is particularly tough on introverts. The paper did not look at children of divorce versus those in intact families. Commenting on the paper in the New York Times (July 9, 2010), Frederic J. Medway, a psychology professor, said that "military children fare well because the military eases transitions, and new children in military schools are usually in the same boat" and that relocation is especially hard for middle-school age children.]
Utah assigns different cash values to different children from the same parent: "As used in this chapter, 'adjusted gross income' is the amount calculated by subtracting from gross income alimony previously ordered and paid and child support previously ordered." Thus the first person to sue gets the most cash because, for each subsequent lawsuit, the parent being sued has a lower "adjusted gross income." Utah's guidelines are based on gross income and the presumptive amount no longer applies once 50 percent of a parent's pre-tax income has been ordered to be paid. Thus, as in New York, the last person to sue may end up with almost nothing.
As in most other states, Utah provides financial incentives to have children with multiple co-parents. At the top of the chart, three children with one co-parent produce $2.1 million in child support revenue over 18 years. Three children with three different co-parents, on the other hand, yield $3.83 million in child support.
Children of a marriage may have a comparable entitlement to support as extramarital children or no entitlement at all, depending on when they were born. If a married parent of three is sued, for example, a child support obligation is computed for the three existing children and deducted from gross income before calculating child support for the extramarital child that gave rise to the lawsuit. If, on the other hand, a fourth child is born to that married parent after one or more child support orders has been obtained, the money flows to the existing payees are not adjusted to reflect the new child's need for support.
Utah explicitly encourages "he-said, she-said" hearsay testimony in the courtroom with "Laws attaching a privilege against the disclosure of communications between husband and wife are inapplicable under this [child support] chapter." Unlike in other states, a spouse seeking to collect or to avoid paying millions of dollars in child support is able to testify as to what the other spouse might have said in a private conversation years earlier.
Utah provides explicit penalties for a parent who worked hard prior to being sued:
Income from earned income sources is limited to the equivalent of one full-time 40-hour job. If and only if during the time prior to the original support order, the parent normally and consistently worked more than 40 hours at the parent's job, the court may consider this extra time as a pattern in calculating the parent's ability to provide child support.
In other words a parent who adds overtime hours in the year leading up to a child's birth, e.g., to pay for a crib, stroller, and a garage full of diapers, may be forced to continue to work those overtime hours for 18 years.
When a self-employed person is sued for child support, Utah opens a huge field of litigation regarding what the person's income might be. From the statutory guidelines:
Gross income from self-employment or operation of a business shall be calculated by subtracting necessary expenses required for self-employment or business operation from gross receipts. The income and expenses from self-employment or operation of a business shall be reviewed to determine an appropriate level of gross income available to the parent to satisfy a child support award. Only those expenses necessary to allow the business to operate at a reasonable level may be deducted from gross receipts.
Gross income determined under this subsection may differ from the amount of business income determined for tax purposes.
Two attorneys and a judge, very likely none of whom have any business experience, will then debate the question of whether, for example, a new lathe for a machine shop is a "necessary expense," or what is a "reasonable level" for business operation.
Utah provides an additional cash incentive for fighting over custody. The parent who is victorious in a custody fight and chooses not to work may also escape having any income imputed:
Income may not be imputed if any of the following conditions exist and the condition is not of a temporary nature:
(i) the reasonable costs of child care for the parents' minor children approach or equal the amount of income the custodial parent can earn;
Utah provides a cash incentive to fight over summer vacations: "The base child support amount shall be reduced by 50% for each child for time periods during which the child is with the noncustodial parent by order of the court or by written agreement of the parties for at least 25 of any 30 consecutive days of extended parent-time…" There is a 25 percent reduction when the child is away for 12 out of 30 days, creating two cliffs whereby the state establishes big differences in parental revenue when a child is away for 11 versus 12 or 24 versus 25 days. Does this lead to litigation in practice? "Yes," said Nelson. "There are a lot of arguments about summer vacations. Oftentimes a parent will agree to let the child go but refuse to sign a 'written agreement' as required by the guidelines. There is no practical way to enforce this because the attorney fees would exceed the child support reduction."
Unlike most other states, Utah allows for litigation over how child support is spent: "The court or administrative agency which issues the initial or modified order for child support may, upon the petition of the obligor, order prospectively the obligee to furnish an accounting of amounts provided for the child's benefit to the obligor, including an accounting or receipts." Nelson says that such disputes are "uncommon."
We interviewed Representative Brad Daw, a Utah legislator since the early 2000s, to learn about what drives family law legislation in Utah. Consistent with what policymakers in other states have said, Daw said that policy is crafted under the assumption that citizens will not respond to economic incentives. I.e., people will not change their behavior in order to collect what could turn out to be millions of dollars in child support. This is in direct contradiction to what the economists who did the "Parental Responses to Child Support Obligations" study concluded (see the "Children, Mothers, and Fathers" chapter) as well as some of Daw's personal experience: "I know a woman who will get pregnant just to get dental care," he noted, explaining that Medicaid pays for dental care during pregnancy. He said that "There are always going to be mercenaries out there," but that any concern regarding the size of the financial incentives was overwhelmed by two factors for Utahns: "We have a strong ethic that 'if you have a kid you'd better take care of it,' and we want to do everything we can to discourage women from choosing to have an abortion." Daw explained that people believed that the more child support was available following an unwed pregnancy the less likely a woman was to choose abortion.
Daw said that, as in other states, people who get paid when one parent sues the other are influential in crafting rules regarding what can be fought about. "Lyle Hillyard carries a lot of weight," said Daw, referring to a divorce litigator at the firm of Hillyard, Anderson, and Olsen who has been the President of the Utah Senate and is co-chair of the Appropriations Committee, which determines how much money the state can spend and on what.
Daw said that "Whenever I hear a sob story on a divorce issue I also hear a sob story on the other side, so the laws must be about right because they're making everyone unhappy." What did he think about a non-adversarial administrative divorce system, as is prevalent in some European countries and as has been advocated by some of our interviewees? "For a lot of Utahns that would make their head explode," Daw responded. "We don't want to make divorce as easy as going to a county clerk and paying $50."
Representative Gage Froerer's explanation for why a child that yielded $13,000 per year in child support in neighboring Nevada could yield $72,000 per year in Utah was that the child support enforcement agency is "like any other bureaucracy. There is a driving force to increase the size of the department and they obtain control of the process. It is a collection business and they can justify a larger staff if there is more to collect." Who else did he think was influential in keeping the divorce, custody, child support, and alimony stakes high in Utah? "Family practice attorneys."
We also interviewed Dan Deuel, an advocate for changing Utah's family laws. A married father and member of the LDS church, he pointed out that "the Mormon church has an idea that dad works and mom stays at home. The idea is therefore that child support and alimony should be high enough that the mom can stay at home. The result is that in the system we have now only one parent is financially responsible for children." At the time that we interviewed him the legislature was taking up a bill to establish a default schedule for children of separated parents that would provide for weekends through Monday morning and an off-week overnight with the secondary parent (i.e., similar to the law in nearby Texas). He said that advocates for victims of domestic violence were the main opponents of this bill.
Nelson expected to see, within the next five years, statutory language on joint parenting. "Right now the statute says that there is no preference at all . Custody will be whatever is in the best interest of children." What does "best interest" mean? "There is not a ton of predictability," responded Nelson. "You could go to 20 judges with the same facts and get 21 different results. They will all be within a basic range, but it is difficult to counsel clients regarding what to expect." Who would oppose a legislative effort to bring more predictability to the process and to include both parents in more children's lives? "The domestic violence advocates," said Nelson, "on the grounds that it is further victimizing the victim."
What would Nelson like to see? "Child support dollars decoupled from the child's schedule," she repeated, "and also alimony guidelines, which would save everyone a tremendous amount of money and heartache." (See neighboring Colorado.) What's stopping alimony guidelines from being adopted? Who could be in favor of unlimited litigation to persuade a judge regarding alimony? "Remember that our legislators meet for only 45 days per year," said Nelson, "so this probably won't be in the upcoming  session. I have spoken to a legislator about alimony and he says that he will run a bill if he can get all the players on board."