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Obligation
to Work Placed on Men only - Violation
of Equal Right Amendment |
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Folks,
Do you need any further proof than
this that child support is a Communistic
"TRANSFER OF WEALTH" scheme?
Has anyone asked the question, does
any child require $4,000 a month for
support? And this was just an
INCREASE in the fathers' obligation.
The mother retires, father pays her
pension. Paul |
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On Fri, 17 Jun
2005 09:51:06 -0400 "Chairman
PWR & Florida CRC"
<Chairman@parentswithoutrights.org
writes: Is parent obligated to work
to help support kids? [Law Article
from CNN.com] |
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Is parent obligated
to work to help support kids? Mother
gave up job to stay home; father balked
at paying more support By Joanna Grossman,
FindLaw Columnist |
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Thursday, June
16, 2005 Posted: 2:06 PM EDT (1806
GMT) |
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(FindLaw) --
Jane Chen was a well-paid Wisconsin
anesthesiologist. But at the age of
43, she decided to stay home with
her three school-age children. |
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Even in 2005,
Chen's decision was hardly unusual
or remarkable: Women (and sometimes
men) frequently forgo employment,
even lucrative employment, in order
to stay home with children.
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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
$4,000 more a month in child support. |
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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." |
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Other states,
however, have ruled differently. And
overall, America features a checkered
legal landscape on the reatment of
divorced parents who forgo income
in favor of at-home child rearing. |
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Child support
laws Once, only fathers were legally
required to pay child support. Now,
under the law, all parents have a
legal duty to support their children. |
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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. |
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When parents
divorce -- or sometimes, even if they
never married --- the duty of support
changes. For the noncustodial parent,
it is enforced through the imposition
of formal child support obligations. |
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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. |
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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. |
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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. |
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States tend to follow one of three
basic formulas: |
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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. |
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Second, a majority
of states use the "income-shares"
model. In this model, 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. |
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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. |
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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. |
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Definition of income While state definitions
of "income" vary, most permit
judges to replace actual income with
earning capacity in appropriate circumstances. |
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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. |
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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? Or
should the judge look to the individual's
earning capacity instead? |
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That is the question the Wisconsin
courts grappled with in Chen v. Warner. |
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Chen v. Warner
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 a year as
an anesthesiologist; he was earning
$256,452 as a neuroradiologist. Both
parents had always worked full-time
while raising their three children. |
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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. (Warner
would owe a few hundred dollars more,
based on his slightly greater income). |
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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. |
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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. |
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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. |
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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. |
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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. |
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Earning capacity
relevant? 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? |
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The answer is: It's generally up to
the court's discretion. |
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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? |
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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. |
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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. |
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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. |
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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. |
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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, stay home while
children are young. |
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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.
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. He aruged
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 $4,000 a month
in child support.
Other states' approaches In other
states without an express exception
for caregiving, the results have been
mixed.
Some courts focus solely on earning
capacity, without regard to motive.
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.
Lower income better test Yet 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.
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.
Joanna Grossman, a FindLaw columnist,
is an associate professor of law at
Hofstra University, currently visiting
at the University of North Carolina
School of Law. |
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