Part of Real World Divorce: web edition | Kindle edition
We're not advice columnists but we did learn some things from our interviews that can be put to practical use.
If your main life goals having successful children and achieving financial security, every element of the conventional advice of "finish college, get a job, and get married" is likely to work against you.
Collecting child support in many U.S. states can be more lucrative than working at the median college graduate wage. Child support is a more secure source of income than a job. Your employer won't be imprisoned for failure to keep writing paychecks, but your child support defendant will be. Depending on the state, you can also get a court order requiring your child support defendant to buy life insurance that will pay you in the event of his or her death.
Having children with multiple partners is more lucrative than having children with one partner. Depending on the jurisdiction, earning a college degree may impair a child support or alimony claim. A history of work can also impair child support and alimony claims.
Marriage may entitle you to a free house and/or alimony, but the choice of defendants is limited to unmarried partners who will agree to a marriage. The most successful potential sexual partners are probably already married. The Son also Rises (Clark 2014; Princeton University Press) follows members of successful families over hundreds of years and concludes that there is likely a genetic basis for "social competence". Thus a married physician whose parents, grandparents, aunts, and uncles are mostly successful professionals is much more likely to produce a successful biological child than an average person:
Is there anything that this book can say to people who want the best possible income, wealth, education, and health outcomes for their children? The one scientific contribution we can make is to point out that with the appropriate choice of mates, a family can avoid downward mobility forever. … If the way to produce children of the highest possible social phenotype is to find a partner of the highest possible social genotype, the path is clear for those whose aim in life is to produce the highest-achieving progeny possible. To discover the likely underlying social genotype of your potential partner, you need to observe not just their characteristics but also the characteristics of all their relatives. What is the social phenotype of their siblings and their parents? And what is the observed status of their grandparents and cousins?
Clark assumes that marriage is a prerequisite for reproduction, but, as we hope you've seen from this book, that is no longer true from a practical or a statistical point of view. One of us wrote a review of Clark's book:
Informed by Clark’s book, a young woman today could get a job in or near a hospital and, after making what seemed like small talk regarding family background (“Are your parents also doctors?”; “What do your grandparents do back in the old country?”), identify fathers for her future children. … Using this method instead of marrying a high-school sweetheart of average status, the mother would have a superior genetic endowment for her children. Without working, she would have more spending power than any of the defendant fathers yet without investing time or money in college.
Attorneys also pointed out that when seeking child support profits via a brief encounter, their plaintiff clients don’t limit the search to men who are currently single. Having a child with a married man may be more lucrative than having a child with a single man. Why? When child support is discretionary, e.g., in higher-income cases, a plaintiff can ask for 100 percent of a married defendant’s income on the grounds that the defendant’s wife can support him and any marital children while he supports the plaintiff and her out-of-wedlock child. Attorneys also told us about larger-than-guidelines cash transfers that they negotiated in exchange for keeping an extramarital encounter, and the resulting child, out of the public record.
Does anyone actually target physicians? An Arkansas litigator described some of his work with medical professionals: “When I see young doctors working with attractive nurses I think that’s just like hunting in a baited field.”
Note that children of divorce fare worse than their genetic inheritance would suggest. However, much of that is due to litigation, which is less intense when the parents were never married. And, statistically, most of the harm can be mitigated via a 50/50 shared parenting arrangement. A plaintiff with no college degree and no job can still get get the full guideline amount of child support revenue in a 50/50 shared parenting arrangement in some states, e.g., Massachusetts.
Historically, it has been primarily women who have profited via child support. As described in Child Support Litigation without a Marriage, however, it can work for men.
Traditional values and the white picket fence are more important to you than maximizing your spending power? The research of Brinig and Allen shows that your chance of being sued for divorce rises with the amount of money that your spouse can get from you and with the probability that your spouse can win primary or "sole" custody of the children. You can increase your chances of staying married, therefore, by marrying someone wealthier than yourself and by avoiding residence in a state with a winner-take-all custody system. Consider the plaintiff we described in the Massachusetts chapter who enjoyed her free house, her $50,000 per year in alimony, her boyfriend, her primary parent role, and $94,000 per year in tax-free child support. Would she have gone down to a Nevada courthouse after four years of marriage asking to become a 50/50 parent with $13,000 per year?
How about the plaintiff we describe in Massachusetts Prenuptial Agreements? He spent a couple of decades relaxing at home, watching the nannies raise the children, surfing the Web, etc., while the wife earned huge sums in the financial services industry. As the wife was getting ready to retire the stay-at-home husband asked "Do I need this woman to earn more money?" The answer was no due to the fact that she was about to stop working. He then asked "Do I need her around to provide a stable environment for our children?" The answer was no because the kids were nearly launched. Did he need her to produce more children? It would have been biologically impossible due to her age. After a bit of litigation it turned out that, under the Massachusetts no-fault system, "I want to have sex with 22-year-olds off Craigslist" was as good a reason for a divorce as any. The plaintiff got paid tens of millions of dollars down at the local family courthouse. Would life with the 22-year-olds have been workable if he'd come out of a German divorce with none of the wife's savings and no alimony?
Are there relevant soft or psychological factors beyond the economic incentives?
"Marriage used to be something you did first and then you built your life on that," said Bryndl Hohmann-Marriott, an American sociologist currently teaching at University of Otago. "Now it is a capstone event that you do after you achieve other things. This results in people waiting until they are much older to have children. In New Zealand right now there are more women age 35-39 having children than women 20-25."
In light of Professor Hohmann-Marriott's observation, staying married is more important than it used to be because people are getting married at an age where they have fewer remaining years in which to recover from a mistake.
Hofmann-Marriott's research, in collaboration with Professor Paul Amato at Penn State, shows that there are plenty of divorces in marriages that are just as happy as those that continue for decades. "Nothing distinguished the quality of marriage for those people who got divorced out of low-distress [nobody hitting anyone] marriages," Professor Hohmann-Marriott told us, "so it has to be just a lack of personal commitment to the institution of marriage that explains some divorces." What's her best advice to people hoping to have a lifelong marriage? "Don't slide into marriage. When you move in or have a child together, do it on purpose."
Based on our interviews with attorneys, psychologists, and sociologists, as well as our review of the literature, a good starting point is to find people who have a cultural or religious commitment to marriage. They are the ones who will be willing to put in some work and effort when there are bumps in the road, rather than picking up the phone to call a litigator. At the other end of the spectrum are children of divorce who are themselves prone to becoming divorced. "If she didn't have a close and loving relationship with her daddy," we were told, "she isn't going to be able to handle being a wife."
This perspective is echoed in the psychology literature. From Father-Daughter Relationships: Contemporary Research and Issues (Nielsen 2012): "Which mothers are the least likely to be gatekeepers? Generally speaking, mothers who keep the coparenting gate open share several things in common (Titelman, 2008; Cannon, 2008; Chiland, 1982; Krampe & Newton, 2006; Pleck & Masciadrelli, 2010). First, these mothers had good relationships with their fathers while they were growing up. They value and appreciate fathers. They believe men and women should be equal parents. In contrast, the gatekeepers more often grew up in single-parent, divorced, or unhappily married families. Their relationships with their fathers were distant, troubled, or virtually nonexistent."
Most states' divorce courts substantially reward gatekeeper parents by awarding custody to the "historical primary caregiver" of a child. By definition a gatekeeper will have been the more hands-on parent during a marriage. You can reduce your likelihood of ending up with a gatekeeper and then being targeted with a divorce lawsuit if you limit your search for a mate to those who grew up in a stable two-parent household.
If your first concern is the welfare of your children, consider avoiding civil marriage altogether, especially in states where divorce litigation is common and intensive. As we hope you've seen from this book, marriage creates a financial incentive for the lower-income partner to divorce rather than try to resolve disagreements.
What if a split is inevitable? Attorneys told us that children of unmarried parents who split up do better than children of married parents. An unmarried couple need not go through years of litigation in order to separate. Litigation is harmful to children and a lot of U.S. states set things up so that litigation is virtually inevitable when parents have been formally married. Children whose parents arranged their post-break-up care around a kitchen table do a lot better than children whose post-divorce care was ordered by a judge after three years and $1 million in legal fees.
In response to our analysis of a custody law commission's report (see the Maryland chapter), one of our readers commented "How about let’s focus on ending [civil] marriage in this country. It’s well past the point of saving. The ticks weigh more than the dog."
Of course a long-term marriage can be beneficial to the spouses. However, it is difficult to come up with a scenario in which a U.S. marriage is a rational choice. For a higher-income person contemplating marriage, the pain of going through a typical U.S. state's divorce process will greatly exceed any potential pleasure from the marriage. Given the close-to-50-percent probability of divorce, the probabilistic expectation of marriage is negative. As noted above, for a lower-income person, marriage doesn't make financial sense if it is possible to have children with multiple high-income partners. For a lower-income man it would make sense to marry a high-income woman, but a rational high-income woman wouldn't expose herself to a property division and alimony lawsuit in the event that the man runs off with a younger woman. In states where 50/50 parenting is the norm, the high-income woman would also risk paying lucrative child support to the guy who ran off with a 22-year-old.
Think that the statistics don't apply to you because you are a good judge of character? Keep in mind what one of our litigators pointed out: "If we were good at assessing credibility none of us would ever get ripped off."
Judges love to redistribute funds from the partner whom they identify as "rich" to the one whom they identify as "poor", even when both are vastly wealthier than average. Our interviewees referred to people with millions of dollars in assets and hundreds of thousands of dollars in annual earned income as "the poor spouse" or "a dependent spouse." Attorneys whom we interviewed reported that marrying for money is something that occurs at all income levels, consistent with research by Sacks, Wolfers, and Stevenson reported in "Subjective well-being, income, economic development and growth" (National Bureau of Economic Research Working Paper 16441, 2010) and "The New Stylized Facts about Income and Subjective Well-Being" (Institute for the Study of Labor (IZA), 2012). This is summarized most simply in "Money Does Buy Happiness!", a January 25, 2013 article in Forbes: a doubling of income will make anybody a lot happier, regardless of the starting income. In other words, a person who earns $200,000 per year would be just as motivated to marry for the potential alimony and child support profits as a person who earns $20,000 per year, as long as a high-income target can be found.
As noted in the Child Support Litigation without a Marriage chapter, in most states, the potential child support profits from a one-night encounter are greater than the financial benefit of a long-term marriage to a middle-income partner. Attorneys related a full range of scenarios in which pregnancy resulted despite one partner believing that contraceptive measures were in place. The best protection against child support litigation or abortion sale negotiation following a brief encounter is to have your fun in one of the states or countries we've identified where child support revenue is capped at a level only slightly higher than the actual cost of caring for a child. See the chapter on venue litigation, however, for how it may be possible for a plaintiff to obtain the jurisdiction of a state with unlimited child support.
"Women who want to make money from the system aren't getting married anymore," said one lawyer. "The key is recognizing that it is a lot easier to rent a rich guy for one night, especially if he has had a few drinks, than it is to get a rich guy to agree to marriage." Another disadvantage of marriage, from a plaintiff's perspective, is that it prevents what attorneys call "forum shopping." A plaintiff who is married in Texas is stuck with Texas law and $20,000 per year in child support for a single child. A plaintiff who isn't married and who has a good understanding of the Uniform Interstate Family Support Act (UIFSA) may be able to sue a Texas defendant under California, Massachusetts, New York, or Wisconsin law and collect millions of dollars.
Prior to marriage, educate yourself regarding your state's laws and customs. Hire a working divorce litigator in that state to teach about what it would look like if your partner were to sue you and also to draft a prenuptial agreement. Note that only a working litigator can tell you which portions of a prenup are likely to be upheld by a court. Prenuptial agreements cannot control custody or a child support, two of the most profitable, and therefore most heavily litigated, claims in most U.S. jurisdictions. However, prenuptial agreements in many states can control property division and alimony, both of which lead to an enormous amount of litigation. See our short books Massachusetts Prenuptial Agreements and California Prenuptial Agreements for more on this topic. Even if you don't live in one of those two states, the issues will be similar.
Prior to moving, educate yourself regarding your new potential home's laws. A move from Alaska or Pennsylvania to New York means that instead of sharing the children 50/50 following divorce, one of you will be an every-other-weekend visitor. A move from Texas (child support capped at about $20,000) to Massachusetts or California (unlimited child support profits available) gives your partner a multi-million dollar incentive to seek primary parent status and accompanying child support revenue. Would your partner report you to a state agency as a child molester to ensure a custody victory and the ensuing profits? You'll find out if you move!
People who grew up in Civil Law jurisdictions, e.g., most of Europe, should take special care to educate themselves. U.S. laws are completely different with vastly larger financial incentives to file divorce lawsuits and to have children or sell abortions following casual encounters. In addition, where a case in Europe will be decided for a relatively modest amount of attorney's fees, and heard by a panel of three judges, a case in the U.S. will often consume 100 percent of a couple's savings and will be decided by a single judge whose discretion is unlimited from a practical point of view.
Attorneys in most states told us that successful use of the domestic violence system could be more important than strategy and tactics used in a parallel conventional divorce case. "Do you want to fight your husband armed with a peashooter or a thermonuclear weapon?" was one attorney's explanation of the difference. "It's Blitzkreig versus trench warfare," explained a colleague. "Nothing motivates a man to settle like already having lost everything."
"If your wife suddenly begins starting arguments or pushing and shoving you at home," said one litigator, "you should expect that she's building up evidence for a restraining order and an ultimate divorce lawsuit. You should also expect that she is recording everything that you say, either with a smartphone or a nannycam."
(Note that a handful of states require "two-party" consent to record a conversation and play it in court: California, Connecticut, Florida, Hawaii, Maryland, Massachusetts, Montana, New Hampshire, Pennsylvania, and Washington.)
"The difference between the IRS and a family court," said one lawyer, "is that the IRS makes up the rules before they determine your income. Also, the IRS doesn't have a special hatred for people who work for themselves." How serious is the animus against the self-employed? "I have to struggle to get a one-day trial so that a judge can decide whether a two-year-old child should have one parent or two parents for the next 16 years, but anywhere in the state I can get a three- or four-day trial on the question of whether a business owner's income is different than what his accountants and the IRS determined it to be."
Minnesota's statute is a good example:
For purposes of section 518A.29, income from self-employment or operation of a business, including joint ownership of a partnership or closely held corporation, is defined as gross receipts minus costs of goods sold minus ordinary and necessary expenses required for self-employment or business operation. Specifically excluded from ordinary and necessary expenses are amounts allowable by the Internal Revenue Service for the accelerated component of depreciation expenses, investment tax credits, or any other business expenses determined by the court to be inappropriate or excessive for determining gross income for purposes of calculating child support. The person seeking to deduct an expense, including depreciation, has the burden of proving, if challenged, that the expense is ordinary and necessary. [emphasis added]
In other words, the defendant who runs a machine shop would have the burden of proving that it was necessary to buy a new drill press or lathe in front of a judge who had never used either a drill press or lathe.
Without having any business experience or hearing expert testimony, a judge can decide (1) that a defendant could work harder and get more revenue, (2) that a corporation partly owned by a defendant is investing too much cash in the business and that additional income can be imputed on the theory that the defendant could or should be withdrawing funds from the company, and (3) that all of the company's capital equipment should be on a different depreciation schedule and/or that no depreciation should be allowed at all.
As with other areas of divorce law, discretion for judges means energetic attorney argument on both sides and consequently massively increased fees compared to a case where the defendant was a standard W-2 employee. In a state where the defendant also has to pay the plaintiff's legal fees, any additional income potential from being self-employed is likely to be wiped out by the costs of litigation to get to the point where the divorce judge makes an independent determination of the defendant's income. What might those costs be? In October 2014 we interviewed Alan Frisher, a Certified Divorce Financial Analyst in Melbourne, Florida who regularly serves as an expert in divorce lawsuits. He estimated that expert fees where a self-employed person's income was challenged could be $500,000. Even if it is only a $300,000-per-year business? "It doesn't matter what the person makes," said Frisher. "It is the time to prove what they make." What if you also add in attorney time to talk to the experts, prepare experts for depositions, conduct depositions, prepare for the experts' testimony at trial, and present excerpts of expert testimony in briefs? "It could easily be $1 million total."
So if you're self-employed and get sued, consider shutting down the business and getting a W-2 job. If it pays roughly the same as your reported Schedule C income during the years of the marriage, the plaintiff will have a tough time attacking you for being voluntarily underemployed. "If you're like most child support defendants, you'll keep getting sued periodically until the child turns 21," noted one lawyer. "Do you want to pay forensic accountants to show up at each of those trials? Once you shut down your business these modification hearings can be cut from two days to one hour. Also, most self-employed people work harder than Johnny Paycheck. But until your child turns 21 you'll be working for your plaintiff, not for yourself. So lower your blood pressure with a 40-hour-per-week W-2 job that a divorce judge can understand in two minutes."
Attorneys described active-duty military personnel as "sitting ducks" for divorce, custody, and child support plaintiffs. "If you were serving in Iraq for the last year," noted one lawyer, "how could you possibly show that you were the historical primary caregiver?" Forum shopping is easy for a patient military spouse. If sole custody of children is desired, for example, the future plaintiff can wait for the family to be moved from Arizona (50/50 custody presumption) to Massachusetts or California. If alimony is desired, the future plaintiff can wait for the family to be moved from Texas to Florida. If profitable child support is sought, the future plaintiff can wait for the family to be moved from Nevada to Wisconsin or New York.
A former Marine Corps officer explained that military members who get sued for divorce, custody, and/or child support often lose their position within the military. "It doesn't take much for a woman to get a restraining order and then the service member is one small step away from a misdemeanor domestic violence conviction, e.g., for somehow violating the terms of the order," he noted. "At that point the service member is not able to carry a firearm and therefore we have to do an admin separation." (See the Domestic Violence chapter for the relationship between a typical family court lawsuit and the restraining order system.)
"Military divorce rate at highest level since 1999" (December 13, 2011; USA Today) says that the military divorce rate is slightly higher than the U.S. civilian divorce rate.
The conventional advice in self-help books is that parents should give children vague anodyne non-explanatory explanations for why the divorce occurred. According to the academic research, this hinders children's ability to form relationships and get married. From "The Unexpected Legacy of Divorce: Report of a 25-Year Study" (Wallerstein and Lewis; Psychoanalytic Psychology 21:3 2004):
As adults, many of our participants still felt angry that they had not been informed about the cause of the divorce. .. Silence or vague explanations offered by most parents only contribute to the young person's sense that divorce strikes suddenly, without warning. … The goal should be to help the young person view divorce not as inevitable but as a result of avoidable human error.
"I encourage clients to be direct with children of a sufficient age," one lawyer said. "Divorce lawsuits are about an adult wanting to make money. Teenagers certainly can understand that adults need to make money."
Many of the lawyers interviewed said that offering cash was the best way to dispose of a custody lawsuit. "When I represent a defendant who is accused of being a child molester and the plaintiff is seeking sole custody with supervised visitation," related one attorney, "I tell him 'remember that if your wife cared about your kids more than money she wouldn't have sued you. From a person who is that interested in money you can buy whatever you want, including your kids. It is just a question of the price.' Typically an above-guidelines child support offer is sufficient to get the plaintiff to agree to 50/50 parenting time. A substantial cash settlement is often enough to get the mother to move 1000 miles away and give up custody altogether."
If you've lost custody via temporary order in a winner-take-all state and are waiting for trial, consider moving. Your temporary loss will almost certainly become permanent at trial, regardless of what you do or say. If you're in a state where a child's schedule can't be modified without showing a "change in circumstances," you're better off with a trial decision based on your out-of-state status. If you ever do decide to move back to the state where you got sued you'll be entitled to a fresh look at the custody issue. Also, see the Children, Mothers, and Fathers chapter and below for how divorce lawsuit defendants who move are the happiest in the long run. "Once you've lost custody, you're not a parent anymore," said a veteran litigator. "Why stick around to pay taxes to support the court system that took away your house and kids?"
All of the research shows that children of mediated divorces do better than children of litigated divorces. Mediation also results in less trauma to the adults and is much cheaper, thus resulting in more wealth available to spend on the children. However, if your spouse refuses to mediate you'll probably want to hire an attorney. How to choose? "Remember the old adage," said one attorney, "that a good lawyer knows the law and a great lawyer knows the judge."
In states where judges are elected, attorneys report that judges are more favorable toward clients represented by attorneys who have donated to their election campaigns. In all states attorneys report that lawyers who have worked with judges, e.g., serving on committees, can deliver better results than an attorney who is not friendly with the judge. In most states legislators continue to do private work. Why not hire a state legislator who is a divorce litigator to represent you? Now the person who drafts the next round of family law, who votes on pay raises for the judge, and who decides whether or not to fund a new air-conditioned courthouse, will be your advocate.
Divorce, custody, and child support laws involve a balancing of interests and the fact that they are different in every state and every country is good evidence that nobody can agree on what is fair. Chances are that your personal idea of justice is different from your state legislature's and the local judges. If you've lost a divorce lawsuit you've probably suffered what one litigator characterized as "a loss of identity as a spouse, identity as a parent, and financial security." You might not think that it is fair for a state to run a winner-take-all system in which you've been assigned to pay all of the costs of child-rearing, all of your plaintiff's costs of living, and to experience none of the joys of parenthood. But if that is the system in your state, there probably isn't anything that you can do about it within your lifetime. So take the advice of the Massachusetts lawyer who said "You know that the game is rigged. Why are you swinging at every pitch?"
Once you decide to give up on legal defense, what then? "Pick up a pen and be the author of the rest of your life," is what a professional life coach tells her divorced clients. "You volunteered to be an equal parent of a child with someone whom you thought loved you," said one attorney in a winner-take-all state. "What the courts hand you is the job of primary bill payer and secondary parent to a child under the supervision of someone who married for money and probably hates you at this point, unless you immediately agreed to give her everything that she wanted. Don't take that secondary parent job if it isn't something that you would have signed up for. Your plaintiff, your state's legislature, and the judge have ended your life as a financially prosperous person and your role as a real parent to at least one batch of children but you don't have to cooperate with them in giving up the other parts of your life."
Divorce lawsuit losers who moved to a different state or country seemed happier than those who stuck around and continued to interact with their plaintiff and the judicial system where they'd originally lost. Rather than coordinating every-other-weekend, if there was still mutual interest, they would see their children in longer vacation and summer blocks. If you're planning on having more kids, consider moving to a state where a 50/50 custody presumption prevails.
From our post-Burning Man write-up: Californians are great customers for the therapy industry and the human potential movement. One father said "I spent a lot of time driving to Berkeley for 'forgiveness therapy.' But I discovered that it only works when you've suffered a one-time injury. It doesn't work if every month you have to write a new check to a person who betrayed you and then sued you. Whenever the therapist would ask me to think about my ex-wife I would just fantasize about having her killed so that I could get the kids back and stop paying her. It doesn't help that my girlfriend refers to the ex-wife as 'the greedy cunt.'" The psychologist weighed in: "Therapy works best for trivial problems. If you're depressed when your circumstances aren't depressing or if you get anxious or angry about things that don't bother most people. It doesn't work if something truly bad happens to you, such as losing the house and the kids in a divorce."
A psychotherapist from a winner-take-all state (Massachusetts) said "Don't be too hard on yourself. Losing your children in a divorce is one of the worst things that can happen to a human being. You're never going to be the same. Lifelong optimists become pessimists. You'll be cynical about the motivations of the opposite sex, about the court system, about the political system. You will never forgive the person who took your children, your house, and your earnings."
A smart, well-educated, successful engineer and entrepreneur said, twenty years after being sued, "there is not a single day that I haven't been angry about what she was able to get away with" (following a brief marriage with one young child, his plaintiff got "primary parent" status, which came with substantially all of his assets, including a house, and nearly $150,000 per year in tax-free child support in today's dollars). One thing that made him feel better was moving out of the state where he got sued so that he was no longer paying taxes to support a family court system that he considered unfair to "breadwinner" spouses. We heard this idea fairly often, e.g., "Putting 1000 miles between me and the state where I lost everything was the only good decision I can remember making. I was a lot happier once I stopped paying taxes to support the judge who took my kids away. The every-other-weekend schedule was ridiculous and you’re fooling yourself if you think you’re still a parent at that point."
For preserving your marriage, limiting the damage to your children and yourself in the event of a divorce, or ensuring a financially comfortable future, by far the most important thing that you can do is educate yourself on the differences in family law among the various states and then move to a state where you won't be at a disadvantage.