Barbara Whitehead’s The Divorce Culture (1996), quoted in “A Brief History of Divorce in America”:
Before the mid-1960s, divorce was viewed as a legal, family, and social event with multiple stakeholders; after that time, divorce became an individual event defined by and responsive to the interests of the individual. … divorce moves from the domain of the society and the family into the inner world of the self.
Let’s take a look at some articles readers have sent in this season and compare them against the above-noted trend.
“11 Questions to Ask Before Getting a Divorce” (nytimes). The word “children” appears twice in the article, published by a newspaper in a winner-take-all jurisdiction (see the New York chapter), and once it is in the sentence “If there are children, who will take the lead in keeping track of their activities calendar?” (not, “How will they go to college if 100 percent of the family’s savings are spent on divorce litigation?”). The paper tells adult readers that the important stuff is adult happiness and emotions: “Do you still love him or her?”; “Would you really be happier without your partner?”; “What is your biggest fear in ending the relationship?”; “Are you letting the prospect of divorce ruin your self-image?” There seems to be no question that if one adult can become happier or better off, a unilateral (initiated by one partner against the other partner’s wishes) divorce is a good idea. Part of the “better off” calculation is financial and the Times wisely advises people considering suing for divorce to meet with financial advisors and litigators, with the implication that it might make sense to stay married if divorce isn’t sufficiently lucrative.
The cash aspects of family law are buried pretty deep in the Times article. Perhaps New Yorkers aren’t mindful of the cash implications? “Hamptons bachelors are getting vasectomies so golddiggers can’t trap them” (New York Post) suggests that perhaps at least some are (maybe the Post and the Times are actually in two different cities that share a name?). Some excerpts:
“There’s a spike in single guys” who get the procedure in spring and early summer, said Dr. David Shusterman, a urologist in Midtown.
“They don’t want to be in the situation of being accused of fathering an unwanted baby,” said Dr. Joseph Alukal, a urologist at NYU. “That’s their fear — being told you’re paying for this kid until it’s [an adult].”
“This extortion happens all the time. Women come after them. [They get pregnant and] want a ransom payment,” said Shusterman. “Some guys do an analysis of the cost — for three days of discomfort [after a vasectomy], it’s worth millions of dollars to them.
“It’s not that they don’t want kids [someday],” he said. “They don’t want kids on other people’s terms.”
Manhattan matrimonial attorney Ira Garr said of such unplanned, paternity cases: “I deal with this every year. There’s potential to [have to] pay out a lot of money.”
Child support is 17 percent of the father’s salary up to $400,000, after which the amount is at a judge’s discretion, according to Garr. For someone who makes $1 million a year, Garr estimates annual payments of $100,000 — a total of $2.1 million until the child turns 21. Meanwhile, a vasectomy is typically covered by insurance or costs $1,000 out of pocket. [see also Burning Man: Attitudes toward marriage and children for a quote from a man who considers the internal rate of return on a vasectomy]
Here’s a detail I’m pretty sure that the New York Times won’t be covering…
She offered to dispose of the used condom, but when she was in the bathroom for a while, John got suspicious. He found the woman seated on the toilet and inserting his semen inside of her.
[One thing I learned on my most recent trip across the Atlantic: the above situation is covered in an annual lecture to schoolboys at an elite English “public school”, complete with references to caselaw in which an appeals court held that a plaintiff’s entitlement to child support was not impaired by her use of “a syringe”. (See also the Boris Becker case in our chapter on England, et al.)]
This obituary of a divorce lawsuit defendant (Pittsburgh Post-Gazette) is a dog-bites-man story (see the “Children, Mothers, and Fathers” chapter for some statistics on the correlation between being an American divorce lawsuit defendant and committing suicide). Nonetheless it is interesting that a mainstream U.S. newspaper would publish it. Excerpts (daughter’s name elided for privacy):
The cardiologist, researcher and educator at UPMC devoted his life to curing disease, doting on his children and making life better for those less fortunate. … After spending the first half of his life in a communist country, Dr. Nemec built what most would consider a successful life, admired by his colleagues and patients and an expert in complicated heart procedures.
But, even in the face of this happy and accomplished existence, Dr. Nemec refused to submit to what he saw as oppression and took his own life at his Swissvale home on May 8. He was 54.
Dr. Nemec’s daughter, …, 25, a psychologist from Sydney, Australia, said her father wasn’t depressed, but chose to end his life rather than pay nearly half of his annual income for spousal support as he was ordered to do in a recent divorce order.
What courts in Minnesota — where her mother filed for divorce four years ago — saw as fairness, he saw as injustice that he could not tolerate, said [the daughter], who received an email from her father on the day after he died, detailing his heartbreaking decision.
“He was always very, very anti-communist. This was definitely about his moral principles,” [the daughter] said. “He thought this was a poorly designed system and just didn’t want to be a part of it and would rather give the money to a worthy cause.”
[Illustrating the critical importance of venue, note that Dr. Nemec’s plaintiff wouldn’t have suffered any financial hardship from her defendant’s suicide had she lived in Massachusetts. The family courts there would have ordered the cardiologist to purchase life insurance with his plaintiff as the beneficiary. She actually would have been better off as a result of his death because she would have gotten all of her alimony entitlement in one lump sum. Note further that Dr. Nemec would have been better off (and perhaps still married) if he had stayed in almost any European country (not the U.K., though) due to the fact that the financial incentives for divorce plaintiffs are comparatively limited there. If he had been determined to emigrate to the U.S., he would probably still be alive if he’d read Real World Divorce and settled in a state that disfavors alimony (e.g., Alaska) or simply doesn’t offer it (Indiana).]
Meanwhile, in Italy the courts have essentially done away with alimony (Business Standard; see also The Local), bringing that country into line with where Germany went in 2009 (with child support limited to less than $6,000 per year, the only way to make a profit from marriage in Germany is to stay married).
The current state of the law around child support certainly sounds unfair and unjust (especially at the high and low ends of the socioeconomic spectrum), but when the potential poster-boy victims of paternity extortion are rich male model/property developer/million dollar a year guys getting honey-trapped by (presumably attractive) Hamptons partygoers, you can imagine how the average person might not be able to gin up a lot of outrage over the situation.
The part where divorce laws create family-hurting perverse incentives, that’s a little tougher.
superMike: I don’t think the profitability of being a single parent in New York can be considered either “unfair” or “unjust”. The child support payable after a one-night encounter is set by a democratic process. Child support orders are made by judges and are therefore by definition are examples of “justice.”
It is an economic allocation decision how much to pay child support plaintiffs. As a society we’ve decided that, at least when they’ve found high-income defendants to have sex with, they should get paid more than college graduates who work full-time and/or long-term spouses of medium-income citizens.
Is it “unfair” and “unjust” when someone who doesn’t work gets a 2BR apartment with a market value of $5,000/month in San Francisco, Cambridge, or New York City? In what sense would a 1BR or 3BR free apartment be more “fair” or “just”?
I am not sure how correct is the Italy information. On my recent trip I chatted with a guy who bemoaned that after two divorces 80% or income was going to his ex-wives.
tekumse: Typically a recent court ruling such as the one described would affect future alimony judgments. An alimony plaintiff who secured an award 5, 10, or 20 years ago would still have a valid court order and could continue to collect on that.
If the stated purpose for child support payments is to provide for the needs of the child, then how do the unlimited amounts accomplish that? If a wealthy parent retains custody, the courts don’t force that parent to spend 17% of their income on a child, nor do the courts force the custodial parent to spend any child support on the child. It seems to me that this, at the margins, is mainly a way to punish high earners for leaving a bunch of children with different women. (If a million-dollar-a-year guy lives in a place with a 10k a year cap, he can have 10 kids with 10 different women and not even really feel it in his lifestyle, however, if he tries it in New York, he’ll be a pauper)
Divorce is still a multiple stakeholder event. The lesser earning spouse pursues (often) her personal happiness and quest for a newer and better love and more exciting life, while everyone else pays: the higher earning spouse pays the legal fees, the alimony, the child support; the child loses out on his/her best chance for a successful and independent adulthood; taxpayors get called in to bail out the lady’s lifestyle when the higher earning spouse can’t meet her greed and need; society’s working stiffs build more jail cells, addiction treatment centers, psyche wards for the damage done to others in her quest for joy and tax-free spending money. We all pay immensely for some lady’s joyride and some lawyers’ and judges’ barrel of pork.
superMike: “If the stated purpose for child support payments is to provide for the needs of the child, …”
There is where you go wrong. The child support laws do provide for money above and beyond the needs of the child, and do not even require that the money be spent on the child.
Philg says that this all democratic, but in my experience, at least 95% of the population has severe misconceptions about how it works. I do not think that there was an open public debate about these laws, or any public consensus in favor of how they work.
People shouldn’t be fornicating. Society has an interest in curbing it. It is entirely proper that a man who impregnates a woman in a one night stand be financially liable for the child, whether he wanted it or not. You may object that this implies a double standard for the woman. This is simply realistic (cf. Adam and Eve). Women have lower agency and are rightly held to different standards throughout the legal system.
Given how unlikely the current divorce laws will be changed, perhaps it would be more practical and helpful for high earners to adopt other strategies that can minimize(but probably not eliminate) the potential of being taken to the financial cleaners. Perhaps some kind of “spouse selection guide” can be drafted from other people’s experiences.
In an earlier blog entry, a psychologist that Phil spoke to noted, “Men whose parents were divorced are wary of marriage but eventually they seem to succumb and, of course, eventually get taken to the cleaners just like their dad did. Women also tend to do whatever their mom did. If mom worked, the daughter will work. If mom worked her body and the child support system, the daughter will work her body and the child support system.”
So perhaps prior to marriage, high earners should examine, in depth, the potential spouse’s family background. If the potential spouse’s parents are still married(preferably happily), that should be a plus. If both of the potential spouse’s parents work, that would be another plus. If the family background is religious and conservative and as a result, against divorce, another plus.
On the other hand, if the potential spouse has parents who are divorced, that’s a minus. If the potential spouse considers one such parent to have abandoned him/her as a result of the divorce and resents that parent, that’s a minus. If there are indications the potential spouse is a product of one parent who worked the child support system against the other parent, that would be a major red flag.
People who have gone through such divorce can be surveyed for this information, and the information can be compiled into a checklist. Human nature being what it is, such a checklist will be hardly fool-proofed, but it would probably help make some informed decisions.
Bob: given that “the current divorce laws” are completely different from state to state, why rely on probability? Why not instead plan a life in a state where the jurisdiction’s legal and financial incentives align with one’s own life goals? The person who wants to make money in the sexual/child marketplace can reside and have sex in California, Massachusetts, New York, or Wisconsin, for example. The person who doesn’t want to risk losing a child or paying more than $13,000 per year in child support can reside and have sex in Nevada (50/50 shared parenting presumption and statutory cap on child support revenue). The person who wants to collect permanent alimony can reside in Florida; the person who doesn’t want to pay alimony can reside in Indiana (no alimony!).
People are careful about planning careers and relocating for optimum career opportunities. Family law can result in much larger cash transfers than a W-2 job and controls issues that are more important to many people (e.g., the probability of being divorced, the probability of losing contact with a biological child, etc.). Why wouldn’t it make sense to construct a life plan with an informed view of the family law in various states?
Phil, this is less a legal and financial and legal problem than a cultural and religious problem. You fixate on the economic incentives state to state while the Hasidim and Amish and Mormons maintain a divorce rate near zero regardless of state and country. This is ultimately about community and family standards. It’s not a micro-economics problem as almost all your posts on the matter assume.
Phil, while it would be ideal for people to go where the laws suit them, there might be other constraints, such as family obligations, climate conditions, job opportunities, and etc.
You noted “Meanwhile, in Italy the courts have essentially done away with alimony (Business Standard; see also The Local), bringing that country into line with where Germany went in 2009 (with child support limited to less than $6,000 per year, the only way to make a profit from marriage in Germany is to stay married). ”
I was wondering what is happening in Italy and Germany that led to these kind of changes? I don’t imagine that divorce plaintiffs and attorneys over there are any less greedy than the ones here in the States. If these kind of changes can be made in Europe, can they also happen here in the States? And if so, how?
It won’t be long before an enterprising lawyer extends alimony to domestic partnerships. It’s become too dominant.
Bobby: I don’t think the U.S. family law system is a “problem” for adults who want to get paid for having sex, who don’t want to work at a W-2 job, who want to enjoy a variety of sexual relationships while potentially being paid for each one, etc. Depending on the state, it would be more accurate to characterize the system as presenting an “opportunity.” [Some states obviously do present a “problem” for adults who want to stay married, adults who have a job and also want to be married, have a continued parental role with any children, and/or engage in sexual relationships from time to time (though cisgender women have some additional options here due to the availability of birth control devices, on-demand abortion, etc.). But it is legal to move away from those states into states that don’t provide the same incentives to divorce plaintiffs, that more or less guarantee children continued meaningful contact with each parent, that don’t make it more profitable to collect child support than to work.]
Bob: Why would a country make having sex, having a child, having been married, etc. more or less lucrative? Certainly there is a broad spectrum across U.S. states. The child that yields $20 million in tax-free cashflow in Massachusetts or California is worth only $400,000 in Minnesota. A lucrative alimony lawsuit in New York might not be worth anything in a lot of Western states. Italy specifically? They are running out of money and need citizens to work and pay taxes, not sit home as members of the check-of-the-month club. Germany? They seem averse to situations in which people are envious. Getting rid of alimony prevents the situation where the never-married working slave woman might be envious of the once-married collecting-alimony-for-life woman.
[But I’m not sure that it is easy to find rational explanations for why family law is the way it is. Minnesota and Wisconsin are pretty similar states in a lot of ways but their respective family law statutes are nearly 100% opposite.]
Supporting your own kids financially is “Communism”? Interesting.
Hrm: The daughter quoted regarding the doctor’s payments to his plaintiff was 25 years old. Thus she was two years too old to generate child support profits for her mom. The court-ordered payments that the daughter compared to Communism were likely for alimony, i.e., to support an adult female plaintiff. So unless you think of women as the new children, this was not “supporting [his] own kids.”
[Separately, I don’t think the comparison to Communism is correct. Under Communism as implemented by the Soviets, for example, an unmarried citizen could not stay at home and collect child support or alimony, just as a married citizen could not stay at home and live off the earnings of a spouse. Citizens of both sexes (gender IDs?) were expected to work according to their ability, not collect cash as a function of the earnings of people they’d had sex with and/or had been married to.]