Part of Real World Divorce: web edition | Kindle edition
Felice Glennon Kerr answered our questions about Delaware law and customs. Since 1989 she has represented a 50/50 mixture of male and female clients in cases where there is a relatively balanced, compared to other states, mixture of male and female "petitioners" (the person who starts a divorce lawsuit, equivalent to the "plaintiff" in other states). As Delaware has become a state with a guideline for 50/50 custody of children over the age of 18 months, this relatively even balance is consistent with the research of Brinig and Allen, who found that the parent who can obtain primary custody of children, and an accompanying stream of profitable child support, is the person most likely to file a lawsuit. Kerr has experience as a mediator and parenting coordinator,. She has made new law in Delaware via her appellate work. Note that this interviewed was conducted in August 2014; in July 2015, Kerr left private practice and became Chief Judge of the Delaware Family Court.
Delaware differs radically from most other states in the following respects:
The Delaware system seems to result in a higher percentage of pro se litigants than in other states. Roughly 80 percent of people show up without an attorney compared to the more typical 50 percent number in other states. Also, Kerr reported dramatically lower legal costs for divorces that are fully litigated, e.g., $40,000 per side in a case that would tend to consume $150,000 per side in Massachusetts or New York (i.e., the child of a litigated Delaware divorce will end up with $220,000 in additional college savings compared to a child in the Northeast). Kerr herself charges $400 per hour, so the difference in costs cannot be explain by a difference in hourly rates.
How does the process actually work? Suppose that a wife files a case on January 1? "The husband has to be served, which is generally personal service by the sheriff's office," says Kerr. "Then the husband has 20 days to file an answer though generally he would not contest the divorce." How could he contest a divorce in a no-fault state? Isn't he guaranteed to lose this lawsuit in the sense that he will be divorced, at a minimum? "He could contest the grounds and say that there isn't incompatibility," responded Kerr. "His argument might be that wife is pursuing the divorce because she met someone else, not because they were fighting. You can't get a divorce because of your own fault." Could the wife argue that the husband disagreed about the choice of a restaurant and that was 'incompatibility'? "Incompatibility is defined as rift and discord. The discord has to be such that a reasonably healthy marriage wouldn't survive it," says Kerr. "Nevertheless, it would be difficult to contest a divorce if the grounds are incompatibility. Additionally, Delaware does still have fault grounds and most contested divorces are likely when the Petitioner alleges a fault ground for the divorce."
If the husband does not contest the divorce per se, what happens next? "A couple with children must be separated for six months and have taken a parent education course before a divorce can be granted," says Kerr. Does that mean someone has to move out of the house? "At a minimum someone would have to go to a separate bedroom or sleep on the couch," says Kerr. What if a litigant doesn't want to share a house with the person on the other side of a lawsuit? Could either party file a motion for a temporary order granting exclusive use of the house, custody of the children, a stream of cash flow? "She can't get him kicked out unless the conflict rises to the level of activity necessary for obtaining a restraining order," says Kerr. "We have motions for interim relief but that is mainly for interim alimony." Could someone work the domestic abuse system as in other states? "She could file a PFA [protection from abuse] to get him kicked out of the house," Kerr says. "Then she has to prove it to a 51 percent standard (preponderance of evidence) in the same court that handles divorces but in front of a commissioner. If you prove [to the 51 percent "more likely than not" standard] some kind of abuse and in particular child abuse, that carries a lot of weight for custody." Kerr cautioned that multiple calls to the Delaware Division of Family Services and multiple meritless applications for PFAs could ultimately hurt the person making the claims.
What's next in the divorce? "At the conclusion of six months the clerk's office will review the file to check for documentation of the parent education course," says Kerr. "They'll send out a 'notice of trial readiness'. The Petitioner or Counter-Petitioner (if there is a counter-claim) fills out an affidavit stating that nothing has changed, i.e., that they are still separated and there have been no marital relations in the preceding 30 days. The Petitioner would along with this Affidavit file a Request to Proceed indicating that he or she wishes to proceed with the divorce. After the affidavit and Request to Proceed are filed the divorce comes in the mail unless a hearing is requested."
What if, in addition to a divorce, someone wants money? "It will go to an 'ancillary hearing'. After the divorce a judge is assigned and the parties will get a scheduling letter setting forth deadlines," says Kerr. "The next stage is the financial report. The petitioner has 30 days to complete her portion then the respondent has 30 days to complete his portion. After this is filed with the court most judges will have a teleconference to get an idea of what is involved in the case.There is typically no discovery until after these disclosure documents are filed. The discovery period could be three months." And after discovery? "Then there will be a pre-trial conference at which the parties present a pre-trial stipulation of matters in agreement and matters in dispute and give the judge an idea of the number of witnesses. If you want alimony you have to submit an updated list of expenses." When does the ancillary hearing actually happen? "Trial is usually 30 days after the pre-trial conference," says Kerr. How long after the divorce lawsuit was actually filed would that be? "In a complicated case it might be two years due to extended discovery and business valuations," says Kerr, "but one year would be more typical."
What if, in addition to a divorce, someone wants the kids and a stream of cash to accompany them? "Custody is on a different track altogether. Part of the reason is that you can't file a custody petition until you're physically separated; separate bedrooms is not sufficient," says Kerr. "The custody question first goes to mediation [with a court-employed mediator] unless there is a PFA in which case it goes straight to a judge. At mediation the parties will attempt to work out a schedule. If the parents fail then the mediator will make a recommendation under our guidelines." What do the guidelines look like? "The guidelines are for a 50/50 schedule unless a child is under 18 months," says Kerr. "From birth to 18 months it is more or less every other weekend and dinner visits during the week." What's Delaware's basis for putting children in a 50/50 custody situation? Is it an Alaska-style "courts shouldn't be picking winners" and "it would be unconstitutional to run a system in which mothers nearly always prevail over fathers" idea? "No," says Kerr. "The courts used attachment-based theory. Even if one parent is doing more, if the child was seeing both parents on a daily basis, keeping an equal schedule will preserve the attachment. Three psychologists helped with the guidelines." The kids are now on a 50/50 schedule but one parent still wants to obtain a dominant role. "A custody hearing will be scheduled with a judge, anywhere from two to four months after mediation," says Kerr. "It varies a lot with the judge." Will there be a mental health professional or other custody evaluator working (and getting paid) during this time, as is typical in other states when custody is disputed? "You can request a custody evaluation via motion," says Kerr. "Those were done a lot more before the shared custody system was introduced. GALs are reserved for the truly horrible cases, e.g., neglect. You'd have trouble getting one in a private case." How long does the state allocate for one parent arguing that he or she should have primary custody? "A custody hearing is typically either a half-day or one full day, though most judges would schedule another day if you ran out of time. It depends on the number of witnesses." When do the litigants get the good or bad news? "After hearing you'll get a result within a maximum of 90 days," says Kerr.
Child support can be easily calculated by citizens in Delaware using a court-published online calculator (http://courts.delaware.gov/SupportCalculator/ ) that works to any level of income. Ker says that attorneys also use this form. The guideline calculation will keep going up with the income of the defendant but Kerr says "it is a rebuttable presumption" and that courts would begin looking at a child's actual needs and expenses once a defendant's income reached $300,000 per year. She cited Dalton v. Clanton and a 1991 case Ford v. Ford in which a mother receiving $1,700 per month for three children based on her husband's $100,000 per-year income sued for roughly $4,000 per month on the grounds that his income had risen to $210,000 per year and that the guidelines would give her more cash. The Supreme Court agreed with the father that the guideline number should not be used:
When the income of an individual is substantial, he or she will use a smaller percentage of that income to maintain a certain standard of living as compared to an individual with less income. This is because, outside of unusually extravagant lifestyles, only a limited sum can be spent on a standard of living. At some point income is directed less and less towards "needs" and more and more towards savings or investments and thus becomes part of an individual's estate. The Delaware Child Support Statute certainly contemplates that children share in their parents' standard of living, even a somewhat luxurious standard of living. See 13 Del.C. § 514(2). But it does not direct or authorize the Family Court to distribute a parent's estate. The Family Court has no duty or authority to order payments which go beyond the demands of reasonable and generous support, meaning, in this context, enough to share in the respective lifestyles of the parents.
As with most appeals it is unclear if the father prevailed in practice. The Supreme Court sent the case back to the trial court with the following instructions:
The court should determine what amount is necessary for the children to share in the heightened standard of living of their more affluent parent. It should then determine what amount of child support would be required in light of those enhanced needs and order that amount paid.
In other words, the mother could go back to the court with evidence of the father having a fancy house, a fancy car, or luxurious vacations and say "I want $4,000 per month so that the kids can have the same lifestyle when they're with me."
Child support can be collected in Delaware until a child turns 18 or, if the child hasn't graduated high school, until graduation but no later than the 19th birthday. Delaware courts do not have the ability to force a parent to pay a child's college expenses. Child support is much less lucrative in Delaware than in New York or Massachusetts. Suing a person earning $250,000 per year while taking care of a child 50-70 percent time would yield $42,500 in New York and $40,000 per year in Massachusetts (plus day care expenses). The Delaware formula kicks out $17,412 with a 70/30 time split and $14,928 with a 50/50 time split. These numbers exceed USDA-estimated actual costs of a child and the roughly $5,000 per year that Delaware pays to parents of foster children. And they exceed the $13,000 per year Nevada and $8,000 per year Denmark caps. However, especially when both parents work, obtaining custody of a child is not very profitable in Delaware. For example, a mother earning $200,000 per year who sues a father earning $350,000 per year and obtains 70 percent custody of a child will obtain only $18,468 per year in child support by formula (compare to about $45,000 per year in Massachusetts; see the "Above-guidelines Child Support" section). If the mother cannot prevail in her campaign to become the primary parent, and the child's time is split 50/50, her child support revenue falls to just $8,208 per year.
In addition to basic child support, Delaware's online calculator allocates "child care expenses" such that the person with the higher income would pay the majority share as a supplement.
A child support revenue stream is less secure than in most Northeastern states due to the relative ease with which the parenting time schedule can be modified. "The person seeking modification has to show that a new schedule is in a child's 'best interest'," says Kerr, "and a modification request can't be filed within two years of the previous hearing unless there has been some harm [to the child]." The Morrisey case, argued by Kerr and decided in 2012 by the Supreme Court of Delaware, sets the standard for modifications. A child can voice a preference regarding a parenting time arrangement at any age. "I have had cases where the whole case turned on what a 10-year-old told the court," Kerr said. "The judge need not put any weight on what a young child says but a teenager's preference for the most part is going to be decisive unless he or she is problematic." [Compare to other states where a party seeking a modification must show a "substantial, material, and unforeseeable change"; in Massachusetts, for example, we found parents collecting child support for 22-year-olds who hadn't lived with them for years. A teenager would physically move him or herself to the father's house but the father was never able to get a court to change orders assigning the adult child, and the accompanying cash flow, to the mother. The child turned 23 and aged out of the Massachusetts system before a modification could be obtained.]
Delaware adheres to the Uniform Premarital Agreement Act and therefore it should be possible for parties to execute a "walk-away" prenuptial agreement in which each keeps his or her separate property and neither pays alimony to the other.
As in other states, for most issues in most divorces the decision of a single human being, the trial judge, is a final and unreviewable decision: "I don't appeal unless it is a real legal issue," said Kerr. "It is very tough to appeal when the standard is abuse of discretion." Pointing out the a reversed decision goes back to the same judge, Kerr notes "Even if you win there is a decent chance of getting the same result with different rationale."
The average hourly wage in Delaware is $23.25 per hour. A person who goes to college at the University of Delaware will spend approximately $92,960 over four years to earn a bachelor's degree. Census 2014 data show that median income for a 22-36-year-old college-educated woman working full time is $46,000 per year in Delaware or $34,201 after taxes. For a corresponding man it is $40,000 per year or $30,193 after taxes. Delaware collects 10.2 percent of residents' income in order to fund state and local government, somewhat higher than the national average of 9.9 percent (source: Tax Foundation).
The average annual cost of child care is $9,620 for an infant, $7,592 for a four-year-old, and $6,406 for a school-age child. Thus the total cost of child care from age 0 through 12 is $55,469 in commercial settings or $43,051 in a family care setting.
The male college graduate will have an after-tax spending power of $329,742 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 $2,277 per month or more. According to the courts.delaware.gov online calculator, and assuming Delaware's standard 50/50 parenting time arrangement, that occurs when the mother earns $400,000 per year or more. 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 $1,515 per month, the guideline payment corresponding to pre-tax earnings of $380,000 per year.
The female college graduate will have an after-tax spending power of $385,854 over the same time period. She would be better off collecting child support when it exceeds $2,536 per month, an amount that can be obtained from a father earning $510,000 per year. If she is suing two fathers, however, she need collect only $1,645 from each one. Compared to the college/work/no-kids case, she comes out ahead if each defendant has an income of $310,000 per year.
Census data show that 89 percent of adults in Delaware collecting child support are women; compare to 98 percent in neighboring Maryland.
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.
Kerr says that this kind of case, in which the mother may pay the father, is "more common these days". Do the judges apply the law in a gender-neutral fashion in Delaware? "Yes," says Kerr, "but men are less likely to get alimony because they are not as likely to ask for it. Men and women have different ideas regarding the concept of receiving support from an ex-spouse."
Kerr said "You're looking at a shared 50/50 parenting time arrangement. Probably on a 2-2-3 schedule moving to a 2-2-5-5 schedule when the child is older." How about cash transfers? The simple online calculator shows that with a 50/50 parenting time arrangement (putting "0.5" children into each parent's "Number of Children Due Support" box) and zero income for the father, the mother pays him $1,557 per month ($18,684 per year). If she could obtain instead an 83/17 arrangement as would be standard in New York her payments would fall to $459 per month ($5,508 per year). Thus litigating for sole custody would have a maximum cash value to the mother of $223,992 over 17 years, much less than in many other states. Any income for the father would reduce these payments due to Delaware's "income shares" child support system.
If the father's current photography business is not profitable, Kerr says that income will be imputed to the father based on "[official Bureau of Labor Statistics] wage and salary surveys. Also, they can look at his tax return and see what deductions can be removed." Who presents an argument regarding imputed income? "Generally this is presented by an attorney," says Kerr, "but you could hire a vocational evaluator."
Given that the father has no money, will a judge order the surgeon to pay his legal fees? "It is unlikely that he could get her to pay due to the short [two year] length of the marriage," says Kerr. "Judges try to work out these inequalities through alimony and property division rather than with a fee award."
What kind of alimony and property division could the slacker father collect? "In a short-term marriage of two years or less they try to put you back where you were rather than letting anyone profit. He would get 50/50 of property accumulated during the marriage. Alimony varies with the judge but would be short-term at most."
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.
Kerr says that this is a simple case to predict due to Delaware's preference for a 50/50 custody arrangement. "My guess with the youngest being three years old the children would be on a 2-2-5-5 schedule," says Kerr. "When the youngest turns five they could go to a week-on, week-off schedule under the guidelines."
In situations such as this, where the parents absolutely hate each other (at least at the time of the divorce), how has Delaware's 50/50 parenting time system affected children and litigants? "Personally I do think it can be harder to have shared custody when parents are fighting because there needs to be more communication about homework, for example," says Kerr. "But I wouldn't want to go back to the old way of doing things because litigation over custody is by far more destructive than any friction from a shared arrangement." Do litigants behave differently under the new system? "The biggest difference is that there has been a reduction in the scrambling to get the kids at an early stage in the litigation," says Kerr, "Under the old system there was more benefit to filing of an initial PFA [protection from (domestic) abuse] to get the other parent out. Even if that PFA was not ultimately successful you'd get possession of the children and the father would have to file for visitation."
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.
Can she argue that she wants the status quo preserved, as many other states would try to do? And that the most critical part of the status quo is that he works and she need not work? "It will likely be 50/50 parenting if he wants it and can do it with his work schedule," says Kerr. What if he can't take care of the kids 50/50 and still earn his current salary? "He could cut back on his work schedule but the court might make him pay as though he still earned $275,000," says Kerr. "If he worked early in the morning until mid-afternoon he could get 50/50 very easily."
Will she receive alimony? "By statute the length of alimony will be a maximum of one half the length of the marriage or five years in this case," says Kerr. "They would need to be married for 20 years for her to get permanent alimony." There is no statute regarding the amount of alimony, which is discretionary with the judge. "You figure child support first and then alimony," says Kerr, "because the amount of child support received will factor into her needs." What Kerr's best guess as to the alimony in this case? "Perhaps $75,000 to $80,000 a year," she replied. "However, that is just a guess as it depends upon her income and her reasonable monthly expenses. And there will be an unequal property division in her favor, though it is gender-neutral as to who gets the house."
The calculator shows that child support in a 50/50 arrangement will be $1,991 for the two children, $23,892 per year.
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.
Due to the young age of the child Kerr says "the schedule will most likely start off with her having primary residence and every other weekend for father." What would a "weekend" look like? "Friday night to Sunday night," says Kerr, "plus dinner visits 5-8 pm every week twice per week." Kerr says that "most likely this will morph to a 50/50 schedule, but the father has some exposure to not keeping shared custody because the child is not 18 months old and the longer the litigation goes on the more benefit she will get from having primary residence as it is the status quo."
Based on the father's earned income and zero income for the mother, the child support will be $1,349 per month ($16,188 per year) in a 50/50 arrangement. If she can keep the child 75 percent of the time she will get $1,712 per month instead, $20,544 per year. In other words, the total cash value of a war for primary custody would be roughly $75,000 through the child's 18th birthday.
Due to the short marriage there will be minimal alimony and property division. Can the petitioner (plaintiff) tap into the $2 million in pre-marital savings? "The income from the savings will be factored into the child support calculation," says Kerr, "but that's it." What if the savings are invested in stocks that don't pay a dividend? Can the impute income to the savings? "The family court is going to use tax return income as the starting point," says Kerr. "In order to get around that you'd have to show that what is being received is cash flow and it is being used. It would be tough to impute income without cash flow."
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.
Kerr says "I'm seeing more of these and always have a few going on." How does Delaware's 50/50 custody system apply in cases where the father might never have spent time with the child due to not knowing of the child's existence? "His chance of a 50/50 arrangement depends on when he files for custody," says Kerr. "From a developmental perspective he will have to build up gradually if the custody action starts when the child is 6 months old. The guidelines don't apply because child was not used to seeing him every day." Kerr thought that there was a good chance for the father ultimately to obtain 50/50 custody if he wanted it.
How about child support? "She can get child support at least back to the date that she files. It is discretionary with the judge as to whether to go back to the date of birth," says Kerr. "She can get medical expenses from the birth but generally not reimbursement for legal fees."
Could she get the child support that she seeks without an attorney? "Even if she is not on public assistance, the {Delaware] Division of Child Support Enforcement will do it all for her for $25."
If she marries a high-income partner is there any risk of her child support from the doctor being cut? "No," says Kerr. "I had a guy making minimum wage paying child support to a woman who was living with the owner of a professional sports team."
What does it look like when a parent wants to move to another state? "Mom files a petition to modify the schedule and a motion to relocate to California," says Kerr. "Chances are they will heard at the same time. There is no anti-removal statute." What factors are used to make the decision? "They will look at everything. It is not just a 'best interest of the child' standard," says Kerr. "A big factor is what the kids want. There will be a full analysis of relocation factors and most judges look at the uniform code." Do the judges consider the parent's interest as they might in Massachusetts? "Her interest is considered to the extent that it might benefit the overall standard of living," responded Kerr.
"These are some of the worst cases. Some people are essentially required to move and then are forced to choose between one huge sacrifice and another huge sacrifice," summarized Kerr. How likely are these actions to succeed? "The farther away the move the less likely."
Unlike most other states, the children of an existing marriage have at least some right to a parent's income and financial support even if that parent has extramarital affairs and is being sued by one or more child support plaintiffs. This is because the Delaware child support calculator includes a field for "Number of Dependent Children not in this action". If a $250,000 per year married defendant is sued by a person encountered for one night in a bar, and that other person takes care of the child 100 percent of the time, the defendant pays $29,856 per year. If, on the other hand, the defendant already has three children at home, he or she will pay only $21,648 per year.
As in most other states, each successive child of a defendant has a lower cash value, again due to the "Number of Dependent Children not in this action" field of the calculator. Assuming that all children are the subject of court orders, the first plaintiff receives up to $29,856 for a child of a $250,000 per year defendant while the fourth plaintiff receives a maximum of $21,648 per year.
Delaware gives parents who want to obtain sole custody an incentive to sue when children are as young as possible due to the fact that only with children under 18 months of age is there a routine exception from the 50/50 parenting time rule.
Delaware has an unusual procedural system that costs consumers less (and earns lawyers less) than most other states' conventional "treat a divorce like any other civil lawsuit" system.
The move to 50/50 custody has reduced the intensity and cost of litigation in Delaware.
The relatively modest child support profits obtainable make custody litigation less contentious than in states where child support is more lucrative.
The Delaware-Maryland border is a great place to see the variety in American family law. A one-mile difference in street address will translate to a 50/50 shared parenting outcome turning into a winner-take-all outcome. A child that would yield lucrative child support in Maryland might have no cash value at all in Delaware, assuming equal parental income.
Kerr was an impressive interviewee and the citizens of Delaware are fortunate to have her on the bench.