A Crash Course in Family LawbyRehnquist©
I admit it: My favorite is the Loving Wives stories. Unfortunately, it's also the most maddening category for someone in my profession. You see, I am a family law lawyer—and have been for 15 years—and the stories in Loving Wives dealing with divorce inevitably get it all wrong. Granted, I practice law in Illinois, and the laws differ from state to state. There are, however, many facets that remain constant from jurisdiction to jurisdiction.
To that end, I have decided to provide a crash course in the basics of family law. This should not be used as a basis for questioning your own lawyer in any divorce action or—perish the thought!—to lead you to believe you know enough to act as your own lawyer. No, there's no substitute for the real thing, unfortunately, and you're going to pay dearly for it. Still, you should always consult an attorney for your own case, as the facts weigh heavily on the ultimate outcome and the laws do, as noted, differ from state to state.
So why, then, should we care about what the law really is? I think the main reason is that all contributors are trying their level best to contribute solid, believable stories. But as the comments indicate, getting the basic premise of the story wrong—such as the antiquated notion that adulterers are economically punished in a divorce—can ruin the entire story. And don't think those commentators don't notice, particularly in the Loving Wives sections!
So here goes.
As anyone who has been involved in a divorce knows, child custody is determined by the best interest of the child. This seems so easy, but it's not. To the contrary, custody proceedings are frequently amongst the hardest things to litigate in any field of the law. The reason? It's that best interest thing, which is heavily dependent on the facts and, unlike other areas of the law, can alter the outcome greatly from case to case with only apparently minimal changes in the facts.
So how does a court conduct a best interest analysis? In Illinois, they look at eight enumerated factors and the catch all ninth factor, which directs the court to look at anything else bearing on the child's best interest that is not already covered by the first eight factors. Those eight factors run the gamut, and are often irrelevant to the ultimate outcome. For example, the court is directed to consider the parents' wishes, but this is usually a wash where both parents want custody. (After all, if they didn't both want custody, then why are we having a custody battle?) The child's wishes are also an enumerated factor, but this factor doesn't carry much weight unless the child is older and those wishes are based on sound, mature reasons. Courts don't listen to children, for example, who prefer to live with Dad because he doesn't make them do their homework, go to school, and generally behave. In Illinois, moreover, the child's wishes are never controlling regardless of the child's age or reasons. What if the child wants to live with Mom, but she's a heroin addict? Sorry Mom, you lose.
The real central issues in all best interest analyses are two enumerated factors. First, the court looks at the child's adjustment to home, school, and community in each prospective residence. This has nothing to do with the physical house, but more to do with which parent will continue to provide continuity in the child's life. Thus, if the child is already well-adjusted in her school and has a ton of friends with whom she is very close, the court will give this great weight if Mom is staying in that school district and Dad is moving thirty miles away. Courts take the common sense approach that children suffer enough tumult in the divorce, and there's no sense in just heaping it on. Also, if Mom was the primary caretaker for the child, she will also have a leg up under this analysis.
Most writers either ignore or screw up this factor, particularly the primary caretaker portion of the analysis. Let's get this straight now: Best interest analyses, and custody determinations in general, do not require that either party prove the other unfit to be a parent. This is not 1955 Ozzie and Harriett time, and mothers don't automatically win all custody cases. Just this morning I entered an Order modifying custody from a mother to a father, and she was certainly not an unfit mother. All the court need find, and the challenging party thus prove, is that the party to whom custody is ultimately awarded will better serve the child's best interests under the factors examined.
The second central factor is the parties' respective abilities to foster a close and loving relationship between the child and the noncustodial parent. This is almost universally screwed up in the stories. How many times have we read about mothers locking the fathers out of the home, keeping him from his children, and telling the children all manner of nasty shit about what a cheating louse dear old Dad is? If you want to lose a custody case real quickly, just act like those mothers do and poison the children against the father. The general rule is "if you don't have anything nice to say about the other parent, don't say it; and God help the parent who violates this rule." Just because the parties may hate each other doesn't mean the courts want the children taking sides. Hundreds of psychological studies and fifteen years of experience have proven to me that children caught in the middle like this suffer horribly and frequently become truants, delinquents, drop-outs, teenage parents, drug addicts, and so on.
Again, this is a central theme in the Loving Wives stories dealing with divorce and custody battles. And again, this is almost universally screwed up.
If you think the courts rely on the parties' testimony to determine these issues, you would be wrong. Oh no, there are a whole mess of very expensive tools, most notably guardians ad litem for the children, which are attorneys appointed to investigate and look out for the children's best interest, and custody evaluators, which are licensed clinical psychologists who conduct extensive interviews with the parties, the children, relatives, friends, teachers, and anyone else with anything to say about the children and the parties' respective abilities to parent. After these thousands of dollars—and frequently tens of thousands of dollars—are spent, the court is given a much more complete picture upon which to base its decision. And the parties' respective abilities to lie are minimized, too.
Under Illinois law, parents are entitled to reasonable and liberal visitation. That's right, entitled to it, as in it's a right rather than a privilege. The only exception under Illinois law is if the custodial parent can prove the visiting parent presents a significant endangerment to the child's physical, mental, moral, or emotional health. The issue thus becomes what constitutes a significant endangerment. Well, physical or mental abuse, alcoholism, drug addiction, and living conditions so pathetically shabby as to affect the child are prime examples. Living with your significant other is not a prime example, though, even if it's the significant other that caused the divorce.
Reasonable visitation thus being the norm, it seems important to know what that reasonable visitation is. In Illinois it typically consists of alternating weekends from Friday evening until Sunday evening, alternating major holidays, half of every Christmas Break, alternating Spring Breaks, and two to three weeks of summer vacation visitation. Though this can alter slightly, this is the norm that applies in well over ninety percent of all visitation decisions.
I just read a story where the father was only awarded one afternoon a month with his children. This is unbelievable. Unless Mom provided some compelling evidence that Dad was a danger to his kids or Dad's attorney was a combination of Ray Charles (blind), Helen Keller (deaf and mute), and Howdy Doody (juvenile mental development), then he'd have been awarded the standard visitation regardless of who was representing Mom.
What about those stories, though, where either the custodial parent or the children don't go along with the visitation order? Tough shit. That's what contempt citation are for, and I have never seen a judge hesitate to incarcerate a parent who violates a custody order or doesn't force the children to go on the ordered visitation. Sure, that's just more in attorney's fees. In Illinois, though, the person held in contempt is automatically required to pay the other parent's attorney's fees, so this takes some of the sting out of the process.
GROUNDS OF DIVORCE
Nearly every Loving Wives story features the famous bargaining chip of removing the grounds of adultery if the other party agrees to play ball. [Give me a minute while I quit choking with laughter.] Come on, people, no one cares what the grounds are, least of all the community who have usually long known that hanky panky was occurring. Granted, there are exceptions that have been very well done. I suppose if you're a prominent politician like Governor Sanford grounds of adultery would make a difference; likewise if one of the adulterers is a minister or a prominent celebrity—though the latter usually benefit from such notoriety, Tiger Woods aside. No, sad to say that modern society, including our parents who seem to condemn everything we do anyway, simply doesn't bat much of an eyelash at a little playing around on the side.
In the fifteen years I've been a lawyer, I have always cited only two grounds for divorce: irreconcilable differences and mental cruelty. And the divorces usually are concluded on grounds of irreconcilable differences.
Why these two grounds, you ask? Because they're the easiest, ergo the cheapest, to prove. Let's get something straight: When you're paying me $250 an hour, you don't care what the grounds are, you just care about getting custody or as much of the assets as you can. The grounds are a means to an end, namely the means to ultimately getting the divorce. Thus, all of these stories where the protagonist spends thousands on private investigators have got it all wrong. You're better off spending those thousands trying to get tens of thousands more in marital assets. Litigating principal is usually a bad idea because divorced single parents usually need the money more than they need to feel good about proving their ex was a rotten, cheating bastard or bitch. And they both usually know that the marriage collapsed because of adultery, and their friends and family usually knew longer than anyone. So if you waste this money, who are you wasting it for?
Oh, and mental cruelty? That's just two or more separate occasions when your husband yells at you, berates you, belittles you, or otherwise hurts your feelings pretty badly, and you did nothing to provoke either outburst. I've rarely seen a marriage, no matter how strong, that doesn't technically qualify for a divorce on these grounds. (Okay, my wife yells at me constantly, but I'm man enough to admit that I usually provoke it with my typically inexcusable behavior; how was I to know plaid golf pants and a Metallica concert shirt weren't appropriate attire for her sister's wedding?)
Property settlements in divorces are usually straightforward. To understand this fully, you must first know the distinction between marital and nonmarital property. Nonmarital property of a spouse is defined as that property the spouse acquired or owned before the marriage or subsequently acquired during the marriage by gift or inheritance. Marital property is all other property acquired during the marriage or titled jointly in the parties' names. Granted, that seems a bit too simplistic, and, okay, it can get tricky at times, but that's good enough for 99% of the stories on this site.
Each spouse is always awarded sole ownership of their respective nonmarital properties. Period. It's theirs, always has been theirs, and will continue to be theirs unless and until they sell it or give it away.
So what do the courts do when dividing marital property? First, at least in Illinois, they never refer to the grounds of divorce when splitting the marital assets. To the contrary, the statute expressly directs the courts to divide marital property—and determine alimony and child support, for that matter—without reference to the grounds of dissolution. The reason for this, and why most states have similar no-fault divisions of marital assets, is simple: Courts are too busy to litigate which spouse was the bigger bastard during the marriage before making the property split.
No, courts in Illinois determine property splits based on the quaint, and faintly defined, notion of doing what's equitable, which is another way for saying it seems the most fair under the circumstances. However, the layman's idea of fair and the legal notion of fair are diametrically opposed matters. How so? Well, take the wife earning $200,000 a year and the husband earning $40,000 per year and tell me which one will get a higher portion of the marital assets. The one who earned, and thus contributed, more to the marital assets? Wrong answer. Rather, the one who earned less will get a higher portion to give that person an opportunity to give them a more sound footing on which to start their new, post-divorce life.
Though this seems somehow unfair, the law school reason actually makes a lot of sense. Take the typical couple who meet while in college. He's in pre-med, so she quits nursing school and waits on tables to support them in the early years of their marriage while he's finishing college, medical school, and his internship and residency. Then, when this is done, he wants her to stay home and care for the children until they start school. Then, just as the last rugrat enters the first grade, dear old Hubby decides he likes the tight-bodied nurse fifteen years his junior. Now I'm sure he feels real bad about this whole thing, and he's going to feel a whole lot worse after paying his soon to be ex-wife. You see, she gave up everything—nursing school and all of those subsequent years in the workplace rising and making more money—so he could make all of that money, and he benefited from her sacrifice. Now he's going to reimburse her for the benefit. At the minimum, the wife in such situations (assuming, of course, that Hubby makes the big bucks experienced physicians make) would receive custody and child support, substantial maintenance (which most of you still call alimony) for a long time, and a disproportionate split of the assets, something like 65/35 in her favor. And poor Hubby, you say? Give me a break. He'll be back on his feet in no time. After all, even after paying maintenance and child support, he'll still have at least 50% of his net income, and his 50% supports only him while the wife's supports her and the children.
As long as we're finally discussing maintenance, we might as well tell you when it does and doesn't apply. If the spouses make the same money, it doesn't apply. If they've been married less than 10 years, it doesn't apply or, if it does, it will apply for only a few years to permit the disadvantaged spouse (think the wife of the doctor in the above example) to finish schooling, get licensing, or get back on his or her feet. If they've been married less than 20 years, it will usually apply, but only for a few years. If they've been married for more than 20 years, then the spouse earning significantly more money is looking at permanent maintenance to the other spouse.
Does maintenance, even permanent maintenance, ever end? Unless the parties agreed otherwise in their settlement agreement, then maintenance ends automatically on the death of a spouse or when the party receiving maintenance either marries or lives with someone else on a "continuing and conjugal basis." For the latter, think shacking up for more than 6 months and sharing expenses. The courts don't want the recipient putting off marriage to keep the maintenance, so if they set themselves up in a marriage-like situation, the cash cow dies. Also, maintenance can be modified if the recipient comes into a huge inheritance, wins the lotto, or otherwise suddenly comes into a lot of money such that they no longer need the maintenance or, on the other hand, if the payor suffers severe financial setbacks such as job loss due to no fault of the payor. However, payors that quit their jobs solely to spite the recipient are shit out of luck: The courts will order maintenance based on the payor's proven earning ability regardless of whether the payor is actually earning the money.
Finally, there's child support, which all noncustodial parents pay to all custodial parents. How is child support set? It's simple. In Illinois, there is a chart in the statute that says the payor pays 20% of his net income for one child, 28% for two children, 32% for three, on up to 50% for six or more children. This formula varies from state to state, but it's almost always based on a percentage of income and the number of children. Also, because payors always try to screw payees, the terms are always very tightly defined. Thus, net income in Illinois is defined as gross income from all sources minus mandatory deductions from pay such as State and Federal income taxes that should be withheld (as opposed to actually are withheld if you decide to up your withholding and get back a higher refund), Social Security and Medicare taxes, health insurance premiums, mandatory union dues, and mandatory pension withholding. You think you can reduce your net income, and thus your child support, by upping your voluntary contribution to your 401(k)? You can't.
Now, I don't want to hear a bunch of comments about what rotten bastards we lawyers all are. I already know that, and if I want to hear such comments I'll just ask my wife. Nor do I want to hear that these laws are all bullshit. I agree that many of them are. None of that was the point of this exercise, though. Finally, I don't want to hear about the exceptions to all of the basic rules. Of course there are exceptions to the rules, just a lot fewer than you think. And, let's face it, you'd better know the rules before arguing the exceptions, which was the whole purpose of this little exercise.
Also, I know there was a lot I didn't cover here. I've also seen greatly abused use of restraining orders, dissipations of assets, seeking support for children born of adulterous relationships, and the like. But this is just a crash course. If you want to whole run down, go to law school. (Or, if you make really nice comments and ask me to, I'll try to answer any other questions you may have.)
The point of this essay was to give some basic information for writers who use these as key plot details so their stories will ring more true. Reality to author: Adulterous wives who suddenly lose custody and all marital assets have no business in the Loving Wives section. No, such scenarios are more appropriately placed in SciFi/Fantasy.