West Virginia

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We had two top litigators in West Virginia as sources: Charles "Rusty" Webb and Mark Kelley, both of whom have offices in Charleston, the state's capital and largest city, and are on the "Super Lawyers" honor roll. Webb has been heavily involved with legislative and judicial committees and, as a legislator, was a drafter of West Virginia's 1999 shared parenting law (note that "shared" does not mean 50/50). See http://www.rustywebb.com/ for a full biography. Kelley has a less colorful biography but has been practicing law since 1991. See http://www.rwk-law.com/ for Kelley's full biography.

Webb and Kelley both represent a roughly equal balance of male and female clients, and both report that the majority of "petitioners" are female. For cases handled by Webb, as few as 15 percent of those on the offense are male. Webb will take a divorce through trial ("final hearing") at least once a week; Kelley says that he "tends to handle larger cases", most of which settle, and therefore goes through a full trial no more than eight times per year.

West Virginia tries to shield children from what researchers have found to be the harmful effects of litigation by requiring mediation in custody cases. "But for some reason judges are getting away from mandatory mediation and I can't explain it," says Webb. "More cases would probably settle if judges required mediation on custody issues." Webb notes that West Virginia does not mandate mediation on general marriage issues such as equitable distribution of assets/debts and alimony.

As in other states, there are temporary hearings at which a litigant might achieve a de facto victory. Kelley explained:  "Temporary hearings are handled by proffer [attorneys speaking rather than witnesses testifying under oath and being cross-examined]. You have to file a motion in advance if you want to take evidence." These brief hearings are closed to the general public, which Kelley notes " . . . in many states would be a violation of their state constitution." Kelley reports that it is easy for a stay-at-home parent to get the other parent kicked out, win a primary parent designation, and a stream of cash flow at the temporary hearing. After that it "happens a lot" that the temporary order turns out to be dispositive of the case. Webb concurred that "as a practical matter whatever a judge decides at temporary hearing is going to be presumptive at the final hearing." He explained that at a temporary hearing, courts would look back for a one-year period to determine who had been the primary caretaker of the children, and then give that parent the house and the kids. Due to the fact that temporary orders tend to be dispositive, Webb said that this gives "a huge advantage to the person who engages in pre-divorce planning."

Kelley charges $300 per hour and reports that a typical case can be handled through trial for $20,000 but that some cost as much as $130,000 per side. Webb charges $325 per hour and says that he can get through a trial for as little as $5,000 even when custody is disputed. How is it possible that cases are handled for 1-10 percent of the cost of a Massachusetts divorce? "You don't automatically get discovery [where depositions might consume a lot of attorney hours] in cases," responded Webb, "You have to request it and show good cause to do it. Another Supreme Court rule is that you affirmatively set forth all of your assets and debts when you file a petition and when you file an answer. Other states tend to litigate issues of what are the assets, debts, and values. This is shortcut in West Virginia by requiring that financial statements be done at the outset."

Although Webb says that most attorneys and judges use a computer program called "SupportCalc," child support amounts in West Virginia are easily obtained by consumers using a Web search. West Virginia code §48-13-301 sets forth a table up to a combined monthly gross income of the two parents of $15,000. Above that amount, §48-13-303 explains that

The court may also compute the basic child support obligation for combined adjusted gross incomes above fifteen thousand dollars by the following:

(1) One child -- $1,338 + 0.088 x combined adjusted gross income above fifteen thousand dollars per month;

(2) Two children -- $1,934 + 0.129 x combined adjusted gross income above fifteen thousand dollars per month;

(3) Three children -- $2,276 + 0.153 x combined adjusted gross income above fifteen thousand dollars per month;

(4) Four children -- $2,515 + 0.169 x combined adjusted gross income above fifteen thousand dollars per month;

(5) Five children -- $2,726 + 0.183 x combined adjusted gross income above fifteen thousand dollars per month; and

(6) Six children -- $2,917 + 0.196 x combined adjusted gross income above fifteen thousand dollars per month.

A single child of a $180,000-per-year defendant would thus yield $16,056 per year in child support revenue, for up to 18 years, to a non-working plaintiff. This is more than twice the $7,300 that West Virginia would pay to the parent of a foster child and more than the $9,000 per year that the USDA estimates a parent would spend to keep his or her own child in a single-parent home. However, a plaintiff could make substantially more by obtaining the jurisdiction of a different state, e.g., the child would yield $30,600 for 21 years in New York or $31,136 for 23 years in Massachusetts).

Where West Virginia appears to offer potentially unlimited profits via its roughly 9-20 percent rates (depending on number of children) for income above $180,000 per year, in fact there is a practical limit on direct potential parental profit of $2,000 per child per month. See §48-13-802, Investment of child support:

(a) The court has the discretion, in appropriate cases, to direct that a portion of child support be placed in trust and invested for future educational or other needs of the child. The court may order such investment when all of the child's day-to-day needs are being met such that, with due consideration of the age of the child, the child is living as well as his or her parents.

(b) If the amount of child support ordered per child exceeds the sum of two thousand dollars per month, the court is required to make a finding, in writing, as to whether investments shall be made as provided for in subsection (a) of this section.

[paragraph (c) says that the trustee has to be someone other than the person receiving child support]

Webb says that "Unless you can prove that you can need the additional monies [beyond $2,000 per month] those monies should be put into a trust fund for the children's future." So a defendant parent might be ordered to pay a larger amount, but it would go to his or her child, not to the person who filed the child support lawsuit.

The trust fund concept ensures that there will be a "rainy day" fund for the child in the event that the high-income parent suffers a career setback. Unlike some other states, however, a child support plaintiff does not have superior rights to a married person when it comes to the death of a co-parent. Past-due child support ("arrearage") can be collected from a parent's estate and, according to Kelley, "it is not the default but the court can order the estate to continue to pay." But a court will not order a person who is paying child support also to purchase life insurance for the benefit of his or her plaintiff. A person who wanted to insure a stream of child support revenue being received would have to pay for the life insurance from that revenue stream.

Another limit built into the formula is a self-support reserve intended to prevent a parent from being sued into poverty by multiple child support plaintiffs. This is $500 per month, regardless of "whether your name is Randolph or Rockefeller," says Webb, who considered it to be a flaw in the formula that a higher income parent is not necessarily entitled to enjoy any of the fruits of his or her income; the plaintiffs come first.

The West Virginia system treats day care and health insurance separately from basic child support. If the defendant parent has 100 percent of the income, therefore, he or she would be ordered to pay for 100 percent of the child's direct costs such as day care or health insurance on top of what might be $2,000 per month per child in unrestricted funds to the plaintiff parent.

Courts have jurisdiction regarding custody only through age 18. Child support can be collected through age 18 or high school graduation (with a strict cut-off at age 20) unless a child is disabled, in which case support may be extended for life. "The court has no jurisdiction to order college tuition payments," says Webb.

A stream of child support payments is more secure in West Virginia compared to states that use a "best interest of the child" standard for modifying a parenting time schedule. A parent seeking to modify the schedule must show a "substantial change in circumstances" and whether or not a child getting older constitutes such a change varies depending upon the judge. "Some judges are very strict about what is a substantial change," says Kelley. Are there no rules at all other than what a judge wants to do on that particular day? "Remarriage is not a substantial change by statute." When does a child have a say in the schedule? Webb says "West Virginia borrowed the age of 14 from a probate law that says that if a child loses both parents in an accident he or she can choose a guardian. However, in 2012 the Supreme Court told trial courts that a 14-year-old's choice should not be adopted automatically. In any case, there is also a provision that if a child is of 'sufficient age and maturity' then his or her choice may be given weight. As a practical matter that might start at age 11."

According to Webb, parties enter into a "walk-away" prenuptial agreement in which separate property is kept separate and alimony is waived.

State background

The average hourly wage in West Virginia is $17.84 per hour. A person who goes to college at the West Virginia University will spend approximately $63,688 over four years to earn a bachelor's degree. Census 2014 data show that the median income for a 22-36-year-old college-educated woman working full-time is $28,000 per year ($21,429 after taxes). The corresponding man earns $60,000 per year ($42,416 after taxes). The Tax Foundation in 2016 concluded that $100 has more spending power in West Virginia than in most other states, being worth about what $112 would buy in the average American community (citizens of California, New York, New Jersey, and D.C. fare the worst, with $100 being worth only about $85). West Virginia collects 9.8 percent of residents' income in order to fund state and local government, right at the national average rate of 9.9 percent, once again according to the Tax Foundation.

The average annual cost of child care is $6,932 for an infant, $5,806 for a four-year-old, and $6,932 for a school-age child. Thus the total cost of child care from age 0 through 12 is $45,839 in commercial settings or $42,893 in a family care setting.

The male college graduate will have an after-tax spending power of $530,136 after 14 years of working (14 years of income minus taxes and the cost of college). Considering the USDA-estimated cost of a child, he would be financially better off collecting child support than working when that support is $3,204 per month or more. This is above the $2,000 per month cap that can be paid into his checking account. If he can get custody of two children from two different mothers, each needs to pay him $1,977 per month before he is better off financially than if he had gone to college and worked. That happens when each mother earns at least $267,136 per year.

The female college graduate will have an after-tax spending power of 236,318 over the same time period. She would be better off collecting child support when it exceeds $1,844 per month. She can get this by suing a man earning $249,000 per year. If she gets custody of two children from two different fathers, she comes out ahead financially, compared to college/work, if she collects $1,297 from each father. This happens when she sues men earning at least $169,800 per year.

Among residents surveyed by the U.S. Census Bureau in March 2014, 88 percent of those collecting child support were women.

The Scenarios

Scenario 1: Professional Wife and Slacker Husband

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.

Kelley and Webb predicted joint "decision-making" (what other states call "legal custody") for these two parents.

Webb thought that the mother in this case would get primary residential custody. "What she didn't do she'll argue that the nanny did. Dad will be left with an every-other-weekend schedule." What about the fact that the child is so young? "If you have a more sophisticated lawyer you'd have an argument about whether he'd see the child more frequently for shorter periods," responded Webb. "Maybe every other day, without much in the way of overnights for a long time."

Webb explained that the court would justify the disproportionate parenting time split by looking at who had done caretaking functions prior to the lawsuit being filed. "In the two years preceding the separation of the parties, who did the cooking, cleaning, taking the kids to the doctor, etc.?"

Kelley agreed with Webb's perspective but thought that due to the infinite discretion available to both judges and Guardians ad litem the outcome was harder to predict.

What are the financial stakes for this custody fight, which Webb says has been recast into "more pleasing terms such as 'residential parent' and 'non-residential parent'"? If the mother can hold the father to fewer than 128 overnights per year, he has to pay her child support. How much would it be? "His income would be attributed at minimum wage," says Webb. Feeding that back into the child support formula with her above-guidelines income he might owe 6 percent of the total child support (since his attributed income is roughly 6 percent of the total) and, if the $2,000 per month cap is applied, that's just $1,440 per year. If on the other hand, the father is able to take care of the child 40 percent of the time, Kelley calculates that the mother would pay him $17,280 per year. If the father succeeds in a quest for equal parenting, it will cost the mother $21,552 per year. All told, the cash difference between sole parenting and 50/50 parenting is $390,864 over a 17-year period.

Webb and Kelley agreed that the father would be unlikely to get much in the way of alimony. The father's property division claim would depend on what had happened with the doctor's medical practice. "A medical degree cannot be valued and divided," says Kelley, pointing out a difference between West Virginia and New York. "He cannot get a share of passive appreciation of any separate assets that the wife hard. For her medical practice you need to look at the value on the date of the marriage and on the date of the separation." Does the father then get half of that? "No," says Kelley. "If there is an increase in value due to good will there has to be an analysis of whether it is personal or enterprise good will. If enterprise then it is a marital asset to be divided. If personal, then not." How could anyone tell the difference? "Doctors, dentists, and lawyers are generally considered to have personal good will in their businesses. A McDonald's franchise, on the other hand, would have enterprise good will because people aren't going to that particular McDonald's because they like the owner."

Can the defendant father get the plaintiff mother to pay his attorney's fees? "Attorney's fees awards are almost totally within the discretion of the judge," responded Kelley. "The court will look at whether or not he received assets, what issues were litigated, and the other party's ability to pay. The affair will hurt him, but it all depends on the judge."

Scenario 2: 14-year marriage of equals

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.

Kelley expected a court to impose a 50/50 shared parenting schedule even if both parents asked to be designated as primary. "I would expect to see week-on, week-off if the court is making the decision," Kelley said regarding the specifics of the schedule. "The parties would probably break that up after getting a hint from the court that 50/50 was coming. A 2-2-5-5 schedule is popular. The off-parent may also see the children on a Wednesday evening for dinner either by negotiation or court order."

Webb agreed with Kelley that a 50/50 scheduled was most likely.

What are the financial stakes if one parent can become primary? The loser parent would pay the winner approximately $12,594 per year.

Due to the equal incomes there would be no child support or alimony in this case.

Scenario 3: 10-year marriage with kids 2 and 5

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.

"Mom will get the majority of parenting time," said Kelley. "Mom will get the custody," says

Webb. "She'll be the primary residential parent. Depending on his schedule he will get Friday to Monday and a couple of dinner visits each week, but no overnights other than every-other-weekend." What about the summer? "He could make up some of this time in the summer," responded Webb, "with two or three weeks of vacation."

What if the father says that, now that the voluntary partnership of marriage is over, he will cut back on his working hours so as to be available to the children on a 50/50 basis? "Judges tend to be very suspicious of any parent who proposes to cut back on work," says Webb. "A last-minute plea before the execution doesn't work. Judges don't think it is sincere." Does Webb think that trying to preserve the marital status quo is a useful goal? "I've talked to judges who would say privately or publicly that we need to look at the new world order," responded Webb. "What is the relevance of the historical percentage of caretaking when the history of the marriage is over? Right off the bat the parents aren't living together anymore. That's a huge change."

Assuming that the mother does win primary residential parent status, and the child support that accompanies it (about $2,955 per month or $35,460 per year, tax-free), for how long can she continue her stay-at-home lifestyle? "She will get to stay home until both kids are in school [1st grade]" says Kelley. "Then judge will expect mom to go get a job." Until she does get a job what kind of standard of living can she expect? "If the resources are available she will get enough alimony and child support to continue her pre-marital lifestyle," says Kelley, who predicts that the mother will win up to 5 years of alimony at roughly $3,000 per month in addition to the child support.

Webb was a little more expansive on the topic of alimony: "That's absolutely wide open for length of time and amount. There are 21 factors in the code, 15 of which make little or no sense and about 5 of which the courts actually consider. One of those five has to do with fault. From 1863 until about 2001 fault was an absolute bar to alimony. Historically it was men who had affairs that would prevent them from collecting alimony but men didn't get alimony so it wasn't a problem. Now that men no longer dominate the adultery category, the law was changed so that fault is considered but is no longer a bar. Most judges today don't consider fault; they just do the math." Webb said that a 10-year marriage was right on the borderline for what would be considered "short term" and therefore lead to no alimony entitlement. He predicted as little as three years of spousal support "but she'll get enough to pay for school and also herself during those three years."

Is alimony calculated before child support or vice versa? "It depends on the part of the state," says Webb. "In the southern part of West Virginia judges will calculate child support and then, because they acknowledge that the mother is benefitting from the children's contributions to utilities, mortgage, rent, car payments, etc, then they will look at the mother's remaining expenses in calculating alimony. The statute says to run alimony first and then incorporate that into a child support calculation. That's how judges in the northern part of the state do it," Webb continued. "The criticism is that Mom gets a windfall."

Can the mother win the house on the grounds that she has the kids? "The court can award the house to the primary residential parent," says Kelley, "but typically don't do that anymore unless the children are teenagers and the goal is to keep them in the same school district through graduation." West Virginia is an equitable distribution state but Webb explained that in practice this means a 50/50 division of property absent gambling or secret credit cards.

Scenario 4: 1.75-year marriage with 8-month-old child

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.

"She will probably get most of the parenting time while the child is young," says Kelley, "but it is  not going to be forever. A child psychologist will testify that a child should stay with one parent for the first two years." Webb concurred. "It will be every other weekend for the dad."

Webb and Kelley expected the plaintiff to get the $2,000 per month child support cap and alimony for a minimal duration.

How does the father's $2 million in pre-marital savings factor in? "The cynical part of me says that if he has got $2 million in the bank he can buy a 50/50 plan," observes Kelley. Webb says that she could argue for half of the appreciation of the assets if she can establish that it was somehow due to active efforts by either spouse. Otherwise the only way for the plaintiff to get any of the $2 million is via including interest or dividends on the money in the child support formula (but she is already receiving the $2,000 per month cap). If necessary Webb thought that it would be possible for her to make a California-style argument to impute income to the assets: "The definition of income is very liberal and expansive."

Scenario 5: 18 year old free spirit/music lover; no marriage

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.

Kelley predicted primary residential parenting for the mother: "Women have a distinct advantage while they are nursing." (And then that advantage becomes permanent due to the difficulty of modifying a parenting time plan in West Virginia.) Webb concurred. The mother will collect $2,000 per month in child support.

If she waits until the child is older before filing suit, can she get child support back to the date of birth? "She can go back only 36 months unless father has been trying to avoid service," says Webb. "Before we passed the statute, I'm not exaggerating when I tell you that the mother would go in with a 15-year-old and the father would have to pay 15 years of back child support. He would argue that he'd missed out on the companionship of the child during those years, but that argument always failed."

Can she get $432,000 in tax-free child support without hiring an attorney? "Yes," says Webb. The West Virginia Bureau for Child Support Enforcement's Web site lists the services that taxpayers would provide to the woman in this scenario:

If the mother ultimately marries a wealthy man her child support revenue will not be reduced because "Income received by other household members such as a new spouse;" is excluded from her "gross income" by statute.

Removal/Relocation

"Relocation cases are tough," says Kelley. "The first thing you look at is whether or not the relocating parent exercises a significant majority of parenting time. This is defined as 70 percent of the parenting time. Then all she has to show is that the relocation is in good faith for legitimate purposes and to a reasonable location." What does that mean in practice? "She gets to go." What if the parenting time is more equally shared? "If he has 31 percent of the parenting time, there is no presumption in favor of the move. It will be determined according to the child's best interest." [Note that we gave Kelley a gender-neutral scenario but, like nearly all attorneys we interviewed, the examples that came to his mind were of a mother who had won physical custody and a father who had lost it.]

How would a court resolve a case where the parenting time split is less extreme than 70/30? "If mom is marrying someone and has to move that's a pretty good reason. The court will look at extended family: Where are the grandparents and cousins?" What would the schedule look like after an approved move? "Courts are told to roughly allocate the same amount of parenting time," says Kelley. "So the every-other-weekend parent might have almost all of the summer, spring breaks, etc."

Webb confirmed Kelley's perspective on this issue. One point that he made was that "it is harder to move [in the shared parenting cases] once children are in school with friends and extracurricular activities".

Quirks

As in other states, West Virginia provides cash incentives to have children with multiple co-parents. At the top of the guideline chart, three children from one co-parent are worth $27,312 per year. If, on the other hand, three different co-parents can be found, each with the same income, a total of $48,168 per year can be collected.

As in other states, multiple children from the same child support defendant have different cash values depending on when the corresponding lawsuits are filed and child support orders obtained. The first person to sue a parent gets the full guideline amount. For subsequent plaintiffs, any previous child support orders are subtracted from income used to figure the next award: "'Adjusted gross income' means gross income less the payment of previously ordered child support, spousal support or separate maintenance."

Children of an intact marriage have an explicit lower cash value than extramarital children. When a married parent of three children is sued for child support due to an extramarital affair, for example, his or her income is reduced by exactly 75 percent of the amount of child support that would have been paid for the three existing kids (see §48-1-202). If on the other hand those three existing children already had a child support plaintiff attached, the deduction would be 100 percent of the guideline number, not 75 percent. In any case, whether to assign the children of the marriage any cash value at all is up to a judge's discretion ("an adjustment may be used").

Next Steps

Like Linda Nielsen, the professor of Psychology quoted in the "Guide for Citizens and Legislators" chapter, Webb questions the wisdom of running a court system to designate a primary parent, especially when that designation is based on the division of labor during the marriage, a situation that by definition cannot exist after a divorce lawsuit has been filed in a no-fault state. "I would make the standard [for deciding parenting plans] a simple 'best interest of the children' and allow recognition of the new family arrangement. The court would no longer look back at the old family arrangement."

Kelley agrees with Webb's suggestion but points out that it is unrealistic to expect the 'best interest of the child' to be discerned by the court system. "Judges don't have the time to get to know the parties," says Kelley. "They are making huge decisions based on very little information." Kelley is in favor of a presumption of 50/50 shared parenting, with "the party who doesn't want it to be 50/50 having the burden of proof."

Summary

West Virginia falls more or less squarely into the "Preserve the status quo" category among states.

West Virginia's emphasis on identifying who was the primary parent during the marriage punishes people who enter into a voluntary arrangement of breadwinner and stay-at-home parent, even if that arrangement lasts only a year or two. It also rewards parents who engage in pre-lawsuit planning, which both Webb and Kelley have observed.

Compared to some other states, potential child support profits are lower, but, due to the low cost of living in West Virginia, are still high enough to motivate plenty of litigation.

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