Part of Real World Divorce: web edition | Kindle edition
Deborah Miller Tate has been President of the Rhode Island Bar Association and is the only divorce attorney from Rhode Island chosen as a Diplomate of the American College of Family Trial Lawyers. She is the co-editor of the 2009 book A Practical Guide to Divorce in Rhode Island. See http://www.mtlhlaw.com/Attorney-Profiles/Deborah-M-Tate.shtml for more biographical detail on this New England "super lawyer".
Tate handles an evenly balanced mixture of male and female clients though "the majority of cases are initiated by women." She goes to trial fewer than 10 times per year and oftentimes cases will settle just as a trial is getting underway.
Rhode Island publishes a child support schedule for combined incomes up to $300,000 per year: http://www.cse.ri.gov/documents/RIscheduleJune2012.pdf. The child of a $250,000-per-year defendant yields a tax-free $2,030 per month ($24,360 per year) for 18 years. This is 4X what some high-cost European jurisdictions provide and nearly 5X what Rhode Island will pay a foster parent, but about average for the U.S. What about when a defendant's annual income is above $300,000? Tate cautions that some of the $100,000+ per year child support awards that are common in Massachusetts and California aren't necessarily achievable in Rhode Island: "There is no cap on child support but in practice a judge will eventually invoke the three-pony rule." [‘no child, no matter how wealthy the parents, needs to be provided [with] more than three ponies.’” (quoted In re Patterson, 920 P.2d 450, 455 (Kan. App. 1996)).]
A child support recipient need not take care of the child(ren). "Child support does not include work-related child care or uninsured dental or medical expenses," notes Tate. "Nor does it include agreed-upon extracurricular activities." Courts will order a defendant to pay for daycare, healthcare, and sports, etc., on top of the standard child support numbers. Rhode Island courts cannot order a parent to pay college expenses for a child over the age of 18. Tate explains the justification: "Why should children of divorced parents have more legal rights than children of intact families?"
Tate believes that a "walk-away" prenuptial agreement, in which neither party may profit from the marriage itself (but still could profit from winning child custody and child support), is valid in Rhode Island. "We follow the Uniform Premarital Act. It is hard for courts to undo a prenup."
Is there a practical right of appeal in Rhode Island? "Appeals are rare because it is rare to try a case through a decision," says Tate. "There is not much practical value in an appeal due to the things that upset people being questions of fact, not law. It is probably easier to overturn a financial award as opposed to a placement or custody award."
The average hourly wage in Rhode Island is $23.31 per hour. A person who goes to college at University of Rhode Island will spend approximately $67,540 over four years to earn a bachelor's degree. Census 2014 data show that the median income for a 22-36-year-old college-educated woman working full time is $40,000 per year ($29,741 after taxes). The corresponding man earns $60,000 per year ($42,221 after tax).
The average income for a college-educated woman who works full time is $43,000 per year in Rhode Island or $31,455 after taxes. For a college-educated man it is $53,000 per year or $37,694 after taxes. Rhode Island is less efficient compared to other U.S. states, collecting approximately 10.8 percent of state residents' income to run state and local government (compare to a national average of 9.9 percent; source: Tax Foundation). Despite these high collections, Rhode Island has among the highest per-capita public pension liability deficits and was picked by s (November 22, 2013) as one of the five worst-run states in the Union.
The average annual cost of child care is $11,830 for an infant and $9,932 for a four-year-old. The total cost of child care from age 0 through 12 is about $69,836 in commercial settings or $61,308 in a family care setting.
The man who goes to college and then works at the median wage for 14 years, will have a total after-tax spending power of $523,554 (14 years of average earnings minus college outlays). After adjusting for USDA-estimated costs of child-rearing, he will enjoy greater personal spending ability compared to the college/work scenario if he can collect $3,174 per month in child support. This is an above-guidelines number that would require judicial discretion and a defendant earning more than $300,000 per year. If the man obtains custody of two children from two different mothers, however, he need collect only $1,962 from each mother to outperform peers who choose college and work. He can get this by suing women earning at least $235,800 per year.
The similarly situated woman will obtain after-tax spending power of $348,834 from college and 14 years of work. She will be better off financially if she can collect $2,365 per month in child support, slightly above the guideline table. If she has two children with two different fathers, however, she needs to collect only $1,558 per month from each. This corresponds to defendants earning $155,400 per month.
Among residents surveyed by the U.S. Census Bureau in March 2014, 90 percent of those collecting child support were women.
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.
Tate says that the Rhode Island refers to "legal custody" (decision-making) as "custody" and what other states call "physical custody" as "placement." As in Massachusetts, the courts justify physical custody awards based on who can establish "who has been the primary caretaker of the child." Also, as in neighboring Massachusetts, the courts establish a financial incentive for a parent seeking sole custody, and the child support profits that flow from it, to fight with the co-parent. "Judge could order 50/50 placement," Tate notes, "but rarely do they because they don't think it is great for kids and think that kind of relationship requires a lot of cooperation between the parents. The decision regarding shared placement is more of a function of the parents’ relationship with each other."
On balance, Tate thought that "The Court would probably tell him to go out and get a job," rather than having the mother-physician pay the father to be a 2/3rds-time or half-time parent. Note that in the scenarios below, Tate thought that the Court would try to preserve the "status quo" of a stay-at-home mom and a father paying the bills.
In the most likely scenario of the mother gaining "placement", how much child support could she collect from a man who has no income? "The Court would impute income to the father based on his education background and tax returns showing what he was earning before. Then the support obligation would be computed from the guidelines."
How much would the father stand to gain financially if he could get "placement" of the child or 50/50 parenting time? "It could be in the $3,000 per month range [note: top of the guidelines is $2,288 per month, corresponding to a $300,000 per year income] and it would be about the same if they had 50/50 custody." How does child support vary with the split of parenting time? "It is up to a judge's discretion. They could do it Massachusetts-style, calculating child support in both directions and then subtracting the difference, but there is no formula set forth in the guidelines."
At what age would the mother be at risk of the child developing a preference to spend 50/50 or more time with the father and thus having child support begin flowing in the opposite direction? "There is no statute or case law that says what the age should be. Certainly when kids are in high school they will have more of a say. It depends on the maturity of the child and judges have paid attention to 11-12-year-olds. Judges consistently take the position that 'this child is not making the decision.' Judges don't want to empower children and also they want to protect a child from being torn between two parents."
Given that this father has no money, will the mother ordered to pay his legal fees? "In practice he might get an advance against an equitable distribution but it is hard to get a payment of legal fees. There is no level playing field doctrine as in Massachusetts, but as a matter of practice there will be an advance if the judge knows that someone is going to be getting significant money."
Are the fees likely to run into the millions, Massachusetts-style? "I charge $400 per hour and I've had only three cases that have gone into six figures."
Can this father expect to get alimony? "Rhode Island is not a state that is very supportive of lengthy alimony awards. The length of alimony is discretionary. The question would be what effort has he made to get a job and can he earn more than the cost of work-related child care? If work-related child care will exceed the wages then it may make sense for someone to stay home through the child enrolling in nursery school." Can a judge award lifetime alimony? "The Court has that power but I've never seen that. With longer marriages, alimony will often run to the point at which retirement starts."
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.
Tate felt that in this scenario the court would try to craft a roughly 50/50 schedule. If the parents couldn't communicate regarding decisions would the court try to split up decision-making? "I have seen a court award sole decision-making regarding health care, education, or religion to one parent."
How much is at stake financially here if a parent could convince a judge to award primary placement? "Child support would be based on $130,000 per year in annual income level, which would yield $2,857 per month in support. Then divide by two due to the equal incomes. Net of $1,428 per month or $17,142 per year." Given that the actual cost of caring for a child 33%, 50%, and 66% is roughly the same (dominated by housing cost), does that mean in a custody fight the difference between winning and losing is as much as $34,284 in after-tax spending power? "Yes." [Note that, according to the ADP Paycheck Calculator, a Rhode Island citizen earning $65,000 per year gross would take home roughly $45,188.]
Could a plaintiff here get alimony? "No," responded Tate, "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.
Tate: "It would be very hard for the father to get 50/50 custody. The Court starts with the status quo and asks if there is a reason to change that. She has been the primary caretaker. The judge would only consider more time with the father if he is not looking for a reduction in child support. The father has to be willing to pay a full amount of child support. 50/50 placement is hard because how is this doctor going to have time to take care of the kids?" Suppose that he had flexible hours and could scale back his work slightly on the days when the kids were assigned to him? "The father will not be allowed to cut back his hours because that would reduce the standard of living of the kids. A lot of what judges look at is the motivation of the parent. Is it because the parent doesn't want to pay as much child support or does that parent truly want to be a 50/50 parent?"
[Note that here Rhode Island is starkly different from Michigan and other Midwestern states where the assumption of the courts is that the division of labor that prevailed during the marriage was a voluntary one and it doesn't make sense to try to impose that division involuntarily for as many as 18 additional years. The expectation in those states is that there may be a different division of labor, with a non-working spouse taking a job and an always-working spouse cutting back.]
Is there a conventional schedule for when children see the parent who lost a custody lawsuit? "The convention in Rhode Island might be alternating weekends Friday afternoon until Monday morning. During the off week it would be after school and for dinner. Maybe overnight. Generally there is a feeling that a kid should be in the same bed during the school week." How about the summer? "With older kids it could be a month with each parent. There court has a lot of discretion. At almost any age a kid could go away for a week, e.g., one week in June, one in July, one in August."
Tate predicts that child support would be taken from the guidelines (about $3,235 per month or $38,820 per year, tax-free). She expects that the plaintiff would also receive free use of the marital home until the kids turn 18, i.e., 16 more years, and after that there would be an equal division of the home's value. Similarly the $200,000 in savings would be divided equally.
Can this plaintiff get alimony? "A 10-year marriage would result in an average of 3-year rehabilitative alimony," says Tate. How much would it be? "The Court will look at her needs versus his needs and what are his reasonable expenses." What happens in a settlement? "People like having non-modifiable alimony by voluntary contract whereas if it is imposed by a judge it can be modified due to any substantial change in circumstances."
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.
Tate predicts primary placement to the mother with an accompanying $25,788 per year in tax-free child support (from the guidelines). Could the father eventually work his way up to spending more time with the child? "Not if there would be any reduction in child support payments to the mother," says Tate.
Can this plaintiff tap into the $2 million in savings? "Pre-marital assets cannot be distributed by the court. Appreciation in value during the marriage can be considered marital, however. And the court can impute income to the assets and then use that to increase child support." Can a judge impute a much higher rate of return than is available in the market? "Generally not," says Tate. "There is a tendency to look at the tax return and say 'What's good enough for the IRS is good enough for us' but of course the court will also look at any tax-free earnings."
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.
"This case will start with joint [legal] custody and, without question, she will be the primary parent for residential placement." On what kind of schedule will the child see his or her father? "There is no standard schedule. The court will look at whether she is nursing the child. The court would look to the medical field on the question of bonding with both parents."
What kind of child support revenue will the plaintiff receive? "It is the same calculation as if they had been married," says Tate. [i.e., $25,788 per year]
What if the mother gets married at 25 to a man earning $100,000 per year? "The only time that I've seen it have an effect is if the new husband is quite wealthy. If he is paying all of the expenses because it is his home then the child support payor can argue that the housing component of child support should not be taken. It is a factor that judge might but need not consider."
How easy is it for a parent to move out of state with a child? "It is called 'relocation' in Rhode Island and it depends on where. Our courts are pretty liberal and will try to allow the relocation. Courts starts out with a presumption that the motivation for the move is pure and the relocating parent is not trying to deprive the other parent. It is similar to Massachusetts where you assume that the parent moving will get an advantage and therefore the child will get some advantage." How do the "secondary parents" feel about this advantage? "These are contentious. I have actually tried more relocation cases than divorce cases," says Tate.
Does 50/50 placement make it harder for a parent to move? "Maybe. I tried a case where they had shared placement of a young child and was able to get approval for the mother to relocate to Germany. The parent who remains will typically spend most of the summer and more of the school vacations, e.g., 8 out of 10 weeks in summer. 2 of 3 school vacations."
No part of Rhode Island is more than a short drive from Connecticut or Massachusetts. A divorce, custody, and/or child support plaintiff may be better off under the laws of those states:
When interviewing consumers we found at least some plaintiffs with family and/or jobs in Rhode Island tried to keep their family court litigation in Massachusetts. See the Relocation and Venue Litigation chapter for the factors. In order to maintain the jurisdiction of Massachusetts courts, a successful plaintiff would, for example, live in southern Massachusetts, bank child support revenue at Massachusetts rates, and commute 30 minutes to a job at Brown University or Rhode Island School of Design in Providence. The general level of awareness of inter-state differences in family law was much higher among Rhode Islanders than among residents of Massachusetts.
Rhode Island rewards the parent who plans a divorce lawsuit a year in advance. The parent who knows that the voluntary partnership is going to be ending can create the "status quo" that the court will then seek to preserve involuntarily. For example, if there are two working parents, the one who is planning to sue can offer to take over nearly all child care for a year, encouraging the other parent to take on extra projects at work, shop and cook, maintain the house, etc. After the lawsuit is filed, a judge may impose court orders to force the defendant to do those extra projects at work for the next 18 years.
Rhode Island rewards the parent who instigates fights with a co-parent by eliminating the potential for shared custody if the court finds a lack of cooperation. Merely by refusing to negotiate and/or agree to requests, a plaintiff can substantially bolster his or her case for sole custody ("placement") and the child support profits that accompany it.
Rhode Island provides financial incentives to have children with multiple co-parents. At the top of the guidelines, for example, three children with one parent will yield a tax-free $888,408 over 18 years. Three children with three different parents have a cash value of $1.48 million.
Tate thought that Rhode Island was unlikely to follow Massachusetts down the road of alimony codification. She expected to see more shared placement of children, however, and more cases resolved through mediation. "Lawyers going to court to try cases will keep dwindling," says Tate. "People don't have the resources and, even if they do, they don't want to spend them on legal fees."
Tate personally advocated child support payments continuing through college, as in neighboring Massachusetts (through age 23), "because kids do come home." However, she says, "child support through college goes into the legislature every year or two and dies in committee."