US divorce rates up slightly; latest state, international, military & age-based rates


Think family court is a big racket? You're not alone ... until you get to court. Then you truly are.

One of those crank lawsuits of a kind that gets filed and discarded every day has, for once, gotten big coverage in a mainstream newspaper. "Lawsuit claims divorce court is a racket: Dismissed at district level, case is being appealed to 9th Circuit". San Diego Union-Tribune

If you polled people on the street, you'd find that to be a pretty common view, perhaps not a majority but a plurality of the same kind that makes the presidential primaries so interesting. But in the family court system, people who have cases there, and start saying things like that, are treated like the lunatic fringe. To the judges and everyone else involved, the issue is no longer whatever substantive question was originally in dispute. The issue is now the disgruntled litigants' extremism and behavior.  They are sometimes put under special orders keeping them from filing anything unless and until a single, permanently-designated judge has reviewed it and allowed it.

These litigants too often put their "last stands" on principle ahead of their actual parenting of their children. They are unwilling to bow and bend to a system they see as illegitimate and corrupt, even if they understand that that is the way to be treated better and get more time with their children.

Is the system a racket? No. Not where I work, anyway. But it doesn't have to be. It still works in a way that looks irrational to most people. It still takes people, some already cranky, and some fairly normal, perhaps even too nice, processes them, and cranks out a huge number of cranks.

When our state legislators and all those of us who help mold our culture, all the "second-hand dealers in ideas," as Hayek called us, decided decades ago to encourage widespread divorce, this was a major part of what we created. 

Americans are not brought up and educated in how a family court system works. In the courts which we learn about on TV and in civics class, a jury of 12 average local people makes the big decisions, and the judge is just a referee. And those decisions are about who did something wrong and who gets punished.

Parents who have chosen divorce or unwed parenthood, or had it thrust upon them, have no idea that instead of that system, they are going into a system where regardless of fault or faultlessness, a judge will tell them in great detail how to live and move and raise their children, now and forever until they all are grown. Nor that instead of one big trial to establish guilt or innocence and resolve everything, they may be back in court every few weeks, months or years, for enforcement, monitoring, and revision of those orders.

In that way, the family law courts work like the ecclesiastical and chancery courts that used to handle family issues, the ones that Dickens savaged in novels like Bleak House. And for good reasons, because a family is not like a business contract or a car accident.

But they also feature the most delaying, expensive, and inflammatory features of the American legal system, because this is America -- you always have the right to your day in court, to litigate about everything, to insist on strict compliance with the rules of evidence -- even when dealing with areas of life where people don't generally keep the relevant evidence, or where no witnesses are there when the really important stuff happens, or where evidence and testimony are easily faked. You can always appeal, and appeal. You have to go through all the expensive, exhausting procedures that were designed for big business litigation. Your lawyers have the ethical duty to do what you say you want, after doing their ethical duty to advise you about a bewildering array of awful things that you could do to your ex and your ex might even now be doing to you. And each of these individual things is necessary and proper, as part of the greatest legal system in the world. Even if you hate to comply with them and hate it when the other side does those things, you want the other side to comply and you want to be able to do those things to them.

That's the system we put far more families into when we tried to make divorce easier and more humane by enacting quick, unilateral, no-fault divorce, letting far more people jump straight into court without first working things out in an agreement.


Utah lawmakers boost premarital education but abolish family courts, conciliation, counseling; cut divorce wait period by 2/3

Marriage and Family Courts Blog:

 

New Utah law gives marriage license discount for premarital education or counseling; marriage commission to publicize couples' options

 

Utah legislation would abolish family courts, counseling and conciliation, cut divorce wait period by 2/3


Adultery Constitutionally Protected, Mustn't "Stigmatize", Federal 9th Circuit Rules

Perez v. City of Roseville, as described in:

Ninth Circuit: Adultery Is Constitutionally Protected

The court holds that Lawrence v. Texas limits government restrictions on extramarital sex.


2018 Va. family law legislation: Alimony, court reporter reform, abuse prevention, child support, inheritance, violence, legalized adultery?

UPDATED APRIL 10, 2018

MODIFICATION BY THE GOVERNOR 

  •  HB 1351 Joint legal or physical child custody; custody and visitation decisions, communication to parties. Governor added: In any case or proceeding involving the custody or visitation of a child, to enable the child to apply for a state or federal benefit and upon the request of any party, the court shall make any finding of fact required by state or federal law in order for the child to receive such benefit. The existing language, which the Governor did not change, is: "The court shall consider and may award joint legal, joint physical, or sole custody, and there shall be no presumption in favor of any form of custody."  The bill's original text, completely replaced as it went through both houses, was, "The consideration of "joint physical custody" means the court shall consider custody and visitation arrangements that are reasonably constructed to maximize a child's time with each parent to the greatest extent possible in the child's best interests." At least the statute still says, "The court shall assure minor children of frequent and continuing contact with both parents, when appropriate, and encourage parents to share in the responsibilities of rearing their children." 

ENACTED, SIGNED BY GOVERNOR

KILLED (incl. passed by, stricken, tabled, continued to next year ...)

  • HB 599 Child support; nonpayment, amount of arrearage paid, suspension of driver's license.
  • HB 1223 Erin's Law, having schools educate children to recognize, resist and report molestation
  • HB 661 Assault and battery against a family or household member; enhanced, penalty. [Passed house, passed senate with substitute,  each house insisted on its own version, time ran out for Conference Committee]
  • HB 411 Assisted conception; gender-neutral as to same-sex.
  • HB 998 Parental or legal custodial powers, temporary delegation of; child-placing agency. [Passed House, continued to 2019 in Senate committee]
  • HB 807 Custody and visitation agreements; best interests of the child, violent abuse of other family members
  • HB 412 Marriage-related criminal laws; gender-neutral terms, adultery repeal, penalty.
  • HB 413 Adoption; gender-neutral as to same-sex.
  • HB 414 Same-sex marriage; marriage laws, gender-neutral terms.
  • HB 478 Domestic violence-related misdemeanors; enhanced, penalty.
  • HB 1237 Assault and battery against a family or household member; first offense, enhanced penalty.
  • HB 149 Child support order payee; change in physical custody of child, orders involving DSS.
  • HB 1331 Child support; review of guidelines federal compliance.
  • SB 64 Custody and visitation decisions; communication to parties required in writing.
  • SB 70 Custody and visitation; rights of parents with a disability.
  • SB 178 Parental or legal custodial powers, temporary delegation of; child-placing agency.
  • SB 596 Victims of domestic violence, etc.; firearms safety or training course.
  • SB 603 Same-sex marriage; gender-neutral terms.
  • SB 612 Assisted conception; parentage presumption.
  • SB 727 FOIA; exemptions for courts of record, courts not of records and Office of the Executive Secretary
  • SB 938 Child support; withholding of income, contracts with an independent contractor.
  • HB 216 Guardians, licensed physician, etc.; annual reports to include medical examination.
  • HB 383 Missing-heir search firms; void contracts.
  • HB 406 Guardianship; protects communication between incapacitated persons & others, notification of relatives.
  • HB 406 Guardianship; communication between incapacitated persons & others, notification of relatives.
  • HB 1403 Electronic wills; requirements.
  • HB 1565 Presumption of death; missing person reports.

 Compiled by John Crouch, updated by John Crouch and Sarah Araman


Alabama senate votes to abolish marriage licensing, celebration requirement, but NOT to separate marriage and state

Alabama's Senate has once again passed this bill, now numbered SB 13. It does not separate marriage from government, but couples will now simply register their marriages with the courts, instead of asking the courts to license them and having to have them formally celebrated and then recorded with the court. Having the marriage celebrated will be optional and the government will not be involved with that. But the state would still keep track of who is married, to the limited extent that it already does. Marriage would still have many legal consequences, including laws on bigamy, divorce and taxes.

UPDATE: It was approved Jan. 25 by a House Committee with an amendment that does not change what it does. Track its progress here.

Similar bills passed the Senate in 2016 and 2017, and one passed Oklahoma's House in 2015.

Currently, all U.S. states require marriage licenses. There is some disastrous misinformation out there saying that not all do, but that is based on some states recognizing common-law marriage, which is very different and can take years to establish; it is no sure substitute for licensing when you want to get married.

 


Where Congress's attack on alimony tax exclusion came from: Both sides' explanations insufficient, not reality-based. Here's what we know:

The House-passed GOP tax bill shifts the tax burden on alimony from alimony payors to recipients. I.e., about 97% of the time, from divorced women to divorced men, who we all assume are in higher tax brackets than their exes. Currently, alimony is considered part of the recipient's taxable income, and not the payor's. The change would affect alimomy from post-2017 court orders or agreements, including modifications of earlier orders.(There's one feature of the bill that's completely good, and apparently not controversial: Including alimony payments pursuant to a written marital agreement, with no court order, in the definition of alimony.)

 It's important to sometimes pause from a search for subtle "incentives" and subliminal effects, and remind ourselves what the most basic and obvious effect of a policy change is: In this case, taxing men instead of women on tens of thousands, sometimes over $100,000, of annual income. Alimony is all or most of many divorced women's incomes, and can already take a very large fraction of some men's incomes. Virginia's guidelines call for at least 28% of a breadwinner's gross income as alimony to a non-working spouse, and that's before child support, and before any deductions from his paycheck for taxes, social security, etc. 

Lawyers, journalists and even the National Organization for Women have attacked the proposal, not for being anti-male, but for changing the law's current incentive for men to agree to pay alimony, and thus reducing the amount of alimony women would get. The change probably would have that effect, but that whole argument probably only occurred to them because this is a Republican proposal and it fits the narrative of a GOP "War on Women". Ordinarily, women's groups would be all for something that shifts divorce women's tax burdens wholesale onto their exes.

Blogger Stuart Levine, and many columnists quoting him, including Kevin Drum at the usually more thorough Mother Jones, have really only speculated about why anyone would want to do such a thing. Liberal writers and the supposably* conservative proponents of the change seem to share the mutually convenient illusion that this is an attack on divorce, on behalf of Christian morality. But that simply has nothing to do with how divorce, alimony or taxes actually work. The GOP Ways & Means Committee Summary says only this on behalf of the change:

  • The provision would eliminate what is effectively a “divorce subsidy” under current law, in that a divorced couple can often achieve a better tax result for payments between them than a married couple can.
  • ... spousal support as a consequence of a divorce or separation should have the same tax treatment as the provision of spousal support within the context of a married couple, as well as the provision of child support.
  • ... the provision would increase revenues by $8.3 billion over 2018-27.

Frankly, living as close to Republican Washington as I do, it sounds like a young staffer who doesn't know anyone who pays alimony, who hasn't been invovled in a divorce, and just recently got off the parental  tax returns and started filing form 1040-EZ, was thrown mysterious, possibly garbled instructions for changing something about alimony taxation, and was given 15 minutes to come up with some Republican-sounding arguments for it. But actually, the proposal was part of an early-2014 "Tax Reform Act" introduced by former Ways & Means chair Rep. Dave Camp, now retired,  and the arguments above are repeated verbatim from the Committee Summary of that bill. 

The "subsidy" argument, to the extent that it's either launched or received as an attempt to discourage divorce, partakes of the long-standing and totally wrongheaded assumption that "a couple" decides to get divorced, and may be incentivized, rewarded or punished for doing so. This dates back to the early days of no-fault divorce reform, when reformers picked the most compelling poster-children, decent people who both wanted to divorce but who were caged in "Holy Deadlock" by laws that denied them a divorce even when they both wanted one. Some conservatives and moralists, being apparently unfamiliar with divorce, and gullible about letting their opponents pick the battlefield and define its terms, compliantly responded that these couples were hastily giving up on their marriage and should be incentivized, restricted, counseled, and/or made to wait to see if it's what "they" really wanted. And whenever any change to loosen or tighten divorce laws is proposed, the same old arguments are dusted off, even though divorce decisions have long been unilateral and the proposed changes hardly ever would affect the "poster children" whom the arguments describe. 

Individuals decide to divorce, pay taxes after divorce, and might or might not respond to incentives. Couples don't and can't.

The Committee's equality-based argument is even more surreal. Spousal support after separation or divorce is very different from what the Committee refers to as "spousal support within the context of a married couple", which it says should receive the same tax treatment. Uh, a married couple that isn't separated lives together as a family and an economic unit, and doesn't pay support checks to each other. And they can't get "the same tax treatment", because a married couple files taxes jointly or as the very disadvantageous "married filing separately", while divorced people file as single, or jointly with their new spouses. Again, this sounds like college debaters grasping for arguments about parts of adult life that they know nor care nothing about. 

 Here's what might have led to this: Veteran Congressman Lloyd Doggett D-TX last year was pushing a plan to require 1099s for alimony payments, citing a Treasury study showing about $2.3 billion a year in alimony excluded from payors' income but never reported by recipients. He wanted to use the revenue it gleaned to help states improve their foster care systems."He has been discussing the issue with Ways and Means Chairman Kevin Brady," Congressional Quarterly Roll Call reported. Perhaps the drafters set out to do what Doggett proposed, then realized that it would be simpler, cheaper, and revenue-positive to eliminate the tax code's recognition of alimony entirely, and seized on the 2014 proposal and arguments. It's probably the pet project of one Ways & Means member or staffer who's been there since Camp was Chair.

But where are the deeper, more extensive arguments that ordinarily would lead to something like this? To find out I traced backwards from the only article I found in favor of the change, "A Human Capital Theory of Alimony and Tax", by feminist law professor  Tessa Davis in the  George Mason Law Review. The only part of it I've thoroughly read is its abstract, every word of which is totally wrong, except for the stuff about "Family Law Theory", the entire posited existence of which is not only wrong, but should not be conceiveable in a rational world where people care about the real-life effects of anything. Even to utter its name, silently to oneself,  throws down a gauntlet and crosses a Rubicon into a world where mere Families and Laws will henceforth be trivial playthings in the tiny hands of academic Theories and their adepts and familiars.

And yet I cannot help but admire Davis for having the monumental audacity to claim to speak for "a scholarly consensus" in favor of some kind of fundamental change. She cites only two previous proposals for tax law to disregard alimony: Rep. Camp's 2014 bill, and Donald H. Berman, "The Alimony Deduction: Time to Slaughter the Sacred Cow," 4 Am. J. of Tax Pol’y 49 (1985). Berman called the exclusion "inequitable, complex and arbitrary", and above all, unnecessary now that marginal tax rates had declined from a healthy, vigorous 91% to a negligible 50%. More of the history of dissent from the current regime can be learned from another, very solid, article Davis cites, Deborah Geier, "Simplifying and Rationalizing the Federal Income Tax Law Applicable to Transfers in Divorce," 55 TAX LAWYER 363 (2001).  It recounts that in the mid-1980s, Senate Finance Committee staffers proposed totally eliminating the alimony exclusion. They tried to rally women's groups to their side. The ultimate results they got, and possibly what they were aiming for all along, were incremental restrictions that may have helped increase revenue and predictability.  (Id., pp. 404-406.)  The article advocates letting couples choose who'll pay the taxes on any forms of support or property transfers, with a default rule that the recipient has to pay them. It cites a very similar proposal, Laurie L. Malman, "Unfinished Reform: The Tax Consequences of Divorce," 61 N.Y.U. L. REV. 363, 367 (1986).

 Davis's own argument is that alimony in a divorce is mostly viewed as compensation for "human capital," or return on investment or compensation for loss, none of which are taxed, and that any distinction between it and property transfers is artificial. (See pp. 50-55 of her article, downloadable from the abstract web page.) (Malman made similar arguments for her free-choice proposal.)

But the problem is, normal alimony, the kind that qualifies for the tax exclusion, almost always comes directly from someone's income -- where, unlike property, it get taxed if the Code doesn't exclude it -- and goes to provide income for someone else. The IRS has established clear, easily-followed boundaries between regular alimony and non-qualifying lump-sums that are more like property division. And in real alimony negotiations and trials, alimony is almost totally based on income -- needs and ability to pay. Yes, decisions are sometimes influenced by arguments about spouses' contributions to the marriage, but when statutes,  judges and litigants look at women having sacrificed their own careers for the sake of a husband's career or to raise children, their point is that the women have a legitimate reason for needing supplemental income, and that it may take time for them to wholly or partly "rehabilitate" their earning potential.

Once again, this time on the left, the theorists are looking at the subtler reasons for alimony and missing what it obviously IS and what it's almost always FOR in real life.

 

----- 

* "Supposably" is a real word. It's from Seinfeld.


Is family breakdown the main cause of the worst excesses of "identity politics"?

Legions of critics endlessly cite the logical flaws and dangers of "Identity Politics" on the left and even on the right, but as Mary Eberstadt points out, they overlook that emotionally, it's deeply authentic and heartfelt. Indeed, it has become the key to its believers' personal identities.

Now, in some ways, politics has always been about identity, but it's been based on identities that people could take for granted and don't have to prove and constantly have affirmed: first, family; then place, religion, and ethnicity. And Americans have always formed like-minded, politically-active voluntary groups, including ones based on minority race and ethnicity.

But looking for the causes of the surging rage and occasional mass hysteria that now swirls around I.P., Eberstadt notes that the normal sources of "identity" throughout history, especially family, have lost most of their power and permanence. We have far fewer people whom we consider "family" in the sense of loyalty, commonality, permanence, and identity. And you don't have to share Eberstadt's traditional Catholic views of sexual and family issues to be concerned about the breakdown of families and what rough beasts are emerging to replace them. 


Defending marriage vs. unwanted dissolution, turning weakness into strength: Tim Kaine's first cases

"Diane married James against [her] guardian’s wishes and [the guardian] wanted to get the marriage annulled. Kaine represented Diane in a lawsuit to preserve her marriage. He fought the guardian and won, learning that the guardian wanted Diane’s dis­ability checks.

“'What started off as a marriage case in Richmond Juvenile and Domestic Relations Court ended up as a criminal trial against the guardian in federal court,' he said.

"Kaine said, 'I learned a lot from Di­ane.' including the responsibility of law practice and that what a lawyer does really mat­ters.

“'And I also learned a critical lesson that served me well through­out my career— whatever the is­sue seems to be at first, look deeper. The marriage law­suit, ostensibly filed to protect a mentally disabled person, was really the guardian’s effort to continue the subjugation of Diane and the theft of her disability payments,' he said.

From "The Education of Tim Kaine", by  in Virginia Lawyers' Weekly, May 27, 2016, p. 3.  Also available on Sen. Kaine's web site.

The article, about Kaine's talk at William & Mary's law school graduation, also includes some vital advice for lawyers and pretty much everyone else:

At one point Kaine said he sat at his computer with a mental block. Then he recalled a line from Second Corinthians, “in my weakness is my strength.” He said he understood then that “you can’t flee from your weak­nesses but have to embrace and own them as a natural part of being hu­man. I was afraid. But somehow, just admitting that to myself helped me jump back into the work and crank out all the pleadings and advocate at all the hearings right up to the last day.”

Kaine said, “This is a lesson that I come back to again and again in my life. Fleeing from your weaknesses or pretending that you don’t have them makes you weak. But acknowledging your weaknesses, which can be very hard to do, in one of life’s great mys­teries, can make you strong.”

He closed his remarks with a prom­ise to the new grads: “My clients taught me lessons that I still reflect on today, long after I gave up law practice because of the demands of full time public service. They changed me as a lawyer and they changed me as a per­son. And they will change you too,” he said.