Part of Real World Divorce: web edition | Kindle edition
We interviewed one of Wyoming's most experienced and distinguished practitioners. Linda Steiner has been practicing family law since 1984. See http://lindajsteiner.com/ for a full biography of this Cheyenne-based litigator.
Divorces in Wyoming are started by a "plaintiff" against a "defendant" and typically go from filing to trial in about a year in Laramie County and possibly longer in other counties. What if a person doesn't want to wait a year to get most of the benefits of a divorce? "You can file for temporary relief," said Steiner, "and get custody, child support, alimony, attorney's fees, and possession of the residence. These are phrased as 'emergency motions' to prohibit someone from leaving the jurisdiction." How long does it take to get before a judge with one of these? "It will be set for a 15-minute hearing a month after filing." Fifteen minutes? Can a judge effectively decide the children's future and so much that is critical for trial positioning in 15 minutes? "Attorneys need to be prepared with shorthand," replied Steiner. "Certainly there is no time to explore the matter."
Is it easy to get sole possession of the house? "The policy tends to be that absent violence the court won't make anybody move out," said Steiner. "Maybe you could get it by alleging verbal abuse but you'd be more successful if the abuse were threatening or said in front of the children." Does the judge hear witnesses who are cross-examined to determine if these allegations are true? "No," replied Steiner. "It is all attorney representation."
What if a plaintiff doesn't want to share a house with the defendant and doesn't want to wait a month? "She can get a de facto divorce from a county court, as opposed to the district court that will hear divorces. She can do this with self-help services and doesn't need an attorney. The family violence court will bar the father from contact with the mother, from contact with the children, and from using the house." So she can win most of the goals of a standard divorce lawsuit? "It is frequently used strategically," said Steiner. "It feels like the pendulum has really swung overwhelmingly in favor of people alleging domestic violence." (See also our chapter on neighboring Colorado, where our interviewees report that roughly 75 percent of divorce cases now involve domestic violence accusations.)
Assuming that a mother does not avail herself of the domestic violence system, what happens at the emergency motion hearing? "Usually we're arguing that the court should maintain the status quo. If one parent has been the breadwinner and the other a stay-at-home parent, a common outcome is an every-other-weekend schedule established via temporary order. The court will push the parties to mediate and, if they can't agree, a Guardian ad litem is appointed who is a family law attorney."
Wyoming allows a parent to collect child support until a child turns 18 or graduates from high school (but no later than age 20). Courts cannot order a parent to pay for college expenses but they do have the power to extend child support beyond age 20 for a disabled child. "Usually there is an argument that the child will receive a disability payment and therefore child support should terminate," says Steiner.
Child support is unlimited in Wyoming, but still not as lucrative as in some other states because the multiplier for high incomes is just 5.9 percent of after-tax income over $12,900 per month. (similar to Virginia's 2.6 percent of pre-tax income; only half of California's 11.53 percent rate). The defendant who earns $250,000 per year before taxes and yields a child support payment of $40,000 per year in Massachusetts and as much as $42,500 in Wisconsin will yield only $20,352 per year in Wyoming.
A successful Wyoming plaintiff won't have an all-expenses-paid child, as in some other states. Expenses such as daycare must be paid for out of the child support received. Also, a Wyoming plaintiff who wishes to secure a child support cash flow against the risk of the defendant's death must purchase life insurance as his or her own expense. If a defendant dies and the plaintiff has not purchased insurance, the plaintiff cannot obtain future child support from the estate according to Steiner. (Steiner has seen, however, judges ordering existing insurance policies to remain in place.)
Consumers can use court-published web-based calculators to determine their likely child support revenue or obligation but Steiner says "the trick tends to be figuring out what number to put in for net income."
Prenuptial agreements in Wyoming that keep property separate and waive alimony are likely to be found valid, according to Steiner: "Wyoming's conservative and likes to uphold contracts."
Steiner agreed with attorneys in other states regarding the practical value of appealing a custody, child support, or alimony decision, but did so in more direct language: "Appeals are basically worthless."
The average hourly wage in Wyoming is $20.76 per hour. Census 2014 data show that median income for a 22-36-year-old college-educated woman working full-time is $40,000 per year ($31,721 after taxes). The corresponding man earns $55,000 per year ($41,824 after taxes). Attending the University of Wyoming for four years will cost $58,248. Wyoming has no income tax for individuals or corporations. Via sales and property taxes, the state collects 7.1 percent of residents' income to run state and local government according to the Tax Foundation, which ranks Wyoming #1 for "state business tax climate" (just make sure that you get some wind-proof doors for your company!).
The average annual cost of child care is $7,727 for an infant and $7,316 for a four-year-old. The total cost of child care from age 0 through 12 is about $47,241 in commercial settings or $43,549 in a family care setting.
The male college graduate will have an after-tax spending power of $527,288 after 14 years of working (14 years of income minus taxes and the cost of college). After adjusting for USDA-estimated costs of caring for a single child, he would have a larger personal spending power by collecting child support of $3,191 per month or more. This is roughly what could be obtained from a mother earning $470,000 per year after taxes. 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 $1,982 per month, which is possible when each mother takes home $228,000 per year.
The female college graduate will have an after-tax spending power of $385,846 over the same time period. She would be better off collecting child support when that exceeds $2,536 per month. This would require finding a father earning at least $340,000 per year after tax . If she is suing two fathers, however, she is financially better off compared to the college/work case when she can get $1,568 per month from each one. This happens when each defendant earns at least $144,000 per year after tax.
Among residents surveyed by the U.S. Census Bureau in March 2014, 100 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.
Steiner says that the parents will have joint legal custody. "Courts award sole legal custody only when one parent isn't fit," she explained. Can the father win a bid for 50/50 shared parenting? "The court would be reluctant to order a chunk of child support so that he can care for the child with a nanny."
What would the schedule then look like? "It would probably be graduated visitation for the father," Steiner said, "ultimately ending up with Thursday afternoon through Monday morning every other weekend plus a Thursday overnight on the off week." When would that happen? "By the time the child starts school." We pointed out to Steiner that this was the Texas statutory schedule. Would she therefore support having a standard visitation schedule in the Wyoming statutes? As with most attorneys in states where schedules are determined via judicial discretion, Steiner said that she would not want Wyoming to adopt a standard default for parents who cannot agree.
What would the father need to show to get the schedule changed? "A substantial change in circumstances," said Steiner. Would the child growing up from age 1 to age 12 be a "substantial change"? Steiner responded that it would depend on the judge. When does the child get a voice? "The child's preference never controls but the other the child the more weight will likely be given," said Steiner. "An unwritten rule is that at age 14 a child's preference will be honored."
Given that the mother has won custody and the father doesn't have a real job, how is his child support calculation determined? "He will have income imputed at minimum wage," said Steiner. Will there be a parade of vocational experts in the courtroom testifying as to his ability or inability to earn more? "No," responded Steiner, "just attorney argument."
Using the ADP Paycheck Calculator we calculated the mother's net pay at $17,700 per month (filing as head of household) and his net pay at minimum wage at $1,147 per month. The only calculator shows that he will pay her $1,452 per year or $24,684 over 17 years. If he could get custody, on the other hand, he would receive $22,416 per year from her, $381,072 over 17 years. Thus the financial stakes in the custody fight are over $400,000.
How would a shared custody situation affect the financials? "If he takes care of the child more than 40 percent of the time she will have to pay him." Will that affect her litigation strategy? "Mom will probably work very hard to keep him under 40 percent. When they go to mediation the calculators will be out." What about at 50/50 shared parenting? "The child support obligation is exactly half."
What would it likely cost to litigate this case through trial? "Perhaps $30,000 per side," said Steiner. What if he can't afford that, given that he is a slacker with no income. Can he ask the judge to her the plaintiff to pay his fees? "I have twice recently had judges order interim attorney's fees," responded Steiner. "He might have a good chance just on the disparity of income argument."
What kind of alimony can the photographer look forward to? "None," said Steiner. "He would have had to be married for five years and also show some career sacrifice. Alimony is disfavored in Wyoming and courts try instead to come up with a customized division of assets."
How much property is up for division? "The court has jurisdiction over her premarital property and he could get a share of the appreciation in that property," said Steiner. "The court starts by looking at what was accumulated during the marriage and dividing it equally. If they are taking custody from him and not giving him alimony they might give him a little more."
What if she has three premarital assets and one went way up while two others went down by an equivalent amount. Can he ask for a share of the appreciation in the good asset while ignoring the decrease in value of the other assets? "That would be an argument," said Steiner, "and it is hard to predict the outcome."
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 parent, can the judge order 50/50 custody despite neither party asking for it? "The court is not supposed to order 50/50 if neither party asks for it," Steiner said, "though a GAL would likely push hard to get a shared custody resolution. If someone holds out the judge is supposed to pick one. I just had a judge in Campbell County impose shared custody against the wishes of the mother."
Other than with that judge in Campbell County, do Wyoming courts reward parents who generate conflict by denying shared custody and thereby increasing child support awards? "There are definitely financial incentives for parents to generate conflict," Steiner noted. "Which is why courts push mediation."
If the judge does pick one parent, who will it be? "Hard to say," Steiner responded. "If the judge picks the mom because she is the mom he won't say that in his opinion. Dad here is at a real disadvantage once he moves out. It is way too easy for the mother to argue that the status quo should be maintained. That's why people are reluctant to move out."
Does Wyoming reward people who engage in pre-lawsuit planning? "Yes," said Steiner. "People who know that they are going to file a lawsuit can create a status quo that will favor sole custody to them."
In this scenario, the two parents will have about $8,600 per month in combined net income. The loser parent will pay the sole custody winner $14,676 per year. Thus the loser parent will be running a household on about $35,000 per year after taxes while the winner parent has $68,000 to spend. "This is a hard scenario because the more children there are the harder it is for the non-custodial parent," said Steiner, echoing points made by the economists hired by the Massachusetts child support guidelines task force. "He still has to have enough bedrooms, a big enough vehicle, a big grocery bill."
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.
"She would easily get sole physical custody," says Steiner. "He won't get 50/50 unless she agrees and she won't agree because that would cut her child support in half."
Can she continue her stay-at-home lifestyle until the kids graduate high school, as would be possible in some states? "No," said Steiner, "a Wyoming court would not support her staying out of the workforce and enjoying the same lifestyle. She might get five years of alimony."
The child support calculator shows that with no income for the mother she can receive $31,788 per year in tax-free child support. How much more would she get via alimony? "It is totally discretionary with the judge based on her need and his ability to pay," said Steiner. "She presents the court with a budget of her reasonable and necessary monthly expenses." Will pre-lawsuit planning pay off here as it would with custody? Can she convince the husband that the family needs a bigger house, a fancy new car, and luxurious vacations in the year prior to filing her lawsuit? "No," said Steiner. "Wyoming is not a lifestyle state. It is more about what is reasonable and needed."
How about property division? "It would be a big win if she gets a 70/30 property division, though she could easily get 60/40 based on his higher earning capacity."
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.
Steiner predicts sole physical custody to the mother in this case. Will there be overnights with the father for the 8-month-old baby? "Maybe not," said Steiner. "It depends on the judge. I can't tell you how many times I have heard dad argue that mom is not really breastfeeding anymore. Wyoming has rejected the tender years concept but when there's an infant, if the judge sees the mom is fit, dad has an uphill struggle."
Can the plaintiff get hold of the premarital $2 million? "No," said Steiner, "except that the income from the money can be used as an input for calculating child support and alimony." If the country happens to be in a low inflation environment and therefore the nominal yield on the $2 million is low can the plaintiff argue, California-style, to impute income to the money? "I have not seen that in Wyoming," Steiner said.
Based only on the doctor's salary, the plaintiff here would receive approximately $367,244 in tax-free child payments through the child's 18th birthday. In a high-inflation environment, with a 15 percent nominal interest rate on the money, however, she might get another $311,000 or so. (i.e., the plaintiff should vote to bring back Nixon and Carter!)
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.
"She'll get child support based on the statute," said Steiner. "It's a too bad so sad, dad, case." [We calculated that the mother would receive approximately $381,888 over 18 years.] "I had a case years ago where a young man was with a college girl. She told him that the birth control pill made her gain weight, from which he inferred that she was on the Pill. In fact she was not. The mother got her payments." What about the child? "The father decided not to be involved with the child in any way."
Suppose that the young man had wanted to spend time with the child. Would he have been prejudiced by the lack of a marriage? "No," said Steiner, "custody would be decided in the same manner as if the parents had been married." (Given Wyoming's "preserve the status quo" philosophy, the mother could insure a sole custody award simply by waiting a few months before suing the mother; she would then be able to show that she had been the historical primary caregiver.)
What if she marries a billionaire? Is the mother at risk of having her payments reduced? "No," said Steiner. "Part of the beauty of the guidelines is that they are designed to keep people out of court."
"There is no special word for relocation," said Steiner. "The standard used to be that the father had to show a substantial change in circumstance to block the mother's move, but the courts held that a move in and of itself did not constitute such a change. The Arnott case modified this to say that a move can constitute a substantial change. Relocation cases therefore go right on to what is in the best interest of a child." Is it easy to win approval for a relocation? "No," said Steiner. "It might be tough even for a sole physical custodian parent to move. I tried a case this week in Campbell County. They lived on a ranch in the middle of nowhere. I represented the mom who had moved to the big city. We got our nose rubbed in it about the charm of rural Wyoming. Dad's primary argument was rural life versus city life. We found ourselves arguing against lifestyle rather than a parent. The judge, who lived in rural Wyoming, said rural Wyoming was A+ and therefore the child should stay with dad."
How do judges get these jobs? "They're appointed, not elected," said Steiner, "by a committee of lawyers and laypeople. The appointment is for life but they stand for retention every six years."
Wyoming assigns different cash values to different children from the same parent. In figuring "net income", amounts for "actual payments being made under preexisting support orders for current support of other children" are excluded. Thus the first person to sue gets the most cash and each subsequent plaintiff gets less. Children of an intact marriage have no entitlement to support. A defendant who is married with a spouse and six children to support would actually pay more in child support than a defendant at the same income level who was single. That's because, unlike some other states, Wyoming does not have a mechanism for assigning any cost to those children and also because the after-tax income of a married-with-six-children defendant will be higher than a single defendant.
As in most other states, Wyoming provides financial incentives to have children with multiple co-parents. Assuming that all the co-parents earn the same $20,000 per month in net income, three children with one co-parent produce $799,416 in child support revenue over 18 years. Three children with three different co-parents, on the other hand, yield $1.33 million in child support.
Steiner predicted that within the next five years the Legislature will revisit the idea of a shared custody presumption. What would she like to see change? "A way to address day care costs in the child support formula."
The bedrock of the Wyoming system is doing exactly what Linda Nielsen, the psychology professor interviewed in the Citizens and Legislators chapter, says that courts should not do, i.e., pick a primary parent. Based on our interviews with attorneys in other jurisdictions, this is the custody system that creates the most litigation due to the "winner-take-all" character of the lawsuits.
By having child support guidelines that cover unlimited amounts of income, Wyoming encourages litigation over custody in high-income families, though it discourages litigation over the amount of child support once custody has been won or lost.
By withholding from judges the ability to order a parent to pay for college, Wyoming gives parents at least some reason to continue cooperating.
Wyoming rewards pre-lawsuit planning and the generation of conflict by custody plaintiffs.