As part of the research for this book we talked to people who'd been through a divorce and also to attorneys who had observed their clients over a period of a decade or more. In this chapter we write down what we learned from them about how the divorce had affected their behavior and emotions.
Keep in mind that we looked at a biased sample. Most parents stay together while rearing their children. Many parents who seek a divorce choose to pursue one via kitchen table negotiation or mediation. We interviewed litigators and therefore we learned only about families in which one parent had chosen to go to war, typically to get the cash that is the primary remedy available in American courts. The lawyer who told us "A person's decision to divorce is primarily financial. Of course there are people who are concerned about the kids, but they are not very common." was talking about the subset of Americans who choose to end their marriages via litigation.
One lawyer said "People who care about their children generally don't get divorced at all, mediated, negotiated, litigated, or otherwise" and pointed us to "The New Divorce is No Divorce," a June 30, 2014 article in the New York Observer. The author asks a woman if she is married or divorced. She responds "I am married but I am separated. But, we live on the same property but have two different living areas. It’s called nesting." Another woman said "We're not separated, we only live separately" and explained that she and her husband lived in different parts of the house but got together for meals with the children. A father told the writer "Divorce is a disaster for the children. Some never recover. The kids don’t care if the parents are sleeping together or sleep in the same room. They care that they are both there when they wake up in the morning and go to bed at night. They just want everything to be O.K." Another father said "When you have children—and I also have grandchildren—[divorce] adversely affects a lot of people. I believe in this idea of the family unit. When you build a life together, you don’t divorce your wife or your family because she might not be interested in sex anymore. … The damage [from a divorce] is incalculable. And then the kids mostly hate all the new players who show up. … Imagine spending years and millions, suing each other—years of character assassination in court. For what?"
Thus with the caveat that we are looking only at families in which one adult decided to sue the other, we'll share what we learned from interviewing attorneys and psychologists.
What is of most concern to many laypeople is the effect of divorce on children. Is there good scientific data in this area and especially on the effect of alternative policies? To some extent the answer seems to be "no" because researchers typically don't get into the details of the process of the divorce per se. Was it negotiated around a kitchen table? Agreed to via mediation? Or was there an all-consuming lawsuit ending in a trial after three years? Children exposed to all three of these options tend to get lumped together in a data set as "children of divorce." Attorneys told us that it is not the parents moving into separate households that hurts the children nearly as much as the fact that one parent sued the other and the subsequent litigation.
What is known that children of divorce and of single parents don't do as well, on average, as children from intact two-parent families. However, as the majority of divorces have been under a "primary/secondary parent" system, conclusions from many studies may not apply to children who grew up under shared parenting systems. Roughly two dozen studies of shared parenting are summarized in "Shared Residential Custody: Review of the Research" (Linda Nielsen; American Journal of Family Law, 2013, vol. 27). These studies primarily compared children in shared parenting with children on an every-other-weekend schedule, not with children in intact families. The overall conclusion seems to be that children in shared parenting do better than children who live primarily with one parent and have a higher "satisfaction in life," but also that all children of divorce have a lower "satisfaction with life" compared to children from intact families.
The most comprehensive on how children fare under different kinds of parenting arrangements is probably that done by Malin Bergstrom, a Swedish clinical psychologist and epidemiologist who used data from a national survey of 172,000 children aged 12-15 (see the slides at http://tinyurl.com/SwedishChildrenStudy). Sweden offers minimal financial incentives to seek sole parenting after a separation or divorce and litigation over custody is extremely rare. Approximately 40 percent of Swedish children of separated parents live in a 50/50 arrangement. The popularity of shared parenting plus the fact that she used a comprehensive national survey means that Professor Bergstrom worked from better data than any previous researcher on the every-other-weekend versus shared parenting question. Her results were consistent with the studies summarized in the Nielsen paper cited above. An intact family is best for kids, but a 50/50 arrangement is pretty close in terms of the child’s mental and physical health. Children who lived primarily with their mother did substantially worse and children who lived primarily with their father were even more disadvantaged. As a conference presentation Bergstrom noted that when a mother has pulled back to every-other-weekend (or less) in Sweden it is usually due to mental health or substance abuse problems and she believes this to be the reason why, statistically, children in sole paternal care did poorly. For more about this study see "Living in two homes-a Swedish national survey of wellbeing in 12 and 15 year olds with joint physical custody." BMC Public Health 2013 Sep 22;13:868.
"Child Support and Young Children's Development" (Nepomnyaschy, et al, 2012; Social Science Review 86:1), a Rutgers and University of Wisconsin study of children of lower income unmarried parents, found that any kind of court involvement was associated with harm to children: "We also find that provision of formal [court-ordered] child support is associated with worse withdrawn and aggressive behaviors." The authors found that informal (voluntary) support from fathers could be helpful to children living with single mothers but court-ordered support, even when the cash was actually transferred, was on balance harmful.
Veteran attorneys when they are being candid about their work and experience tend to be shocked that parents would put their children through divorce litigation. One lawyer asked "Why have we set up a system where the American dream is to find the right fortunate person to marry and then divorce? Attorneys will go to the mat to defend litigation because we're so fucking important, but the reality is that everyone who can afford a real litigator can support a child. If you already have enough money to support a child you shouldn't be able to use the courts to fight for more. What we do supposedly to advance the best interest of children is devastating to children."
A California defendant said "Early in the divorce process a lawyer told me that 'It will be as though you never knew each other. Her only interest in you will be depositing checks that you write.' I didn't believe him. How was it possible that the woman with whom I'd had three children would become a stranger? But he was right. My wife started collecting child support from me when our youngest was five years old. I didn't fight for custody because I knew that if I was going to have to support two households that I would have to work a lot. Also I had a traditional view that children should be with their mother. And she'd always been a devoted mother. I thought that the kids would always be her number one priority. But as the kids grew up that turned out not to be true."
What was the effect on the children? "One of my daughters is 40 years old now and has never worked. She had two kids and then sued for child support, just like her mom. Having watched her mother marry and divorce twice, both times earning a profit, I think it was hard for her to avoid repeating her mother's life."
An 18-year-old girl in Massachusetts who'd been a $130,000-per-year cash source for her mother since toddlerhood, watched her mother remarry and then divorce again, this time collecting child support for a pair of half-siblings. Starting at about age 17, having noticed that the mother spent all of the child support payments on herself, the girl simply moved in with her father, thus denying the mother the additional five years of payments (from age 18 through 23) to which she would have been entitled under Massachusetts law. "She's still my mother, but I don't trust her," was how the teenager summed up her relationship.
Attorneys told us that friction between a child yielding child support and the parent collecting it tended to intensify in the teenage years. This was confirmed by a young Canadian man (see the Canada chapter) who talked about confronting his mother regarding the $750 she received every month for his "support" but spent on herself instead (he was a college graduate at the time with a job and his own apartment).
"Children of higher-income parents are the ones who are most damaged by divorce," said one litigator. "Their parents could afford to fight longer, so the kids were exposed to more litigation, more interviews with custody evaluators, and more conflict between the parents. As they get older these children also question whether their parents actually love them. Does Mom want me around because she loves me or because she pockets $5,000 every month that I live with her? Does Dad support me because he loves me or because a judge ordered him to write the checks or go to prison? A child from an intact family never has to wonder."
The Divorce Culture (Barbara Dafoe Whitehead 1996) on what happens when the mother wins sole custody and the father is an every-other-weekend visitor:
When fathers and children live in separate households during part or all of the year, these routine exchanges [helping with everyday events] are not as frequent or as easy. Thus, the loss of a household brings a decline in father-child contacts and a loss of paternal time investments. … As time goes on, a child's contact with his or her father becomes increasingly infrequent. Ten years after a marriage breaks up, nearly two-thirds of the children report not having seen their fathers for a year. … Social psychologist Robert S. Weiss describes the specific stages of this downward spiral: Separate residency diminishes contact; diminished contact reduces opportunities for routine sponsorship; diminished opportunities for routine sponsorship weaken the incentive for involvement; weakened incentive reduces a sense of binding obligation. The result is emotional disengagement and a loss of commitment.
"Parental Responses to Child Support Obligations: Causal Evidence from Administrative Data" (Rossin-Slater and Wust; December 8, 2014 American Economics Association Conference) found that what a mother might have gained financially from child support, the child lost in terms of reduced contact with and effort from the father:
"mothers, who have substantial say in custody decisions [in Denmark], have the opposite incentive to refuse to share custody and instead receive the higher payment [for child support, compared to shared custody]. … fathers may treat financial transfers as substitutes for other forms of non-pecuniary investments and contact with children, which would also lead to a negative relationship between child support obligations and father-child co-residence."
The economists found that "an increase in the father's obligation may lead to less attachment to his existing children and more time available to invest in new offspring"; Danish fathers who were ordered to pay more child support were more likely to have new children, thus diluting the time and energy available to prior children.
Danish fathers who were ordered to pay more child support reduced their working hours due to "market distortions generated by the 'tax-like' nature of child support mandates." Mothers who received more child support cash for existing children were motivated to have additional children, either with or without a live-in partner: "mothers receiving higher child support payments for current children may expect higher transfers for future children if they separate again." Note that this research was done with data from Denmark, where child support is tax-deductible and capped at $8,000 per year. The effects that they observed would presumably be larger in the U.S. where child support payments are not tax-deductible and can be $25-100,000 per year.
Our summary of Rossin-Slater and West: when it is more than half of the basic cost of rearing a child, an order for child support payments reduces both paternal and maternal investments in the children whom the money was supposed to help. See also the "Divorce Litigation" chapter for our interviewees' perspective that the main opposed interests in a divorce lawsuit are the plaintiff parent and the children, not the plaintiff and adult defendant.
The term parental alienation is frequently used in court to describe custodial mothers saying and doing things around the children that sow discord between them and the non-custodial father. As this is a psychological theory it leads to fees for psychologists who can come into court as expert witnesses or Guardian ad litems and talk about whether parental alienation is happening. Many attorneys that we've interviewed, however, said that it is unfair to blame the moms. "It is an inevitable outcome of the every-other-weekend schedule," said one attorney. "The defendant is not their father anymore. He's just the guy who pays all of the bills. So the father-child relationship doesn't exist anymore and doesn't make sense. The mom doesn't have to say anything. The kids know that she is the only real parent left."
This ground was already covered in The Divorce Culture: "[the children] see the father's absence as evidence that their father does not love or care about them. Not surprisingly, when asked to name the 'adults you look up to and admire,' only 20 percent of children in single-parent families named their fathers, as compared with 52 percent of children in two-parent families." … Wallerstein and Blakeslee note, 'Most of the young people regularly visit their father, yet most feel they have lost them.'"
Christine Giancarlo and Kara Rottmann, anthropologists at Mount Royal University in Calgary, conducted a 2013 review of the parental alienation literature and interviewed alienated parents in Canada. They date the concept of "parental alienation" to the 1950s and the term to a 1985 paper by Richard A. Gardner, a professor of psychiatry at Columbia. Giancarlo and Rottman note that "Cultivating an emotionally enmeshed relationship with their children serves the mother’s need for love and admiration. … A main strategy used by alienating parents is to withdraw love if the child indicates affection for the rejected parent, thereby instilling fear in the child and increasing his or her dependency on the alienator (Baker & Darnall, 2006). … Steinberger (2006a) notes that when a child detects anger in the favoured parent after an expression of positive feelings about the alienated parent, the child seeks to avoid it by rejecting the other parent."
How common is parental alienation? "A 12-year longitudinal study commissioned by the Family Law Section of the American Bar Association of over 1000 divorces found that alienation, as defined by the 'programming of a child' against the other parent, was present in 60% of all court cases."
Did [Canadian] family courts, which administer Canada's winner-take-all divorce system, provide some relief to alienated parents? Giancarlo and Rottman: "Though participants sought legal involvement to remedy the parental alienation they were experiencing, none of them succeeded in achieving this goal. Instead, the legal case served as a catalyst to greater levels of alienation, either from moderate to severe or from severe to complete relationship severance. Two participants had even lost the knowledge of where their children now live. Participant #27 had not seen his youngest of three daughters in five years, though he has continued to pay regular child support to her mother to date."
We interviewed Professor Giancarlo in October 2014 and asked whether the high percentage of severed father-child relationships be due simply to Canada's winner-take-all system? Does there have to be a complicated mental illness? "Both perspectives can be correct," said Giancarlo. "The court picking a winner parent and a loser parent is incredibly problematic. The winner parent now has the tools to make things worse if that is his or her motivation."
We asked why the winner parent needs a mental illness for motivation. In many jurisdictions the winner parent gets additional cash if the children spend less time, or no time, with the loser parent. "It is a sign of mental illness to try to make money off one's children," responded Professor Giancarlo. If that's true why do we need laws against child labor? Victorians sending their children to work in the mills were not mentally ill, were they? "Money is definitely a big motivation," said Giancarlo, "but there are also mental health issues. Alienating the child from the loser parent is a way of maintaining control."
What about the fact that kids don't listen to parents? If kids don't listen to a parent who says "eat your vegetables" why are they listening to winner parents who say "the defeated parent is bad"? Giancarlo noted that it starts with the court designating one parent as secondary: "The judge has said 'Your best interest is to spend less time with one parent,' which tells the child that it is okay and normal not to have a good relationship with one parent. Children learn what is expected of them in the winner parent's house. As they get older they figure out that they are a cash source for the winner parent: 'Mom's making a lot of money from me, so I can get whatever I want.'"
Why don't children break out of this when they're teenagers? "Kids tend to want to stay with the custodial parent," said Giancarlo. "It is a variant of Stockholm Syndrome. Kids want to go back to their captor. They would have to go through deprogramming before they can learn to reattach to others. It is no different than if they'd been in a cult."
Attorneys told us that their defeated-father clients (i.e., most of their defendants) had less to contribute to children. "They have less money," one lawyer said, "because they paid me and they paid most of their plaintiffs' fees too. They have less time because they spent years assisting me with their defense. They have less energy because they put so much of it into a losing battle that nobody had the heart to tell them could not have been won by any man."
The landscape does not seem to have changed much. The Divorce Culture, 1996: "Increasingly, fatherhood in a post-nuclear family regime is a status defined and governed not by cultural values or social norms but by legal norms. This is not good news for children; fathers' contributions of income and time become more meager and grudging as they become less voluntary. Even fathers who reliably pay child support often fail to volunteer assistance beyond their legally established obligations." "Parental Responses to Child Support Obligations: Causal Evidence from Administrative Data" ((Rossin-Slater and Wust; 2014) says pretty much the same thing: The heavier a father's loss in the divorce court the less he volunteers. Because family court judges can order money to be paid but not time to be invested, kids subject to custody and child support orders in winner-take-all states end up with wealthier moms and no dad.
"How decades of divorce helped erode religion" (Washington Post, September 27, 2016):
People whose parents divorced when they were children are significantly more likely to grow up not to be religious as adults, the study found. Thirty-five percent of the children of divorced parents told pollsters they are now nonreligious, compared with 23 percent of people whose parents were married when they were children.
Note that divorce and children raised by single parents tend to favor Democratic politicians. Religious Americans are more likely to vote Republican. Additionally, members of traditional intact families are more likely to vote Republican: "Intact Families, Continued: The Red-County Advantage" (New York Times, July 1, 2015).
Attorneys reported that daughters could be more profoundly affected than sons by a parental divorce: "My basic plaintiff client is a woman who has discovered cougarhood. She uses the money from the divorce to attract guys who are ten years younger. That makes them maybe 15 years older than the daughter. So eventually you get a 15-year-old girl running half-naked around the house with a 30-year-old guy to whom she has no blood relation. This is when a custody modification case gets interesting."
A sociologist we talked to said that "this is the first time in human history where we actually encourage unmarried teenage girls to be in intimate domestic contact with men other than a father or brother."
"My daughter learned at around age 8 that a woman’s body can be used to earn money and that a child can be used to earn money," one aviation convention attendee said. "She was robbed of about eight years of innocence. After what my ex-wife did I didn’t think that it was possible to be more jaded, but my daughter ended up with a transactional view of sex and sexuality that is shocking even to me."
This anecdote is supported by academic research. For example, see "The Effects of Paternal Disengagement on Women’s Sexual Decision Making: An Experimental Approach," (DelPriore and Hill 2013; Journal of Personality and Social Psychology 105:2): "An abundance of research demonstrates a robust association between father absence--or low-quality paternal involvement--and daughters' accelerated sexual development, promiscuity, and sexual risk-taking."
One of the studies cited in The Divorce Culture continued through the late 1990s. "The Unexpected Legacy of Divorce: Report of a 25-Year Study" (Wallerstein and Lewis; Psychoanalytic Psychology 21:3 2004) followed up with children of divorce who were now as old as 43. They were compared to same-age children from the same neighborhood and schools who grew up in intact families. Adults who had been children of divorce were sufficiently impaired that the authors noted "the impact of these far-reaching changes on the society as a whole … has been hardly addressed or even appreciated."
Reviewing another study of 900 children, the authors write "Measuring against a list of psychiatric symptoms, she found that 20-25 percent of the children were troubled adults as compared with 10 percent among those raised in intact families. She noted 'Now, that two-fold increase is not to be taken lightly. It's larger than the association between smoking and cancer.'"
Regarding their own group, Wallerstein and Lewis wrote the following:
Hardly any of our subjects described a happy childhood; in fact a number of children told us that "the day they divorced was the day my childhood ended." … By the 25-year mark, the majority had decided not to have children.
No child of divorce in our study was invited by both parents, either separately or together, to discuss college plans. … Only 57% of the divorce group achieved their bachelor's degree as compared with 90% in the comparison group. … Unhappy, [those who did attend college] settled for fields of study that were not their first choice, at lower ranked institutions than their parents had attended. It was at this time that one young person, echoing the emotions of many others, commented bitterly, "I paid for my parents' divorce."
The central finding of this study is that parental divorce impacts detrimentally the capacity to love and be loved within a lasting, committed relationship.
A subgroup of over 20 women from the divorced group sought out multiple lovers. … Their sexual encounters seemed driven by anger at men, which even their close relationships with their fathers did not seem to mute.
This drop-off of contact [between fathers and children] at adulthood, especially among the boys, was striking in comparison with fathers and sons in the comparison group, many of whom grew closer after the father retired.
… findings from this study show that although divorce sets many adults free, and many second marriages are happier, these benefits do not extend to their children. Divorce begets fewer marriages, poorer marriages, and more divorces.
As the study ended, 42% of the men had never married or cohabited for longer than 6 months, compared with 6% of the comparison group.
Several [children of divorce] went out of their way to marry people from intact families. "He has no baggage," one woman declared triumphantly in describing her spouse. "No one has ever been divorced in his family."
This 25-year study points to divorce not as an acute stress from which the child recovers but as a life-transforming experience for the child.
"Because of the never-finished-until-the-kids-turn-18 nature of child custody and child support litigation," said one lawyer, "I will typically see mothers over at least a 10-year period. The more successful I am in getting money for them the less like ordinary mothers they seem to act. I think that there is something unnatural about living off your children instead of sacrificing to provide for your children. Most parents have to refrain from buying themselves, say, some new clothes, so that they can buy new clothing for their growing children. A successful child support plaintiff, on the other hand, is able to buy new clothing and jewelry for herself with the surplus that she can harvest from having won custody." Wouldn't it be just as likely for the winner parent to buy the child luxury goods? "No," said the attorney, "from what I have seen the mothers buy the high-end stuff before the trial so that they can document how expensive the kid is. After the trial, the kid gets clothes from Target while the mom goes to Neiman-Marcus."
Attorneys everywhere reported that parents who are rewarded with custody and child support develop a focus on collecting more cash that crowds out the focus that married parents have on their children's overall well-being. An attorney described a mother of three who'd been a successful child support and custody plaintiff against a business executive. He'd worked on the case for 13 years at the time of the interview. The father had been transferred to another city and had traveled back to his former home town every other weekend and during vacations for years, renting hotel rooms so that he could visit with the children. "There was always friction because the mom always saw to it that there was some activity scheduled during his parenting time to interfere with the visit. She always wanted more and more money. Meanwhile all three kids were turning out to be needy and lazy. They just aren't good kids." Was there an obvious reason that the children hadn't turned out well? "After filing a lawsuit to get him out of the children's lives, the mother blames the father for not being around." What's she doing to help the children with their problems? "This is the last year for child support and she's pulling out all of the stops to get as much money as possible."
"Because the child is an in-home cash fountain for the mom," one lawyer noted, "she'll try to keep the kid as dependent as possible for as long as possible. The mother's nightmare is that the cash fountain grows up and moves over to dad's house. She'll treat a 6-year-old like a 3-year-old." Don't kids object to being infantilized? "No," responded the attorney. "Growing up is scary. Kids are comforted by being treated like babies. It works out great until they are out of college and discover that the the rest of the world won't give them the same treatment. I think this is a big reason why children of litigated divorces don't do well as adults."
"Evils which are patiently endured when they seem inevitable become intolerable when once the idea of escape from them is suggested." -- The Old Regime and the Revolution (1856), Alexis de Tocqueville
A Massachusetts clinical psychologist told us "people recover better from the death of a child than from losing a custody lawsuit. A death is final and a parent can begin to heal. These custody and child support lawsuits drag on for years, get re-tried every few years until the kid turns 23, and mostly one parent never had a chance to begin with but the judge isn’t supposed to tell him that. False hope can be worse than no hope."
Margaret Brinig, the law professor, summarized the research psychology results: "I know from my own work that people who lose custody are more depressed than those who do not, holding everything else constant you can think of including their pre-existing depression."
Attorneys told us about male defendants who'd killed themselves. Example: "The guy never would have signed up to be a secondary parent but now that is his court-ordered role, along with paying all of the bills for a mother who was greedy enough to turn her child into cash. Most of the guys who are worth suing are middle-aged. You might be talking about a 50-year-old defendant with a 1-year-old child. He'll be paying until he is 70, but the amount that he pays was set when he was at his peak earning capacity. As he gets older he'll probably be earning less, but judges almost never adjust child support or alimony downward. So gradually he's paying an increasing share of his income to his plaintiff. I'm actually surprised that more of these guys don't kill themselves. They really have no reason to exist other than to write checks to someone with whom they were briefly acquainted many years previously."
What do the researchers say? "Divorce and suicide risk" (Kposowa 2003; Journal of Epidemiology and Community Health 57:12): "Divorced men were over eight times more likely to commit suicide than divorced women. … After taking into account other factors that have been reported to contribute to suicide … [divorced men] were nearly 9.7 times more likely to kill themselves than comparable divorced women." For comparison, "Marital Status and the Risk of Suicide" (Smith, et al 1988; American Journal of Public Health 78:1) shows that married men 45-54 kill themselves at about 2.5 times the rate of married women of the same age.
U.S. Census data from March 2014 suggest that more than 90 percent of the losers of recent American custody and child support proceedings have been men. Thus the research studies on custody losers are generally limited to fathers. We interviewed Daniel Felix, a professor of clinical family medicine at Indiana University, and co-author of "The Influence of Divorce on Men's Health" (Journal of Men's Health 10:1, 2013) to find out. Professor Felix reminded us that "divorce" is a broad concept: "It is the same word, 'divorce', but it may be a totally different experience across a state line. It isn't divorce itself that harms men's health but the policies around divorce in certain places. A divorce that results in shared parenting is going to be different than one where the father is reduced to a secondary role."
Felix found that men suffered from trouble sleeping, even years after a divorce was finalized. The paper says that, following a divorce, men have "decreased levels of psychological well-being, and lower levels of happiness and self-acceptance." They are four times more likely to be depressed compared to married men.
After divorce—once the family unit has broken down—a man’s relationship with his children is nonsensical. Kids are a trap that has closed, they are the enemy—you have to pay for them all your life—and they outlive you.
-- The Elementary Particles (2001), Michel Houellebecq
Statistically a lot of divorce lawsuit losers give up on being parents, especially if a winner parent has been successful in relocating with the children. Does anyone care? Professor Felix's paper cites research that "only half of divorced mothers value the absent father's continued contact with his children." Lawyers told us that judges don't value fathers, except as a revenue source for the mother and the litigators: "the father is an ATM," was a typical summary. "This is definitely an effect of divorce," one psychologist told us, "because you almost never see a father give up on his children within an intact home."
An attendee at a business jet convention: "It drove me crazy until I realized that there was nothing that I could do for my son. The money that I had tried to invest in his college education went to pay the lawyers. The time that I had tried to invest in him was blocked by court order. The money that I would have invested in him from my income went to pay for my ex-wife’s vacations with girlfriends and boyfriends. Maybe 10 percent of the child support checks trickled down to my son. When I gave up and stopped trying to invest, that’s when I was no longer in conflict with my ex-wife or the family court system."
Is giving up a rational behavior for fathers? Professor Felix mentioned one of his own patients: "He gave up on trying to maintain a relationship with his children because the mother was moving across the country and he didn't want to chase after them. The mother was in the way of the children having a relationship with their father. It was a battle that he knew he couldn't win." This was similar to how a Massachusetts attorney described an old case: "Eventually the plaintiff and David Lee [her attorney] made it too difficult for my client to spend time with the daughter. They kept accusing him of molesting her so he just gave up, paid what the court ordered him to pay, and said that he would try to reestablish contact when the girl turned 18." A father told us that he didn't know where his 26-year-old daughter was living or doing following a Virginia divorce: "I loved my daughter but her mother just made it too difficult for me to be part of her life," he said.
Some attorneys in winner-take-all states explicitly recommend giving up. See the Litigation chapter for the lawyer who said "My happiest male clients are the ones who accepted that they weren't parents anymore and moved at least 500 miles away. They accepted that everything they'd worked for was gone…" We also heard variations of "Mom says you're not important to the kid. The custody evaluator said you weren't important. The judge said you weren't important, except to pay Mom's bills. How many times do they have to tell you before you get the message?"
How do children understand this? At Burning Man 2014, mostly attended by people from the winner-take-all jurisdiction of California, there was a note in the Temple from a young woman: "Father, as time passes, the memory of what little time we spent together fades. … Abandoned, I struggled through my teenage years and early 20s without a father's wisdom and guidance… It's been 12 years since we've spoken. We're strangers now. You didn't get to see your first child--your little girl--get a diploma, buy my first car, get a promotion, or say good bye when I moved across the country by myself. You'll never get to walk me down the aisle when I marry, or feel proud when I travel around the world someday. … I wish you could be proud of me. Love, Your daughter." The note was accompanied by a photo of an apparently married, middle-class couple smiling and holding an infant girl in a blue dress.
Alec Baldwin in A Promise to Ourselves (2008) wrote about his experience as an unsuccessful California divorce lawsuit defendant:
To be pulled into the American family law system in most states is like being tied to the back of a pickup truck and dragged down a gravel road late at night. No one can hear your cries and complaints, and it is not over until they say it is over.
The challenge noncustodial parents face is to try to create normalcy when nothing is normal. Parenting is something that happens in the regular flow of life, but when you lose custody of your child, you are cut off from that flow. You are viewed as actually interrupting that flow, which has now been established by the custodial parent and the court. … [some loser parents] find themselves so exhausted from the combined strain of legal wrangling and career that they have little left to offer their child when they do have time together.
When you are the noncustodial parent, time works against you. If your former spouse is not open and cooperative regarding divorced co-parenting, every day you spend disconnected from your child is another day in which that child adjusts to life without you. Although you may call regularly, or visit on alternating weekends, your influence in a child’s day-to -day life wanes. It is as though the child takes her love for you and places it on a shelf.
When we spoke, the [potential new therapist for Baldwin] said, “What change would you like to see that you think could help you?” ... I wanted help with disengaging from my divorce litigation. I wanted someone to help me walk away. “This is killing me, literally,” I said. He told me that he had seen quite a number of people who had been consumed by the “quicksand” of contentious divorce litigation. The therapist told me that men with limited financial resources often give up the fight, and their children, very early on.
Many divorced fathers had told me that, at some point, they slammed up against the realization that what they had been fighting for had ultimately ebbed away with time. Their children had grown up. Once they had reached the age of twelve, the “tween” period, children began to exhibit those unmistakable signs that they had little use for either of their parents. These men told me that while straining to keep up with their careers, their personal lives, the world at large, and their divorce litigation, their child’s most innocent years, the time from birth to middle school, had ended.
"A divorce starts with a woman complaining that she was stuck with her abuser for however long it took to pop out a baby," one lawyer noted, "and ends with about 18 years of the man being stuck with his abuser in various proceedings where she uses the court to get more money for herself and to kill whatever joy he might have experienced in spending some time with the child."
Aside from the facts that in many states men are virtually certain to lose every aspect of a divorce lawsuit, including a meaningful parental role, and that predominantly men are the ones being sued, why does Professor Felix think that men do worse than women following divorce? "Men are not as good at accessing social support as women," he responded. "That could mean everything from friends and family to a formal support group for divorced men. The support group might not even exist because there is a stigma around getting together with other men and talking about feelings or admitting that they are weak and need help."
Stepmoms at a business jet convention: "I refer to her as ‘the Parasite’, which used to upset my stepdaughter but there is just no other word that works."; "Well, we hate her but what can we do about it? It is like having cancer that never quite kills you."
As more than 90 percent of Americans collecting child support are women, implying that the overwhelming majority of children of divorce in the U.S. were assigned to a female "primary parent," this section refers to "stepmothers" but the same analysis would apply equally to a stepfather living with a woman who had lost a custody lawsuit.
"All of my male clients were accused in motion hearings and at trial of being abusive rapists and child molesters who were unfit to care for a child except for the every-other-weekend schedule that results in maximum child support," said one attorney, "but virtually all are living with a new female partner within a few years after the divorce." Do these new partners or second wives complain about being abused? "Yes," said the attorney, "by the judge and the first wife."
Statistically roughly 50 percent of men are remarried within 5 years of a divorce. An additional fraction are sharing a household with a female partner without reentering the civil marriage system that gave rise to their encounter with the family courts.
Fairytale stepmothers tend to be mean toward nonbiological children simply because they prefer their own children. The American divorce system, however, gives stepmothers additional practical reasons to resent the stepchildren who come into their lives for between 20 and 50 percent of the time. "Remember that alimony is based on the woman's need and the man's ability to pay," explained one of our interviewees, "so his ability to pay goes up if he has another wage-earning adult in his household. Alimony modifications based on the stepmother's income are very common." A Massachusetts consumer said that she had quit her high-pressure high-paying sales job in order to work as a receptionist in a dental office: "Anything extra that I earn beyond what I make in this job would have to be given to my husband's ex-wife, so it didn't make sense to work those long hours."
The child support formula for most U.S. states provides for the loser parent to support the winner parent, as well as the children. "What this means in practice is that the second wife supports the first wife," said one attorney, "and every other weekend the children show up and remind the second wife of how much of her paycheck is leaving her household to provide luxury items for the first wife, if she has a job, or to enable the first wife to stay home and relax." Does this affect the relationship between the children and their stepmother? "If the kids are perfect," responded the attorney, "perhaps not. But if they are difficult teenagers, watch out. It is bad enough to have a surly teenager in the house. Imagine how much you'd hate that kid if (a) the kid were not your own, and (b) the kid were causing 100% of your after-tax earnings to be transferred out of your household."
After complaining about the financial sacrifice entailed by a court-ordered health insurance purchase for a stepchild, a Massachusetts stepmother talked about how the 15-year-old stepdaughter made repeated financial demands of her (upper-middle-income) father. "We're beginning to have to explain to her," the stepmother said, "that, in addition to the health insurance, her dad has been giving almost $30,000 a year to her mom for 13 years, all of which in theory was supposed to be spent on her. You can see that she is beginning to work out the numbers based on the fact that she has always attended public school."
"In most of my cases the father's parents have ended up hating the mother of their grandchildren," said one attorney. Why? "There is a sentimental aspect. Grandma doesn't want to hear that her son is a child molester or wife-beater, though that's what her daughter-in-law will be claiming throughout her litigation. There is a practical aspect. Grandma and Grandpa won't be able to see the grandchild anymore, except for the occasional weekend when the child is with the father. If the grandparents live out of town they won't be able to stay with their son and grandchildren anymore. He's going to be living in a small apartment while their former daughter-in-law enjoys the family home. Finally there is a financial aspect. If either party was able to afford my fees, this was probably a high-income family. The grandparents might have been depending on their son for some financial support to make their retirement more comfortable. Now all of his cash will be going to his plaintiff and the lawyers on both sides. By the time the children age out of the system and the litigation stops, one or both grandparents will often be dead."
Another attorney was more succinct: "Family court lets a plaintiff rob both the defendant and the defendant's parents."
In winner-take-all states the consumers that we interviewed generally felt that they had been taken advantage of by the system of judges and lawyers and that the outcome of their cases had been unfair. This feeling was shared by both winners and losers.
A psychologist in winner-take-all Massachusetts said "The trauma of divorce here is a lot more severe than in the other two states where I have worked. It seems as though the typical person who marries for money only stays married long enough to have one or two kids, which is generally two to four years. Then they come to court with lurid tales of abuse and suffering and the judge rewards them with millions of dollars to compensate them. But now, because of the child-support-until-age-23 rule, the father has at least 20 years of enduring the trauma of being a divorced dad in Massachusetts and trying to recover from the bitterness of having his kids, house, and money taken away. His life has truly been poisoned by his ex-wife and the judicial system." Does this have an effect on the kids? "The system is so one-sided here that it seems that a lot more men just walk away from their kids. They love their kids and they know that they can't get out of paying but walking away enables them to avoid repeated interaction with the person who stripped them of their dignity, not to mention continued interaction with lawyers, DSS [now DCF], judges, parenting coordinators, etc. Compared to other states I am shocked at how often I go to court here in Massachusetts and see men asking the judge to take away all of their parental rights." What are the main things that changes fathers' behavior? "First is the prevalence of sole custody awards. Once you reduce a parent to a 'visitor' you've sent that person a strong message that his or her efforts are no longer required or wanted. Second is the scale of the court orders here, which cover all of the basic needs of a child plus anything conceivable that a parent might have done for a child financially. The essence of parenthood is its voluntary nature. You do things for your child because you want to or have chosen to. The Massachusetts courts take that away through age 23. So if a father is doing something for his child, e.g., saving for college or paying for swim lessons or even taking care of the child for a weekend, he is doing it to comply with a court order. That's not parenting. That's trying to avoid being put in prison. So these guys lose the essential habit of parenting."
Isn't there a compensating increase in joy among the victorious mothers? "No," replied the psychologist. "A prerequisite for joy is gratitude. If you think that you're entitled to something and then you get it, you're not going to experience joy. You probably don't experience pure joy every two weeks when you get a paycheck that you worked for, right? Rich kids who are driven to private schools in luxury SUVs aren't especially joyful because they have come to feel entitled. Similarly, in a state where women are told that they are entitled to a free house, 100 percent control over the kids, 100 percent of the family's savings, and 100 percent of a man's income going forward, they're not likely to feel joy at the end of a divorce. From what I have seen, they actually feel cheated because they didn't get the 100 percent that they felt entitled to. Also, remember that in most cases the pile of gold that motivated the mother to file the lawsuit in the first place has been substantially diminished by the legal fees on both sides."
Has she met any happy people through her work in the Massachusetts divorce industry? "I've met some couples who seemed relieved, not exactly happy, after a mediated divorce that let them move on with their lives while sharing their children and retaining their dignity. And then in the litigated divorces the lawyers are often gleeful."
Attorneys report that both winners and losers tend to become profligate with money. "The defendant might have been a saver before the lawsuit," said one attorney, "but then he'll see how the courts penalize parents for being prudent with money. His plaintiff's lavish spending on herself will become a 'need' used by the judge to justify higher child support and alimony awards. After mom wins she spends like a drug dealer partly because she's spending someone else's money and also because she doesn't want to lose a modification motion on the grounds that her banking money every year demonstrates that her 'need' was overestimated. The father spends whatever he can too because he realizes that his plaintiff and the court will take away whatever he tries to save. Children who would have been very comfortably established in life end up with nothing from their parents."
Lawyers are people too. How did working in the divorce industry affect them?
Most of the lawyers that we interviewed were fairly satisfied with their careers and thought they were doing useful work. If a fight regarding a child's schedule, e.g., 50/50 parenting versus 65/35, consumed $400,000 in fees that would have been the child's college fund and inheritance, they thought that they had protected both their client's and the child's interest. Partly this was due to ignoring the cost (see the Rationale chapter). Partly this was because they believe strongly that litigation, even if it has a negative effect on 999 out of 1000 families, is still a good idea because in that 1 case out of 1000 an ideal result can be obtained. "It is the same argument as 'better to let 1000 guilty criminals go free than to convict one innocent man'," noted one attorney.
Some lawyers were disappointed that the industry wasn't what they'd expected. "I was a feminist in college and got into this to help women and children escape domestic violence," one lawyer told us. "But after a few years I learned that women who are actually being abused don't hire lawyers. They pack up the kids and run away to a relative's house in another state. Then there are women whose marriage doesn't work for whatever reason and they want to move on with their lives. If they hire a professional at all it will be a mediator to dot the i's and cross the t's. You don't need to apply pressure to get a typical man to agree to a divorce or to put in his fair share of time and money for the kids. The only women who hire me are ones who want money." Why had she continued in the field for decades? "When you're billing over $400 per hour it is tough to switch to another area of the law and start at the bottom."
Some lawyers who had helped parents to relocate with their children had moral qualms: "It isn't unethical to help a woman move a child 3000 miles away from the father," said one lawyer, "because at the end of the hearing the judge has blessed the move by scribbling something about how it will be in the child's best interest, but I know that kid isn't going see his dad again except maybe once a year. Even when I can see that this is a good father, helping to cut him out of the child's life is perfectly ethical because the mother is my client and my job is to get her what she wants, not consider anyone else's interests." Being involved in the sale of an abortion was sometimes upsetting: "Even though I'm on the father's side," a lawyer admitted, "it makes me feel dirty to sit down with the child support guidelines and help put a cash value on the death of an unborn child." The day-to-day work of accusing relatively normal parents of being somehow abusive also took a toll on some lawyers. "I thought this job would be more Perry Mason and less Jerry Springer," noted one attorney.
Generally the biggest effect on lawyers from the variations in divorce laws from jurisdiction to jurisdiction was a variation in income. Lawyers reported lower incomes in places where outcomes were certain and formula-driven, where custody awards were closer to 50/50, and where the profitability of child support was lower.
Contact with an industry where a cash value is assigned to each year of marriage, each live child, and a lot of abortions seems to change the way that people think.
A lawyer in the movie Divorce Corp. said that divorce litigators in Massachusetts refer to children as "little bags of money." Attorneys matter-of-factly referred to women in family court, even their own clients, as "gold diggers," "pussy workers," "working their pussies," and "working their children." These were used with a casual descriptive non-judgmental tone of voice. Business aircraft conference attendees: "Wherever jets are parked there will be pussy workers"; "The aviation industry and the pussy industry are symbiotic"; "I tell the younger guys in our operation that, unless they’ve had a vasectomy, all sex in the U.S. can be commercial sex. The only question is whether they’ll pay from their wallet the same night or from their bank account over the next 18 years."
After a short marriage, an entrepreneur with a volatile income was sued by her husband, who sought and obtained 50/50 custody of children. After a few years it turned out that he earned vastly more than she but she still was under a court order to pay him child support plus 100 percent of the children's actual expenses. "I want to write 'pussy payments' on the check," she noted. She did not seem like the kind of person who would have associated that part of her body with cash transactions prior to her encounter with the family court system. The husband, meanwhile, promptly deposited the checks that he received and refused to contribute in any way to the children's school expenses. During a discussion with his defendant regarding a summer vacation schedule for the children, this man offered to sell one of their weekends to the mother for $500. Prior to his becoming a divorce plaintiff and discovering the cash value of children in Massachusetts would it have occurred to him to sell his children's time as a way of supplementing his $400,000 annual income?
In an industry where everyone comes to court to talk about how what an adult wants is "in the best interest of the child" ("the most disingenuous term ever invented," said Professor Hohmann-Marriott), conventional speech patterns cast the dispute in terms of the adults who've hired the attorneys, not the children who are unrepresented. Attorneys, psychologists, and judges talk about "how many nights does the father get with the child" rather than "what kind of time does the child get to spend with his father." Legal briefs that we reviewed include slips such as "child support for the mother" (i.e., not "child support for the child").
"From what I've seen," said a lawyer in a winner-take-all state comparing unmarried versus married couples,"the mother, the father, and the children would all have been better off it the parents had never gotten married. The only people who benefit from a marriage that ends in divorce are the lawyers, the judges, the mental health professionals who earn a living at the courthouse, and anyone else who gets paid when there is litigation."