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Broken Family Law: Guidelines and Fixes

JKThe rights of man come not from the generosity of the state, but from the hand of God.”[i]  John F. Kennedy 1961

Since John F. Kennedy spoke these inaugural words, out-of-wedlock births skyrocketed from 5.3% to 40.6% of all births (by 2008) as society abandoned marriage. In just five decades, the United States has established law and policy incentives that encourage low rates of marriage and high rates of cohabitation, non-marital birth, divorce, and broken families—less Mom & Dad and more government social services. Same sex marriage now dominates modern discourse, but as important as this debate is, it obscures how the tragedy of the decline of marriage afflicts children and parents, spouses and families and all of our society with profound consequences.

An interdisciplinary group of social scientists, scholars and legal professionals, wrote Marriage and the Public Good: Ten Principles to underscore the value of marriage in society today.[ii]  These encapsulate the rational foundation of protection that marriage provides for children, men and women and for the enduring economic, social and legal integrity of a free society.  Reason and empirical evidence tell us that the best and most cost effective social welfare agency is married parents raising their own children.

Preserving the natural family and its untold benefits to society should be a major priority for both law and public policy. Applying fundamental principles to reforms that support the protections marriage offers children, adults and the common good is the most cogent way to reverse the negative trends of the past forty years, strengthen the economy long term, and safeguard civil liberties.

The goals of reform are to support marriage, reduce divorce and cohabitation, and assure next best outcomes for children who must grow up without the benefits of married parents.  Rewarding responsible behavior is the means for accomplishing these goals.

Four Outcomes Of Divorce Law

Divorce law determines by agreement or judicial ruling these four outcomes:

1) Property settlement-division of property or assets accumulated during marriage;

2) Spousal support – a monthly sum paid by one spouse to another to make up for lost income after divorce and;

3) Child custody- the percent of time a child is in one parent’s care;

4) Child support – a monthly payment from one parent to another to support child rearing needs.

With the removal of fault based divorce, each of these four outcomes required a new basis for legal adjudication, but rational guidelines serving everyone affected by the divorce outcomes, least of all the children, were not forthcoming. Custody and support adjudications no longer based on fault often rewarded irresponsible behavior.  This now intractable pattern has lead to a rapid rise in divorce, devaluation of marriage, soaring rates of cohabitation and non-marital births, and children losing the substantive benefits of growing up with two parents.

Property settlement soon shifted to an equal 50-50 property split. Without fault, spousal support became harder to justify and many states made it difficult to obtain. The effects of these substantive changes in marriage and divorce law heightened financial vulnerability for spouses who earn less and, particularly, for parents who limited their earning potential for the benefit of the family or worked only at home. These changes weakened the protections offered by marriage, particularly for women.

DOFH DivorceChild custody became the most difficult divorce outcome to adjudicate. When these changes were occurring forty years ago, marriage was more traditional, with a breadwinner father and a stay at home or part-time working mother.  Replacing fault-based standards, vague custody guidelines emerged that measured Mom and Dad against each other in a contest of which parent was best.  Evolving judicial practice assigned “primary” custody to the parent who spent more time with the children, while granting the full-time working parent “visitation” on alternate weekends and two weeks in the summer.

Rising divorce and non-married birth rates resulted in rising single parent families and corresponding demand for government assistance. Political pressure mounted for taxpayer relief of the climbing costs of single parent families. Federal and state legislation designed to recover state welfare payments paid to single parents by collecting child support from absent parents, rapidly evolved into a publicly supported child support “assurance” policy for middle and upper income parents whether married or not.

As millions of children populated one parent homes, child support awards rose in middle and upper income levels. At the same time, total government assistance payments increased for lower income parents.  Having kids without marriage became more doable and attractive. Today, child support often exceeds the costs of raising children. This might be justified if custody, which is linked to support, was granted to the more responsible parent. Adding inflated child support to arbitrary custody decisions, however, often subsidizes irresponsible behavior and family break-up.

Regardless of marital status, advantages in child custody and support offer powerful incentives for parents who expect the courts will give them custody, to decide against marriage with the children’s other parent. After a custody determination or divorce, the parent with custody expects to see the kids regularly and often receive high child support.

As families break-up, courts usually award primary custody to one parent.  Typically, these children experience substantively diminished contact with their other parent. For millions of children growing up in the United States, their only contact with a parent is with the one who holds custody.

Changes in American divorce law outcomes over the past four decades have removed incentives for parents to use marriage as the stabilizing anchor for family relationships. Modern family life has become increasingly characterized by children growing up without two parents at home.  Cohabitation has increased seventeen fold since 1960[i] and is gaining ground over marriage for adult relationships between men and women who conceive children together. Unfortunately, ninety percent of these relationships fail.

oval-office-desk-kennedyChildren whose parents cohabit or divorce typically grow up in the custody of their mothers and have limited contact with their fathers. Women now file for over two thirds of American divorces. [ii]

Given the huge benefits for children of growing up with married parents, it is remarkable that America’s courts routinely adjudicate divorce and custody without recognizing any measure of responsible behavior among spouses and parents with respect to the outcome that is best for the children.  The more responsible spouse is better equipped to handle the difficult challenges of single parenthood.  The more responsible spouse needs and deserves protection with respect to property distribution and spousal support to better balance work and child-care decisions based on what is best for the family. At the same time, children benefit from seeing fit parents a significant amount of time.

Outlined below are responsible spouse and fit parent guidelines that offer advantages in child custody, property settlement and spousal support including at least 50% of child custody and 60% of property settlement.  Fit parents receive at least one-third of child custody.

Responsible Spouse Guidelines Improve Other Reforms

This solution achieves the goals of family law reform but may be combined creatively to improve the effectiveness of at least three major reform ideas:  1) Mutual Consent Divorce 2) Mandatory Waiting Periods 3) Shared Parenting.

Mutual Consent Divorce

No Fault Divorce law in all 50 states empowers one spouse to impose divorce upon the other unilaterally. Mutual Consent law requires both spouses to agree to divorce terms before divorce may be granted (unless fault is proven) and thereby effectively reduces divorce. New York, for example, had a divorce rate of only 38.7% in 2008 under its former Mutual Consent statute; in 2010, it abandoned its Mutual Consent statute to adopt No Fault Divorce like neighboring states with higher divorce rates, New Jersey (56%) and Connecticut (60%).

Rather than adopt No-Fault Divorce, New York could have enhanced its Mutual Consent law by adding guidelines that instead would have given responsible spouses an advantage by default on each of the four divorce outcomes. Two examples illustrate this point:  Suppose a husband leaves his stay-at-home wife to live with another woman, or a wife takes a couple’s children and moves in with another man.  Under mutual consent divorce, the responsible spouses may divorce, but in the first case, the responsible mother may not get spousal support and is unlikely to receive more than 50% of the property settlement; in the second case, the court is unlikely to give the responsible father more child custody time.  Providing an advantage by default strengthens the negotiating position of the more responsible spouse. This favors the chance that the couple may choose to reconcile and the likelihood of a better parenting outcome for the children should they divorce.

ST-22-1-62Mandatory Waiting Periods

Another approach to reform requires spouses to wait a year or longer after filing for divorce before it is granted. Divorce rates in Maryland, Pennsylvania and Illinois, which have waiting periods, are about half that of the highest divorce states. Reconciliations are more likely because waiting periods allow couples to understand they may be making a mistake.

Currently, the full effectiveness of waiting periods is limited because states with waiting periods decide custody and child support well before divorce is granted. Maryland, for example, requires couples to wait a year to get a divorce and two if contested, but decides child custody within a few months, long before the waiting period expires.

If custody is decided unjustly, a common occurrence, the responsible spouse resents the legal system and their spouse, conditions hostile to reconciliation.  The spouse granted custody and child support feels vindicated and will likely harden the position leading to the divorce action. In contrast, with a responsible spouse guideline, the better negotiating position of the responsible spouse would give the other spouse more incentive to reconcile.  This would make waiting periods more effective in further reducing divorce.

Shared Parenting

Shared Parenting asserts that a child needs and does best with both Mom and Dad, even in cases of divorce and unmarried parents, but both parents must be fit. Shared parenting is consistent with empirical evidence on what’s best for children.

Texas is the only state that provides children defined time with each parent in custody determinations. Mom and Dad, if fit, get a minimum of approximately one-third custody time and the judge decides the remaining one-third.  This is about twice the average time given to non-custodial parents in other states, an outcome clearly much better for children.  The Texas statute specifies in great detail how custody will be implemented, but has no provision for giving more custody to the responsible parent. As in other states, perverse incentives often cause children to spend less time with their more responsible parent.  Although Texas children do better when married parents break-up, the law does not significantly reduce divorce or cohabitation.

The responsible spouse guidelines below incorporate a simplified feature of Texas law, giving children a minimum of one-third time with both parents, but increases this to a minimum of half time for a fit parent who is also a responsible spouse. This achieves the guideline goals of: (1) reducing incentives for divorce and cohabitation; and (2) in the tragedy of family break-up, assuring that children spend most of their time with the more responsible parent but have significant time with the other parent.

Responsible Spouse Guidelines

The proposal outlined below provides custody and divorce guidelines based upon the simple legal concepts of Responsible Spouse and Fit Parent (See Tables I & 1I  below). The Responsible Spouse designation in a divorce suit requires that a spouse must:

1) Choose to remain married if neither spouse has proven fault (Fig.1);  2) Be without a proven fault.

A Fit Parent is one who is not abusive or neglectful of their children. The guidelines acknowledge that property settlement and spousal support apply only to married couples.


If one spouse has proven fault, the guideline allows the spouse without fault to seek divorce and still be designated the responsible spouse.

 

Fig. 1 Faults Proven By Clear And Convincing Evidence

1) Adultery

2) Felony Activities

3) Abuse of spouse or minor children, neglect of minor children;

4) Abandonment

5) Alcohol or drug addiction

‡ If one spouse has proven fault, the guideline allows the spouse without fault to seek divorce and still be designated the responsible spouse.

Linking the definitions to ranges for each of the four divorce outcomes produces comprehensive yet manageable guidelines that still allow discretion to adjudicate unique circumstances of individual cases. Only two conditions apply:

(1) a spousal or divorce agreement submitted to the court by mutual consent takes precedence over the guidelines; and (2) clear and convincing evidence must support all findings used in the tables.

Clear and convincing is a higher standard of proof used in civil cases involving high stakes, and is needed to combat false claims.

For married parents, the most common scenario is one parent that is responsible while the other parent is fit.  In this case, the judge would be required to give the responsible parent from half to two-thirds child custody time (for example 7 to 9 of fourteen overnights) and the other parent from one-third to half the child custody time (5-7 of fourteen overnights).  The judge controls 17% of the custody time.

The responsible spouse designation is stronger than the fit parent designation, in that the judge can give less than one-third time if he explains in writing why. The responsible spouse receives at least 60% of the property settlement with the judge deciding the remaining 40%.  Only the responsible spouse can receive spousal support if otherwise eligible.

When parents are unmarried or both married spouses commit fault neither parent satisfies the responsible spouse designation. Provided both parents are fit, each is guaranteed one-third of child custody time. The judge decides the remaining one-third based upon the unique circumstances of the case. Neither at-fault spouse would be eligible for spousal support; the judge decides 100% of the property settlement.

 

Table I. Responsible Spouse Guidelines for Divorce Outcomes

Divorce Outcomes by Parental Category

Responsible-Spouse/Fit-Parent

Categories

% Child Custody Time

% Property Settlement

Spousal Support Eligible

Child Support Eligible

Category M1

Parent A: Responsible and Fit

Parent B: Not Responsible but Fit


% Outcome decided by Judge

50-67

33-50


17

60-100

0-40


40

Yes

No


None

Yes

No


None

Category M2

Parent A: Not Responsible but Fit

Parent B: Not Responsible but Fit


% Outcome decided by Judge

33-67

33-67


33

0-100

0-100


100

No

No


None

Child Support Tables Applied to Final Custody Decision

Category M3

Parent A: Responsible and Fit

Parent B: Not Responsible or Fit


% Outcome decided by Judge

67-100

0-33


50

60-100

0-40


40

Yes

No


None

Yes

No


None

Category M4

Parent A: Not Responsible or Fit

Parent B: Not Responsible or Fit


% Outcome decided by Judge

 

 

Lose Custody

Lose Custody


100

0-100

0-100


100

No

No


None

No

No


Parents Pay According to Child Support Tables

 

 

Table II. Custody Guidelines for Unwed Parents

Custody Outcome By Parental  Category

Unwed Parent Categories

% Child Custody Time

Child Support Eligibility

Category U1.

Parent A: Fit

Parent B: Fit


% Outcome decided by Judge

 

33-67

33-67


33

Child Support Tables Applied to Final Custody Decision

Category U2

Parent A: Fit

                    Parent B: Not Fit*


% Outcome decided by Judge

 

33-100

0-33


67%

Child Support Tables Applied to Final Custody Decision

Category U3

Parent A: Not Fit

Parent B: Not Fit


% Outcome decided by Judge

 

Lose Custody

Lose Custody


100

No

No


Parents Pay According to Child Support Tables

*In this instance, judicial discretion would determine if parenting time is appropriate or if another relative or significant other may supervise or share this portion of custody time.

 

These guidelines give advantages in divorce to responsible spouses. These advantages and their predictability favor choices for marriage over divorce. The guidelines discourage cohabitation because married couples benefit most. In the tragic circumstance of divorce, responsible spouse guidelines provide children next best outcomes to married family life because they will spend more time with a responsible parent while still spending significant time with both fit parents in most cases.

Mom and Dad, though imperfect, offer their children far more than any social welfare system our huge, faceless government could ever expect to match.  Implementing responsible spouse guidelines like these is one of the most critical imperatives for protecting children and empowering responsible parents in the 21st century.

Ron Grignol is an aerospace engineering consultant for the Defense Department and former candidate for Virginia’s House of Delegates.  Dr. Michael T. Ross is an emergency physician and health care communications consultant whose divorce reform proposals have been considered by the Michigan Legislature.

 


Inaugural Address President John F. Kennedy, Washington, D.C. January 20, 1961 

[i] McManus, Mike, Incentives for Cohabiting Couples To Marry, October 19, 2010,

Column #1521

[ii] Brinig, Margaret F. and Allen, Douglas W., ‘These Boots are Made for Walking’: Why Most Divorce Filers are Women ( 2000). American Law and Economics Review, Vol. 2, pp. 126-169, 2000. Available at SSRN: http://ssrn.com/abstract=713110