Posted on 06/15/2005 2:32:06 PM PDT by freespirited
Jane Chen was a well-paid Wisconsin anesthesiologist. But at the age of 43, she decided to "retire" to stay home with her three school-age children.
Even in 2005, Chen's decision was hardly unusual or remarkable: Women (and sometimes men) frequently forego employment, even lucrative employment, in order to stay home with children.
What is remarkable and unusual, though, is that Chen's decision landed her in court. Her ex-husband argued that, by staying home, she was "shirking" her responsibility to provide financial support to their children. And he complained that due to her decision, a court was now ordering him to pay $4000 more a month in child support.
In Chen v. Warner, the Wisconsin Supreme Court recently sided with Jane Chen. It held that her decision was reasonable under the circumstances, and did not constitute "shirking."
Other states, however, have ruled differently. And overall, America features a checkered legal landscape on the treatment of divorced parents who forego income in favor of at-home childrearing.
Some Background on Child Support Law
Once, only fathers were legally required to pay child support. Now, under the law, all parents have a legal duty to support their children.
In a family with married parents, that obligation is enforced mainly through the abuse-and-neglect laws. Parents who fail to support their children risk losing them, and may even face criminal penalties.
When parents divorce - or sometimes, even if they never married - the duty of support changes. For the non-custodial parent, it is enforced through the imposition of formal child support obligations.
In theory, child support has always been available. But historically, it was not routinely awarded until at least the 1970s. Then, through a series of federal laws, Congress required states to adopt rules that would result in a greater number of child support awards, in greater amounts. (It did not, however, mandate what the rules ought to be.)
Pursuant to a 1988 federal law, every state today maintains child support guidelines that dictate exactly how much a non-custodial parent should be obligated to pay. The guidelines in each state are derived from a set formula, which is supposed to produce an appropriate amount of support to meet children's needs. These formulas, regardless of their technical variations, are all based on the basic assumption that children should benefit from roughly the same percentage of parental income after divorce as they did in the intact household.
States tend to follow one of three basic formulas:
First, some states, such as Wisconsin, simply require noncustodial parents to pay a flat percentage of their income to the custodial parents based on the number of children being supported.
Second, a majority of states use the "income-shares" model. In this model, total support is calculated based on a percentage of combined parental income. Then, each parent's portion is calculated based on his or her relative earnings.
Third, a handful of states use a model that first carves out necessary expenses for parental support, and then assigns a percentage of the remaining income for child support.
One of Congress' goals in requiring states to adopt guidelines was to decrease judicial discretion in awarding child support and, thereby, to increase consistency among awards. As a result, the amount of support called for by any set of guidelines is "presumptively" appropriate - which means that a judge can only deviate from that amount (up or down) in certain, limited circumstances.
The Definition of "Income" for Child Support Purposes
While state definitions of "income" vary, most permit judges to replace actual "income" with "earning capacity" in appropriate circumstances.
One such circumstance would be an attempt to avoid obligations. For example, suppose a father quits his job immediately before appearing in divorce court, for the sole purpose of evading a child support award. In that situation, the court will likely substitute his former monthly wage for "0" when calculating child support.
But what if the loss of income is not an obvious attempt to avoid obligation - as was the case with Jane Chen? Should the judge calculate support based on actual income (even if it is "0")? Or should the judge look to the individual's earning capacity instead?
That is the question the Wisconsin courts grappled with, in Chen v. Warner.
Chen v. Warner: The Finances and Their Agreement
At the end of their 18-year marriage, Chen and her then-husband, John Warner, both worked at the Marshfield Clinic. She was earning $236,000 per year as an anesthesiologist; he was earning $256,452 as a neuroradiologist. Both parents had always worked full-time while raising their three children.
When they divorced, the couple agreed to joint physical custody of the children, with custody to each parent in alternating weeks. Based on this fact, and on the respective incomes of the parties, Wisconsin's child support guidelines would have dictated roughly equal child support obligations for the parents in this case (Warner would owe a few hundred dollars more, based on his slightly greater income).
Thus, Chen and Warner parted ways without a child support order in place, agreeing that each would simply pay the children's expenses during custodial periods and unusual expenses would be shared equally. Also, Warner would put $400 per month per child in a college savings account.
Shortly after the divorce became final, Chen sought to go part-time at the clinic. When they refused her request, she quit. Because she had savings of over a million dollars, she anticipated being able to easily cover expenses for herself and the children with investment income alone.
The market downturn surprised her, however, and she found herself with insufficient income to cover her expenses. She then sought to require Warner to pay child support.
By that time, Warner's income had nearly doubled -- to $472,000. Even after he paid his own expenses and contributed to a retirement account, he was left with discretionary monthly income of $12,000.
Thus, his ability to pay child support was hardly in doubt. But, on the other hand, neither was Chen's: Had she stayed at the clinic, she, too, would have been earning over $400,000 yearly, and even returning to work after time off, she could still garner a hefty salary if she chose.
Voluntary Un- and Underemployment: Courts Can Decide Its Effect
Should one parent have to pay child support because of another's change in job status? Or should the parent with changed job status have his or her earning capacity taken into account? (Often, this question is, in practice, the question of whether this parent will be forced to return to work, since one can hardly spend "imputed" income.)
The answer is: It's generally up to the court's discretion.
Few courts still require proof of an ill-motive. But a parent who voluntarily impoverishes herself in a bid to avoid paying child support will certainly fail. But what about when the motive is different - for instance, the lower income is because the parent has opted to spend more time taking care of the children?
In some states, there is an express statutory exception for a "nurturing parent" with young children. Louisiana, for example, exempts the primary caretaker of children under five from having income imputed to them. Similarly, the American Law Institute's Principles of the Law of Family Dissolution recommend against imputing income, based on earning capacity, to a custodial parent with non-school age children.
Wisconsin has no statutory exception, however. The statute permits the discretionary imputation of income if it concludes that a parent is "shirking" - the state's term for voluntary un- or under-employment. ("Shirking," despite its very pejorative connotations, is used by Wisconsin courts simply to describe any unreasonable voluntary decision to reduce or forego income, regardless of motive.)
Wisconsin also, however, permits a court to consider the desirability of having an at-home parent -- and the value of any services provides by the at-home parent -- in deciding whether to impute income to that parent based on his or her earning capacity.
The Chen/Warner Case: Was Chen's Decision to Be At Home "Reasonable"?
The parties in the case all agreed that the unemployment was voluntary, and that the true purpose was for Chen to spend more time with her children. But was it reasonable?
An intact family has the luxury of making almost any decision about work and income that it sees fit - even if the consequence is that children have much less money available to meet their needs. And many families elect to have one parent - usually the mother, despite greater workforce access and gains in equality for women - stay home while children are young.
The decision is made easier by trust: The parent who stays home trusts the other parent to provide for her if, later, her career opportunities are more limited; the parent who works trusts the other parent not to monopolize the children's affections, and gives up time with the children because he trusts that this is best for the family as a whole.
But when parents are divorced, trust may be lacking - and parents may come into conflict when they must defend such decisions to a court. Worse, this task is made all the harder when one parent's unemployment directly affects an ex-spouse's child support obligation.
Parents who might have easily come to a decision about work and income during their marriage, may find such a decision extremely difficult to make when they are divorced. Even simply continuing a prior arrangement that worked well can become controversial as the parties' interests diverge.
The father in this case argued that although children generally benefit from having an at-home parent, the benefit was not sufficient to outweigh the increased burden on him. Moreover, he argued, the children were of school-age, had no special needs, and had done well earlier in their lives, when both parents worked full time.
The appellate court ruled, however, that the mother's decision to retire was reasonable, given the circumstances: She had been unable to find appropriate part-time work, the father could easily afford child support, and the children would benefit from her greater involvement in their lives and activities. It thus upheld the trial court's order for the father to pay $4000/month in child support.
Other States' Approaches: Different From Wisconsin's
In other states without an express exception for caregiving, the results have been mixed. (The variations are aptly described in a 1999 student note in the Catholic Law Review authored by Catherine Moseley Clark, "Imputing Parental Income in Child Support Determinations: What Price for a Child's Best Interest?")
Some courts focus solely on earning capacity, without regard to motive - ill or otherwise. Others take account of a broader conception of a child's best interests to include their non-economic needs as well.
Outside the caregiving context, noncustodial parents routinely have income imputed to them when they voluntarily reduce or forego wages. A father in a recent New York case, for example, was held in contempt of court for refusing to seek admission to the bar when he had both completed law school and passed the bar exam.
The father had chosen to pursue theological studies instead -- a decision the court ultimately said he was not entitled to make given his outstanding child support obligations. His responsibility, in the court's eyes, was to maximize his earning capacity, given his demonstrated ability and the opportunity for high-income work at a law firm.
A Case Involving Parents with Lower Income Will Be a Better Test Case
Yet Dr. Chen was permitted to forego an annual income of $415,000 in order to stay home with her school-age children, over whom she had custody only every other week. Was that the right result?
Most observers might say yes - but the answer would be an easy one only because the father had a very high ability to pay the child support. That meant that the Chen/Warner children could have what many would see as the best of both worlds: ample financial support, plus a full-time at-home parent.
(Others, of course, would see having two working parents - each a role model, fulfilling his or her hopes and ambitions - to be the best of both worlds. But on this topic, reasonable minds differ.)
The law might have been better served by a lower-income case - in which one parent's unilateral decision not to work caused a real hardship for the other parent. Also interesting would be a case in which both parents wanted to stay at home - but only one could do so.
What if Dr. Warner had also wanted to be in Dr. Chen's position? This doesn't seem so far-fetched: After all, he'd sought equal physical custody of the children, not just visitation; he was far from an absentee dad.
In such cases, the court would have had to grapple more thoughtfully with the tension between a parent's duty to provide financial support and the obligation to tend to their other needs. It will have to grapple, as well, with the tension between the different visions two now-adversarial parents may have for what is best for themselves, and for their children.
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Joanna Grossman, a FindLaw columnist, is a professor of law at Hofstra University. Her columns on family law, trusts and estates, and discrimination, including sex discrimination and sexual harassment, may be found in the archive of her columns on this site.
Yes -- and I am sure you are in the right profession too. First -- the amount one pays in "taxes" is his or her own money. (I assume we are talking property taxes, but the concept certainly applies to sales taxes, entertainment taxes, etc.).
When you elect to live somewhere, you agree to pay those taxes. You may hate it, but you have to pay them. You might fight to change it, but you have to pay them. When you buy items, you have a bit more control, as you may shop prudently and save on some sales tax. Heck, you may move to a state without income tax and avoid that state obligation, but it is definitely your own money. So, in a sense, you are not incorrect. It is his money -- just like the 4K I paid my mortgage company was my money too -- until I paid my obligation. Then it became theirs.
Because most people who get divorced can't work out their own problems and obligations, they shift that burden to the courts. (Shifting the cost as well). The Courts apply the law of the jurisdiction to try to find resolution for couples who can't, or in most cases won't. It's not a perfect solution, as every case is truly different. But, don't blame the Courts or the legislature that made the rules, they were just stuck with finding a resolution for parties who will not.
Child support -- as opposed to alimony -- is meant for the support of the child or children. The Court system, again filing the role of those who will not, makes a host of rules to try to do this fairly. One rule, of course, is that the kids should not pay for the problems of the divorce. (For example, unlike as has been suggested here, the kids should not be forced from their standard of living because now that the parents are no longer married, they should only get no brand cloths, live in an apartment, and shop at the dollar store.) The system is an advocate for the children, or should be. So, when parents cannot or will not work it out, the system does no punish them.
The dad and mom here both have an equal obligation to provide support for the kids. This state apparently has decided that their is value in a parent staying home with the kids. This wife wanted to go part-time, but her Husband's clinic said no. (I am sure he had nothing to do with that!). She elected to stay home, and the Court had to determine if she was doing so solely to avoid her obligation for support. On the facts, it found she was not. So, it found that the father, in order to meet his part of the obligation, no had to pay in child support 4K a month, over and above whatever support he apparently pays while the kids are in his physical custody. That's his obligation. Sure, the money was his, and some of it might have continued to be his, or under his control had he made different choices -- but he did not, and now it is an obligation he must pay.
When I say the money is not his -- I mean the money is an obligation -- it is not the wife's money either. It is for support of the children. That is the difference between child support and alimony.
Now -- am I in the right forum? Well, if being pro-life, anti-tax, pro-military, and pro-personal responsibility are the values generally well-regarded here, then yes.
In this case, however, we have two people who we not pro-family. Two people who could not be responsible in their choices in life. Two people who could not resolve the support of their children, leaving that final decision to the agents of the government. So -- having done so -- it is hard for me, as a person charged with absorbing the cost of the criminal justice system, the expense and cost and loss of productivity resulting from legislatures and courts having to fashion rules for people like this, to care that these people got stung, one way or another. Nor am sympathetic to the father who rolled the dice in the Courts rather than working this out.
If you can't take personal responsibility for your obligations, and you must have others -- e.g. the government -- resolve them for you, you should not complain about the result. Backing someone who uses his money to spite his wife, and who wants to reduce the quality of life for his kids -- on top of getting divorced that is -- and who looks to the government to solve his family problems, seems to me to be something odd in this forum.
Are you sure you are in the right forum?
The father has the children half the time. He pays for their upkeep and needs during that time. The mother has the children half the time. She pays for their upkeep and needs during that time. Mom decides she doesn't want to work, because the kids need her, so Dad should have to pay for Mom's lifestyle? Not unless you're in Bizzarro World or family court, and your nine paragraphs of senseless ranting won't change that one bit.
Even with your cute backpeddling, to say that it isn't his money is, again, ludicrous. Your position that it's only "his" until the government takes it away as an "obligation once again shows that you are probably in the wrong place. It's very easy to spout off platitudes like "pro-life, anti-tax, pro-military, and pro-personal responsibility". It's quite another to apply them to particular situations. Your personal problems have obviously blinded you to the idiocy of this situation. You talk the talk, but when it's time to walk the walk, you come up way lame.
A clear, concise statement of the Democratic Party platform.
It's extremely hard on the kids. I have a friend who has a similar custody situation and those poor kids are so frustrated and disorganized. They can never settle down and relax because by the time they readjust to whichever parent's rules it's time to go to the other parent. Let's just say they are S-T-R-E-S-S-E-D.
She is no more entitled to quit work than he is. They are divorced and both have an obligation to support their children. If she feels that strongly about the need to be home with the children, then perhaps she might consider some financial sacrifices on her part to enable her to do so. He should not be required to finance her decision, particularly when it appears to be entirely inconsistent with how they raised the children together during the marriage.
If he refused to work and/or pay his child support, in all likelihood he would be jailed either for non-support or for contempt of the Court's support order.
This lady made her decision on that point a long time ago. While the family was intact, she chose to work full time. Many of us wouldn't agree with that choice, but it was hers to make. Now, however, she wants to stay at home. But instead of making the financial sacrifices many of us make by giving up one income, she is going to just have her ex-husband pay for her decision. Odd, apparently they didn't want to take the financial hit when they were together, but once they were apart, and she could hand him the bill, suddenly staying home with her children was a more attractive option? I think having one parent stay at home is a decision that an intact couple makes together. That is not the case here.
Thanks for putting the "anal" in analysis. You must get paid by the word at your level. Perhaps someday you'll rise to my billing rate, but I doubt it. Having sampled your sterling prose, tortured "logic", and decidedly unwarranted sense of superiority, I can't imagine that there is anything you could do (standing up) that would be worth even $405/hr. But you have a nice day, anyhow.
Oh, I know. The family law system is totally tilted against men.
There's going to be exceptions, and I recognize that. When two people are married, the ideal is to have one of them home with the children. Believe me, I support that. I am not as comfortable with that situation when the parents split up.
If one of the children has a prolonged illness, I can certainly understand the need for it. If the children are in school, I'm not nearly as willing to watch the mom stay home and the dad bear the full burden of financial support, only to see the kids every other weekend and a couple of weeks in the summer (if he's lucky).
Hope your young chick turned into a strong hawk.
You've got that right. No government interest in interfering.
If you click on the link you will find a link to the court decision. That tells much more of the story than this article. The mother did make major financial sacrifices to be home with her children. Her income went from 250K to 32K. The weeks that she doesnt have the kids she is still active in their lives in a way that the father is not when she has custody. I dont think that speaks ill of the father, but the court recognized that it was in the children's best interest to have the mother continue her greater involvement.
She is still looking for part time work. I dont know Wisconsin. Maybe this is a rural area and part time work hard to find? It is all spelled out in the court document.
The children were 5, 7 and 9 when this started. I dont have any criticism of her for feeling the best use of her time was being a full time mother to them. I look at this from the standpoint of the kids. What little girl wants to know her father went to court to force her mother to be less available to her (he argued the nanny was good enough).
The record reveals that, prior to the time Dr. Chen quit, Dr. Chen's and Dr. Warner's involvement with the children was fairly typical of dual full-time working parents with high incomes. Both parents attended school and pre-school functions when they could, but not regularly. They hired a nanny to assist with the children. For the most part, one or both parents were available at dinnertime, after dinner, and on weekends. Dr. Warner, who still works full-time, attends parent-teacher conferences, attends some of the children's school activities, and spends as much as three hours a night assisting with homework during the weeks the children are with him. Dr. Warner schedules substantial vacation time with the children. The physical placement is equal: the children spend every other week with each parent....
The father's "main argument" is that the children did well when both parents were working, and there does not seem to be any significant issue that they were doing well when the mother quit work. I think the dissenting opinion states my thoughts much better than I could. I think this portion of the dissent is an excellent summary:
The decision to retire at an early age while obligated for child support [should be]disfavored. Nonetheless, courts should accept that decision as long as the retiring parent has sufficient assets or income to meet the expected support obligation. The retiring parent will be required to use income and to liquidate his or her assets before requiring the non-retiring spouse to support the retiring spouse's unilateral decision to retire. I agree with the majority that "shirking" is an unfortunate term, better suited for cases where a support payer is unemployed or has changed jobs. Yet, the majority has shoehorned this case into a "shirking" analysis. The result is an inquiry into the reasonableness of Dr. Chen's actions without considering Dr. Warner's desire not to be bound by Dr. Chen's unilateral decision, and not to pay for Dr. Chen's retirement. Of course, both Dr. Chen and Dr. Warner are ultimately responsible for their children's support. That overrides either of their economic interests.
The mother's "sacrifice" must be viewed in the context that she still has an estate of nearly $1.7 million that she is not required to touch for the support of the children. Her drop in income is her own choice. Apparently she turned down work that would take her out of town the weeks she doesn't have the children. The mother's activities with the children are admirable, but it also is admirable to see a parent working to support their children, or making the financial sacrifices that accompany the decision to stay at home. Dr. Chen isn't making a sacrifice here, because she is expecting the father to make up the difference from her quitting. As for the little girl who will grow up thinking her father believed "the nanny was good enough": the mother thought the same thing. These children are in school fulltime and with their mother one-half the remaining time. The mother's desire to be more involved with her children is great and I commend it. The question, however, is whether that decision is to be financed by her ex-husband.
Kids are in school, Mom can make more than $100K a year. Mom made poor financial decisions. Mom REFUSES to go back to work. Mom therefore seeks to get more money from Dad. It's real clear. No assumptions needed. It's all in the article.
She chose to leave. She made poor financial decisions. She REFUSES to go back to work. Now she expects Dad to pay the bills when she has the kids 1/2 the time. What about HER personal responsibility? Nuff said.
Its not about providing for the kids, its about enslaving the man.
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