Tuesday, July 28, 2009

Through The Legal Looking Glass--Divorced Dads Aren't All Bad

Over the years, most of you have been treated to newspaper and TV horror stories about "deadbeat dads." You know, those guys who abandon their wives, leave their children destitute, and refuse to pay child support. It's a tale straight out of Dickens (and Gloria Allred), but the simple truth is that it's largely untrue, and a whole lot more complicated than the radical feminist-driven mainstream media would have it.

First of all, let's get a few things out of the way. There are genuine horror stories out there. In today's society, as marriage becomes a weakened institution largely devoid of its traditional roots, the centuries-old concept of a man as the provider for wife and children who is an equal partner with his wife who cares for home, hearth and children, fathers have come to be treated as cash machines after a divorce. Society accepts that marriage is between one man and one woman (gay marriage is an entirely different concept with its own set of problems). But today, the rule seems to be "one spouse at a time." Fathers in large segments of society are not necessarily the husband of the mother of his children. Yet as society changes, the rules surrounding a father's financial responsibilities haven't changed appreciably in decades, and where they have changed, are routinely ignored by the courts.

Second, this is not an anti-mother or anti-woman screed. You all probably know, or know of, a woman who has been treated miserably by her husband, and left alone to raise the kids when he got the seven-year itch or found a trophy wife. The wife often had few or no job skills which would allow her to support herself and the children. Frequently, the father disappeared, and if he stuck around, she was unable to shame him into doing his fatherly duty. So her only recourse was the courts. There are many similar stories out there.

So let's start with the following facts that every family law attorney and most non-lawyers actually know. When the rancor and bitterness of the initial divorce action are set aside, in the vast majority of cases the marriage simply went sour for some reason. Most fathers are willing to pay what they can to support their children, and most mothers are ready to accept whatever he is reasonably able to do, while attempting herself to do what she can to lessen the burden. Even feuding parents are usually prepared to set aside their differences when it comes to the well-being of the children. Both are usually fully aware that she is going to think the support too low, and he is going to think it too burdensome, and both will simply live with it. And then come the friends, neighbors, officious intermeddlers, TV shows, legal advisers, radical feminists and finally the courts to add their two cents (or take it away, if you will).

In the majority of states, determination of the ability of the father to pay for his children's support while keeping his own head above water is completely separated from any real, moral, or mathematical standard. Most courts are still operating under concepts that apply to the traditional marriage of fifty years ago which ignore the realities of the real or potential earnings of the parents during the marriage, and the employment prospects of the mother after the marriage dissolves.

Courts largely award child support by a formula that assumes the mother has never worked and never will, and the father was the sole wage-earner during the marriage who could afford to pay for his children at the price of a minor reduction in his living circumstances. That sounds fair, but it bears little resemblance to modern realities.

In those states which use mathematical formats to determine child support based on seeming modern reality, the child support is awarded by a cold mathematical formula which usually assumes the father can spend large sums for child support which vastly exceed his actual remaining income after basic living costs. Mom and the kids end up with the family residence, under mildly reduced circumstances, while dad moves to a cheap apartment in a bad part of town, driving an ancient automobile, and occasionally living in it. This isn't mom's fault--it's the fault of legislatures and courts. (Note: California, for instance, uses a disc authorized by the legislature called DissoMaster, which was put together by computer whizzes, not by anyone who has ever actually tried to comply with the mathematical results that come out of the computer after inputting the financial information of mom and dad)

Alimony (spousal support) is a major issue, but as more women have moved into the higher strata of the work force, it has become less of an issue as more families live on two-parent incomes. So more than ever child support, which is a right granted to the children rather than a right of either of the parents, has become increasingly a tool to bludgeon fathers with. A huge proportion of so-called deadbeat dads are doing the very best they can, and frequently the courts, the district attorneys, or worst of all the welfare departments are the ones seeking the "back support" rather than mom herself. Again, ladies, nobody is blaming this on you.

So here are some of the things that send fathers into the wilderness of non-child support despite their genuine desire to do the right thing. Once a father has gotten behind in his child support, often through no fault of his own, the court clock starts to run. Frequently he gets so far behind that he just gives up because he's in an utterly impossible situation vis-a-vis the courts and the enforcement agencies. Men who would not ordinarily cross a street against the don't walk sign are turned into major scofflaws overnight.

I'm sure that you are all aware that our Founders eliminated debtor's prison early in the history of the Republic. But failure to pay child support in full each month is treated as if it were a crime rather than a civil matter, either by way of contempt proceedings or district attorney family support enforcement provisions. So the dad might not only go to jail, his support will not be reduced while he is in the slammer. When he gets out, he will be just that much farther behind, assuming he still has a job. In most states, this is done without even the right to a trial by jury.

And then there are the welfare folks. If mom is genuinely unable to work, or chooses not to, the next step is federal, state or local public assistance (or a combination of them). But this adds another wonderful layer of overweening public authority. The law has evolved to the point that a father can show that during the period he was in default, he was factually unable to pay, or there were changed circumstances which both parties agreed to but never formalized in court (e.g. mom says the kids are happier with dad, voluntarily hands them over, then sits for five or ten years while the unmodified child support accrues). If the father can show the changed circumstances to the satisfaction of the court, he may obtain a retroactive modification of the child support order relieving him of that burden. However, and it's a big however, this rule does not apply to welfare payments.

And it goes downhill from there. A mother can collect welfare without the father's knowledge, lie through her teeth about trying to get him to pay, collect public assistance for a child or children who are not the former husband's, and when he's finally caught up with by the welfare police, he is going to be liable for all those payments. Many courts will not even consider conclusive DNA evidence that the former husband is not the father of the child who was being supported by welfare without his knowledge.

Once the welfare has been cut off, the dad can still be required to pay chld support for that same minor child who is not his (fortunately, many states are changing that rule). And add to that the fact that the court only orders the support, it doesn't in any way monitor how the support is spent. Mom can live like a queen while the kids are in rags and provided only with bare minimum food and shelter (so as to avoid child protective services), and the courts will not do a thing about it. In many states, it doesn't even matter if mom shacks up with or marries another man who throws money at her--the child support goes on. In some cases the former husband ends up paying for the children of the new unemployed husband in order to avoid reducing the total amount of money available for the original children (his own). And even when the state allows for inclusion of the income of the new boyfriend or husband, the courts tend to be very lax in investigating the income of the new guy in the house, unlike the deep investigation the father often goes through to make sure he isn't cheating.

Well, the dictum is "for every wrong, the law provides a remedy." The theory is good, but the practice is weak. The father who finds himself unable to pay the ridiculous amount ordered, or loses his job, or suffers a pay cut can petition the court for a modification based on changed circumstances. Sounds good. But most states have a limiting provision. Child support can be modified only just so often. In California, except in an extraordinary petition (very limited in scope), the father must wait six months between chld support modifications. He is now able to get a retroactive order plus a future order which will reduce the order from impossible to merely improbable. But, again, if mom rushed to the welfare office or the district attorney's family support division at the first instance of non-payment or reduced payment, bye-bye retroactivity.

Well, then, surely there's always bankruptcy. Alimony is dischargeable in bankruptcy. Child support is not. So the simple rule of thumb for lawyers and angry ex-wives is to jack up the child support and worry about any alimony as a side issue. And, oh, those damned lawyers. In most cases, there are no simple provisions for awards of attorney's fees, but the husband is likely to end up paying the fees of both attorneys. And after he has been reduced to meager survival, and can no longer pay the full child support, mom can toddle off to the welfare office or the district attorney's support division, and get herself a nice free attorney. Dad, on the other hand, has no such right unless criminal or quasi-criminal charges have been brought against him which could result in his being jailed. And even then, in most states the public defender can be used only for the limited purpose of keeping dad out of jail, but not for anything relating to the divorce, custody, or ongoing child support.

So ladies, before you jump on the bandwagon about deadbeat dads, consider the above, and give a thought or two to whether the stories your friends are telling you are the truth, or at least the whole truth. Consider also who is most affected by this disparity in treatment. The rich can afford their feuds and interminable squabbling. Poor women get free attorneys and poor men have free services available to them such as legal aid and volunteer poverty groups. As usual, it's the reasonable, hardworking and generally civilized middle class that gets burned. And the ones who are injured the most are the ones the court is charged with protecting--the children.

Family law courts are courts of equity, charged with implementing the law, but more importantly with doing the "right thing" even if the law appears to say otherwise (many would call equity "justice," the concept of fundamental fairness). They need to start enforcing the laws that actually serve the children's best interest rather than outmoded habits of bending the law nearly to the breaking point to satisfy the mother's supposed need for child support whether the father can afford it or not. They need to throw out their computer-generated child support orders and start looking at the real facts and the real math. They need to start recognizing what every human being knows--that in the average divorce, everyone should expect that things are not going to be as good as they were financially, and distribute income and support realistically in accord with that fact. The courts need to pressure the legislatures to pass legislation which recognizes twenty-first century realities instead of outmoded mid-twentieth century fantasies. And most of all, they need to perform their primary duty--protecting the best interests of the children, which includes treating both parents fairly and equally and without forcing the children to choose sides or believe that their father is a deadbeat.

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10 comments:

Writer X said...

LawHawk, it's depressing when you think we have to rely on the courts and legislatures to fix (at least some of) the problems, especially since they do such a marvelous job of fixing everything else.

Tennessee Jed said...

Thanks Hawk - unfortunately, I know through some personal family connections more about this issue than I ever wanted to. I can attest to the fact that there is little relationship between what the "dad" is asked to pay and what he can realistically afford. When I started looking into this situation, I felt like I had stepped back into some Dickensian world of debtors prisons etc. The relative, sadly, is an alcoholic, and while I'm not trying to gloss over his shortcomings, it seemed the system was purely interested in squeezing blood out of a stone. It's almost like the flip side of the coin Anne Coulter likes to write about --glofication of "the single mom."

LawHawkSF said...

WriterX: It is a sad commentary, isn't it? Compulsory arbitration has helped a bit in states which impose it, but the reality is that only the legislatures can ultimately set the real parameters, and only the courts can impose them. Perfectly nice people tend to become totally irrational when in the middle of a divorce. Somebody has to act like an adult with a basic knowledge of simple mathematics, and in too many situations, that's the court.

AndrewPrice said...

Lawhawk, not to add to the misery, but I was under the impression they just changed the law to make alimony non-dischargable.

Your article raises one of those issues where I know the system is a mess and it needs to be fixed, but I honestly have no idea how to fix it because all sides will game whatever solution you come up with. What a mess.

LawHawkSF said...

Tennessee: At one time, in the distant past, granting the mother/wife all the advantages made sense. Men had the power, the money, the education and the freedom that their wives didn't have. It was logical that at the time of the divorce, the woman's lifelong disadvantages be balanced out by giving the advantage to the woman in court. 40+ years after women's liberation and the 180 degree turnaround in the real world, judges and legislatures are still behaving as if the old assumptions should still apply even when state law says completely the opposite and all logic dictates otherwise.

LawHawkSF said...

Andrew: You are basically correct. I should have said that alimony was traditionally dischargeable, but even that has changed. It's not as clear as it appears on its face however, since alimony (spousal support) is lumped in with the catchphrase "domestic support obligations," thereby creating a whole new class of creative lawyers and courts. How and when the alimony was to be paid rather than the support itself is now at issue. Of course the states have their own rules about defining "alimony" and "spousal support" and the bankruptcy court will use each state's rules to decide if the alimony is dischargeable. My best advice to a man with an accrued alimony backlog--don't count on bankruptcy to get you out of that debt.

StanH said...

Damn Lawyers! As you said in your disclaimer, “Even feuding parents are usually prepared to set aside their differences when it comes to the well-being of the children.” I find this in my experience to be the case as well. But, I’ve also seen it go bad where the Dad feels like they’re better off in jail. The regrettable part, the ones who usually pay the freight are the kids that get swept up the nastiness, what are you gonna do?

As a suggestion stories about attorneys/judges past, legal anecdotes. I was speaking with my attorney buddy the other day and told me a quick story about Chief Justice Marshall, Something to do with a 18th century women’s group of the time, protesting whiskey consumption at the Supreme Court and Marshall’s solution having to do with the frequency of rain, funny as hell. Just a thought.

LawHawkSF said...

StanH: Trust me, your friend is right, and the expression "sober as a judge" is a plot hatched by judges. Our favorite hangout in my home county didn't even make any pretense about why you were there. It was called The Gin Mill.

StanH said...

“We will only drink when it’s raining declares Justice Marshall.” Later that afternoon. “Look again young page you are incorrect …surely it’s raining somewhere in this great land.” : ) This struck me as funny, being a layman all I knew about the man was Marbury v Madison. To me it humanized that stodgy old portrait of John Marshall and explains the slight grin.

LawHawkSF said...

StanH: Judges just want you to know they're human. When I took off my robe, I was just like everyone else, only more arrogant.

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