Sarah Gilbert, a 2013 "Super Lawyers Rising Star," answered our questions about Maine law. She has experience working as a clerk for the Maine Supreme Court, which gives her an unusually deep perspective on appeals. Although she is younger than many practitioners interviewed for this book, Gilbert has the benefit of a mother who practiced family law in Maine for 30 years. See http://www.camdenlaw.com/attorneys/sarah-i-gilbert/ for a complete biography.
Gilbert goes to trial two or three times per month, with a typical trial lasting for one or two days. Cases in Maine get to trial much faster than in some other Eastern states, with a "realistic" calendar being nine months from filing to trial in a case involving custody. "You get bumped to the top if there are kids," says Gilbert. Where Maine seems to be slower than other states is in the availability of a hearing for a "Motion for Order Pending" or "Motion for Interim Order" (what some other states call "Temporary Orders"). Gilbert says that it can take six months to get a hearing on a motion seeking exclusive possession of the house, custody of the children, and a stream of support funds. "If your clients aren't particularly well off it can be a waste of money because the final hearing will be 3-4 months after you finally get a date for the interim order. You end up trying the same case twice," she notes. Even if one were to get a hearing, Gilbert says that it is "tricky" to obtain exclusive use of the house. There are two ways in which Maine litigants can get around the long wait for an interim orders hearing. One is to seek interim child and spousal support in front of a magistrate at a case management conference. "The parties show up with tax returns and financial data," says Gilbert. That doesn't help with obtaining the house and the children, however. What sometimes helps is to file for a Protection from Abuse order. We were told by attorneys in other states that judges worry about making it into the headlines by denying a protection order in a case that does in fact turn violent. By contrast, newspapers don't pay attention to protection orders that unfairly deny children access to a parent or a divorce lawsuit defendant access to a house. Maine seems to be similar: "I hate to say that judges give out protection orders like candy, but we have had a couple of terrible incidents of murder/suicide in Maine and the Legislature has mandated that the protection from abuse statute be liberally construed."
Is Maine like other states where a victory at a motion hearing tends to ensure victory at trial? " It is common for the same judge to hear both the protection order complaint and preside over the divorce trial," says Gilbert. "So winning at the protection order stage tends to set the stage for trial. The judge is only human and will remember the heinous things that the plaintiff testified the defendant did to abuse the plaintiff."
Maine allows a parent to collect child support until a child turns 18 or graduates from high school (but no later than age 19). Unless there is agreement by the parties, the court has no authority to order a parent to pay college tuition. Child support in Maine is comparable to what a plaintiff would receive in most U.S. states but much less lucrative than in nearby Massachusetts, for example. Having a child with a $250,000-per-year defendant in Massachusetts would yield $40,000 per year ($920,000 over 23 years) under the guidelines there while suing the same defendant in Maine would yield only $18,876 per year ($329,768 over 18 years). In addition, the child support plaintiff in Maine might have to save for a child's college expenses while the child support plaintiff in Massachusetts could obtain 100 percent of the child's college tuition, room, and board via court order from the defendant. The Maine child support tables top out at a combined gross income of $400,000 per year, with $26,832 per year being owed (it would have been $24,024 prior to 2016; collecting child support was made more lucrative in Maine with a 2016 revision). Above $400,000 per year in combined income, the number is "totally up to the judge," says Gilbert. Here's the statute:
When the parties' combined annual gross income exceeds $400,000, the child support table is not applicable, except that the basic weekly child support entitlement of a child is presumed to be not less than that set forth in the table for a combined annual gross income of $400,000.
Child support in Maine is thus potentially unlimited but a judge extrapolating from the top of the table would apply a 5 percent multiplier to a defendant's gross income, less than in some other states that also make unlimited child support available.
Consumers can use the published tables to calculate child support in sole parenting situations but Gilbert says that "it is somewhat difficult to calculate child support when there is shared residency." She notes that when two pro se parties show up for mediation, required by law in Maine for family matters involving children, the mediator will generally perform the calculation. Gilbert suggested the Web site Pine Tree Legal Assistance (ptla.org) for forms and assistance, but the site itself confirms Gilbert's statement: "Where both parents provide 'substantially equal care,' the child support calculation will be different. The calculation is more complicated. If you can't afford a lawyer, you will probably need help from the Magistrate, the Courthouse Assistance Project or the VLP HelpLine to calculate the basic weekly child support amount."
As in most other states, health insurance, extraordinary medical expenses, and day care expenses are ordered on top of the basic child support numbers.
A stream of child support dollars is less secure in Maine than in Massachusetts due to the fact that a parenting time plan, which may affect the weekly amount received, can be modified with relative ease after three years. "If the request to modify is within three years from the original judgment," says Gilbert, "you have to show a substantial change in circumstances. If it has been more than three years, you just have to show a change in circumstances that would make a different plan be in the best interest of the child."
At what age will a child's preferences factor into a parenting time plan? "It is discretionary with the judge," says Gilbert. "In practice typically the child has to be a teenager before the judge would hear from the child on the stand. A younger child, however, might express a preference through a Guardian ad litem [GAL]." How common is it to have GALs? "We are big on GALs," says Gilbert, "and courts almost always appoint them to do investigations if custody arrangements are in dispute. However, a new law tries to put limits on what GALs can do, how much they can charge, and the extent to which judges simply adopt GAL recommendations uncritically." What are the qualifications for a GAL in Maine? "You don't need to be a lawyer," says Gilbert. "but you have to complete a multi-day training program." (http://www.courts.maine.gov/maine_courts/family/gal/requirements.html shows that a broad class of individuals, including virtually anyone approved by a judge, can serve as GALs)
Gilbert says that, assuming adequate disclosure and representation at the time of signing, a "walk-away" prenuptial agreement, in which separate property remains separate and neither party pays alimony to the other in the event of a divorce, would be valid in Maine. "The only exception is if enforcement would lead to one spouse going on the public dole," she notes.
What about appeals? "It can be very difficult to win an appeal related to a custody arrangement," says Gilbert, "because custody is not stayed during the appeal period. Mom will have the kid for a year during the appeal pendency. The longer the mom has the kid the less likely the appeals court will disturb the arrangement. Additionally, the Maine Supreme Court is extremely respectful of the credibility determinations made every day by the trial judges -- the abuse of discretion standard is a tough hurdle." Gilbert says that appeals can make sense, however, for financial matters, especially if there are errors in support calculations.
The average hourly wage in Maine is $19.64 per hour, compared to $26.73 per hour in Massachusetts. Census 2014 data show that 22-36-year-old college-graduate women working full-time earned a median $28,000 per year ($21,753 after taxes). The corresponding man earned $46,500 ($34,317 after taxes). Attending the University of Maine for four years will cost $80,928. Maine collects 10.2 percent of state residents' income to run state and local government (compare to a national average of 9.8 percent and as low as 8 percent in New Hampshire and Texas; source: Tax Foundation).
The average annual cost of child care is $9,256 for an infant and $7,904 for a four-year-old. The total cost of child care from age 0 through 12 is about $52,237 in commercial settings or $40,110 in a family care setting.
The male college graduate will have an after-tax spending power of $399,510 after 14 years of working (14 years of income minus taxes and the cost of college). He would be financially better off collecting child support when that support is $2,600 per month or more. This is above the top of the guidelines and would require suing a mother earning more than $400,000 per year. With two children from two different mothers, however, he could have an after-tax spending power larger than from going to college and work if each mother paid $1,675 per month, which is possible when each mother earns $273,000 per year.
The female college graduate will have an after-tax spending power of $223,614 over the same time period. After adjusting for USDA-estimated expenses of caring for a child, she would have a larger personal spending power by collecting child support when that exceeds $1,785 per month. This would require finding a father earning at least $297,600 per year. If she is suing two fathers, however, she is financially better off compared to the college/work case when she can get $1,270 per month from each one. This should be possible within the guidelines if each defendant earns at least $146,400 per year before taxes.
According to Census 2014 data, only 91 percent of Maine residents collecting child support are women. This compares to 97 percent in Massachusetts and 98 percent in neighboring New Hampshire. Among women in Maine aged 30-40, approximately 24 percent collect child support (compare to a national average of 17 percent).
Note that the interview was conducted prior to the 2016 child support guidelines revision that eliminated the differential profitability of children depending on age. Child support is now somewhat more lucrative in Maine, but the changes to the scenarios below should be no more than about 10 percent.
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.
"At least on paper," says Gilbert, "it is very common in Maine for the woman to out-earn the man. She has a W2 job and he is a fisherman who gets cash under the table." How would one establish the husband's true income? "One wife hired a very attractive female private investigator," responded Gilbert. "The PI told the lobsterman she was interested in learning about the business. He took her out on his boat and told her about how much he really earned as opposed to what he made on paper. She recorded the conversation and played it in court." Is that legal? "Maine is a 'one party' state where it is legal to make a recording if only one person knows that it is being recorded. This happens constantly in divorce cases where people make a recording using an iPhone in their pocket."
What happens in our hypothetical case, where the mother has a high W2 income and the slacker husband has a genuinely paltry income from his photography business? "Shared legal custody is presumed," says Gilbert. "Both parents can make medical decisions and have access to school records." What about the child's schedule? "If they are in the same school district, it will likely be a 50/50 scenario," says Gilbert. "Dad's affair won't matter unless he is exposing the child to unhealthy people on a regular basis or has a string of different women to whom he is introducing the child."
Can he get child support from her? "Yes," says Gilbert, "but less than if he were designated the primary residential parent." Gilbert calculated this at approximately $20,000 per year ($340,000 over 17 years). How could the mother escape paying child support? "She would owe him nothing if she had straight primary residence and the child were with the father no more than 4 out of 14 nights," said Gilbert. Would a Massachusetts-style conflict creation campaign work in Maine? "She can argue for primary residence if she can show that he is too inflammatory as a co-parent," responded Gilbert.
In figuring child support, Gilbert says that the court will impute income to the father. "The wife's lawyer will hire an employment expert to testify that he is capable of making $X in this jurisdiction and judges will typically accept that." Can there be dueling experts, with the husband's saying "The guy who hired me is a complete loser and no employer would want to hire him"? "Absolutely," responded Gilbert. "Interestingly, if a parent can’t work or loses his or her job due to substance abuse, I have had cases where the court will not impute income because such unemployment is found to be involuntary." (Sidenote: One of the authors was teaching an electrical engineering class at the Massachusetts Institute of Technology and suggested to a student that, given his high level of intelligence, he would do much better in the class if he smoked less marijuana and did more homework. He responded "I'm from South Florida and just have to do drugs.")
Gilbert estimated the likely legal fees in this case being $15,000 to $20,000 per side through a trial. Given that the father has minimal income, can he get a judge to order that the wife pay his fees? "He can get his fees paid at the end of the trial," says Gilbert, "and in some cases a magistrate or a judge could order some fees on an interim basis, but interim fees are not typical."
Can the photographer get alimony and a property division from the surgeon? "Everything acquired during the marriage is considered marital," says Gilbert. "He will get 50 percent if not more due to the income disparity." How unbalanced a split is considered reasonable in Maine? "It could easily be 75/25." What if the husband wants to get hold of money that the wife earned and saved prior to the marriage? "Her property prior to the marriage is off the table except that it can be considered when coming up with the marital asset split," responded Gilbert. The marriage did not last long enough (10 years) for the husband to get alimony.
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.
What if these people both come to court demanding to be made the primary residential parent, can the judge order 50/50 custody despite neither party asking for it? "Yes," says Gilbert. "The judge has that discretion if the court finds that it is in the best interest of the child." [Note that this makes Maine unlike Texas or New York.]
Gilbert expected joint legal custody and a 50/50 parenting time outcome here unless the wife could prevail either on keeping the marital residence or making the abuse allegations stick. "If she is able to keep the marital residence that will snowball into primary residence for her," says Gilbert, noting that Maine gives preference to the parent who retains the marital home when a child is over the age of 3. "There is a lot riding on the abuse allegation," says Gilbert. "And it doesn't have to be physical. Maine courts take verbal abuse very seriously too, especially if it happens in front of the children."
If the mother does win primary residence, what would the kids' schedule look like? "A GAL will recommend a specific schedule," says Gilbert, "but Friday afternoon to Sunday evening is conventional, plus 50 percent of holiday time and a minimum of two weeks in the summer." [I.e., a New York-style 2/14 night schedule is typical for sole physical custody situations]
How much cash is at stake? "He would pay her $231 per week if she wins primary residence," notes Gilbert, i.e., $12,012 per year. [In a 50/50 parenting situation there would be no child support due to the equal incomes.]
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.
To what extent does Maine want to extend, via court order, what had been a voluntary partnership in which he was the breadwinner and she was the stay-at-home parent? Can he say "Now that she is divorcing me I will cut back to four days per week, earn $225,000 per year, and be available to take care of the kids 50/50"? "Yes," says Gilbert. "We love fathers who are willing to do a 50/50 arrangement. A court would see that as a positive even if his income went down slightly."
In a lot of states this would be considered an unfair outcome. Why isn't the wife rewarded with primary residential parent given that she was the primary caregiver of the children during the marriage? "Courts look at that by saying that she contributed to the husband's ability to work and increase his earning capacity; therefore, she will likely get more spousal support," notes Gilbert.
The wife will get alimony in this situation, which Maine calls "spousal support." There is a presumption that alimony ("general spousal support") will extend for half the length of the marriage, but the marriage must have lasted a minimum of 10 years. "If a woman comes in after 9.5 years of marriage," Gilbert notes, "I tell her 'Honey, if you can hold on a little longer, wait [to file a divorce lawsuit]." Maine also provides for transitional spousal support following short marriages and for reimbursement alimony "for example, if the husband had been a gambler or had otherwise unilaterally wasted marital assets or income," says Gilbert.
Gilbert expects that this wife would get between $3,000 and $5,000 per month as a combination of alimony and child support. Given the husband's income and the younger-than-12 age of the children, the basic child support obligation table kicks out a child support number of $25,480 per year, rising to $31,408 after both children turn age 12. However, that's in a situation where the children were primarily with the mother. In a 50/50 arrangement, the number would fall slightly based on the fact that the mother has at least some income from alimony.
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.
"If she is breastfeeding, she is getting that kid," says Gilbert. "She will get primary residence and be presumed unavailable for employment through age 3." What will the child's schedule be with the father? "Probably no overnights if she's not comfortable with him bottle feeding. Overnights would likely start at age 2."
Can she get hold of the $2 million in pre-marital savings? "If she had been actively engaged in the investment of that $2 million she could argue that the appreciation is marital," says Gilbert, "but otherwise she can only get a share of the interest and dividends through child support." What if the money is invested in technology stocks that don't pay dividends, could the wife ask that a judge impute income to the money? "With expert testimony," says Gilbert, "perhaps."
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.
How often does Gilbert handle a case like this? "All the time. I'm just as likely to be doing parental rights and responsibilities orders as a divorce."
Is the father prejudiced in trying to obtain custody, as he would be in most other states, by the fact that he has never lived with the child? "Only in that the court will want to build in a transition period," says Gilbert. " If it is through no fault of his own that he didn't get to know the baby then the court will just want a child specialist to testify about what kind of transition is needed. He can still work his way up to 50/50 custody."
How long can the mother wait before suing and still collect child support going back to the date of birth? "She can go back six years," says Gilbert. "Various defendants have tried to make laches arguments over the years and failed. She can also recover a portion of any out-of-pocket expenses associated with the birth." The guideline statute notes that "Past support is calculated by applying the current support guidelines to the period for which past support is owed."
Must the mother hire a lawyer? "No," says Gilbert. "She can go to the Department of Health and Human Services and they will establish paternity and obtain and enforce a child support judgment. They will do that even if the mother isn't on public assistance." What about a woman who obtained a child support award via private litigation? "DHHS will enforce an order [at taxpayer expense] that one of my clients obtains," says Gilbert.
What if the mother marries a billionaire? Can the father argue that he should pay a reduced amount in child support if she is living in multiple mansions and flying around on Gulfstreams? "I see that argument a lot," replied Gilbert, "and it fails. A third party [such as the new husband] cannot be responsible in any way for the child. Nonetheless, the father could argue that the mother’s new access to income (even if it isn’t generated by her) justifies a deviation from the child support guidelines."
"We call it 'relocation'," says Gilbert. "There is a 30-day minimum notice requirement. If the other parent wants to contest the move it becomes a straight up 'best interest of the child' standard. A GAL would likely become involved." What if the mother has remarried and she and her husband have legitimately much better job opportunities in another state? "Parents in a case like that would be making arguments about which school system is better. Suddenly the kid has special needs and only one school can support that," says Gilbert. "If child has been in a certain location for a long time, a judge is less likely to find in favor of a move. There are 25 different factors and it is hard to predict the outcome." Does the parenting time plan affect the ease with which a parent can move? "It is much much easier if the moving parent has primary custody versus 50/50."
Maine opens up a rich field of litigation whenever anyone self-employed is sued. The definition of "gross income" for child support calculation includes the following section:
Gross income includes gross receipts minus ordinary and necessary expenses when a party is self-employed or derives income from proprietorship of a business, joint ownership of a partnership or a closely held business operation, and rents minus ordinary and necessary expenses. At the discretion of the court, amounts allowable by the United States Internal Revenue Service for the accelerated component of depreciation expenses or investment tax credits may or may not be treated as ordinary and necessary expenses. The court may also determine that other business expenses, including, but not limited to, business losses, are inappropriate for determining gross income for purposes of calculating child support.
In other words, the litigants pay attorneys, and the taxpayers pay court personnel, to engage in an argument regarding accounting methods and the tax code.
Maine assigns different cash values to different children from the same parent. In figuring "gross income", amounts for "a preexisting child support obligation pursuant to court or administrative order" are excluded. Thus the first person to sue gets the most cash and each subsequent plaintiff gets less.
As in most other states, Maine provides financial incentives to have children with multiple co-parents. At the top of the guidelines, for example, over an 18-year period three children with one co-parent will yield $780,624 in tax-free cash. Three children with three different co-parents, however, will yield $1.45 million.
Maine provides superior financial security for child support and alimony plaintiffs than for married people. Although the duty to pay child support terminates on the paying parent's death, Gilbert says "it is very common to have the court order parties to secure both child and spousal support payments with a life insurance policy."
At least by statute, Maine provides superior financial security for extramarital relations and children than for a legally married spouse and children of the marriage. If a parent supporting a spouse and six children, for example, is sued by the co-parent of an after-born extramarital child, the extramarital co-parent by formula gets the same amount of child support as if a single person had been sued. However, a judge would have discretion to deviate downwards from the guideline formula in a case such as this.
Gilbert would like to see faster access to interim hearings and attorney's fees awarded on an interim basis. This would discourage litigants from turning to the domestic abuse system because they can't get the "temporary divorce" that other states offer via an interim hearing within 30-45 days. Regarding the importance of the attorney's fees, Gilbert says "Oftentimes the poorer client will settle because he or she can't afford to litigate, which is really sad."
Most New England states operate a system whose purpose is to determine who was the primary caretaker of the children during the voluntary partnership of the marriage and then using court orders to extend that partnership involuntarily. Thus a parent who takes care of a child for a few months and then sues can obtain custody of that child, and an accompanying stream of child support, for 18-23 additional years. Maine, due to its heavy reliance on GALs and lack of deference to what had been the division of labor during the marriage, falls into the "craft a new optimum" category of states in which it is recognized that the adults' roles may shift following a divorce.
Maine is similar to other states in rewarding people who are successful in using the domestic abuse prevention system.
The profitability of children is lower than in other New England states and, correspondingly, the cost and intensity of litigation over child custody and child support seems to be reduced.