Data were gathered by a recent graduate of New England School of Law. She pulled all of the available files for cases filed in Middlesex County, Massachusetts during May 2011 and coded information from the (paper) files. Note that these cases constitute only about half of the family law matters that come before judges in Middlesex. Cases involving unmarried parties are sealed by default and not available to the public or researchers. Additional challenges for researchers are (1) the clerk limits access to no more than 10 cases per person per day, and (2) financial statements and other documents indicating the assets and income of parties are automatically "impounded" and unavailable to the public. (See "Mass. among the worst in US for public records access; An ‘F’ for state on open records" from the November 9, 2015 Boston Globe: "The state earned a grade of F and ranked 40th, below states such as Mississippi and Arkansas, in the category of public records access, according to the Center for Public Integrity.")
Our data are available to other researchers at http://www.realworlddivorce.com/data/middlesex-county-ma-divorce-cases-may-2011.xlsx
There were 243 divorce lawsuits filed in Middlesex County in May 2011. Of these one was a same-sex divorce involving two men. In the remaining 242 lawsuits, more than 72 percent had been started by the wife. In other words, women were 2.6 times more likely to sue their husbands than vice versa. Among the 144 cases in which children were involved, women were 3.14 times more likely to sue their husbands than vice versa.
The median years of marriage before one partner sued the other was 10 years. Do parents in the Commonwealth stay together for the sake of the kids? Yes… for one additional year. The median length of marriage for litigants with children was 11 years and the median age of their youngest child was 7. As child support in Massachusetts is payable until a child's 23rd birthday, this means that the typical Massachusetts divorced parent can be in and out of the courtroom arguing about who should pay how much and for what for 16 years, 1.5X the length of the marriage. This also means that child support is a better long-term source of revenue than alimony. Following an 11-year marriage, the maximum statutory length of alimony is 7.7 years. Thus a plaintiff can receive child support payments for twice as long as alimony payments.
Our researcher looked for "joint petitions" indicating that the parties had agreed to divorce and/or gone to a mediator to work out a divorce agreement prior to invoking the legal system. This occurred less than 17 percent of the time. People in Massachusetts apparently would prefer to sue each other. On the other hand, only 3 out of the 243 lawsuits ended up going to a Perry Mason-style trial with witnesses and cross-examination. The trials were only one or two days, but an average of nearly 18 motions had been filed and heard prior to the trial. If one figures a minimum legal fees cost of $5000 per motion per side, that means a Massachusetts couple would typically spend over $200,000 on attorney's fees to get to trial, plus fees for Guardian ad litems ($10,000 to $50,000) and expert witnesses such as accountants and psychologists.
What makes a case go to trial? Money certainly is the first requirement. Our researcher coded all three as "upper middle class" or "rich". All three cases were filed by women who sought sole physical custody of children (and all three won it). What stops a case from going to trial? Anderson v. Sanders was filed on May 4, 2011 and ended when the plaintiff died, resulting in the father obtaining custody of the 14-year-old child. The restraining order that his wife had obtained against him became moot at that point.
Nearly all cases were resolved within three years. Only 4 out of 243 remained "open" in July 2014. How did the rest of the cases get "closed" if only 3 were tried? As noted above, 17 percent were joint petitions and were essentially settled before they arrived at the courthouse. In 16 percent of cases, both litigants were apparently unequal to the challenges presented by the legal system and the divorce lawsuit was abandoned. In 18 percent of cases, the defendant was unequal to the challenge of mounting a defense and thus the plaintiff was able to win a default judgment. The remaining cases (about 60 percent) settled after varying amounts of litigation.
The stakes were high in custody lawsuits, with 97 percent of plaintiffs asking for primary physical custody (what used to be called "sole" custody, with the loser parent becoming an every-other-weekend "visitor"). Had the defendants' unfitness motivated the plaintiffs to try to substantially exclude these parents from the children's lives? Our researcher decided that, based on the evidence available rom the files, 18 out of 288 parents involved in the May 2011 lawsuits were "objectively unfit" in her view (16 cases total; in two cases both parents were unfit!). In other words, 6 percent of parents were unfit in some way.
[What constituted "unfitness" for our researcher? Here are some of her notes on the May 2011 litigants: "Father has Restraining Order and criminal criminal charges (Domestic Violence against Wife). Has been in prison" (Judge Donnelly gave the plaintiff mother custody of the four children); "Mother is allegedly an alcoholic and lost child care license because of some situation involving alcohol" (Judge Monks gave the plaintiff mother, despite her drinking, sole physical custody of the three children.)]
Lawyers told us that filing a restraining order was standard practice for a Massachusetts custody litigant, but our researcher could not confirm this based on the files available to her. Only 17 divorce lawsuits out of 144 cases with children included a restraining order that she could find in the same file as the divorce. (It is possible that restraining orders were requested and granted in other venues and/or in separate proceedings within the Probate court.)
What was the final outcome of the custody and child support disputes? Women were 96 percent of the child support winners, consistent with March 2014 U.S. Census Current Population Survey data showing that 97 percent of the Massachusetts residents collecting child support are women. Women won custody more than 91 percent of the time that there was a "primary" parent. Only 7.5 percent of the children whose custody was at issue in May 2011 lawsuits in Middlesex ended up with true shared parenting or "joint physical custody".
Women were 87.5 percent of the alimony winners in the May 2011 sample. Women had a 68 percent chance of being awarded the marital home, rising to 75 percent if the divorcing couple had a child under the age of 10.
The judge to which a case was assigned affected the probability of the divorce lawsuit paying off for one litigant. Judge Patricia Gorman was the stingiest. Only 25 percent of cases that she heard resulted in one former spouse paying the other years of alimony and/or child support. When a case was assigned to Judge Maureen Monks, on the other hand, 55 percent of cases resulted in continuous payments for the winner. The other seven judges formed a spectrum in between these two extremes.
There was no consistency from judge to judge in how child support was calculated when income was beyond the $250,000 top of the child support guidelines. We looked at Kosow v. Shuman (10D0588) where Judge Monks used the top of the guidelines for one child and then added 11 percent of gross income (defendant ordered to pay $94,000 per year in child support, plus all of the child's actual expenses, including housing, medical care, and nannies, for 19 years; the plaintiff also received $50,000 per year in alimony). Judge Kaplan, on the other hand, approved an agreement where only 7 percent of gross income was added for a defendant with four children (Brock v. Brock). Thus the cash value of each child, as a percentage of the father's income, was 6X higher with Judge Monks than with Judge Kaplan.
Judges who awarded more money generated more intensive litigation. In cases that involved at least one motion (i.e., there was at least some litigation), there were an average of 4.4 motions per case in front of Judge Monks. By contrast litigants in front of Judge Katharine Field presented an average of only 1.85 motions. Cases in front of Judge Field were less than 35 percent likely to involve a long-term revenue stream compared to, as noted above, 55 percent of the cases in front of Judge Monks.
The judges worked without review on all of the cases filed in May 2011. There was no indication in the files of any decision being appealed, consistent with what attorneys told us regarding the futility of appeals from divorce cases. Our researcher did find one April 2011 case in which the appeals court became involved: Halpern v. Nitta, MI11D1447DR. Here are some of her notes: "This case involves a mother who is a native of Japan who brought forth a Temporary Order requesting the court permit her to take the five year old child of the marriage on a two week trip to Japan prior to the divorce trial. There was concern that the mother would abscond with the child. Japan is not a party to the 1980 Hague Convention on the Civil Aspects of International Child Abduction. … [The mother had admitted in a deposition that she might not return] nonetheless, Judge [Maureen] Monks allowed Mother’s motion. … Father petitioned the appeals court for temporary appellate relief from an interlocutory order pursuant to G.L. c. 231, s. 118. The Appeals Court vacated Judge Monks’s order permitting Mother to travel to Japan with the child…" (i.e., the appeals court overruled Judge Monks and the mother was not able to take the child to Japan, at least until the trial)
The data from Middlesex County Probate Court's complete set of May 2011 divorce lawsuits is consistent with what attorneys told us in interviews. The more money is at stake the harder people will fight, but most American families don't have enough money to pay for a full fight through trial. Therefore the system very seldom functions as designed. Decisions are made in an ad hoc fashion after brief motion hearings. When children are profitable, people will fight over who gets the children. Due to the statutory limitations on alimony and the typically young age of children at the time a divorce lawsuit is filed, child support is now more valuable than alimony. If a state offers to make one parent "primary" and the recipient of weekly tax-free funds from a "secondary" parent, people will fight hard to avoid being the "secondary" parent. At the same time, it is not rational for fathers to fight for custody because their chances of winning primary or shared parenting are insignificant. There is wide variation from judge to judge in the kind of litigation that can be expected and the likely outcome given the same facts.