A recent case in my court has convinced me that everyone-judges, lawyers and the public-puts too much stock in legal answers. Legal answers cost way too much to get, and too often they don't work very well.
Here's the case history.
Two parents came to court to resolve a child support adjustment issue. They'd been divorced several years earlier. I noted that child support is generally an arithmetic problem, not a legal problem, so I was surprised they'd not resolved the issue out of court.
The father, an articulate man, aid the issue was whether his military retirement pay should be added to his salary to determine appropriate child support. I said, "Why on earth not?"
He said he believed it ought not be included because at the time of divorce he and his former wife had agreed that he would receive the retirement benefits as his share of the community property while she would receive everything else they'd owned. They were both happy with that settlement. However, he argued that if the house and bank account and other stuff she'd received were not to be considered to determine what her income was, his share of the property also not be considered to determine his income. That, he said, would be "double dipping." I said his argument made sense.
I told the couple that no New Mexico appellate court has ruled on that particular issue, and to my knowledge, at that time no other state appellate court had decided the issue either. I told the parents I didn't know what the legal answer to their question was, and I pointed out that because judges and lawyers didn't know the legal answers to their question, we'd have to make one up, just for them.
Four possible legal answers came to my mind immediately:
1. Include the retirement pay, because it was for the children, or
2. Exclude the retirement pay, because the father's argument made sense, or
3. Include half the retirement pay in the father's income, because what he'd "bought" was the mother's half, or
4. Include half the retirement pay in the father's income and impute the other half to the mother's income because while we didn't know the value of all the stuff she'd taken, what it replaced was half the retirement. (In New Mexico, the incomes of both parents must be considered for child support purposes.)
I told the parents that lawyers and judges would certainly appreciate their funding the litigation to find out what the legal answer to this question would be. I also thought it proper for them to know just how much that litigation would cost.
I estimated that it would take at least a one-day trial, for which both parents would likely hire expert witnesses (accountants or economists) to testify why one possible answer might be better than another. It has been y experience that a one-day trial costs about $3,000 per side for legal fees. The expert fees would likely be another $1,000 each. To try the issue in court would cost $6,000 to $8,000.
Then, if one or both of them felt my decision at trial was the wrong one, they might appeal my decision to the Court of Appeals. I estimated the appeal would likely cost each of them $7,000 to $10,000 in legal fees.
I asked the parents if they really wanted to risk spending $6,000 to $30,000 to find out what the legal answer to the question was. I noted that their youngest child was 14 years old, which meant only four more years of child support remained to be paid. I asked them how far apart they were in deciding what the child support figure should be. They said they had a $200-per-month difference of opinion. I pointed out that their overall dispute was a $9,600 problem ($200/month for four years), and I again asked if they really wanted to spend $6,000 to $30,000 to resolve a $9,600 difference of opinion.
The parents quickly decided they didn't care much what the legal answer was. They'd find a compromise.
A few months later, as I was reading Fairshare, a monthly divorce law periodical, I noticed that a judge in the Midwest had ruled on the very question these parents had presented. That judge ruled the military retirement pay would be excluded because including it would be "double-dipping." He even used those very words.
Then a few months later, I saw that a California judge had also decided this issue. The California judge decided that all retirement pay would be included, because it was for the children's benefit.
I thought how unfortunate it was that two judges had ruled two different ways, but that's how it often goes. The law varies from state to state. But, I felt it was especially unfortunate that these two judges selected the two extreme answers-all or nothing. I believe neither of these extreme answers is a very good one.
If all the retirement pay is excluded for child support purposes, what is to happen in a case where the parent who receives the retirement pay doesn't get another job? Will that parents not be responsible to support the children at all?
On the other hand, if all the retirement income is included, the parent who receives it will surely feel angry at the unfairness of the system. The parent's anger will certainly contaminate their relationship with the children, and as usual, the children will pay.
I wondered why the two judges had selected these two extreme answers; then it dawned on me. The judges picked the extreme answers because that was what the lawyers-advocates had asked for. Lawyers approach disputes from all-or-nothing, win/lose positions.
It also dawned on me that one reason so many legal answers are often unworkable or impractical is because too often they are extreme, and extremes are rarely satisfactory solutions to disputes.
Lawyers, judges and the public need to recognize that the cost of getting or creating legal answers is enormous, far too great for divorcing parents whose money troubles are already exacerbated b y having to fund two households instead of one. Lawyers, judges and the public also need to recognize that these expensive legal answers will rarely be workable solutions. Indeed they are merely " answers" not solutions at all. Litigation for divorcing parents is analogous to nuclear war. No one survive.
For more Anne Kass articles, go here to select from complete list of 97 articles
For listing of over 200 helpful staff articles on Divorce, go here
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