"The USA has the highest proportion [among 16 countries] of children, as much as 50 percent, with any experience of living outside a two-parent family when they turn 15. … in many Western and Eastern European countries it is more common to find that around a fourth or a third of all children have an experience of that kind, at some time during childhood. … The USA stands out as an extreme case... "
-- "Children's experience of family disruption and family formation: Evidence from 16 FFS countries" (Andersson 2002, Demographic Research 7:7)
What makes the United States "an extreme case" in terms of children being deprived of a two-parent environment? This chapter will show you that this is partly due to the scale of the profits available from a divorce lawsuit. There is also a big divide among the world's countries is Common law versus Civil law. Common law is actually Germanic trial law that was adopted in England after the Anglo-Saxons settled there starting in the 5th century A.D., following the withdrawal of Roman troops. An important concept in common law is that previous decisions by judges can be cited as authority ("precedent") to obtain a similar result in a new case. In other words, the body of previous decisions becomes the law. Common law is used in England and most former English colonies, such as the U.S., Canada, India, Australia, New Zealand, South Africa (plus a bit of Civil law due to the original Dutch colonization), Hong Kong, and Singapore.
Civil law is derived from the Justinian Code, issued by the Roman Emperor in 529 A.D., and substantially updated in 1804 as the Napoleonic Code. In a Civil law system a judge is supposed to work from the law, which may be more precise than in a Common law jurisdiction, rather than from any previous interpretations of the law by other judges. Germans, who developed Common law, now use Civil law, as do nearly all other European countries, nearly all Latin American countries, China, Japan, Turkey, and some Arab countries.
Generally divorce is more litigious, more lucrative for attorneys, and more lucrative plaintiffs in Common law countries compared to Civil law countries. Judges in Common law countries have more discretion and are therefore, in theory, more susceptible to attorney argument.
"DILFs, Des. All divorcees. The lot of them! You know how they do it? First they— first they get theyselves hitched to some old banker for ten minutes. Then they independent for life! And oh, they in gorgeous nick, Des. Superb. And I said to her, I said to this DILF, How old are you anyway? And guess what she said.” “What.”“Thirty-seven! Which means she’s probably forty-three! Think. She’s almost Gran’s age— and there’s not a mark on her. Pampered all they lives, they are. Beauty treatments . Massage. Yoga."
Lionel Asbo, Martin Amis (2012)
Based on our interviews with citizens in England, short-term marriages and child custody can be just as profitable there as in the most plaintiff-friendly U.S. states.
A restaurant owner in his 50s explained how his ex-wife had made her fortune. “We were married for about 18 months. She insisted that I get her a new BMW, the most luxurious vacations possible, designer clothes. I did it to keep her happy, but then after she sued me my solicitor explained that this established a baseline lifestyle that I would have to keep her in for at least 10 years.” He chose to pay his plaintiff a lump sum rather than monthly alimony. What does a Briton stuffed full of enough cash never to work again do? “She moved to Spain and took our young daughter with her. So I bought a house in Spain to make it convenient to visit the child. Then she moved to France and I was left with this house. I tried using lawyers to stop her from moving about but wasn’t successful.” What about child support? “Roughly the first 100,000 pounds [$170,000] that I earn every year goes to pay my ex-wife and for my costs in traveling to see my daughter.” What’s the interaction with the now-15-year-old like? “She is busy with her friends and her life so sometimes when I visit there is only about 15 minutes per day of real interaction. If she wants me to buy her something, like a replacement mobile [phone], then she pays attention.”
The emotional toll to be paid by the defendant and child seems to be comparable to what American lawsuit losers and their children pay: "I probably have spent at least 30 percent of my energy being angry with the woman who sued me, about 25 percent of my energy working to pay all of her expenses, and another 20 percent of my energy traveling to visit my daughter. There isn't a lot left for giving to [his current partner]” How about forgiving and forgetting? “She is always pulling some new stunt to make it difficult for me to see our daughter, which makes me angry all over again, not to mention the monthly payments to someone with whom I was barely acquainted.” We interviewed this man in company with a long-term girlfriend, blessed with a kind disposition. Perhaps she would be a moderating influence? “We can never get married,” she explained, “because then [the daughter's mom] would be able to collect half of my income. Sod her.”
The UK Office for National Statistics publishes comprehensive data on "Divorces in England and Wales." It seems that the ratio of women to men suing for divorce was 65:35 in 2012. An October 8, 2013 Telegraph article, "Why do women initiate divorce more than men?", says that the ratio was 72:28 "at the start of the 1990s" (the same ratio that we found in Middlesex County, Massachusetts in 2011). The UK has been adopting some guidelines that would seem to suggest shared parenting in more cases, which could explain the trend. However, the Telegraph notes that "it’s possible that women are more likely to initiate divorce than men because in the divorce court, especially where children are involved, the odds are in the female’s favour. Married men who get divorced are generally afraid of losing their kids, with good reason: over 80% of children of separated parents live exclusively or mainly with their mother." The same article notes that the UK has a system of funding divorce litigation that is different than what prevails in the U.S.: "Women raising children and without much income can use taxpayer funds (through Legal Aid – for example) to fight a divorce, only paying the Crown back if they get a sufficiently large settlement. Not to sound crude, but this is like going to the Divorce Casino and playing with the house’s cash." (In the U.S., either each party would pay his or her legal fees or, in states such as Massachusetts, the lower income party would get a judge to order that the higher-income party pay his or her fees.)
One difference between the U.S. and the U.K. is that if negotiations break down in a litigated divorce being handled on each side by solicitors, the actual in-court trial is done by barristers, a separate class of attorneys whom solicitors must bring in and share their fees with. Solicitors thus have an incentive to settle cases short of trial, unlike U.S. attorneys who can handle (and be paid for) all phases of litigation.
One-night encounters in England can be profitable. "Generous payout of Becker child," a July 10, 2001 article in the Guardian, describes a pregnancy that resulted from a woman meeting tennis star Boris Becker near a London restaurant's bathroom. She sued for about $3 million in child support and apparently won the full amount, about $4 million in 2014 dollars, via a settlement.
English jurisdiction can turn a simple and inexpensive divorce between two Europeans into a life-changing event for everyone concerned, including the lawyers. Consider Nicolas Granatino, son of a wealthy French family, who married Katrin Radmacher, a German from a somewhat wealthier family. The parties signed a conventional German prenuptial agreement in 1998 that kept their respective property separate. Granatino scaled back his career during the marriage, switching from an investment banking job to a university research position. In a 2006 divorce lawsuit, Mr. Granatino obtained a free house, $100,000 per in child support (to take care of the kids less than one-third time), plus $10 million in (lump-sum alimony) due to the English court's ruling that the prenuptial agreement need not apply. The litigation continued for at least four years, culminating in a UK Supreme Court case ordering the prenuptial agreements be given more weight. "Judges back prenups for Britain: Traditional marriage laws are swept aside in landmark decision by Supreme Court" (Daily Mail, October 21, 2010) explains that "Only manifestly unfair contracts would be overturned by the courts." The Telegraph wrote "The legal battle, estimated to have racked up about £2 million [about $3 million at the time] in legal fees alone -- has followed a series of twists and turns" Does that mean lawyers can't get $3 million out of the next case? No. They can bill to persuade a judge that an agreement was "manifestly unfair."
Linguistic side-note: Shortly after the Brexit vote, we talked to a British national being sued by a woman named Jennifer. He referred to the divorce lawsuit as "the Jexit."
Carola Offenhausen, a 2001 honors graduate of Heidelberg University (founded 1386!) who has been handling family law cases since 2003 answered our questions about the system in Germany. Her office is in Baden-Baden (www.kanzlei-braitsch.de). Unlike in the U.S. there is no state-to-state variation in family law or child support amounts.
Unlike in some Scandinavian countries, Germans must go to court in order to obtain a divorce and "at least one party needs a lawyer because only a lawyer is allowed to file for divorce with the court," said Offenhausen. However, a divorcing German couple need not embark on a custody or child support war; informal agreements regarding children and their associated expenses are common. A typical German divorce takes a minimum of about 16 months: "You cannot file for divorce unless you've been separated for at least one year and the other person agrees." said Offenhausen. "Then the legal process typically takes a minimum of four months." Are people who don't like each other anymore but still live in the same house "separated"? "Yes," said Offenhausen, "but, for example, they can't eat meals together and one spouse is not allowed to wash clothing for the other. The expression is 'separated from table and bed'." What if one person wants a divorce and cannot persuade the other spouse to agree? "Then there must be three years of separation if the reasons for the break up of the marriage cannot be proved." If one person wants to drag things out how long can a divorce last? "It could be up to five or six years," responded Offenhausen.
Is there a way to shortcut the one-year separation period? "Yes, in cases of particular hardship," said Offenhausen. "For example, a spouse can file for divorce immediately with an allegation of domestic violence. He or she needs to go to a doctor for evidence, then to the police, and it is quite easy to get a restraining order in one week." As in the U.S., there is an opportunity to defend against the order in a future hearing. How successful are litigants who make false allegations? "Good liars can do very well in this system," Offenhausen responded. "And though domestic violence is not a factor in the divorce it is very helpful for getting custody."
Germany has a U.S.-style temporary orders process whereby one spouse can get the house, the children, and a cash flow: "If it can be proved that the case is urgent, e.g. children are homeless, mother and children have no income at all, this is possible within 1-3 weeks."
As in Denmark, appeals are typically heard by a three-judge panel without deference to the trial judge's rulings. "In a case with no fundamental significance or difficult legal questions, the three-judge panel can transfer the case to a single judge," explained Offenhausen. In other words, unlike in the U.S., there is seldom a situation in which a single person's discretion determines a child's access to the two parents.
Legal fees are modest by American standards. German lawyers in any lawsuit typically charge a fee based on the amount in dispute and the fee is determined by a published table. How would this work for a married couple where each earns 20,000 euro per month and there are some kids plus 1 million euro in assets to fight about? "If the divorce includes disputes regarding retirement rights, alimony, custody, and contact rights," Offenhausen said, "you come up with the 'value of the proceeding' starting by multiplying the monthly income by 3. Add to that five percent of the assets and the value of the proceeding is 170,000 euro. According to the table each lawyer can charge 5507 euro for the divorce." For the purposes of a custody dispute, each child is assigned a 3000 euro value and therefore each lawyer can charge an additional 622 euro to represent a parent. A child support dispute leads to additional fees based on a "value of the proceeding" that is the annual amount of child support sought. In other words, the total amount spent on lawyers by a divorcing German couple would be roughly one percent of what an upper-income California, Massachusetts, or New York couple might spend.
As in Switzerland and Denmark (below), in the case of disputed custody the mother in Germany is nearly always the winner. However, unlike in Switzerland and Denmark this is not due to a statutory preference for mothers. German courts award custody to mothers using the same rationale as courts in most U.S. states: "There is a principle of continuity, which means that normally the parent that shared the most time with the child is in advantage. Typically this person is the mother so most children from divorced families live with their mothers." How often do these children see the father? "The other parent can have contact every second weekend," responded Offenhausen. What does "most children" mean? In 12 years of handling family law cases Offenhausen had never seen a father awarded either 50/50 or primary custody from a court. "Parents can agree on a 50/50 schedule or for the father to have custody," Offenhausen added. What would induce a mother to give up the opportunity to collect millions of dollars in child support? "It isn't possible to collect more than the top of the table absent special needs or private school," said Offenhausen. The "table" means the "Düsseldorfer Tabelle" and provides for, at a maximum, 508 euro per month for children age 0-5, 503 euro per month from age 6-11, and 682 euro per month for ages 12-17. As of May 2015 this works out to about $6,643, $6,578, or $8,184 per year, not too different than neighboring Denmark's numbers (below). As in the U.S., child support revenue is the same regardless of whether the parents were married. As in some U.S. states, the child support formula does not depend on the custodial parent's income: "it is generally irrelevant if the mother earns 25,000 or 1,000 euro per month." Courts can make an exception if the custodial parent earns many times the income of the non-custodial parent. Another exception to using the numbers from the table is shared parenting: "50/50 physical custody (Wechselmodell) is very rare in Germany. Only if there is a real Wechselmodell (it has to be 50/50; 45/55 is not enough to change the method of calculation from the Düsseldorfer Tabelle) the child support is calculated differently. It is a complicated calculation method based on both incomes and considering the costs for day care."
Child support is potentially payable through the completion of a first university degree, i.e., age 26 or 28. However, "if the child is over 18, the money has to be paid directly to the child," said Offenhausen. Child support revenue is less secure than in many U.S. states because German courts will not order the paying parent also to purchase life insurance.
There is the potential for a custody and child support flow to be reversed when a child wants to live with the other parent or if it can be shown that continuing to live with the custodial parent is "against the child's well-being." "Before the child turns 14, the judge can hear the child, but is not obliged to do so. Normally the judge will consider the child's opinion before his or her decision. But in the end the court has to decide in behalf of the child's well-being (Kindeswohl) and this is often not identical with the child's preference."
If children are not profitable in Germany, what about the profitability of a short marriage? "Before 2009 it was possible for a wife to get alimony for her entire life," said Offenhausen. "Today, however, the wife who wants alimony has to prove that she had a disadvantage due to the marriage. Suppose that the wife was a nurse before marriage and after the break up she has the possibility to work in this job again. She has not been disadvantaged. Suppose that the wife was a computer specialist before marriage and had to abandon to work at this job to stay home with the baby for 10 years. After marriage she cannot return at her job because work in the computer field has totally changed. Then she has a disadvantage and will get compensation."" For how many years? "The length of alimony is supposed to depend on the length of the marriage but it is up to the discretion of the judge," responded Offenhausen. "In a marriage of more than 20 years it might be possible to get alimony for life. In a 'short marriage' of only 6 or 7 years then possibly for just one year."
What happens after a remarriage? "Child support from the table continues after a remarriage," said Offenhausen, "but support for the mother will end. Alimony also can end if the mother has a new live-in partner for one year or longer." Do Germans collecting alimony use conventional American techniques to keep the alimony flowing? "Yes," said Offenhausen, "it happens in Germany where the couple keeps an extra apartment."
In the event of a cross-border or cross-national marriage within the European Union are there epic battles over jurisdiction? Could a plaintiff try to get a case heard in a country where more child support and alimony was available? "No, there are not many possibilities. Since there is the European legal enactment ROM-III the rules are pretty clear about which country has jurisdiction. Generally the parties can agree on a national jurisdiction. If they don’t do that it will basically be the jurisdiction of the country both had their habitual residence together," said Offenhausen.
The tax treatment of divorce-related payments is the same as in the U.S.: "Alimony is deductible to the man and taxable to the woman," said Offenhausen, "while child support is not deductible for the man and not taxable to the woman."
Note that one way for a plaintiff to escape the profit limitations of the German family law system is to come to the U.S. From a German jet owner:
"If you open a German tabloid in any typical week you’ll read about a woman who divorced her rich husband and was so upset about the end of the marriage that she had to move with the kids to New York or Los Angeles. Really it is about trying to get a U.S. court to take over and order child support at U.S. rates."
One of us was fortunate enough to take a trip to Copenhagen in 2013 and wrote up these notes:
I attended a social gathering in Denmark hosted by a successful businessman with two teenage daughters. “Their mom didn’t want custody,” he explained, “so I’ve had them since the youngest was four years old”. The mother had initiated the divorce, but had not sought any contact with the kids other than an optional twice/month (every other weekend) visit. “It isn’t the life that I expected to live, but it is a good life.” The Americans at the party were shocked by this. What about the maternal instinct? Was it different in Denmark than in the U.S.? “Most middle class parents who divorce simply split the children 50-50,” explained a Dane. “Children aren’t cash cows in Denmark, except for lower class people with six children, for whom state subsidies and child support from the other parent can be a significant source of income. The previous government tried to limit this by paying only for the first two children. But they watched Muslim women in black burkas rioting across the bridge in Sweden so the new government restored the benefits for an unlimited number of children.” Child support payments in Denmark can continue until a child turns 24. Our host’s income was easily high enough that in Massachusetts he would have been tapped by a divorce lawsuit plaintiff for $50,000 tax-free dollars per year in child support (roughly $1 million over 20 years). Could it really be the case that children who supposedly cost $1 million to rear in Massachusetts would yield only minimal child support in Denmark, where the cost of almost everything is far higher?
One of the nice things about Denmark is that it is small enough to support a lot of informal social links. Very quickly I was able to get the name of one of Denmark’s top divorce litigators, Sandra Moll, and she agreed to be interviewed. Ms. Moll had graduated from University of Milan in 1981 and from University of Copenhagen in 1990. She was licensed in both Italy and Denmark and specialized in divorce litigation and property law.
First we discussed what a divorce is in Denmark. In the U.S., a marriage starts with a simple administrative proceeding at a city hall (the marriage license application) and ends, in many states, in a standard civil lawsuit with a plaintiff and defendant (just as if two corporations had a dispute about a contract). Not so in Denmark. “You must start in an administrative proceeding,” explained Ms. Moll. “You go to the Statsforvaltningen and fill out some forms. The couple is then contacted to come in for a mediation session. People who don’t have enough money to have a lawyer will get one from the state. So the administration tries to get them to agree in order to save the government money. If the administrator can get the couple to agree, they sign some papers and are divorced within 6-12 months after the first papers were filed. Unfortunately there is some fine print on the form that says ‘valid only in Scandinavia,’ which creates a lot of problems when one person is living in a foreign country and wants to get remarried. Ultimately the couple may need to go to court to get something that is valid in a foreign country.”
What if the couple doesn’t agree? “Then the administration refers the case to a judge and the trial will be about three months later. Either party has the right to be separated even if the spouse disagrees. After six months of living apart, either party has the right to ask for a divorce because of the separation. That right becomes absolute after a year of separation.”
I asked how long the process would take under the assumption that the parties could not agree on anything. So the court would have to decide on custody, child support, division of property, and alimony. “If everything goes smoothly, it could be done in one year. The trial is just 1-2 hours and everything is decided on the basis of written reports rather than witnesses. For custody issues there will be a report from a psychologist who has spent a few hours with the child and each parent. There is a separate court for handling division of property. A party is not entitled to alimony in any marriage shorter than five years unless he or she needs to complete an educational program. Even if a party wasn’t working during the marriage, that is not relevant for determining alimony. If a person is able to work, he or she is expected to work rather than collect alimony.”
Is there an appeals process? “The first trial is in front of a single judge. There is a right to appeal to a three-judge panel, which will re-try all of the issues of both fact and law.” [U.S. comparison: most states provide divorce lawsuit defendants a trial with a single judge, whose decisions regarding facts cannot be appealed.]
In a society where Americans think that men and women have reached a much higher level of equality than in the U.S., what happens with custody? “There is no presumption of 50/50 custody, though that is what a lot of middle class parents will agree on. If the parents are unmarried, first of all, the single mother automatically gets custody. For married couples traditionally it is the mother who has been taking care of the children and spending more time with the children. Very few fathers take paternity leave though it is available to them. Partly this is because mothers do not allow the fathers to take it and partly because the fathers don’t want to. A custody dispute will be decided by the court based on the psychologist’s report, which is seriously flawed due to the limited time that the psychologist spends with the parents and children. Courts are also starting to take the children's’ preferences into account when children are as young as 6 or 7. That has its own problems because a parent can bribe a child.”
What’s at stake financially with custody? Suppose that the non-custodial parent earns $500,000 per year working in finance. How much can the custodial parent collect? “The basic amount is just over 1000 kroner per month [about $180]. Depending on the non-custodial parent’s income and the number of kids, this can be multiplied or supplemented. the highest number that I’ve ever seen is 3X that basic amount in a case where the father was a banker. It is all worked out by the Statsforvaltningen based on a table, which you can find on their Web site.” [link in English; Danish version with more detail] So the absolute maximum that a person could collect in child support is about $8000 per year? “Yes,” replied Ms. Moll.
What if the parents who wins the kids has a high income? Can a person who makes $1 million per year collect an additional $8000 per year in child support payments? “Yes. The income of the custodial parent is not part of any of the calculations.”
How do people game the system? “It is mostly people with lower incomes who try to get extra money. Single parents get more money from the state for each child and therefore it is common for people to pretend not to be married to a second spouse. Mothers will accuse the father of being a child molester in order to get custody so that they can then collect both the state subsidies for single parents and child support from the father.” What if the father doesn’t have a job? “The state will pay on behalf of the father if the father cannot pay. The state pays for most of the consequences of failed marriages.”
[A Dane wrote to explain "In the Muslim communities there's a thing called a 'father hotel'. It's a one room apartment allegedly housing 18 men, divorced from their wives. In reality the men are living with their wives and kids enjoying the single mother benefits in spades. Visit http://denkorteavis.dk/2012/vi-bliver-snydt-sa-vandet-driver/ and ask Google to translate it. Divorce is a sound business decision for poor people with lots of kids."]
How much of a family’s wealth/the children’s inheritance is spent on litigation? “My fee is 2600 kroner per hour [about $465]. A normal divorce that goes to the administration and then straight to court will cost each party about 15,000 kroner [$2675]. If there are complicated international issues or unusual delays it could be 50,000 kroner [about $8900].”
Circling back to this month’s weblog theme of why Danes score higher on happiness surveys than do their wealthier American counterparts… For people who entered a marriage for the standard reasons of love, forming a life partnership, collaborating on rearing children, etc. a divorce is not going to be a happy event. Yet compared to divorced Americans that I’ve talked to, divorced Danes seem to have suffered much less trauma. The custodial parents had the self-respect that comes from supporting themselves through work rather than living off an ex-partner for decades. The custodial parents did not keep going back to court to try to get additional or extended child support or alimony payments. The non-custodial parents made payments that they generally considered fair and that did not amount to an additional income tax discouraging them from advancing their careers. Danish children from middle class families are much more seldom the subject of custody battles, are much more likely to benefit from substantial involvement by both parents (e.g., in a 50/50 time split), and their parents are substantially wealthier than divorced Americans who have gone through litigation (since what stops a lot of divorce lawsuits is that the couple runs out of assets to pay the lawyers). Even in the event of a complete lack of agreement on every issue, everyone involved is much more likely to be able to move on with their lives. To the extent that happiness surveys include divorced people, I would expect that Danish results would get a lift compared to American ones due to the fact that so much less money is at stake in a middle class divorce, which has the effect of greatly reducing the intensity of the fighting. The result is that both the time and cost of a divorce are lower.
The main flaw with the Danish system seems to be that wealth and income are transferred from those who behave with traditional middle class responsibility and respectability to those who do not [Danes complain about this, but the overall amount seems to be negligible compared to the amount that divorcing American families transfer to attorneys and other workers in the litigated divorce industry]. A couple who has put in the work necessary to stay married for 30 years and rear two children in a three-bedroom Copenhagen apartment will pay taxes to support single parent supplements [roughly $3,500 per year per child, but married couples also get supplements for having kids] to never-married and divorced parents. The married couple’s taxes will, in the event that a non-custodial parent can’t pay the roughly $2200/year minimum child support, be used to pay child support to a single parent. On the third hand, this is the same issue with every aspect of any Welfare State. If you take cash from workers and give it to people for doing something other than work, the result is a reduction in the number of hours that a group of people will work.
See "Parental Responses to Child Support Obligations: Causal Evidence from Administrative Data" (Rossin-Slater and Wust; December 8, 2014 American Economics Association Conference) for a comprehensive study on how Danish parents react to the small-by-American standards financial incentives presented by their system.
A reader on the real-world mechanics of Denmark's administrative divorce system:
Having been divorced for 11.5 years I have filled out a total of two forms: the divorce papers and an agreement to take care of the kids even if we were not living together. Half my friends are middle class and divorced and I know of no one having used lawyers or sued one another for money.
"Shared Physical Custody and Children's Experience of Stress," a 2015 working paper by Jani Turunen, explains "the Swedish context":
Among the first countries in the world Sweden introduced no-fault divorce legislation in 1915 and unilateral no-fault divorce in 1974 (Sandström, 2012). Today it is among the countries with the highest degree of change when it comes to family structure dynamics, closely following the United States. Andersson (2002) shows that in 16 Western and Central European countries as well as the USA, the proportion of children having experienced a parental separation by age 15 range between 50 percent in the US and 9 percent in Italy. In Sweden 34 percent of the children had experienced a separation making it one of the countries with the highest proportion of parental union dissolutions. Sweden is also the country with the highest share of children living in joint physical custody arrangements (Bjarnason & Arnarsson, 2011). The development has been quite rapid with about 1 % of children of divorce, separation or non-union birth sharing residence equally between two parental households in the mid 1980’s to over one fourth twenty years later (Lundström, 2009). Children have frequent contact with the other parent even when they do not share residence equally with about 85% of all children who do not have 50/50 shared residence visiting the non-resident parent at least once per month (Statistics Sweden, 2011).
In 1977 shared legal custody after union dissolution, for both previously cohabiting and married parents, could be granted by court if it was in the best interest of the child and both parents agreed on it. In 1982 shared legal custody could be agreed upon by the parents without court decision. In 1992 a presumption for shared legal custody was introduced making it the default option after a parental separation and in 1998 the courts could grant shared legal-, as well as physical, custody even in cases where one of the parents was against it. In 2006 this was modified somewhat, putting more emphasis on the parents’ ability to cooperate as well as the child’s own will before ruling for shared physical custody and shared residence for children. This year it also became possible for separated parents to divide the non-means tested monthly child allowance if the child shares residence roughly equally between both households (Schiratzki, 2008). The vast majority of Swedish post-separation custody arrangements are agreed upon by parents without any involvement of the courts. Custody is disputed in around 10% of the cases but most of the parents come to an agreement after mediation by social services, a lawyer, a court appointed mediator or a judge, and in less than 2 percent of the divorces or separations involving children the final custody arrangement is decided by a judge (Schiratzki, 2008).
The Swedish government "social insurance" agency, the Forsäkringskassan, explains the process with a story titled "Now the child support cover Penny's needs". Here's a summary put together by a Swedish-speaking reader, confirmed with Google Translate:
Anna (mother) and Stefan (father) divorce one another. Anna keeps the home and the kids (most of the time). Stefan moves to a small apartment. He's not interested in helping Anne with the kids' expenses at all. It sounds like a 2 nights/14 arrangement.
Anna contacts Forsäkringskassan, the Social Insurance Agency.
They grant her 1573 swedish crowns (SEK) per month ($175), for two children. Forsäkringskassan, the Social Insurance Agency, will eventually and by law get this amount from the unwilling Stefan. He is now owing the Social Insurance Agency the money.
Eventually they agree to the standard fee (the fee that'll hold up in court) and Stefan will pay 2030+2340 SEK for two kids (about $5,800 per year).
How much does the financial outcome vary with the parents' income?
That's a very typical middle class situation. Two kids to working class parents would probably yield $4,000 USD per year. Two kids to upper class parents would probably yield $8,000 per year.
The starting point is always the actual cost of raising children in Sweden.
The Social Insurance Agency has a calculator that'll tell parents how much should be paid in a winner-takes-most scenario
The winner may get a bit more money by jacking up the living expenses of the children The loser may save a bit by having other kids, an expensive place to live, a low income.
But even if the winning mother is unemployed (15.000 SEK per month) and the losing father is earning 750.000 SEK per month (1 million USD per year) the numbers do not grow beyond about $2,500 per child per year.
The winning mother can disagree with the number you get from the calculator and sue the losing father for a higher monthly payment at Tingsrätten (a lower court). But the odds are not in her favour.
As in Denmark, simply having a child in Sweden leads to a small cash subsidy from the government. For a low-income Swede, this subsidy could motivate a desire to obtain primary custody. (Note that the U.S. provides much larger subsidies via public housing, food stamps, Medicaid, etc., but they are less visible because they aren't simple cash transfers.)
France is a Civil law country, like Denmark and Germany, and there are many similarities among the systems, including the right to a de novo appeal in which all issues are heard by a three-judge panel without reference to what the lower court decided. In October 2016 France adopted a system in which spouses can negotiate a divorce agreement and be officially divorced without ever appearing before a judge. Both sides must be represented by an attorney and the agreement notarized.
"C’est la Vie, Y’all: How the French Get Divorced" (Natalie Gregg, Huffington Post, November 25, 2014) is a Texas divorce litigator's take on the French system:
… the cost of divorce is much lower. Because there are no contested hearing, no depositions, no cross-examination, there is less rhetoric about rabbit trials (i.e., cheating, addiction, mental health problems). … a large sum of money spent in divorce may be in the range of tens of thousands (of Euros) as a “big budget” case.
… because much of the process is administrative, and not a witch hunt for the worst traits in a party, divorces are quicker.
France’s default parenting plan looks and feels the same as Texas Standard Possession Order. The parenting plan is the most similar as we share alternating weekend access, division of holidays and breaks.
Our French friends look at [child support] guidelines as mere suggestions and often deviate from them on a regular basis.
… alimony or spousal maintenance, as it exists in Texas, is nonexistent in France. Instead, the French provide a one-time lump sum property settlement that is supposed to take the place of alimony.
Venue-The French Napoleonic Rule for where to bring a suit is much like the US Native American Rule: if you can claim a remote percentage of lineage as a Frenchman, you may bring a suit in France. This can result is some bizarre scenarios where the son of a Frenchman residing in New York and living his entire married live in New York may make an argument to sue for divorce in France and may rightly do so.
… all of the aspects of the Texas divorce that make my job so interesting are bereft from the French divorce model. The legal maneuverings that we are afforded in Texas allow us to make discoveries about finances, lifestyle and personal idiosyncrasies that may become public. These very things add fuel to the fire and burn through so much of the litigation dollars; by contrast, French divorce is a low-drama transaction.
[France] does not support the soul-crushing, aggressive model of litigation model that leaves no stone unturned on a hunt for dollars and custody.
The venue one is potentially the most interesting. Suppose that a couple spends half the year in Paris and half the year in Los Angeles or Manhattan If on track to win custody in winner-take all states of California or New York, the lower-income partner would have an incentive to sue in the U.S. where the children would yield a higher profit and also where there was more income than assets such that U.S.-style alimony would be more favorable than obtaining the lion's share of property. The higher-income partner, if somehow aware that a lawsuit was in the works, would have an incentive to try to sue first in France and maintain jurisdiction there. This is where a consumer would want to find a lawyer who has been there and done that!
Top of the wishlist for one of the litigators that we interviewed was that everyone who gets married would first enter into a prenuptial agreement. It turns out that there is a place where his wish was granted… Iran!
Under Islamic law, a man can divorce his wife simply by saying, or texting, "I divorce thee" three times. After a divorce, the man remains financially responsible for the expenses (nafaqa) of the wife and any children, but the default terms of marriage under the law don't appeal to many women. The man's power of unilateral divorce in exchange for paying basic support becomes rather an abstract concept if there are no women who will agree to marry him on those terms.
Actual marriages in Iran happen after a man offers a mehrieh or "marriage portion" that functions like an American prenuptial agreement with guaranteed alimony. This agreement to pay mehrieh is recorded by the government and, if necessary, will be enforced by the state. Iranians, like Americans surveyed, apparently tend to be overly optimistic about their chances for a successful long-term marriage. Thus men may promise the equivalent of 200 years of income to a potential bride as mehrieh. How can he pay 200 years of income? He doesn't… unless the wife demands it, which she will upon a divorce. At this point the man cannot divorce the woman unless he wins the lottery. A December 10, 2010 New York Times article, "Iran’s Divorce Rate Stirs Fears of Society in Crisis," explains:
Iranian women have increasingly turned to leveraging their legal right to a mehrieh — a single payment agreed on before marriage that constitutes a kind of Islamic marriage insurance. Husbands are obliged to pay this sum to wives when they divorce.
Under what are known as “divorces of mutual consent,” a woman may forgo part or all of her mehrieh to provide a financial incentive to her husband to let her leave. In recent years, there have been exponential increases in the value of mehriehs, which now often reach the equivalent of tens of thousands of dollars.
What about the woman? She can divorce the man for a variety of reasons, including American-style abuse allegations as well as exotic Middle Eastern reasons, such as "Husband has committed polygamy without wife's consent" and "Husband has a job for which the wife feels humiliated."
What about the guys who can't come up with the 200 years of income? They can pay it off at the rate of "two gold coins" every month (around $615), plus an immediate payment, potentially borrowed from friends and family, of about $34,000. Note that these amounts are on top of whatever the man pays to support the wife and any children. Similar to U.S. law for men who are behind on child support payments, the man who owes mehrieh loses the right to travel internationally and, like most U.S. states, Iran runs a debtors' prison system for men who fall behind (roughly 20,000 men per year are imprisoned).
Iran, like some other Middle Eastern countries (e.g., Jordan), forestalls custody battles with strict presumptions. When children are below a certain age, they go with the mom. When they reach a threshold age, they move in with their father.
The New York Times article says that the official Iranian divorce rate is 1 in 7.
In 2016, one of us shared a Royal Caribbean cruise around the Baltic Sea with "Omar," a U.S.-educated engineer who'd been sued by his wife after a four-year marriage in Kuwait. As in Iran, the country operates what is essentially a no-fault divorce system. Omar said that the traditional social stigma of being divorced has mostly disappeared in his country: "Kuwait has become Americanized." Omar's wife needed only to tell the courts that he traveled too much for his engineering job to gain a divorce. As part of the divorce she was entitled to (1) custody of a young girl, (2) cashflow sufficient to keep her in the marital lifestyle for the rest of her life. With most of his salary going to his plaintiff, Omar moved back in with his parents and sees the child periodically.
Is it like Iran where he will automatically get custody of the child when she gets over a threshold age? "Iran follows the Shiah version of Sharia [Islamic law]. Under the Sunni version, if the mother were to die the child goes to her mother and some other female relatives before the father."
Official statistics show that the marriage rate in 2015 for Kuwaitis (excluding foreigners and guest workers) was 9 per 1,000 citizens while the divorce rate was 4.4 (up from 3.8 in 2005). This suggests that approximately 50 percent of marriages end in divorce. Comparable U.S. numbers for 2014 (CDC) were 6.9 and 3.2.
The U.S. embassy page on family law in Kuwait confirms what Omar told us:
Women in both Sunni and Shi’a marriages may divorce their husbands. A divorce initiated by the wife is final. Under Sunni law, a wife may cite a variety of causes in support of a divorce, … In most divorce cases, husbands are required by law to pay monthly alimony payments for each child born of their marriage. These payments are based on the husband’s salary and take into consideration his financial abilities and other obligations. The payments continue for girls until they marry and for boys until they reach age 18. The husband can also be required to provide funds to cover housing, transportation, servants and other household maintenance expenses.
In Sunni law, custody is based on what is considered best for the child at various ages. Custody is also influenced by the religion of the mother. If the mother is Muslim, the mother will typically be granted custody of her children. If the mother cannot take custody of the children, or is found to be unfit to raise her children, custody passes to her nearest female relative. If none are willing or able to take custody of the children then the father or one of his family members is usually given custody.
The Swiss judicial system offers a very predictable custody and child support outcome, thus leading to a lot of settlements on these issues, an unpredictable alimony outcome, thus leading to a lot of litigation as in U.S. jurisdictions.
Our source for Swiss divorce law was Dr. Michael Hüppi, one of the 90 nationwide specialists in family law. He has been practicing family law in Switzerland for 25 years. See http://www.schochauer.ch/ for more on Dr. Hüppi's firm.
In Switzerland, you’ll need to pay the court a visit if you want a divorce, unlike in Denmark where divorce can be an administrative proceeding. If both parties agree on a divorce, they can go before a judge without attorneys and be divorced within approximately three months. This happens about 40 percent of the time. If one partner is imposing a unilateral divorce on the other, a two-year separation is required and attorneys are retained.
How about getting the house, kids, and cash flow on an interim basis, as would be accomplished in most U.S. jurisdictions via a temporary order? "You can do this," said Dr. Hüppi, "in 4-8 months. Normally it is the woman with children who will be preferred to get the house rather than the man." Is the decision regarding which parent will get the house, children, and financial support made after hearing testimony from witnesses? "No," said Hüppi. "That's because Swiss family law and Swiss divorce law don't ask about why they want to be divorced."
Is it typical, as in many U.S. states, for people who don't want to wait 4-8 months to use the domestic violence system to obtain an immediate de facto divorce? "No," says Dr. Hüppi. "the use of the domestic violence system is not as heavy as in the U.S. Typically it’s challenging to prove an instance of abuse." [And, as we will see below, it isn't necessary to secure what in the U.S. would be called "sole physical custody".]
Unlike in Denmark, custody is typically decided by the judge without a custody evaluation from a mental health professional. Also, unlike in Denmark, there is no "fresh look" appeal process. Appeals are handled in a similar manner to the U.S. where appeals courts give deference to the lower court and essentially there is no practical right of appeal absent a gross legal error. Thus custody, child support, and alimony are decided by a single judge, though note that the Civil law system allows for less judicial discretion than America's Common law system.
What does it cost parents by the time a litigated unilateral divorce is complete? Dr. Hüppi said that the range is from about 3,000 to 5,000 francs per side if all goes smoothly but can range up to 100,000 francs per side (about $105,000) in a heavily disputed case. As in the U.S., the more money a couple has, the more is spent on legal fees: "If they have a lot of property then it costs a lot," said Dr. Hüppi.
After a divorce is complete, where and how are the children living? "Normally, children will live with their mother if they are ten or younger," says Dr. Hüppi. When do they see the father? "In a typical case where the children live with the mother, the father has the possibility to see his children one weekend per month, from Friday evening until Sunday evening. The father would likely also get three to four weeks per year of holiday. These are the minimum guidelines if the parents don’t come to another solution." Unlike in some U.S. jurisdictions, Switzerland does not operate what attorneys call a "days for dollars" system of child support. The mother can still collect full child support even if the father takes care of the children for more than the minimum two overnights per month. Thus, consistent with the reports of university researchers who find that women don't obstruct visitation until it reduces cash flow, Dr. Hüppi reports that agreements for additional visitation are common. What if there are two ordinary working parents but the mother is adamant that the children's time be limited to one weekend per month? Dr. Hüppi says that, if push comes to shove, a father can typically obtain at least a U.S.-style every-other-weekend schedule from the judge. "The mother would have to show a good reason for why the children cannot be with the father."
Does 50/50 shared parenting exist in Switzerland? "If the parents can show the court they have a practical system there can be a 50/50 arrangement," responded Dr. Hüppi. "But if the parents don't agree on an arrangement, then we look back to the children living with the woman." What happens to child support in that situation? Is there a formula for it? "No," says Dr. Hüppi. "It is all by agreement of the parents."
Schedules can be modified at any time if a parent can show that the new schedule is in the best interests of the child. It is not necessary to show a "substantial and material change" as in a lot of U.S. states. Dr. Hüppi notes that a judge can issue an order that gives a child progressively more time with the father as the child gets older.
What about what U.S. states called "legal custody" or "decision-making"? Dr. Hüppi explained that it had been conventional for Swiss courts to grant sole legal custody but the law was changed effective July 1, 2014 to add a presumption of joint legal custody. "Now it’s required parents discuss topics like their children’s school and health with one another."
Child support in Switzerland is tightly bound up with what Americans would call alimony. "Normally the father is the one who pays for the mother and the children," said Dr. Hüppi. "He pays about 45 percent of his net income if there is one child, 50-55 percent with two children, and perhaps 60 percent of his income with four kids." Why the range? "The basic child support amount varies with the age of the children and the judge looks at the actual costs of the children and exercises a certain amount of discretion."
Child support can be collected until children reach "full age" at 18.
Leaving aside alimony for the moment, how do Swiss child support awards compare to those in the U.S.? A parent who earns 60,000 Swiss Francs ($62,700) per year after taxes will pay, according to Dr. Hüppi, between 1000 and 2000 Swiss Francs per month for a single child, depending on the age. With four children it would be 3000 to 4000 per month (i.e., potentially 80 percent of the father's income). Note that already we can see that Swiss law makes it more profitable to have children with multiple co-parents than to have multiple children with a single parent, just as in most U.S. states but unlike in Denmark. The same parent in Wisconsin would pay $10,659 per year for a single child or $13,572 per year in Massachusetts, compared to the $12,500-25,000 per year range that Dr. Hüppi estimated. With four children, child support in Wisconsin would be $19,437 per year and Massachusetts would be $19,656 per year, less than the $37,616.
How about higher-income parents? A parent who earns 247,000 Swiss Francs ($258,000) per year after taxes would pay 2000 to 3000 per month for one child, approximately 6000 per month for two children, and approximately 8000 per month for four. Thus the Swiss child of a moderately high earner would yield as little as $25,000 per year in child support compared to the Wisconsin child yielding $72,420 (17 percent of 426,000 pre-tax dollars) and the Massachusetts yielding an amount determined by judicial discretion but probably close to $80,000 per year.
Can a Swiss resident become wealthy following a one-night encounter with a high-income person? "No," says Dr. Hüppi. "We're not making any golden children here. There is an absolute limit on child support of 5000 Swiss Francs per month [about $62,700 per year] that is reached when the father has 1 million Swiss Francs per year in income before taxes but after what you would call Social Security." Note that this is about 5 percent of what Americans would call gross income and therefore is substantially less than Wisconsin's statutory 17 percent without limit or the 11-20 percent rates used by judges in Massachusetts for very high income defendants. However, it is more than Virginia's 2.6 percent rate for high incomes.
Child support revenue is moderately secure in Switzerland. A child's preference as to with which parent to live will not be taken into account until age 12 to 14, at which point the judge will typically speak to the child privately though Dr. Hüppi says "perhaps there could be a psychologist who talks to the child." Unlike in many U.S. states, a child support recipient may be at risk if the defendant dies because Dr. Hüppi says that a judge cannot order the child support payor also to purchase life insurance. (Though of course a child support recipient could buy her own policy on the payor.)
The real money in Switzerland is reserved for alimony. "Normally the father is the one who pays for the mother and the children," says Dr. Hüppi, "He pays about 45 percent of his net income for the mother and one child. If there are two children, 50-55 percent. Four kids, 60 percent of his net income." Dr. Hüppi explained that alimony is typically paid until the youngest child turns 16. Under Swiss law the mother is not expected to work until the youngest child turns 10. With a child aged 10-16 in the house, the mother is expected to work 50-60 percent time. What if she gets a high-paying job? "Her alimony will be reduced, but not to zero," said Dr. Hüppi. What if she joins Union Bank of Switzerland and begins to earn vastly more than the father? "Then it would stop."
Without a child, a marriage does not yield alimony until the 5-year mark is reached. "A short marriage is defined as 1 to 5 years," said Dr. Hüppi, "and a long marriage is 10 or more years." What are the implications of these time periods? "Normally, if you had a long marriage with children you’ll pay alimony until age 65. From a mid-length marriage you'd pay for 5-8 years or until the youngest child is 16 years old. From a short marriage there is no alimony, unless there is a child in which case alimony will be paid through age 16."
Does this create incentives to have a child just before filing a divorce lawsuit, especially when the marriage has been short? "Why not?" says Dr. Hüppi. How about the discrepancy between the financial rewards available to unmarried versus married mothers? The mother who had been in a short-term marriage gets 16 years of alimony in addition to child support. The unmarried mother gets only child support. "For the moment, the father [in an unmarried situation] has only to pay for the kid and not the mother," says Dr. Hüppi. "Parliament in Switzerland is discussing the question about whether to give support to unmarried mothers. Perhaps it will change in 2-3 years."
How about property division? Can you marry someone who earned and saved money before the marriage and then get a share of that money via a divorce lawsuit (as would be typical in Wisconsin, Massachusetts, and many other U.S. states)? "No," says Dr. Hüppi. "Everything that you have before marriage is yours for your whole life. The court divides savings accumulated during the marriage." What's "the marriage"? Is it from the wedding day until the lawsuit is filed or does it include the two-year minimum separation period plus any additional litigation time? "It includes the separation and litigation time," says Dr. Hüppi. "There are people who are specialists in having long proceedings."
What about the additional litigation that U.S. states impose on the self-employed, in which their income is recalculated by attorneys, forensic accountants, and the judge at a cost that may exceed hundreds of thousands of dollars in fees? Dr. Hüppi says that is not possible in Switzerland where tax return data are used for expenses and depreciation, though it is possible to litigate the question of whether or not a person has additional undeclared income.
Given that the average after-tax household income in Switzerland is about $31,000 per year (source: OECD), what does Dr. Hüppi think about the fact that it can be more sensible financially to get married and either have a child or stick it out for six years than to go to college and work? "For child it is fair the way it is, but there are more questions and problems about how much you have to pay for your wife, both how much and how long."
How about the fact that the default parenting time schedule limits a child's contact to 2 nights out of 30 with her father? We mentioned that the statutory schedule in Texas would provide about 11 nights out of 30. Our experience interviewing litigators in the U.S. was that most of them thought that their local laws were fair and in children's best interest despite the fact that the laws were completely different just a few miles away across a state line. Consistent with American litigators' feelings that their own jurisdiction's laws were fair and reasonable, Dr. Hüppi thought that this Swiss visitation law was reasonable given that parents can make an alternative agreement. At the same time, we suspect that Dr. Hüppi is a closet advocate of shared parenting because he said ""In a normal situation where the father is not, for example, a drug addict, I think the best interest of the child is to see the father as much as possible."
We found an academic researcher in Switzerland doing his PhD at the University of Fribourg (not to be confused with the University of Freiburg in Germany, a two-hour drive to the north, in a city founded by the same family in the 12th century) on the question of shared parenting: Martin Widrig. He defers to Dr. Hüppi as "a recognized expert in legal practice," but pointed out that a shared equal parenting presumption would likely be equally as effective as the Swiss "mom wins" rule in terms of reducing litigation and would probably reduce parental conflict because "what I know is that the losers [of custody and child support lawsuits] usually are quite unhappy with it, unless they are quite wealthy and wish not to be involved in the care of their children."
Widrig points out that, as in Denmark, the parent who gets custody of the child gets a monthly stipend from the government in addition to whatever child support is received from the co-parent:
A parent living with the child receives (government support for families included) approximately CHF 1000-2000/month/child [about $12,500-25,000 per year]. For rich parents this may not be a lot. However, if we consider that only 10% of the Swiss population earn at least CHF 10,000/month and more than 50% less than CHF 5980/month the sum becomes quite important. If we consider, that a parent that lives with the child has a right to stay at home for 10 years at the expense of the other parent (CHF 3500/month) the sums seem even more important and probably a major reason why people would not agree to shared parenting.
As in the U.S., Swiss fathers are put by the courts in a situation that they wouldn't have chosen voluntarily (pay all of the bills; see the child occasionally) and "Father drop outs after a divorce are estimated as high as 50 percent," says Widrig, "while in 2013 fathers living with their partner and children accomplished on average nearly 40 percent of all child-related house and family work. Our legal system is a few decades behind what it should be." [Widrig supplied references showing 37.3 percent paternal care in Switzerland and 38 percent in neighboring Germany.] Why do fathers drop out? "According to scholars, important reasons are gatekeeping by mothers and that child protection authorities usually do not enforce father-child contact rights." As in the U.S., enforcement efforts are directed toward ensuring that men pay the bills.
As in the U.S., being a low-income custody and child support lawsuit loser means frequent trips to the courthouse without an attorney, usually with unhappy results. "A colleague recently told me about a case where the father had been earning well, but then lost the job and had to pay more maintenance than he was capable to earn with new jobs," said Widrig. "So he applied to the court to lower the maintenance fees but the mother's legal defense has blocked this request successfully for the last five years. Male poverty has become an important but so far neglected issue in Switzerland. Many fathers are left with substantially less money than those people who live on social aid [Welfare] and are excluded from social aid themselves."
In contrast to the U.S. where people accept the idea that an individual judge can order pretty much whatever he or she thinks is best, Widrig says that the Swiss are beginning to look at United Nations documents: "The UNICEF Implementation Handbook for the Convention on the Rights of the Child acknowledges a right of the child to be cared for by both parents (Art. 7, p. 108; Art. 9, p. 127; Art. 18, p. 235), and that the Convention upholds the rebuttable presumption that care by both parents is in the child’s best interest (Art. 7, p. 109)."
As in the U.S., Widrig's perspective is that the money attached to the child "makes the child the object of many disputes. this creates wrong incentives and triggers child-unfriendly disputes over the possession of the child." [Widrig might be a closet Texan, based on his use of "possession" rather than "custody".] How strong are the incentives? Widrig cites statistics from the canton of Bern, which surveyed all families within the state, and only "10 percent of separated parents agreed on shared physical custody."
In November 2014 Widrig confirmed what Dr. Hüppi told us about revisions to what we would call Switzerland's alimony law. "The proposed law, which has been passed by the first parliamentary chamber (comparable to your House of Representatives) and is being discussed by the second chamber during these weeks (comparable to your Senate). The 10/16-year stay-at-home rule would be extended to cover mothers who had never been married. A parent could continue to receive alimony even after a remarriage. It creates an irrebutable presumption that money paid to a parent is in a child's best interest. If the father's earned income is not sufficient for paying the money needed for the mother to stay at home, his inheritance can be used while hers remains untouched."
We asked Widrig why the Swiss government, which depends on healthy adults going out to work and paying taxes, would provide so many financial incentives for women to stay home with children. His conjectures:
Interestingly, "Socialism" seems be interpreted differently by the Swiss than the Russians. In the Soviet Union, socialism meant that mothers would work and children were typically cared for either by grandparents or in day care centers.
As in some other countries, Switzerland displays the phenomenon of women with professional degrees and full-time jobs advocating that other women should have the option to stay at home living off checks written by men whom they once knew, perhaps only for a few hours. Widrig says "Interestingly the parliament has always blocked proposals for a longer maternity leave partly with the argument that a longer leave would make it more difficult for women to restart working or encourage them to quit working."
Is there any political or popular pressure against the current Swiss system? "Many young women are getting upset about it," said Widrig.
A 1920 article, "The Divorce Law of China" (Bryan; American Bar Association Journal) indicates that China has allowed divorce by mutual agreement since at least 1913. A unilateral divorce could also be obtained "when one of the parties is ill-treated or highly insulted by the other." Chinese citizens did not spend money and energy on custody litigation during 1920. If the children were under 5, they went to the mother. If the children were over 5, they went to the father. "The reason that a good many unscrupulous Chinese wives institute divorce proceedings against their husband is to obtain the alimony allowed to the woman according to the new  code. … The husband is not entitled to alimony under any circumstances. … A concubine is never entitled to alimony…"
We asked an expatriate living in China how the current system there differs from the American system of custody, child support, and divorce. Here's the answer that we got (edited for clarity):
Having children out of wedlock is illegal in China and expressly forbidden by black letter law. It is also a massive cultural stigma. Wife-Husband-Child is the only socially acceptable social unit in this country. To give birth in a hospital you must present papers that show you are allowed to have the child. If you give birth at home, you must show those papers to put the child in school. There is no hope for an illegitimate child – they will never be allowed into a school, college or job.
There is a file that follows people around, and this child’s file will reveal instantly his or her status. This will be held against the child for life and perhaps longer.
This is not about communism – the culture has been like this for 2,500 years or longer.
Since no woman can have a child without a husband, she cannot collect child support as a result of having a child out of wedlock. If she is pregnant and single, she has no leverage to force the father into marriage because, in the event that he refuses, for her to be visibly pregnant while single is a social death times one trillion.
If custody of a child is contested during a divorce, the parenting time will be split 50-50.
If a woman divorces or separates and takes the child, and then remarries she will often dump the child at the ex-husband's: "I have a new family. Here, it’s your problem."
We tried to verify these facts with a Google search and learned that it is technically illegal to have a child out of wedlock, though of course it does occur and in fact the government may fine women who give birth while unmarried. Instead of collecting $2 million in child support, as a woman who got pregnant with a high-earner in New York or Wisconsin might, the Chinese woman could be fined more than $25,000. One site summed it up with "Teen pregnancy. Single motherhood. In China, these are no better than fairytale dragons. Because, for most Chinese people, they just don’t exist".
A 2012 article by attorney Peter Zhu on http://www.chinalawblog.org/ says that child support ends at age 18 in China. A 2011 article indicates that, as in the U.S. and Canada, the law varies by state: "While some of our neighboring states have adopted sophisticated matrices for allocating between both parents the burdens of financial support of children in a divorce, Shenzhen still requires that (a) the court determine a 'residential parent' (ie a winner and loser of custody), and (b) for the 'non-residential parent,' a percentage payment based on their net income. … In some cases, the custodial parent uses the child support payments to augment his or her own personal lifestyle, leasing a new car or taking an adults-only vacation with the child support funds." It also seems that China has the same political disputes as we have in the U.S.: "Shenzhen recently had a chance to consider a shared parenting statute, and this was jettisoned in favor of keeping the old, archaic status quo 'winner and loser' custody statute."
Property division in China seems to be similar to California's community property rules. Pre-marital property cannot be divided while marital property is split 50/50.
Israel is a country of immigrants, which means that many Israelis make the decision to marry in a different legal system from that in which they will get divorced (the fate of 30-41 percent of Israeli married couples, depending on who is counting). At the Museum of the Diaspora, for example, a July 2016 exhibit showed a guy who was married in Ethiopia and then divorced in Israel:
Amnon Sahlu, age 52, is a divorced father of six. He has adapted less easily to Israel. He lives in Jerusalem with his elderly parents and shares a bedroom with his six-year-old daughter, Bereshit. Amnon mourns the loss of Ethiopian Jewish traditions and values in Israel and contrasts the breakdown of his own marriage with the enduring bond between his parents. Amnon's dream of a better life in Israel has yet to be realized.
Based on 2016 discussions with some experienced attorneys, Israeli divorce lawsuit defendants from countries that operate under Civil Law will probably be the ones who wish that they had stayed in their original home. Traditional Jewish law provides few financial incentives for divorce plaintiffs. If a man divorces a woman he has to pay her according to the ketubah, essentially a prenuptial agreement. If a woman divorces a man she may not receive any share of the man’s future income (it could still be financially rational for a woman to divorce her husband if she can find someone richer to replace him with). On top of this ancient legal tradition Israel has layered some aspects of British common law. Israeli law, which is the result of this combination, turns what would have been a straightforward procedure in most of Europe, for example, into an American-style no-holds-barred war.
The end of an Israeli marriage results in the parties’ assets being consumed by lawyers in both the government-run courts (about 74,000 cases in 2015) and also in a religious court. A woman who wants to be rid of her husband will sue him in the government court for property division, custody, and child support. The divorce per se is litigated in a religious court, e.g., the rabbinical court for Jews, an Islamic court for Muslims. “The rabbinical court is a lot more efficient than the civil court,” said a lawyer family with high-income cases, “but it can still cost [$50,000+] in fees to a separate attorney.”
Israeli plaintiffs who follow economic incentives will sue a husband for property division, custody, and child support in the civil court but not seek a divorce in the rabbinical court. The litigation posture is that she wants to stay married and isn’t interested in a divorce, but she wants to live separately, be the primary parent, and get paid for taking care of the children. Then there is a game of chicken to see who will crack and sue first in the rabbinical court (as noted above, if the woman were to initiative a divorce per se she wouldn’t be entitled to alimony).
Property division is simple in theory but complex and expensive to litigate in practice. It is supposedly a California-style system in which premarital property cannot be obtained by a plaintiff, but property acquired during the marriage is divided 50/50. “There was a Supreme Court decision about two months ago,” said one source, “in which a man had inherited an apartment that was rented out. He deposited the rent into a joint account and that was enough to make the property divisible by the court.” Plaintiffs also may allege that a defendant has hidden assets and don’t need any documentary evidence to keep the allegation alive through a final trial. If there are assets worth fighting over, litigation can take more than three years. “If there are 1 million shekels in assets [$250,000] the fees will end up being about 1 million shekels,” said the attorney. As in the U.S., a judge can order a defendant to pay a plaintiff’s legal costs but this may be only 20 percent of the “real costs.” (Middle class cases might be handled for closer to $20,000 in fees.)
What happens to the joint apartment (standalone houses are rare in Israel) during the three years of litigation? “The court cannot order the husband out,” said the attorney, “unless the wife makes an allegation of domestic violence, so either the couple negotiates or, more commonly, the wife accuses him of physical or psychological abuse.”
Child support starts by considering the needs of the child. This in contrast to the U.S. system in which the primary factor determining profitability is the income of the target of the child support lawsuit (see the History chapter for how the big switch happened around 1990). Child support can still be profitable in Israel if there was a marriage and a shared household for at least a year or two. At that point the defendant can be ordered to pay to keep the children in the lifestyle to which they were accustomed during the marriage and the only way to enable that is also to keep the plaintiff in the lifestyle to which she was accustomed.
An Israeli who'd gotten some experience with the system the hard way explained:
Current 2016 guidelines call for the father to pay NIS 1500 per child per month ($390) plus 30-50 percent of "lodging" expenses plus 50 percent of certain education/medical expenses.
"Lodging" is somewhat vague term, but the guidelines call for sharing the cost of rent and utilities in an adequate apartment. In practice, they add another NIS 1000-3000 a month. Education and medical expenses are not open ended and only include certain expenses not covered by the public medical/educational system; they are usually less than NIS 500 per month per child. The guidelines call for only public daycare and education and public medicine to be included in child support calculations.
Note that the guidelines do not mention the father's income or wealth--they are strictly "bottom up" calculations (as the value investors might say). And until very recently, and in cases of joint custody, there has never been a requirement of the mother to pay child support, it is solely the father's obligation.
Adding up all of the above numbers by using the top end of the ranges, the result is about $1,300 per month or $15,600 per year, a little more than the Nevada cap. What if the litigants met for just one night in a bar and the father had an exceptionally high income? With no historical lifestyle for the couple, does the father's income then come into play?
In no situation does a judge use guidelines calling for a percentage of the father's income. The child support decisions I've seen (mine and some friends) all stick to the the outline of "basic support + lodging + education/daycare" expenses.
He estimated that the maximum revenue would be roughly $12,000 per year,
Custody lawsuits are simple if the child(ren) are under 6: Mom wins. Mom also is guaranteed to be the one receiving child support, even if the children live with their father. As in the U.S., legal fees can be expended to determine a child’s schedule but the end result is nearly always that children are entitled to spend every other weekend with the father (Friday morning until Saturday evening or Sunday morning) plus a few hours on a weekday. With older children, 50/50 schedules are possible though the cash continues to flow from father to mother even when the two parents have equal incomes or when the mother earns more than the father ("there has never been a requirement of the mother to pay child support, it is solely the father's obligation," explained one Israeli) . The mother’s revenue is reduced to one third at age 18, when a child will enter the military, and cut off at age 21.
The Israeli system results in court orders that low-income men have difficulty paying. Our consumer source gave us an example:
A common scenario (in Google searches at least) is where Dad earns NIS 8000/month after tax [about $25,000 per year], Mom earns NIS 8000/month and child support for three kids is set at NIS 6000/month. At this point the father is forced to live with his parents. On appeal to district court, I've heard of lawyers who have had success claiming the man's right to a subsistence standard of living [should be factored in]. Then the district court might set child support at NIS 4000/month.
What about men who can't or don't pay?
In the past they could be locked up for seven days out of every month, but that has changed. A debt judgement is entered against and the collection machinery is set in motion, but there is no jail time. Children seeing their father locked up is not consistent with the system's interest in what's "best for the children."
Will the government step in and pay the mother explicitly, as in Denmark, or implicitly, as with the U.S. welfare system?
Israel's National Insurance Institute, our government-run insurance program for disability, unemployment, old age, and social security, pays unpaid child support judgments to some extent. For example, on this National Insurance Institute page in Hebrew, it says that a woman with 2 or more children who isn't able to collect a support judgment will receive 3373 NIS provided she earns less than 6282 NIS per month. Public housing is more difficult. Supply is very tight and even if a single mother is flagged eligible for public housing, she may not receive an apartment for years. More likely, she will receive rental subsidies from the state, but the numbers are low; approximately 1400 NIS [$365] in places where rent can easily be 6000 NIS.
Israel was a welfare state, but not anymore.
Divorce exists in some form in nearly every country around the world, but what is considered best for children, fair for adults, and efficient for society is often radically different across a border.