child support

The Lazy Non-Poor People Below the “Poverty” Line Who Get Welfare, and the Hard-Working Poor Above it Who Get Taxed

by Hans Bader on September 13, 2011 · 6 comments

in Legal, Politics as Usual, Zeitgeist

There are plenty of people below the poverty line who aren’t really poor, and some people above the poverty line who are indeed quite poor. The poverty line is a very arbitrary measure seemingly designed to justify lots of spending on welfare and social services for “disadvantaged” people who aren’t really poor, spending that generates jobs for government employees (and government-subsidized non-profits) who provide welfare and handouts.

Robert Rector of the Heritage Foundation explains how many people below the poverty line aren’t really poor at all:

There is a wide chasm between the public’s concept of poverty and “poverty” as it is defined by the Census Bureau. The public generally thinks of poverty as . . . homelessness, or malnutrition and chronic hunger. In reality, the vast majority of those identified as poor by the annual census report did not experience significant material deprivation.

In a recent Rasmussen poll, adults agreed (by a ratio of six to one) that “a family that is adequately fed and living in a house or apartment that is in good repair” is not poor. By that simple test, about 80 percent of the Census Bureau’s “poor” people would not be considered poor by their fellow Americans.

In the same Rasmussen poll, however, 73 percent said poverty was a severe problem. Why the disconnect? The answer: Public perception of poverty in the U.S. is governed by the mainstream media, which invariably depicts the Census Bureau’s tens of millions of poor people as chronically hungry and malnourished, homeless or barely hanging on in overcrowded, dilapidated housing.

The strategy of the media is to take the least fortunate 3 percent or 4 percent of the poor and portray their condition as representative of most poor Americans. . .[But] they are far from typical among the poor. . . a poor child in American is far more likely to have a widescreen plasma television, cable or satellite TV, a computer and an Xbox or TiVo in his home than he is to be hungry. . .In 2009, the U.S. Department of Agriculture asked parents living in poverty this question: “In the last 12 months, were [your] children ever hungry but you just couldn’t afford more food?” Some 96 percent of poor parents responded “no”: Their children never had been hungry because of a lack of food resources at any time in the previous year. . . .

Here are more surprising facts about Americans defined as “poor” by the Census Bureau. . .

Eighty percent of poor households have air conditioning. By contrast, in 1970, only 36 percent of the entire U.S. population enjoyed air conditioning. Fully 92 percent of poor households have a microwave; two-thirds have at least one DVD player and 70 percent have a VCR. Nearly 75 percent have a car or truck; 31 percent have two or more cars or trucks. . .Nearly two-thirds have cable or satellite television. Half have a personal computer; one in seven have two or more computers. More than half of poor families with children have a video game system such as Xbox or PlayStation. . . A third have a widescreen plasma or LCD TV. . .

At a single point in time, only one in 70 poor persons is homeless. The vast majority of the houses or apartments of the poor are in good repair; only 6 percent are over-crowded. The average poor American has more living space than the average non-poor individual living in Sweden, France, Germany or the United Kingdom. . .Forty-two percent of all poor households own their home; on average, it’s a three-bedroom house with one-and-a-half baths, a garage, and a porch or patio. . . among the lowest-income fifth of households, inflation-adjusted consumer spending actually increased modestly during the recession.

Given these facts, how does the Census Bureau conclude that more than 40 million Americans are poor? They identify a family as poor the family’s cash income falls below specific thresholds. For example, in 2009 a family of four was “poor” if annual cash income fell below $21,954.

But in counting income, the Census Bureau ignores almost the entire welfare state. This year, government will spend over $900 billion on means-tested anti-poverty programs that provide cash, food, housing, medical care and targeted social services to poor and near-poor Americans. . .This means-tested welfare spending comes to around $9,000 for each poor or low-income American — virtually none of which is counted by census officials for purposes of calculating poverty or inequality.

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British Social Workers Tear Apart Happy Families, Seize Children from Loving Parents

by Hans Bader on July 18, 2011

in International, Legal, Nanny State, Personal Liberty

In Britain, social workers and child-protective services are tearing apart happy families, and seizing children from loving parents “for no good reason,” notes Christopher Booker in Sunday’s London Daily Telegraph. For example, one case

concerns a responsible mother who holds down an expert job in a law firm. A year ago, she was in the kitchen preparing packed lunches for her two children when her 11-year old daughter kept on interrupting. The mother tapped her daughter on the arm with a roll of clingfilm and told her to go upstairs. The following day the girl casually mentioned to a teacher that her mother had “hit” her. This was reported to social workers who took her into care, on the grounds that her mother had hit her with an “implement”. They did so under a voluntary “Section 20” agreement, which the mother was prevailed upon to sign – like many other parents before her – in the belief that such a silly misunderstanding would quickly be sorted out and her child would soon return home. However, the council then paid £14,000 to have the mother “psychiatrically assessed” by an “expert”, who produced a 235-page report which, on astonishingly flimsy and muddled grounds, found she had an undetermined “personality disorder”. On this basis, three days before Christmas, at 11pm, the girl’s nine-year-old brother was also taken into care, provoking such a severe panic attack that an ambulance had to called for him.

In another case,

A young mother of three children, married to the father of her youngest, a baby less than a year old, took part in a charity walk with her oldest daughter, aged six. She tripped over, pulling her daughter to the ground, and although the child sustained no more than a graze, reported the incident to the first-aid tent. The child continued going happily to school for several days, but when the mother tried to explain the small mark on her arm to a health visitor (who did not ask the child to comment), social workers arrived, escorted by three policemen, to take all three children into care.  The council commissioned a psychiatric assessment, which found that she was a competent mother. A second report found the same. The social workers then paid for a third report, which described the mother as suffering from a “borderline personality disorder”. Solely on these grounds, a court has now ruled that the three children must be put out for adoption. In each case, the evidence seems to indicate that the distressed children want only to be reunited with their loving parents.

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More Disincentives to Work, Thanks to the Federal Government and the Stimulus Package

by Hans Bader on December 12, 2010 · 3 comments

in Employment, Stimulus to Nowhere

Thanks to food stamps, Medicaid, and housing subsidies, and other welfare benefits, many “poor” people have far more disposable income than self-supporting households earning $40,000 to $60,000 a year.  Veronique de Rugy points to a finding that “a one-parent family of three making $14,500 a year (minimum wage) has more disposable income than a family making $60,000 a year” — even excluding benefits from Supplemental Security Income.  “America is now a country which punishes those middle-class people who not only try to work hard, but avoid scamming the system.”

These disincentives to work were expanded in the job-killing $800 billion stimulus package, which largely repealed welfare reform and increased the refundable tax-credits given to non-taxpaying “poor” households.  These refundable credits are being perpetuated in the costly $900 billion deal recently reached between Obama and congressional leaders.

The analysis de Rugy cites actually understates the disincentives to work, because it ignored the fact that many households that are “poor” in terms of taxable income are not poor at all once you factor in tax-free income from non-governmental sources.  For example, child support is tax-free to the recipient family, no matter how huge the payments they receive (for example, a billionaire may pay several million dollars a year in child support to each of his ex-girlfriends with kids, leaving them in tax-free luxury, and under New York’s child support guidelines, everyone is supposed to pay at least 17 percent of their gross income in child support for just one child, regardless of how high that income is.  In Massachusetts, middle-income households pay 25 percent of gross income for just one kid — which is around a third of their after-tax income — under that state’s child support guidelines).

The stimulus package contained provisions encouraging states to temporarily ratchet up their child support guidelines to reap more federal matching funds.  Maryland recently increased its child support guidelines to excessive levels, permanently.  Ohio is now weighing a massive proposed child-support increase, also apparently based on erroneous reasoning.  However, these increases probably will not provide a net benefit to state budgets, because increased federal funding is offset by incarceration and other direct and indirect costs associated with enforcement of excessive child-support guidelines).

Federal matching funds are having a negative effect on child welfare in other contexts, such as unwarranted CPS seizures.  (The federal government is increasingly using matching funds to meddle in areas of tort, criminal, family and domestic violence law traditionally handled by the states, sometimes in ways that actually increase domestic-violence-related deaths and injuries.) Financial obligations imposed by divorce courts are also harming soldiers and small businesses.

Federal food stamp allotments are so generous that they clearly exceed the amount needed to actually feed a family on a bare-bones budget.

Divorce Courts Mistreat America’s Soldiers and Small Businesses

by Hans Bader on June 1, 2010 · 1 comment

in Culture, Deregulate to Stimulate, Economy, Employment, Legal, Nanny State, Personal Liberty, Politics as Usual, Regulation, Sanctimony, Zeitgeist

Memorial Day is an opportunity to thank our troops, and open our eyes to the disgraceful way they are treated by divorce courts. The bias that divorce courts in my home state of Virginia often exhibit against males, people who start small businesses, and breadwinner spouses in general has been ably chronicled by Richard Crouch, a prominent family lawyer, in the Virginia state bar publication Family Law News.

But what ashames me most as a lawyer is how divorce courts routinely violate our soldiers’ rights under federal law. Crouch notes that Virginia courts ignore federal law by ordering members of the military to share their pensions with spouses who divorced them after even short marriages: “Something everybody learned early on is that a military wife had to have ten years of marriage to the service member overlapping ten years of military service to divide the pension. However, the Virginia Court of Appeals has adopted the rule that this statutory limitation in 10 U.S.C. 1408 limits only direct payment by the military of the former spouse’s half of the pension. Thus a service member can be required by a Virginia court to split his or her military retirement with the former spouse even if it was less than a ten year marriage. Cook v. Cook, 18 Va. App. 726, 446 SE2d 894 (1994).”

This contempt for the legal rights of divorced soldiers matters a lot, because soldiers have fairly high divorce rates, thanks to the stresses and strains of military life, such as unforeseen deployments overseas. Usually, it is the wife, not the husband, who initiates the divorce (two-thirds of divorces in America are initiated by the  wife, not the husband, although male spouses of female soldiers also initiate many divorces. Most divorces are no-fault divorces. By the way, I am not divorced).

Another way the state courts put soldiers at a disadvantage, and discourage them from serving their country, is to award their ex-spouses a share of their potential military pension starting at the earliest date they could possibly retire — even if they intend not to retire then but rather to keep on serving their country. That effectively forces them out of the military, depriving the armed forces of seasoned troops. This injustice is permitted, but not mandated, by federal law.

Lt. Col. Patricia Larrabee was effectively forced out of the military by “a court order directing that she pay her ex-husband a share of her retirement when she reaches 20 years of service in 2006, whether or not she retires.” “‘I can’t afford to write a check to my ex-husband every month out of my military pay,’ she told then-Defense Secretary Donald Rumsfeld. ‘By the way,’ Larrabee added, ‘he makes thousands and thousands of dollars more than I do.’”

Colleen M. Timpano, who served in the Navy, describes how she was royally ripped off by a state divorce court, which effectively “indentured” her “for life” to her “former husband,” who used drugs before and after his expulsion from the Navy, and “contributed absolutely nothing” to her career, even as she helped “finance his college education.” The court awarded her “ex-husband 30 percent of” her “retired pay for life, which will be paid to her “ex-husband and his third wife for the rest of his life.” Federal law did nothing to stop this.

State courts also jail returning reservists based on their inability to pay excessive child support levels that accumulated after they were called into service at pay levels far lower than what they received in civilian employment. The Bradley Amendment keeps their child support from being reduced retroactively when they return from the field of battle, even if they had no time to get their child support payments reduced before being suddenly called up and sent into battle. The Bradley Amendment has contributed to state courts jailing many hapless fathers, including “a veteran of the first Gulf War who was captured in Kuwait in 1990 and spent nearly five months as an Iraqi hostage before being arrested the night after his release for not paying child support while he was a hostage.” It also has resulted in “a Texas man wrongly accused in 1980 of murder” being billed “nearly $50,000 in child support that had not been paid while in prison” and a “Virginia man required to pay retroactive child support even though DNA tests proved that he could not have been the father.”

Even if a reservist manages to hire a lawyer to file a motion to reduce his child support payments to an affordable level while he is overseas, the child support agency often simply refuses to do so (sadly, this is not surprising given that child support agencies have a financial incentive to artificially inflate child support levels, since they receive federal funds based in part on how much child support they collect).

Nor can soldiers called off to battle just pay the child support in advance, if they have the money, to avoid complications of paying on a monthly basis while abroad. Virginia Delegate Jeff Frederick introduced a bill to allow child support to be paid in advance, but it was killed by the Virginia State Senate’s Courts of Justice committee. Dave Briggman of Prince William County, Virginia, was held in contempt for paying his child support early. When he could not afford to pay the penalty, he was then denied the ability to appeal the penalty based on his argument that he was unable to pay, based on the absurd Catch-22 ground that he had not put up an appeal bond in the amount of the penalty — something he by definition could not afford to do, precisely because he lacked the money to pay the penalty. Under the Virginia Court of Appeals’ decision in Mahoney v. Mahoney, if you want to appeal an excessive child support obligation or sanction based on the fact that it is beyond your means, you must first put up an appeal bond in the full amount you can’t afford.

Virginia has the weirdest case law on alimony in the entire southern United States. In Bristow v. Bristow (1980), the Virginia Supreme Court overturned a lower court’s refusal to award lifetime alimony to a wife who separated from her husband less than a year into their marriage, ruling that the trial judge could not deny alimony without making extensive findings, even after such a brief marriage, even though state law explicitly lists the duration of a marriage as a factor in whether to award alimony. (By contrast, in many states, like California, there is a judicial rule-of-thumb that alimony should not last longer in years than half the length of the marriage).

The Virginia Supreme Court’s “generosity” with other people’s money was selective and discriminatory. That same year, in Counts v. Counts (1980), the state supreme court barred a man from suing his ex-wife for deliberately maiming him, applying the now-defunct doctrine of “interspousal tort immunity,” even though Virginia circuit judges previously allowed ex-wives to sue their husbands for domestic violence under an “intentional tort” exception to that immunity. The state supreme court barred the ex-husband’s suit even though it had earlier (rightly) allowed an ex-wife’s estate to sue the ex-husband who murdered her in Korman v. Carpenter (1975). (In response to public outcry, the legislature eventually abolished marital tort immunity).

Divorce law is of enormous economic importance. Divorce cases outnumber any other category of civil case in state courts (nearly half of the docket of the Virginia Court of Appeals is made up of family-law cases), and redistribute far more money from any other category of case. And decisions by divorce courts on how to set alimony and child support payments can be potent disincentives to setting up a small business.

Virginia courts routinely do things that are economically inefficient and unfair, like allowing awards of permanent alimony even after very short marriages (Bristow v. Bristow, 1980), then allowing child support or alimony levels to be reset based on upward changes on the paying spouse’s income (Conway v. Conway, 1990), but not downward changes (Antonelli v. Antonelli, 1991), and allowing child and spousal support levels to be set based not on what the paying spouse actually makes (which would be an easy mechanical calculation that would not require any lawyer time or attorneys’ fees to compute), but rather based on higher, hypothetical (and sometimes arbitrary) estimates of what the paying spouse could make (”imputed income”), as in the cases of Cochran v. Cochran (1992), Antonelli v. Antonelli (1991), and Auman v. Auman (1995).

Setting support levels based on hypothetical rather than actual income results in lots of argument between opposing lawyers about what the hypothetical income should be, generating work for lawyers at the expense of the paying spouse. Similarly, allowing permanent alimony based on very short marriages results in lots of demands for such alimony by wives, and lots of arguments by their lawyers, even though such demands are often rejected anyway by the courts (see, e.g., Bruemmer v. Bruemmer).

Virginia’s divorce laws are an impediment to small business creation by divorced people, who comprise more than a million Virginia residents. As prominent family lawyer Richard Crouch once noted, Virginia courts employ a “heads-I-win, tails-you-lose” approach to people who try to start small businesses.

If you leave a steady salaried job in order to try to set up a small business, and it succeeds, increasing your income, you will have your child support payments increased over their prior levels (and perhaps your alimony payments as well). (Conway v. Conway, 1990.)

But if the business fails (as most small businesses do), resulting in your income falling below its prior levels, the courts will force you to pay alimony and child support as if you were still making the higher income you made at your prior job, rather than at the income you currently make (Antonelli v. Antonelli, 1991.)

As Crouch notes, “So much for encouraging small business. The wage-slave working stiff is shackled forever to salaried employment with big business, which he leaves at his peril.” Virginia gets a undeservedly generous rating from some business groups for how its courts treat businesses, but those ratings really only take into account how big business fares in tort lawsuits, and in reality, it’s Virginia’s fair-minded juries — not state judges — who make Virginia relatively “pro-business” in that respect.

I have often used gender-specific words such as “father” and “husband” to describe those who pay alimony and child support in my above discussion, even though state laws do not prevent judges from giving a father custody of the children or awarding support to the father. I do that because, in practice, it is usually the husband and father who pays them, and the law is not applied in a gender-neutral fashion, as Virginia attorney Richard Crouch observed in a 1992 article in Family Law News. (For example, the Virginia Court of Appeals denied alimony to a father even though his ex-wife made five times what he did, and he was the caregiver for the couple’s children, and instead ordered him to pay his ex-wife 40 percent of his meager disability pension, in Asgari v. Asgari [2000]. It is hard to imagine a similarly-situated ex-wife not receiving alimony for at least a few years.  For example, in Calvin v. Calvin [1999], the appeals court awarded a wife alimony despite describing her as adulterous, “vindictive and cruel”). As Crouch notes, in Virginia family law, “sex is the difference that makes a difference.”

Defenders of these rulings sometimes claim that they are needed to offset imaginary financial advantages enjoyed by non-custodial parents or men. Those claims are based on ignorance. Arizona State University’s Sanford Braver conducted his own study in the late 1980s, using better methodology, and found that ex-husbands do no better than ex-wives following a divorce, as he recounts in Divorced Dads (1998). Indeed, his study probably understates divorced husbands’ losses as a result of a divorce nationally, since it was conducted in Arizona, which has lower than average child-support collections (as the U.S. Supreme Court observed in Blessing v. Freestone (1998)) , and since it was conducted before increases in child support resulting from Congress’s passage of the 1988 Family Support Act, which prompted state legislatures to substantially increase state child support guidelines, awards, and enforcement.

Similarly, in 2000, a Virginia study (the JLARC study) erroneously claimed Virginia’s child support guidelines were too low only because it compared apples and oranges. It compared just one part of the state’s child support guidelines (the “basic” schedule, excluding statutory add-ons for health insurance and day care expenses) to ALL child-rearing costs, making the guidelines appear artificially low. It also treated as child-care expenses housing and other expenses shared by the custodial parent, for which the custodial parent could seek alimony — potentially resulting in the custodial parent getting paid twice for the same expenses, first in alimony, then in child support. If these errors had been remedied, the study would have found Virginia’s child support levels to be too high.

The same errors were behind a recent major increase in Maryland’s child support guidelines, which already exceeded the actual cost of raising children for most households.  (The legislation’s backers also falsely claimed that the guidelines needed a massive increase to adjust for inflation, even though the guidelines were largely self-adjusting for inflation).

Perhaps as a result of the unfounded belief that men generally suffer less than women after a divorce, states periodically rewrite their divorce laws to make life harder for breadwinner spouses. For example, Texas, which once forbade alimony as against public policy, now permits it under certain circumstances. North Carolina, which required a showing of fault by the breadwinner spouse to impose spousal support until the mid-1990s, no longer does. And as Richard Crouch notes, courts apply child and spousal support laws in a gender-biased fashion.

Virginia Legislators Kill Bills to Mandate Child Support for Adult College Students

by Hans Bader on February 2, 2010 · 1 comment

in Legal, Nanny State, Personal Liberty, Politics as Usual, Regulation, Sanctimony

Virginia legislators recently killed bills to extend child support to adult college students. The bills would have required a non-custodial parent to make payments to the other parent while their adult child is attending college. A number of states have such laws, but legislators in Virginia voted the bills down after receiving an avalanche of angry e-mails and phone calls from their constituents opposing the bill.

The bill was killed by the House of Delegates Courts of Justice Committee in an voice vote on January 22 to strike the bill from the docket. It was killed this legislative session by the Senate Courts of Justice Committee, which voted 13-to-1 to shelve the bill indefinitely on February 1. Only Senator Roscoe Reynolds (D-Martinsville) voted to keep the bill alive.

The U.S. Supreme Court has never decided whether it is constitutional to make divorced parents pay child support for adult children, even though married parents have no such obligation. The Pennsylvania Supreme Court struck down such a requirement in Curtis v. Kline, 666 A.2d 265 (1995), rightly reasoning that it was irrational discrimination that violated the Constitution’s Equal Protection Clause. But the Oregon Court of Appeals upheld such a requirement. In many states that have such mandates, lawyers have simply failed to challenge them, which is mystifying given lawyers’ duty to zealously represent the interests of their clients.

I and legal commentator Walter Olson earlier noted that such laws have unforeseen bad consequences, such as (1) forcing parents to support children who are disrespectful and abusive toward them, and whom they have no parental control over, or (2) forcing parents to make payments to their ex-spouse who was once the custodial parent, rather than directly to their child or the child’s college, thus actually reducing the child’s ability to attend college.

The Virginia bills drew negative attention from journalists and commentators, like the Richmond Times-Dispatch‘s award-winning columnist A. Barton Hinkle, syndicated columnist Amy Alkon, and criminal-justice expert Radley Balko.

We wrote earlier about the bizarre aspects of divorce law and child support in Maryland and Virginia.

Maryland Legislators Seek to Jack Up Child Support Levels, Based on Bogus Inflation Rationale

by Hans Bader on January 28, 2010 · 5 comments

in Legal, Nanny State, Personal Liberty, Politics as Usual, Regulation, Sanctimony

A bill, SB 252, was just introduced in Maryland to increase child support obligations for households at most income levels–a massive increase of nearly 30 percent for a couple with one child making $3,400 a month!  Maryland residents, already burdened by recent state tax increases, now face additional burdens.

I don’t live in Maryland, and I’m not divorced, so I won’t be affected by the bill.  But as a lawyer who has studied most states’ child support guidelines, I find the economic ignorance behind the bill infuriating.

The bill is based on the bogus rationale that child support awards must go up, because inflation has increased child-rearing costs over the years.  But under Maryland’s existing child support guidelines, child support awards and obligations are based on income–the more you make, the more you pay!  So when incomes and prices rise due to inflation, so, too, do child support payments.  The guidelines thus contain a built-in inflation adjustment.

Yet some Maryland authorities apparently do not grasp basic economics, arguing that “today’s child support levels” are too low because they “are based on the economic realities of 1988, when a gallon of gas cost $1.08 and a first-class stamp was 22 cents.”

Wrong.  Child support levels are based on what payors earn now, not what they earned in 1988 – when incomes in dollars were much lower.  As Murray Steinberg, a former member of Virginia’s child-support review panel, noted, wages have gone up faster than inflation since 1988, meaning that child support levels have risen along with inflation, rather than being eroded by it.  (Steinberg cited publicly-available wage and inflation data from the Bureau of Labor Statistics proving this. See, e.g., Bureau of Labor Statistics, Employment Cost Index, Constant Dollar, June 1989=100 (April 29, 2005).) (Available at http://www.bls.gov/web/ecconst.pdf.  I used to work at the BLS producing federal labor cost and living cost data.)

The same false argument was unsuccessfully made in Virginia.  But its legislature wisely saw rejected it, and voted down a failed rewrite of Virginia’s guidelines based on this theory in 2006, rejecting a child support increase bill known as HB733.

Moreover, some child-rearing costs that rise the fastest with inflation – like “health insurance expenses” and “extraordinary medical expenses” – are awarded as statutory “add ons” on top of  the “basic child support” award, preventing their inflation from eroding the sufficiency of child support levels.  See Bureau of Labor Statistics, “Table 1A, Consumer Price Index for All Urban Consumers” (available at http://www.bls.gov/cpi/cpid04av.pdf) (medical inflation outstrips inflation in general). This offsets the fact that payments under the “basic child support obligation” schedule rise at a diminishing rate relative to income at the upper portions of the child support schedule.

Maryland’s guidelines are not inadequate.  They greatly exceed the true cost of raising children, and amount actually spent on raising children, for the vast majority of households making above $30,000 a year (and also for those households making less than $30,000 a year in which there are substantial court-ordered daycare payments awarded pursuant to Md. Code Section 12-204(g)).  Indeed, Maryland’s guidelines were historically above average for the nation, although that edge may have dissipated in recent years as some other states have jacked up their guidelines based on similar bogus inflation rationales.  (See, e.g., Ronald K. Henry, “Child Support At A Crossroads: When the Real World Intrudes Upon Academics and Advocates,” 33 Family Law Quarterly 235, 241 fn. 20 (1999) (lawyer notes that Maryland child support levels are above the national average, citing the example of a child support obligor with an income of $1000 per month).)

The bill would increase child support obligations so much that working-class fathers would end up paying more in child support than much wealthier families actually spend on their children.  I am a lawyer, and my wife is an accountant by occupation.  But we spend less on our daughter than the proposed child support guidelines would require many working-class non-custodial parents with much lower incomes to spend.  Households with a monthly income of $3400 have a higher “basic child support” obligation under the bill–not counting statutory add-ons–than I and my wife actually spend on our daughter, who has plenty of toys, games, food, and clothing.  (And that’s true even if our child-care costs are estimated at the maximum reasonable amount, such as by attributing to our daughter a per capita share of the amortized cost of our cars.)

(Ironically, the bill, while increasing child support payments at most income levels, would actually cut them for certain very low-income households, where child support payments actually come closest to matching child-rearing costs.  It increases the guidelines where they are most excessive now, and cuts them where they are least excessive.  “‘We’re reducing at the low end where it’s needed the most,‘ said Del. Benjamin F. Kramer.”  While I do not think that Maryland’s existing child support levels are too low even at the ”low end,” and would not object to a modest reduction there, it is odd to cut them only at the very low end while increasing child support awards everywhere else, even where existing awards grossly exceed the actual amounts actually spent on raising children by typical parents at that income level.)

State child support agencies like to boast of increased child support collections.  There are two ways for them to do that.  The easy way is to increase child support guidelines to jack up the payments imposed on law-abiding people who already pay their child support in full.  The hard way to do it is to make people who don’t pay what they owe now (many of whom are poor and have difficulty paying) finally pay up to support their children.  Maryland officials seem to have chosen the easy way out, at the expense of their citizens, and economic reality.

Previously, I wrote about a bill in Virginia, which will probably die, to sock divorced parents with discriminatory burdens.  Earlier, I discussed how divorce law increasingly harms veterans and small businesses, and the peculiar economics of divorce.

Virginia Weighs Discriminatory Mandate on Divorced Parents

by Hans Bader on January 6, 2010

in Legal, Nanny State, Personal Liberty

Married parents don’t have any legal obligation to pay for their adult children’s college education or living expenses. But a bill just introduced in Virginia’s legislature would require divorced parents to pay for such expenses.

HB 146 would extend child support beyond age 18 to age 23 when the “child” is attending college. Right now, child support in Virginia usually ends soon after the child reaches the age of majority.

The Pennsylvania Supreme Court struck down a similar provision mandating post-majority support as a violation of the Constitution’s Equal Protection Clause. It reasoned that since married parents do not have to support their adult children, it was discriminatory to force divorced parents to do so. See Curtis v. Kline, 666 A.2d 265 (Pa. 1995) (Courts have apparently split over the constitutionality of such requirements).

I agree with the Pennsylvania Supreme Court’s reasoning, on principle. Married parents in Virginia generally have no duty to support their college-age children. Thus, neither should divorced parents.

But I also oppose this requirement based on my experience as a lawyer. (I should note, by the way, that I am not divorced, and have no child support obligations.)
As an intake lawyer for a non-profit law firm for over 6 years, I saw cases of aging divorced parents forced to pay the college bills of ungrateful offspring with whom they had an acrimonious relationship, even though they could ill-afford to do so – like a father dying of incurable liver disease forced to pay his estranged daughter’s graduate school expenses, under a state law permitting child support to be awarded for adult children. (We did not handle family-law cases in state court and I thus had no choice but to reject these people’s pleas for legal assistance.)

Divorced parents, like married parents, should have the right not to pay for their adult children’s living expenses or college costs — for example, if the child engages in conduct or a field of study that is objectionable to the parent.

It is an unfortunate reality that courts are likely to apply this bill, if it is enacted and not struck down, in a way that results in support obligations that are inequitable to some aging parents. Virginia courts have sometimes awarded support even in situations where statutory language would appear to bar any support. For example, in Calvin v. Calvin, 31 Va. App. 181 (1999), the Virginia Court of Appeals awarded spousal support, even though the recipient had engaged in adultery and been “vindictive and cruel” in the court’s own words, and even though Virginia’s statutes expressly bar support to adulterous spouses absent a finding of “manifest injustice” under both economic and fault-based factors. Additional examples are given here.

More Welfare and Marriage Penalties from Obama and Liberal Congressmen

by Hans Bader on July 1, 2009 · 5 comments

in Odds & Ends

Not content with repealing welfare reform through the job-killing stimulus package, and proposing a massive marriage penalty in the tax code, Obama and his Congressional allies are now planning to make married and widowed taxpayers subsidize benefits for which they are not eligible, such as payments to households with out-of-wedlock births. For example, they are pushing a bill that will allow even households that receive tens of thousands of dollars a year in child support to demand food stamps.

“With support from President Obama, Senator Evan Bayh (D-IN) and Congressman Danny Davis (D-IL) introduced the Responsible Fatherhood and Healthy Families Act of 2009 for Father’s Day, a bill cosponsored by then-Senator Barack Obama in the last Congress.” The bill will “ensure that child support payments to families do not count as income and result in loss of food stamps.”

Intact families, and widows, usually have every dollar they make considered in whether they qualify for food stamps. But under the Obama-backed proposal, unwed mothers, and divorced mothers, would not, since the child-support dollars they receive would be arbitrarily excluded.

Take a hypothetical widow and divorced woman, both of whom have children to take care of. The widow’s household has an income of $25,000 a year, based solely on the widow’s salary for working in a meat-packing plant. The divorced woman, who does not work, has an income of $48,000, $12,000 from alimony, and $36,000 from child support — the actual amounts received by a divorced mom with one child in Freedman v. Freedman, 730 N.E.2d 913 (Mass. App. 2000).

Under Obama’s plan, the divorced woman is eligible for food stamps, even though she is not poor, because her child support is arbitrarily excluded from her income.

But the widow, who makes much less than the divorced woman, and works much more, is not eligible for food stamps, simply because her income is from working, not from child support. Instead, she ends up paying for the divorcee’s food stamps with her hard-earned tax dollars. (I’ve actually understated the case, since the earnings for my hypothetical divorced mom are based on a 2000 court decision in Massachusetts, where child support levels have since risen radically).

The Obama-backed bill also increases the federal matching funds states receive for maximizing their collection of child support payments, giving them an incentive to artificially jack up child support obligations in order to reap federal money (as many states did in the aftermath of the 1988 Family Support Act), even if that means forcing fathers who have never missed a payment to pay much more than the actual cost of raising a child. I have previously written about how court-ordered child support payments generally exceed the actual cost of raising a child under most existing state child-support guidelines.

(The other way for states to increase their collections, and thus reap federal matching funds, would be to increase rates of compliance with child support obligations, rather than increasing the obligations themselves. But that is much more difficult for states to do, since deadbeat dads tend to be low-income men who cannot possibly pay all that they have ordered to pay under state child support guidelines, which typically order divorced fathers to make payments that exceed what the fathers spent on their children back when they were married, financially destroying some of them in the process. As Glenn Sacks observes, the “Federal Office of Child Support Enforcement’s own data show that two-thirds of ‘deadbeat dads’ earn poverty-level wages, and only 4 percent earn even $40,000 a year.” It is much easier for states to ratchet up the child-support obligations imposed on middle-class fathers who already pay their child support, than to collect unpaid child support owed by low-income fathers.)

By the way, I am not divorced, and have never been ordered to pay child support.

Divorce Courts Harass Our Troops and Small Businesses

by Hans Bader on May 25, 2009 · 1 comment

in Deregulate to Stimulate, Economy, Employment, Labor, Legal, Mobility, Nanny State, Personal Liberty, Politics as Usual, Regulation, Sanctimony

Memorial Day is an opportunity to thank our troops, and open our eyes to the disgraceful way they are treated by divorce courts. The bias that divorce courts in my home state of Virginia exhibit against males, people who start small businesses, and breadwinner spouses in general has been ably chronicled by Richard Crouch, a prominent family lawyer, in the Virginia state bar publication Family Law News.

But what ashames me most as a lawyer is how divorce courts routinely flout our troops’ rights under federal law. Crouch notes that Virginia courts ignore federal law by ordering members of the military to share their pensions with spouses who divorced them after even short marriages: “Something everybody learned early on is that a military wife had to have ten years of marriage to the service member overlapping ten years of military service to divide the pension. However, the Virginia Court of Appeals has adopted the rule that this statutory limitation in 10 USC 1408 limits only direct payment by the military of the former spouse’s half of the pension. Thus a service member can be required by a Virginia court to split his or her military retirement with the former spouse even if it was less than a ten year marriage. Cook v. Cook, 18 Va. App. 726, 446 SE2d 894 (1994).”

This contempt for the legal rights of divorced soldiers matters a lot, because soldiers have fairly high divorce rates, thanks to the stresses and strains of military life, such as unforeseen deployments overseas. Usually, it is the wife, not the husband, who initiates the divorce (two-thirds of divorces in America are initiated by the >wife, not the husband, although male spouses of female soldiers also initiate many divorces. Most divorces are no-fault divorces. By the way, I am not divorced).

Another way the state courts put soldiers at a disadvantage, and discourage them from serving their country, is to award their ex-spouses a share of their potential military pension starting at the earliest date they could possibly retire — even if they intend not to retire then but rather to keep on serving their country. That effectively forces them out of the military, depriving the armed forces of seasoned troops. This injustice is permitted, but not mandated, by federal law.

Lt. Col. Patricia Larrabee was effectively forced out of the military by “a court order directing that she pay her ex-husband a share of her retirement when she reaches 20 years of service in 2006, whether or not she retires.” “‘I can’t afford to write a check to my ex-husband every month out of my military pay,’ she told then-Defense Secretary Donald Rumsfeld. ‘By the way,’ Larrabee added, ‘he makes thousands and thousands of dollars more than I do.’”

Colleen M. Timpano, who served in the Navy, describes how she was royally ripped off by a state divorce court, which effectively “indentured” her “for life” to her “former husband,” who used drugs before and after his expulsion from the Navy, and “contributed absolutely nothing” to her career, even as she helped “finance his college education.” The court awarded her “ex-husband 30 percent of” her “retired pay for life, which will be paid to her “ex-husband and his third wife for the rest of his life.” Federal law did nothing to stop this.

State courts also jail returning reservists based on their inability to pay excessive child support levels that accumulated after they were called into service at pay levels far lower than what they received in civilian employment. The Bradley Amendment keeps their child support from being reduced retroactively when they return from the field of battle, even if they had no time to get their child support payments reduced before being suddenly called up and sent into battle. The Bradley Amendment has contributed to state courts jailing many hapless fathers, including “a veteran of the first Gulf War who was captured in Kuwait in 1990 and spent nearly five months as an Iraqi hostage before being arrested the night after his release for not paying child support while he was a hostage.” It also has resulted in “a Texas man wrongly accused in 1980 of murder” being billed “nearly $50,000 in child support that had not been paid while in prison” and a “Virginia man required to pay retroactive child support even though DNA tests proved that he could not have been the father.”

Even if a reservist manages to hire a lawyer to file a motion to reduce his child support payments to an affordable level while he is overseas, the child support agency often simply refuses to do so (sadly, this is not surprising given that child support agencies have a financial incentive to artificially inflate child support levels, since they receive federal funds based in part on how much child support they collect).

Nor can soldiers called off to battle just pay the child support in advance, if they have the money, to avoid complications of paying on a monthly basis while abroad. Virginia Delegate Jeff Frederick introduced a bill to allow child support to be paid in advance, but it was killed by the Virginia State Senate’s Courts of Justice committee. Dave Briggman of Prince William County, Virginia, was held in contempt for paying his child support early. When he could not afford to pay the penalty, he was then denied the opportunity to appeal the penalty based on his argument that he was unable to pay, based on the absurd Catch-22 ground that he had not put up an appeal bond in the amount of the penalty — something he by definition could not afford to do, precisely because he lacked the money to pay the penalty. Under the Virginia Court of Appeals’ decision in Mahoney v. Mahoney, if you want to appeal an excessive child support obligation or sanction based on the fact that it is beyond your means, you must first put up an appeal bond in the full amount you can’t afford.

Virginia has the weirdest case law on alimony in the entire southern United States. In Bristow v. Bristow (1980), the Virginia Supreme Court overturned a lower court’s refusal to award lifetime alimony to a wife who separated from her husband less than a year into their marriage, ruling that the trial judge could not deny alimony without making extensive findings, even after such a brief marriage, even though state law explicitly lists the duration of a marriage as a factor in whether to award alimony. (By contrast, in many states, like California, there is a judicial rule-of-thumb that alimony should not last longer in years than half the length of the marriage).

The Virginia Supreme Court’s “generosity” with other people’s money was selective and discriminatory. That same year, in Counts v. Counts (1980), the state supreme court barred a man from suing his ex-wife for deliberately maiming him, applying the now-defunct doctrine of “interspousal tort immunity,” even though Virginia circuit judges previously allowed ex-wives to sue their husbands for domestic violence under an “intentional tort” exception to that immunity. The state supreme court barred the ex-husband’s suit even though it had earlier (rightly) allowed an ex-wife’s estate to sue the ex-husband who murdered her in Korman v. Carpenter (1975). (In response to public outcry, the legislature eventually abolished marital tort immunity).

Divorce law is of enormous economic importance. Divorce cases outnumber any other category of civil case in state courts (nearly half of the docket of the Virginia Court of Appeals is made up of family-law cases), and redistribute far more money from any other category of case. And decisions by divorce courts on how to set alimony and child support payments can be potent disincentives to setting up a small business.

Virginia courts routinely do things that are economically inefficient and unfair, like allowing awards of permanent alimony even after very short marriages (Bristow v. Bristow, 1980), then allowing child support or alimony levels to be reset based on upward changes on the paying spouse’s income (Conway v. Conway, 1990), but not downward changes (Antonelli v. Antonelli, 1991), and allowing child and spousal support levels to be set based not on what the paying spouse actually makes (which would be an easy mechanical calculation that would not require any lawyer time or attorneys’ fees to compute), but rather based on higher, hypothetical (and sometimes arbitrary) estimates of what the paying spouse could make (“imputed income”), as in the cases of Cochran v. Cochran (1992), Antonelli v. Antonelli (1991), and Auman v. Auman (1995).

Setting support levels based on hypothetical rather than actual income results in lots of argument between opposing lawyers about what the hypothetical income should be, generating work for lawyers at the expense of the paying spouse. Similarly, allowing permanent alimony based on very short marriages results in lots of demands for such alimony by wives, and lots of arguments by their lawyers, even though such demands are often rejected anyway by the courts (see, e.g., Bruemmer v. Bruemmer).

Virginia’s divorce laws are an impediment to small business creation by divorced people, who comprise more than a million Virginia residents. As prominent family lawyer Richard Crouch once noted, Virginia courts employ a “heads-I-win, tails-you-lose” approach to people who try to start small businesses.

If you leave a steady salaried job in order to try to set up a small business, and it succeeds, increasing your income, you will have your child support payments increased over their prior levels (and perhaps your alimony payments as well). (Conway v. Conway, 1990).

But if the business fails (as most small businesses do), resulting in your income falling below its prior levels, the courts will force you to pay alimony and child support as if you were still making the higher income you made at your prior job, rather than at the income you currently make (Antonelli v. Antonelli, 1991).

As Crouch notes, “So much for encouraging small business. The wage-slave working stiff is shackled forever to salaried employment with big business, which he leaves at his peril.” (Virginia gets a undeservedly generous rating from some business groups for how its court treat businesses, but those ratings really only take into account how big business fares in tort lawsuits, and in reality, it’s Virginia’s fair-minded juries — not state judges — who make Virginia relatively “pro-business” in such cases).

I have often used gender-specific words such as “father” and “husband” to describe those who pay alimony and child support in my above discussion, even though state laws do not prevent judges from giving a father custody of the children or awarding support to the father. I do that because, in practice, it is usually the husband and father who pays them, and the law is not applied in a gender-neutral fashion, as Virginia attorney Richard Crouch observed in a 1992 article in Family Law News. (For example, the Virginia Court of Appeals denied alimony to a father even though his ex-wife made five times what he did, and he was the caregiver for the couple’s children, and instead ordered him to pay his ex-wife 40 percent of his meager disability pension, in Asgari v. Asgari [2000]. It is hard to imagine a similarly-situated ex-wife not receiving alimony for at least a few years). As Crouch notes, in Virginia family law, “sex is the difference that makes a difference.”

Defenders of these rulings sometimes claim that they are needed to offset imaginary financial advantages enjoyed by non-custodial parents or men. Those claims are based on ignorance. Arizona State University’s Sanford Braver conducted his own study in the late 1980s, using better methodology, and found that ex-husbands do no better than ex-wives following a divorce, as he recounts in Divorced Dads (1998). Indeed, his study probably understates divorced husbands’ losses as a result of a divorce nationally, since it was conducted in Arizona, which has lower than average child-support collections (as the U.S. Supreme Court observed in Blessing v. Freestone (1998)) , and since it was conducted before increases in child support resulting from Congress’s passage of the 1988 Family Support Act, which prompted state legislatures to substantially increase state child support guidelines, awards, and enforcement.

Similarly, in 2000, a Virginia study (the JLARC study) erroneously claimed Virginia’s child support guidelines were too low only because it compared apples and oranges. It compared just one part of the state’s child support guidelines (the “basic” schedule, excluding statutory add-ons for health insurance and day care expenses) to ALL child-rearing costs, making the guidelines appear artificially low. It also treated as child-care expenses housing and other expenses shared by the custodial parent, for which the custodial parent could seek alimony — potentially resulting in the custodial parent getting paid twice for the same expenses, first in alimony, then in child support. If these errors had been remedied, the study would have found Virginia’s child support levels to be too high.

Perhaps as a result of the unfounded belief that men generally suffer less than women after a divorce, states periodically rewrite their divorce laws to make life harder for breadwinner spouses. For example, Texas, which once forbade alimony as against public policy, now permits it under certain circumstances. North Carolina, which required a showing of fault by the breadwinner spouse to impose spousal support until the mid-1990s, no longer does. And as Richard Crouch notes, courts apply child and spousal support laws in a gender-biased fashion.

Irrational Massachusetts Child Support Guidelines

by Hans Bader on January 2, 2009 · 19 comments

in Legal, Personal Liberty

Massachusetts has long had some of the most excessive child support guidelines in the nation: for just one child, the father is ordered to pay close to 25% of his gross income, or more than 35% of his after-tax income, to the mother. This amount of money grossly exceeds the cost of raising a child, and there’s no obligation even to spend the money on the child, rather than the mother. As a result, the father often has a disposable income that is just a fraction of the income of the mother’s household.

But excessive as the guidelines are, the state courts are now promulgating a child-support schedule that radically increases the rates by 60 percent for middle-class households where the father and mother make similar amounts (like $40,000 each or $60,000 each). The guidelines are not rationally-related to the costs of rearing children.

The new guidelines are harmful to children, not just their fathers. Children spend up to a third of their time in their fathers’ care, yet Massachusetts’ child support guidelines financially destroy many divorced fathers, leaving them chronically broke and thus unable to provide their children a nice home to live in during visitation. The state child support guidelines give fathers little if any reduction in child support payments for the time and money they spend caring for their children during extensive visitation, even though such care reduces the child-care costs of the recipient mother and increases the father’s expenses.

This financial havoc can’t be justified by claiming that divorced fathers had it coming: most divorces in this country are no-fault divorces initiated by wives, rather than husbands (wives initiate about two-thirds of all divorces, according to data collected by the National Center for Health Statistics, and the many studies reviewed by Sanford Braver of Arizona State University in his 1998 book Divorced Dads: Shattering the Myths).

It is also frankly sexist: unlike nearby states, like Maine and Connecticut, where fathers have some realistic chance of getting primary or shared custody, in Massachusetts, trial judges tend to award primary custody to mothers over similarly-qualified fathers, even when the fathers are fit parents who have been very actively involved in the lives of their children. Everyone knows that these guidelines are intended to milk fathers to benefit their ex-wives (and their divorce lawyers). Prominent divorce lawyers like Richard Crouch have noted that in practice, child-support and spousal support laws are often applied in a sexist fashion.

As excessive as the child-support guidelines are, alimony is often awarded on top of it. Alimony is awarded in Massachusetts even to wives who have committed adultery or engaged in domestic violence. (Most states award alimony without regard to fault; a minority preclude alimony based on fault, such as adultery; and some states that generally ignore fault still forbid spouses who have perpetrated domestic violence to collect alimony. A few states, like California, even award alimony to low-income husbands, but in most states, courts are, in practice, much more willing to award alimony to wives (even those who are quite capable of supporting themselves) than to low-income husbands, even if the husband did something praiseworthy like working to pay his wife’s college bills).

I should note in closing that I am not divorced, have no child support obligations, and no personal or family history of entanglement with the family courts or divorce courts. My only connection to Massachusetts is spending three years earning a degree at Harvard Law School, and reading dozens of Massachusetts family-court cases. (Years ago, I also read the child support guidelines of virtually every state).