Part of Real World Divorce: web edition | Kindle edition
Kurt Hughes graduated from Vermont Law School in 1984 and has been working in the areas of adoption, assisted reproduction, criminal defense, and divorce litigation since then. Unusually among our interviewees he is a member of the American Academy of Adoption Attorneys and the American Academy of Assisted Reproductive Technology Attorneys. In 2014, he was inducted into the American College of Trial Lawyers. He has also been recognized as a "Super Lawyer". See http://www.mhtpc.com/ for a full biography of this partner at Burlington-based Murdoch, Hughes, and Twarog.
Hughes represents a roughly 50/50 mixture of clients in cases launched by a "plaintiff" against a "defendant." Who files the lawsuits in which Hughes is involved? Is it similar to the 72/28 ratio of women to men that we found in neighboring Massachusetts? "Yes," said Hughes, who handles a full divorce trial 5-10 times per year.
Hughes told us that a straightforward divorce lawsuit could be tried 7-8 months after filing, but "if there is a lot of property involved it can stretch out to more than a year. The longest case that I have ever had pending took two years from filing to trial." In other words, litigation is much faster than in most parts of the Northeast.
An unusual feature of the Vermont system is that it runs a little bit like a Danish divorce appeal with a three-judge panel: "Most family court cases have two 'side judges' who work as fact-finders and routinely confer with the presiding judge," said Hughes. "They function a bit like a mini-jury." In other words, except for the handful of states that offer juries to divorce litigants, Vermont is the only state where the decision is not simply left to one person.
What about people who don't want to wait 7 months? Is there a temporary order process? "Yes," Hughes responded. "Usually the house, the children, and a support order can be obtained within 2-3 months after filing." How are those decided? "It is typically a brief hearing with attorney representation [lawyers talking] but you can get a 1.5-hour hearing with evidence if you press." Is the outcome of the temporary hearing effectively final, as in most other states? "As a general rule the temporary order is the writing on the wall," responded Hughes.
For plaintiffs who don't want to wait 2-3 months, Vermont offers the same parallel domestic violence track as other states. The womenslaw.org site ("because knowledge is power") explains that a woman can obtain a temporary and permanent Relief from Abuse (RFA) orders that come with "temporary custody of your children" and that "order the abuser to pay you spousal support [and child support] for up to three months." The order can also "Order the abuser to stop contacting [and stay away from] you and/or children" and "decide the possession, care and control of any animal owned or kept by you, the abuser, or a child in the home." The first RFA "can be an ex parte order, which means it is given without the knowledge of the abuser or his/her presence in the courtroom." Then there is an additional hearing "which usually takes place within 10 days" at which the defendant may be present. The Vermont Network Against Domestic and Sexual Violence publishes a pamphlet, "Legal Options for Victims of Sexual Violence in Vermont," ("supported by [a grant from] the Office on Violence Against Women, U.S. Department of Justice") that explains that the legal standard of abuse in Vermont includes "placing you in fear of immediate physical harm" (i.e., a plaintiff can testify about his or her internal mental state). Consistent with what we were told by legislator Jill Carter about Maryland, there are taxpayer-funded organizations in Vermont to assist plaintiffs, including by providing an attorney, while defendants must either appear without representation unless they can find, hire, and pay for an attorney within 10 days (the Relief from Abuse process is civil, not criminal, which is why a defendant has no entitlement to an attorney). The pamphlet cited above explains that most services are provided by county-level organizations such as Rutland County Women's Network and Shelter, WomenSafe in Rochester, Circle ("formerly Battered Women's Services and Shelter") in Washington County.
What about bringing the domestic violence allegations in during standard divorce litigation? "Frequently allegations of child abuse crop up during custody fights," said Hughes, "but it is not generally an effective tactic." Note that the stakes in a custody fight are, in theory, higher than in most other states because "a Vermont must award 'parental rights and responsibilities' [legal custody in other states] to just one parent absent an agreement," says Hughes.
Compared to neighboring Massachusetts, judges in Vermont are much less likely to appoint Guardian ad litems to make custody recommendations, though Hughes says that sometimes a GAL would be appointed "to try to help settle a case." At trial, "usually a custody case would be lay witnesses testifying, attorneys arguing, and a judge making up his or her own mind."
Child support flows in Vermont until a child turns 18 or graduates from high school, with no fixed upper limit for slow learners. "The court cannot order a parent to pay college expenses absent an agreement," says Hughes. Child support revenue is relatively secure in Vermont because a "real substantial and unanticipated change in circumstances" is required to change custody and a child's preference, though it might be given some weight starting at age 14, does not determine where the child lives and which parent gets paid by the other. Child support can be collected from the estate of a dead parent and a Vermont court can order a defendant to purchase life insurance to secure the child support revenue stream.
The goal of the child support system is laid out in 15 V.S.A. § 654: "The rule shall be based on the concept that children should receive the same proportion of parental income after separation or divorce of their parents as they would receive if their parents were living together in one household." Given that two households are more expensive to run that one, the necessary implication of this is that the loser parent's lifestyle is going to be dramatically reduced by payments to the winner parent. The precise size of those payments can be determined by consumers using the calculator downloadable from the Vermont Department for Children and Families Web site. "The calculator works up to the statutory limit of $25,025 per month in combined pre-tax income (about $300,000 per year)," said Hughes, "and judges will extrapolate for income above that amount." A parent with substantially higher income will be responsible for essentially all health insurance and daycare costs on top of the guideline child support amount.
If the jurisdiction of a neighboring state's courts can be obtained, e.g., by having sex in that state, by moving to that state prior to giving birth and/or divorcing, a child support lawsuit may be far more lucrative. When suing a defendant earning $250,000 per year, for example:
For comparison, Vermont pays parents of foster children roughly $7,000 per year.
Vermont is not one of the states that has adopted the Uniform Premarital Agreement Act and Hughes says that it might not be possible to contract away alimony: "A judge will look at the circumstances of when it was drafted, how long the parties were married and the actual circumstances at the time of the divorce. It wouldn't be out of the question for a prenuptial agreement waiving alimony to be thrown out."
Are appeals on custody, child support, and alimony determinations practical? "A fair number of decisions do get appealed," said Hughes, "and the most common reason for a reversal is inadequate findings, i.e., the judge not explaining why he or she has made a decision." What happens after the victory in the appeals court? "The case goes back to the original judge who probably will give you the same answer with more detailed findings," said Hughes. What about a temporary order that awards sole custody to one parent? "As a practical matter, those can't be appealed."
The average hourly wage in Vermont is $21.00 per hour. Census 2014 data show that median income for a 22-36-year-old college-educated woman working full time is $38,000 per year ($28,944 after taxes). The corresponding man earns $45,000 per year ($33,414 after taxes). Attending University of Vermont (known by passionate young skiers as "University of Stowe") for four years will cost $125,764. Vermont collects 10.3 percent of state residents' income to run state and local government (compare to neighboring New Hampshire's 7.9 percent; source: Tax Foundation).
The average annual cost of child care is $9,612 for an infant and $8,758 for a four-year-old. The total cost of child care from age 0 through 12 is about $55,616 in commercial settings or $44,032 in a family care setting.
The male college graduate will have an after-tax spending power of $342,032 after 14 years of working (14 years of income minus taxes and the cost of college). After adjusting for USDA-estimated costs of child-related expenses, he would be financially better off collecting child support when that support is $2,333 per month or more. This is an above-the-guidelines number that would a judge to extrapolate for a defendant earning more than $240,000 per year. With two children from two different mothers, however, he could have an after-tax spending power larger than from going to college and work if each mother paid $1,542 per month which is possible when each mother earns $210,000 per year (source: downloaded calculator, using the assumption that the defendant mothers take care of the children 33 percent of the time).
The female college graduate will have an after-tax spending power of $279,452 over the same time period. She would be able to spend more on herself by collecting child support when that exceeds $2,044 per month. This would require a defendant earning more than $240,000 per year. If she is suing two fathers, however, she is financially better off compared to the college/work case when she can get $1,396 per month from each one. This should be possible within the guidelines if each defendant earns at least $177,600 per year.
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.
"She would have the upper hand," said Hughes, "though the schedule is hard to predict. As a general rule the courts are moving to try to have as much time with each parent as possible." Hughes told us that means they are edging up towards 50/50, but that a Texas-style 43/57 split wouldn't be unusual. "With a one-year-old it is very judge-dependent," said Hughes, "though it would not be unusual for him to have the child two or three nights at time."
Hughes predicted that with a reasonably balanced schedule the doctor would pay the slacker about $14,784 from the top of the guidelines. "If she gets sole physical custody, which we define as more than 75 percent of the overnights, she can stop paying," noted Hughes. That victory would have a cash value to the doctor of about $251,328 over 17 years.
What if the father wins primary custody? "He can get near the top of the of the guidelines," said Hughes. We calculated that the father would get an additional tax-free $138,516 by having the child 67 percent of the time compared to 50 percent.
What will it cost the father to defend this lawsuit through trial? "My hourly rate is $250 and the typical fees through eight months of litigation and a trial would be between $20,000 and $60,000," said Hughes. Can it really be that much cheaper than down in Massachusetts, where a GAL alone might bill $50,000? "There are firms here in Burlington that will charge a lot more," he noted. Can the photographer get the doctor to pay his bills? The answer seems to be that a judge can use his or her discretion to award fees to a divorce litigant with a lower income. From a Vermont Supreme Case, Downs v. Downs (1992):
The considerations governing the award of "suit money" are
different from those factors governing the award of attorney's fees in
nondivorce cases. Ely v. Ely, 139 Vt. 238, 241, 427 A.2d 361, 363 (1981).
In a divorce case, the "financial circumstances of the parties . . . have
an important bearing on the award." Id. As this Court has stated, "The
needs of the wife and the ability of the husband to meet them are the
primary consideration." … A court may award attorney's fees where the
interests of justice and equity indicate they are appropriate.
(Note that the case also shows how long the American system of litigation can keep former spouses together in the courtroom; the couple married in 1976 and the initial divorce lawsuit was filed in 1983. The 1992 decision says "This is the third appeal to this Court arising from this divorce," noting that the previous two appeals resulted in the case being sent back to the trial court due to errors. Thus a 7-year marriage resulted in 9 years of litigation for the divorce plus whatever litigation occurs going forward over the two children.)
Can the photographer keep living off the doctor post-divorce? "No," said Hughes. "He would have had to be married for five or six years before being eligible for alimony and even then it would be transitional. He might be awarded the camera gear."
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.
"The father will be at a bit of a disadvantage until he gets his own place," said Hughes. "A court would look at the appropriateness of his house for four children. He could have lost the case just by moving out."
What are the financial stakes here? "The maximum child support would be $1,213 per month," said Hughes. In other words, if one parent can definitively win custody he or she will collect $14,556 per year tax-free from the loser parent. Thus one five-bedroom household will have $29,112 more in annual spending power than the other.
Does the mom win because she is the mom? "I don't see a consistent gender bias among our judges," said Hughes. "The outcome is impossible to predict from the stated facts of the scenario. A judge would look at which parent is doing the nitty gritty stuff with the kids, getting them to the doctors when they're sick, planning camps and activities. Typically we see that one parent is doing all of those things." Does that mean that a future plaintiff can set up to win custody by being aggressive about taking on child-related tasks in the year before suing, encouraging the other parent to do more shopping and house-related tasks? "Certainly pre-divorce planning would help," said Hughes, "because the court will consider the year prior to the suit the most relevant, though a judge might look back as far as three years."
What about a Massachusetts-style argument that there is too much conflict between the parents for shared parenting to be awarded? "Generating conflict or asserting conflict is not that productive for the time split because judges would respond by trying to minimize transitions, not necessarily change the ratio," said Hughes. "For example, an assertion of conflict might lead to a one-week-on, one-week-off schedule with exchanges at school."
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.
Hughes said that he expected to see sole legal custody awarded to the mother. What about the kids' schedule? "Their time with him will depend on what his schedule has been historically and how involved has he been with the kids historically. Courts are really trying to do more than the bare minimum of every other weekend and dinner on Wednesday." What does "every other weekend" mean in Vermont? A Texas-style Friday afternoon to Monday morning? Or a New York-style Friday to Sunday? "A lot of judges like to have the kids back with the mother on Sunday night so that the kids can be ready for school. The mid-week visit might turn into an overnight. They will share holidays and they may split the summers one-week on, one week off," said Hughes.
Does she get alimony? "No more than 10 years," says Hughes. Is child support calculated first and then alimony, or vice versa? "Alimony is calculated first. A normal lower bound would be 33 percent of his income and could be up to half. Then child support is calculated based on the alimony. If she is getting 50 percent of his income via alimony, child support would be $1,244 per month." (i.e., the plaintiff here will end up with more than half of the doctor's after-tax earnings)
What happens when the alimony runs out and the children are 12 and 15? "She can get $2,644 per month if she has sole custody," said Hughes, "and it goes down to $2,024 per month at 50/50."
What are the assets? Is it like New York where his medical degree is an asset to be divided? "Yes," said Hughes, "though you'd have to get an expert to testify regarding the value and the court would look at what she did to support him during the time he was getting his medical education. It would help if she was working and paying the bills at the time." (i.e., a plaintiff can get both a share of the value of a degree and alimony based on the income flowing from that degree, an outcome that would be considered "double-dipping" in many jurisdictions)
Can she get more than 50 percent of the assets given that her earning potential is lower? "Yes," said Hughes. How about the house? "The property division statute favors the parent who gets the children as the person who will get the house," said Hughes, "but he might get a larger share of the savings to compensate."
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.
Like most other states, Vermont operates a de facto "tender years" system: "The court won't want the child away from the mother for very long," said Hughes, "especially if the mother is breastfeeding." What would the child's schedule be with the father? "It depends on the amount of time the father has spent actually caring for the child in the past."
Based on gaining sole custody the mother would get $1,754 per month ($21,048) in child support just from the doctor's earned income. This would go down to $1,340 per month ($16,080 per year) with a 50/50 schedule. Hughes says that the plaintiff won't get alimony due to the short duration of the marriage, which means that her best hope for additional cash is a high inflation rate that increases the nominal yield on the $2 million in premarital savings. If inflation were to rise to 15 percent and the doctor were to earn 15 percent interest on the money, resulting in no real return on investment, the mother might get roughly double the child support based on the $300,000 per year in nominal income from an investment that was actually losing value due to inflation and taxes.
What about the mother's quest for a division of the $2 million in her favor? "The court has discretion to give her some of the doctors pre-marital savings but she would be unlikely to get much."
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.
"This kind of case is not unusual," said Hughes. "The mother would get custody and the father would pay the same amount of child support as in Scenario 4."
What if the plaintiff here hadn't wanted to hire a lawyer? Vermont's Office of Child Support offers mothers assistance with establishing paternity and child support orders. The agency publishes a brochure titled "Establishing Parentage" says "You should establish parentage because… Your child has the right to: Information about both parents (e.g., their identity, family history & medical background); Financial support from both parents, including inheritance rights." As discussed in our Maryland chapter, the opportunity for a child to spend time with the father is not cited as a potential benefit and the agency does not provide assistance to a parent who wishes to visit with a child.
Suppose that the mother here marries a high-income husband. Would that reduce her child support payments? "No," said Hughes. "The new husband has no legal obligation to support the child. If she were getting alimony, on the other hand, it might be reduced." Reduced? Not ended? "Alimony [in Vermont] may not end on remarriage," said Hughes.
Vermont calls it "relocation" when a parent wants to move with a child. "The standard is 'best interest of the child' but part of the analysis is the reason for the move," said Hughes. "It depends on how involved the non-custodial parent is. If he is only taking care of the child every other weekend, the mom has a good chance of being able to move to California to be with her new husband and take a new job."
Vermont assigns different cash values to children from the same co-parent. The first person to sue a defendant with a $25,025 monthly income gets $1,911 per month in child support. The second person to sue gets $1,736 per month. The third plaintiff's child yields only $1,607 per month.
Vermont provides financial incentives to have children with multiple co-parents. At the top of the guidelines, three children with one co-parent generate $634,608 in child support over 18 years. Three children with three different co-parents generate $1.24 million.
Hughes is hoping that Vermont will adopt guidelines for alimony, an innovation that attorneys fought against in Colorado but that passed anyway and has reduced litigation. "A shared parenting presumption is constantly coming up for discussion in the Legislature," said Hughes, "and I do favor 50/50 parenting time but not shared legal custody [decision-making] in all cases."
The cash value of children in Vermont is much is lower than in neighboring states and parents are not fighting as hard for custody. Both plaintiffs and attorneys could get paid a lot more by moving to New York or Massachusetts. Hughes describes the divorce practice in Burlington, Vermont's biggest richest city, as "pretty collaborative," something that would never be said about Boston or Manhattan.
Vermont is heavily biased against people who enter voluntarily into a breadwinner/stay-at-home parent partnership. If the stay-at-home parent files a lawsuit a few months into a child's life, Vermont's court system will tend to force the breadwinner to remain a primary earner and secondary parent for the next 18 years. "Certainly the primary caregiver has an advantage under the statutory criteria," summed up Hughes.