Why are citizens more interested in marriage laws than divorce laws?

The September 30, 2013 New Yorker magazine carries “The Perfect Wife,” an article about the widow of a lesbian multi-millionaire who went to the Supreme Court to obtain a refund of about $640,000 in federal and state estate taxes (the inheritance would have been tax-free had it been the result of a heterosexual marriage). Thus continues a stream of intense news coverage and popular interest in the subject of gay marriage.

On the same day that I read the New Yorker article, I received an email regarding an effort by the National Parents Organization to get a shared parenting presumption enacted here in Massachusetts (see their request that people write letters to Governor Deval Patrick to weigh in on the work of a committee that may produce recommendations for new legislation regarding child custody). There is so little media and citizen interest in the topic of whether a child of divorce ends up with one parent or two parents that a Google News search for “Working Group on Child-Centered Family Law Massachusetts” produces no results. Other than this one organization, nobody seems to care what the Governor and Legislature are doing.

Why should marriage be more interesting to people than divorce? The ability to marry has very little effect on children. The children of couples, for example, who elect not to marry but stay together, have the same life experience as the children of married couples who stay together. The rights of children to inherit from their parents are similarly unaffected by whether or not the parents are married. Weddings can be costly, but it is a cost that is voluntarily incurred and controllable by the bride, groom, and families.

Divorce, by contrast, has a tremendous effect on children, who often lose access to one parent in states where sole custody awards are the norm. Divorce laws have a huge effect on adults and in fact the economists and lawyers who’ve studied the laws have found that the laws determine the likelihood that a divorce lawsuit will be filed. (See ”These Boots are Made for Walking: Why Most Divorce Filers Are Women” (Margaret Brinig and Douglas Allen; 2000; see the PDF version of the paper or this New York Times article regarding the paper). In a more recent paper by the same team, “Child Support Guidelines: The Good, the Bad, and the Ugly” (Family Law Quarterly, 45:2, Summer 2011; PDF is available for free) the conclusion was that the possibility of larger child support payments motivated divorce lawsuits to the point that if the potential payor’s income increased by $100,000, the probability that the potential payor would be sued for divorce and child support rose by 10 percent: “We suggest, based upon twenty years of data from the United States and Canada, that some well-intentioned child-support-guideline measures have actually encouraged divorce by compensating custodial parents beyond the amounts actually needed for their children’s support.” The divorce industry does not like to tout its revenues the way that the wedding industry does, but if the median cost of a wedding is $18,000 (source) it seems obvious that the divorce industry is much larger than the wedding industry. Given that the official end of a marriage is a lawsuit, it will take only a small percentage of divorcing couples to hire attorneys to overtake all marrying couples in spending.

Given that divorce has a larger effect on peoples’ lives, that many of the people affected are children, and that it consumes a larger share of the GDP than marriage, why is there so much more popular interest in marriage? Is it simply because people find it more pleasant to contemplate marriage than divorce?

[Oh yes, in case you're curious about why people are writing to Governor Patrick, here's a quick summary of how child custody works in Massachusetts...

Take everything from this posting regarding divorce in Denmark and invert it.

In Denmark cases go from an administrator who tries to get couples to resolve the divorce quickly and inexpensively, then to a single judge, then to a three-judge panel that re-hears all of the facts. In Massachusetts cases go directly to a judge (there is no jury) unless couples voluntarily elect to mediate. The most important decisions, e.g., whether a child should have two parents at the end of the process or one parent and one "visitor," are questions of fact and therefore there is no practical right of appeal. A child's future is determined by a single individual (the trial judge).

In Denmark children do not have a substantial cash value ($8000/year maximum) and therefore, as predicted by Brinig and Allen, custody litigation is uncommon and children of middle class parents almost always end up with a 50/50 schedule. In Massachusetts, by contrast, typically the mother would win "sole physical custody" and the child's access to the father would be reduced to an every-other-weekend experience. A 2004 ballot referendum that would impose a joint custody presumption won approximately 85% approval (results), but was not binding on the Legislature and no action was taken. Massachusetts thus remains what one lawyer described as a "winner take all" state, in which one parent will get the kids, the house (since the kids need a place to live), and the cash. As noted by Brinig and Allen, the possibility of "winner take all" is a strong motivation for the filing of divorce lawsuits in the first place. (How much of a financial motivation could there be? The Massachusetts child support guidelines start at $40,144 per year, tax-free, if the  payor has an income of at least $250,000 (prior to 2013, the amount was $47,580). In other words, a one-night encounter with a drunken radiologist will lead to a guaranteed stream of payments of $50,000 per year for 23 years, or $923,000. A second one-night encounter with a different high-income man that produces a second child will yield an additional $40,144 per year in tax-free payments, because the child support for the first child is not counted as income to the recipient. These numbers are the minimum and when a payor has substantial income or savings it is not uncommon for a child support plaintiff to seek $100,000 or $150,000 per year for a single child. If the parents had been married, the financial rewards from a lawsuit are potentially larger and can include an award of the defendant's pre-marriage savings (Massachusetts is not a community property state) as well as alimony (until a 2011 legislative change, it was possible to be married for a day and then collect alimony for the rest of one's life).)

Judges in Massachusetts have a variety of ways of justifying the award of the children to just one parent and, even with a shared custody presumption in the law, it is quite possible that the outcomes wouldn't change much. For example, one current justification for an award of sole custody is if the parents have "conflict." In other words, shared custody should be awarded only if a plaintiff and defendant have gone through two years of litigation and a trial while remaining on friendly terms. Another justification is the historical pattern of child care. If a plaintiff can show that he or she did more of the child care prior to filing the divorce lawsuit, the plaintiff can ask that the arrangement be perpetuated indefinitely. Thus only if it can be proven that the parents had an exact 50/50 split of child care tasks prior to the lawsuit being filed will a 50/50 schedule be awarded post-divorce.

A litigator explained to me how it all plays out in practice:

"The Massachusetts Legislature practically guarantees that family lawyers will bill until the family's assets are exhausted. The Legislature gives the judges almost infinite discretion to do whatever they want. Suppose that some guy is having an affair with an office hottie. The angry wife comes into my office. I tell her 'I can get you 100 percent of his savings and 100 percent of his income going forward. I can get you 100 percent custody and control of the children so that this guy that you hate will never see them again. Just give me $50,000 as a retainer.' I'm not lying, but what I didn't say is that, depending on what the judge had for breakfast, it could also be zero, zero, and zero. Meanwhile the defendant goes into a lawyer's office and the lawyer says 'You have to give me 100 percent of your money.' The guy asks how come? The lawyer says 'If you don't give me 100 percent of your money, your wife could get it from the Probate court judge and you might never see your kids until they turn 18.' After the house has been triple-mortgaged, the 401k accounts emptied, and the mutual funds transferred to the lawyers, the woman's lawyer says 'The case isn't going as well as I thought. This judge just isn't sympathetic to our case. Your husband doesn't look like such a bad person. I think you should settle.' Then there is a boring settlement that looks like every other divorce settlement or judgment. The woman stays in the fancy house. The dad turns over most of his after-tax paycheck to the woman, moves to a studio apartment, and sees the kids every other weekend. He behaves like a 'Disney Dad' because, realistically, why would he want to spend his limited time with the kids nagging them to do their homework? You don't have to worry about property division at that point because there isn't anything left. The litigating couple could have gotten the same result from a mediator for $3000 and the kids would still have had their college fund."

]

So… what do readers think? Why has gay marriage been in the spotlight for years now while child support and custody laws elicit yawns?

18 Comments

  1. Federico

    October 3, 2013 @ 11:50 am

    1

    Difficult to tell, but I bet that any Danish kid costs less to the average Dane than an equivalent American Kind does to an equivalent American because many things are paid by the state in Denmark [1]. Hence, keeping a young Dane would require less money as a matter of fact, and this is reflected in how courts award child support money. The simple idea of having to save for a college fund seems quite alien to Denmark in the first place.

    [1] Yes, people pay through their noses in taxes, but they might (on average!) get more than what they put in, or get better quality/less hassle for the same money.

  2. Juan Collas

    October 3, 2013 @ 1:48 pm

    2

    I’ve always thought that gay marriage and divorce will set a large precedent on how we deal with straight divorce. The woman’s prejudicial claim as primary caregiver and thus sole claimaint to the children runs up against a gay couple’s ambiguous roles.

    It should be interesting to see the arguments by divorcing fathers citing gay marriage for why they should get equal custody and minimize child support costs and alimony.

  3. Vince

    October 3, 2013 @ 1:51 pm

    3

    The divorce industry does not like to tout its revenues the way that the wedding industry does, but if the median cost of a wedding is $18,000 (source) it seems obvious that the divorce industry is much larger than the wedding industry. Given that the official end of a marriage is a lawsuit, it will take only a small percentage of divorcing couples to hire attorneys to overtake all marrying couples in spending.

    I think that you must be mistaken about this. To begin with, not all marriages end in divorce, so their are fewer divorces than weddings. Also, in many divorces that I’m aware of, the courts are not involved. For example, I know a semi-retired couple who got married when the man was 62 and the woman 55. They divorced 5 years later. Clearly, there were no children involved. In their case, there weren’t even pets. So they agreed to leave the marriage with the assets they each had before they got married. As far I understand, lawyers were unnecessary.

    At the other end of the scale is the radio shock jock Howard Stern who got divorced in New York state around 15 years ago after roughly 20 years of marriage. He and his wife had an amicable divorce and decided to use a mediator instead of the courts. The result was that the the assets were split in half and the ex-wife got custody of the kids, with Howard getting the standard weekend visitation. He claimed that the two parties only spent a total of $10k or $20k on lawyers – a pretty small amount given the size of the assets involved. When he discussed it on the air, it sounded like a very sensible thing to do, since going to court would yield more or less the same outcome.

  4. Brian Gulino

    October 3, 2013 @ 4:56 pm

    4

    Its about the kids.

    Courts award custody to one of the two parents because kids, like everybody else, don’t like moving from house to house every three days. Two houses, two sets of clothes, two sets of friends, etc. They didn’t ask for their parents to get divorced.

    So, one parent gets screwed – has to write checks and doesn’t get to hang out with the kids. Unfair to the parents, particularly the check writer, but better for the children.

    I went through a divorce and a subsequent custody fight. My impression of most of the people I dealt with is that they were doing a very difficult job with not enough time and resources. The jerks were usually the parents.

  5. jerry

    October 3, 2013 @ 6:28 pm

    5

    “The Massachusetts Legislature practically guarantees that family lawyers will bill until the family’s assets are exhausted.”

    My experience in California was that the first order of business for the judge was to determine which parent was most likely best able to afford costs of the court including costs of the lawyers and costs of any counselors for any prolonged litigation.

    Once that was determined, determining who had custody became straight-forward.

    No fault divorce almost certainly was a good reform and enabled couples that couldn’t live together to breakup cleanly and without requiring horrible divorce battles over who was at fault.

    But now the battle is over the kids due to financial reasons as you point out, as well as because many or most parents truly love their children and believe themselves to be powerful and good influences for the kids and know how they (the parent) will suffer if removed from the kid’s life.

    No fault divorce needs to be accompanied by a rebuttable presumption of joint shared custody.

    I am glad to hear you’ve followed the national parenting organization.

  6. philg

    October 3, 2013 @ 9:59 pm

    6

    Federico: A child support recipient is not expected to save for college (in fact, there is no requirement that child support received be spent on the child). Typically the person who was ordered to pay child support will be ordered to pay for college as well. The USDA estimates the total cost of having a child around at about $10,000 per year in the U.S., i.e., not too different from the $8,000/year maximum child support figure in Denmark.

    Vince: I’m glad to hear that you know of some folks who did not spend a lot on divorce. However, remember that any average has to include folks who litigated and litigation in the U.S. is expensive (the Massachusetts custody disputes that I have heard about cost between $100,000 and $2 million in fees (the range includes both ones that were settled and ones that went to trial)). As the lawyer quoted at the end of my original posting noted, the system tends to cost whatever assets a couple has. http://www.forbes.com/sites/meghancasserly/2013/04/10/wevorce-y-combinator-technology-divorce-court/ gives an estimate that divorce costs $30 billion in attorney fees annually. However, that probably doesn’t include payments to psychologists, parent coordinators, expert witnesses, and post-divorce litigation regarding children.

    Brian: Your idea that sole custody is better because kids hate having two houses doesn’t square well with what people do voluntarily and/or when money is not an issue. Why would Europeans and child-oriented Americans set up a 50/50 system by agreement if it were bad for their children and/or if their children were complaining that they wanted something else? Absent the potential for significant financial gain, why would a parent agree to do something that was harmful to his or her child? See also http://www.apa.org/monitor/jun02/custody.aspx and http://paa2013.princeton.edu/papers/131362 for example.

  7. aisaac

    October 4, 2013 @ 1:12 am

    7

    It’s not about marriage. It’s about a quasi-religious belief in equality. laws discriminating against gays are as offensive to liberals as pornographic drawings of Mohammed are to Muslims. Neither are materially harmful (at least not to a great degree) but that’s beside the point.

    It’s comparable to the fight against laws prohibiting interracial marriage, which were struck down by the supreme court. That was part of a broader civil rights struggle. The fact that it involved marriage was incidental.

  8. Vince

    October 4, 2013 @ 12:26 pm

    8

    It’s not a very important issue, but this Business Week article cites an estimate of $51billion for annual wedding spending.

    http://www.businessweek.com/articles/2013-06-28/the-51-billion-wedding-industry-toasts-a-post-doma-bump

  9. Norman Ramsey

    October 5, 2013 @ 8:09 pm

    9

    People don’t want to imagine that divorce will affect them until it’s too late? Religious conservatives are content to outlaw divorce for their own people and don’t feel threatened if those of other religions divorce? People don’t know that divorce is a huge profit center for lawyers, and the lawyers and their friends the legislators are happy to keep things that way?

  10. Mark

    October 6, 2013 @ 12:50 am

    10

    Phil,
    Living in the south and smack dab in the middle of the Bible Belt, I can tell you that in my area it’s all about the morality (or perceived lack thereof) of passing laws to legalize gay marriage than the same so-called moral issues involving divorce. Maybe it’s because many of my Bible Belt cronies actually end up in divorce themselves??
    IMO, two gals marrying is far, far more acceptable than watching a child being destroyed by divorce and having to accept what a judge deemed appropriate.
    I do believe that anyone who feels like a kid is better off in one home and allowed to see their other parent only every now and then should be forced to witness an hysterically crying child begging his/her dad to not leave as the child is being returned to mom after dad’s once or twice a month, court-allowed visitation. It will break your heart.
    I have several friends who experienced divorce as children and they all say that having two homes and two sets of everything would have been much, much better than the agony of being prevented from seeing their estranged mom or dad only every now and then.
    Great, great topic by the way. Kudos.

  11. Albert

    October 7, 2013 @ 2:13 am

    11

    I am surprised how little effort is made by government, court, and legislators to protect the rights and well fare of the children.

    If you asked a child wether she would rather spend time with (a) both parents more or less equally or (b) with just her mother/father with the occasional visit by the other, my guess is that most children would choose (a).

    In fact, keeping a child from one parent could be seen as a violation of the Convention of the Rights of the Child. Article 5 of the Survival and development rights places on governments “the responsibility to protect and assist families in fulfilling their essential role as nurturers of children”. Raising a child is the right and responsibility of (both) her parents.

    It appears that the government is protecting the “rights” of either of the parents.

  12. Douglas Johnson

    October 7, 2013 @ 5:58 pm

    12

    Phil,

    This is a post that is rather hard to respond to. You wrote a great deal about divorcing parents and the industry surrounding it, and then almost as a side note you end it wanting to hear what folks think about redefining marriage so that it no longer has anything in particular to do with a man and a woman and the procreation of new life. Oh well, I’ll give it a shot!

    Marriage redefinition is nothing new, of course. Rousseau advocated it for the purpose of securing more power for the state. The Bolsheviks also wanted to redefine it to enhance their political power. (And if I’m remembering correctly the National Socialists did as well.) And as today’s governments (see Canada) redefine marriage they too have ended legal recognition of natural parents, and that greatly expands the power of the state (see here, for instance).

    Two years ago I started off a debate stating that I thought it was in the best interest of every child to have a mother and a father. My opponents agreed but then wondered what that had to do with redefinition, and I would eventually leave them flatfooted. But they’ve all adjusted now. These days the moment you suggest that it is in the best interest of a child to have a mother and a father they call you a homophobe for saying such a thing.

    That said, the number of men and women with same sex attraction who adopt children together is such a small fraction of 1% of our population that its harm to the population will be minimal. The harm, however, of teaching every boy and girl from grades 1-12 (and beyond) that marriage and procreation have nothing in particular to do with one another occurs the moment the lesson is absorbed.

    Here is a quick exchange between what sounds like a young student whose has fine prospects ahead of him and who can’t understand what the problem is with marriage redefinition. When the writer asks him if he’ll matter to his kid he, without hesitation, gives the only answer his arguments allow: No, he won’t matter to his kids. Indeed the lessons of marriage redefinition have been taught for close to 20 years now. What’s happened to the illegitimacy rate during that time? Anyway, here is the kid on the plane:

    http://townhall.com/columnists/maggiegallagher/2004/01/08/the_message_of_same-sex_marriage

  13. Hubbert

    October 11, 2013 @ 10:15 am

    13

    Because the anti-civilization, anti-family, anti-male forces got exactly what they wanted from heterosexual marriage when Ronald Reagan signed “no-fault” (aka “his-fault”) divorce into law?

    With a fault-based system, at least there is an opportunity to truly determine who is the wronged party, or if neither is wronged, then the parties could go their separate ways without penalizing one person. This way, even a kind and decent man can become a slave to his ex-wife who is then free to “Eat, Pray, Love” around the world on his money: while that may be an acceptable outcome in the case of a cruel and evil husband, it’s not fair to a guy who simply became boring except for his money.

    Moreover, the real purpose of this is less about the couples who actually divorce, and more to create a threatpoint within marriage, so that women hold absolute power within marriages and families which do remain intact:
    https://dalrock.wordpress.com/2012/04/14/threatpoint/

  14. philg

    October 11, 2013 @ 3:06 pm

    14

    Hubbert: Thanks for the link and the perspective. I don’t think that a return to the “fault” days would be a positive step, especially if the result were increased domestic violence as the underlying article suggests that it might be. Anything that increases the number of things that can be litigated is harmful to children because the cost of proving who is at “fault” then gets added to what is already a massive legal bill. I think the Europeans, such as the Danes, are on a better track where they have no-fault divorce but obtaining sole custody of children does not yield a significant cash profit. No-fault divorce coupled with divorce as a path to wealth seems like such an obviously bad idea that it is unclear how we ever got to this point.

  15. Hubbert

    October 11, 2013 @ 5:47 pm

    15

    Yeah, maybe no-fault wouldn’t be so bad after getting rid of the “fabulous cash prizes, tell me what I’ve won, judge!” incentives. And you’re probably right that litigation is so horribly flawed in practice that it is worse than the injustices that it is supposed to prevent (e.g., a CEO wife who gives up earning cash income but does the Martha Stewart (hosting career-related parties)/ Supermom thing for decades, and is left in poverty in middle age).

    Part of the concern with your proposal is that I just would like to think of marriage as something more meaningful than a month-to-month lease or an unenforceable symbolic contract, but just about anything would be better than the current system, which is basically the only contract where the government steps in and aggressively rewards the party who breeches.

    And a man doesn’t assume child support obligations for his children, but for illegitimate children that his wife has with other men:
    http://www.torontosun.com/2013/02/06/dad-must-pay-child-support-for-3-kids-that-arent-his-court-rules

    Personally, I really would like to have a wife and children someday, but I do get concerned about giving myself to lifetime slavery. Even if someone starts out kind and trustworthy, “absolute power corrupts absolutely”.

    Sigh. It’s all so sad and confusing; maybe I should talk to a rabbi.
    http://www.nytimes.com/2013/10/11/nyregion/rabbis-accused-in-kidnapping-plot-to-force-men-to-grant-divorces.html

  16. Hubbert

    October 11, 2013 @ 9:28 pm

    16

    PS: I prefer this image better than the Damocles painting:
    http://dalrock.wordpress.com/2012/09/08/hostage-negotiator-for-life/

  17. Mark

    October 15, 2013 @ 4:32 am

    17

    How about everyone thinking ahead and agreeing to a pre-nup? I am recently married (less than 36 months) and considerably older than my wife and most of my business friends called me insane for entering the marriage without a prenuptial agreement.
    I guess time will tell if they were correct, but both spouses agreeing to certain conditions in advance could surely prevent lots of monetary losses.

  18. philg

    October 16, 2013 @ 9:35 am

    18

    Mark: A prenuptial agreement cannot save children from litigation or prevent litigation motivated by the potential for child support profits. Courts have held that two adults cannot make a contract that gives up a child’s rights to litigation, having his or her “best interests” evaluated by a court, collecting child support (paid to a parent, of course, not to the child). So in a state where typically sole custody is granted to the mother, for example, a court would not be bound by an agreement between the parties that, in the event of a divorce, custody would be shared by the parents. Similarly, an agreement that child support would be no more than $100,000 per year would have no effect if a judge decided that Parent A should make payments to Parent B of more than $100,000 per year.

    One effect of this rule is that the most intensively litigated parts of a divorce cannot really be settled, even if the parties wished to make a settlement agreement. Suppose that Parent A sues Parent B. After a period of litigation that consumes all of the family’s cash and home equity, they agree to settle the case where the children will spent 60/40 time with Parent A and Parent B and Parent B will pay $50,000 per year in child support to Parent A. Two years later, Parent A has remarried to a person with a good job and Parent B has enjoyed a pay raise. Parent A now has access to a spouse’s salary to fund litigation and can launch a new custody lawsuit saying that Parent B is abusing/molesting the children so the time split should be 100/0 and, since Parent B now has a higher salary, child support should be increased.

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