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Veterans and small businesses mistreated by divorce courts

Memorial Day is an opportunity to thank our soldiers and veterans, and open our eyes to the disgraceful way they are treated by divorce courts. The bias that divorce courts in my home state of Virginia exhibit against males, people who start small businesses, and breadwinner spouses in general has been ably chronicled by Richard Crouch, a prominent family lawyer, in the Virginia state bar publication Family Law News. (See Crouch, Support Obligations in Mean Times: The Virginia Courts and the Recession, Fall 1992 Issue.)

But what ashames me most as a lawyer is how divorce courts routinely flout our troops’ rights under federal law. Crouch notes that Virginia courts ignore federal law by ordering members of the military to share their pensions with spouses who divorced them after even short marriages: “Something everybody learned early on is that a military wife had to have ten years of marriage to the service member overlapping ten years of military service to divide the pension. However, the Virginia Court of Appeals has adopted the rule that this statutory limitation in 10 USC 1408 limits only direct payment by the military of the former spouse’s half of the pension. Thus a service member can be required by a Virginia court to split his or her military retirement with the former spouse even if it was less than a ten year marriage. Cook v. Cook, 18 Va. App. 726, 446 SE2d 894 (1994).”

This contempt for the legal rights of divorced soldiers matters a lot, because soldiers have fairly high divorce rates, thanks to the stresses and strains of military life, such as unforeseen deployments overseas. Usually, it is the wife, not the husband, who initiates the divorce (two-thirds of divorces in America are initiated by the wife, not the husband, although male spouses of female soldiers also initiate many divorces. Most divorces are no-fault divorces. By the way, I am not divorced).

Another way the state courts put soldiers at a disadvantage, and discourage them from serving their country, is to award their ex-spouses a share of their potential military pension starting at the earliest date they could possibly retire — even if they intend not to retire then but rather to keep on serving their country. That effectively forces them out of the military, depriving the armed forces of seasoned troops. This injustice is permitted, but not mandated, by federal law.

Lt. Col. Patricia Larrabee was effectively forced out of the military by “a court order directing that she pay her ex-husband a share of her retirement when she reaches 20 years of service in 2006, whether or not she retires.” “‘I can’t afford to write a check to my ex-husband every month out of my military pay,’ she told then-Defense Secretary Donald Rumsfeld. ‘By the way,’ Larrabee added, ‘he makes thousands and thousands of dollars more than I do.’”

Colleen M. Timpano, who served in the Navy, describes how she was royally ripped off by a state divorce court, which effectively “indentured” her “for life” to her “former husband,” who used drugs before and after his expulsion from the Navy, and “contributed absolutely nothing” to her career, even as she helped “finance his college education.” The court awarded her “ex-husband 30 percent of” her “retired pay for life, which will be paid to her “ex-husband and his third wife for the rest of his life.” Federal law did nothing to stop this.

State courts also jail returning reservists based on their inability to pay excessive child support levels that accumulated after they were called into service at pay levels far lower than what they received in civilian employment. The Bradley Amendment keeps their child support from being reduced retroactively when they return from the field of battle, even if they had no time to get their child support payments reduced before being suddenly called up and sent into battle. The Bradley Amendment has contributed to state courts jailing many hapless fathers, including “a veteran of the first Gulf War who was captured in Kuwait in 1990 and spent nearly five months as an Iraqi hostage before being arrested the night after his release for not paying child support while he was a hostage.” It also has resulted in “a Texas man wrongly accused in 1980 of murder” being billed “nearly $50,000 in child support that had not been paid while in prison” and a “Virginia man required to pay retroactive child support even though DNA tests proved that he could not have been the father.”

Even if a reservist manages to hire a lawyer to file a motion to reduce his child support payments to an affordable level while he is overseas, the child support agency often simply refuses to do so (sadly, this is not surprising given that child support agencies have a financial incentive to artificially inflate child support levels, since they receive federal funds based in part on how much child support they collect).

Nor can soldiers called off to battle just pay the child support in advance, if they have the money, to avoid complications of paying on a monthly basis while abroad. Virginia Delegate Jeff Frederick introduced a bill to allow child support to be paid in advance, but it was killed by the Virginia State Senate’s Courts of Justice committee. Dave Briggman of Prince William County, Virginia, was held in contempt for paying his child support early. When he could not afford to pay the penalty, he was then denied the ability to appeal the penalty based on his argument that he was unable to pay, based on the absurd Catch-22 ground that he had not put up an appeal bond in the amount of the penalty — something he by definition could not afford to do, precisely because he lacked the money to pay the penalty. Under the Virginia Court of Appeals’ decision in Mahoney v. Mahoney, if you want to appeal an excessive child support obligation or sanction based on the fact that it is beyond your means, you generally must first put up an appeal bond in the full amount you can’t afford.

Virginia has weird case law on alimony. In Bristow v. Bristow (1980), the Virginia Supreme Court overturned a lower court’s refusal to award lifetime alimony to a wife who separated from her husband less than a year into their marriage, ruling that the trial judge could not deny alimony without making extensive findings, even after such a brief marriage, even though state law explicitly lists the duration of a marriage as a factor in whether to award alimony. (By contrast, in many states, like California, there is a judicial rule-of-thumb that alimony should not last longer in years than half the length of the marriage).

The Virginia Supreme Court’s “generosity” with other people’s money was selective and discriminatory. That same year, in Counts v. Counts (1980), the state supreme court barred a man from suing his ex-wife for deliberately maiming him, applying the now-defunct doctrine of “interspousal tort immunity,” even though Virginia circuit judges previously allowed ex-wives to sue their husbands for domestic violence under an “intentional tort” exception to that immunity. The state supreme court barred the ex-husband’s suit even though it had earlier (rightly) allowed an ex-wife’s estate to sue the ex-husband who murdered her in Korman v. Carpenter (1975). (In response to public outcry, the legislature eventually abolished marital tort immunity).

Divorce law is of enormous economic importance. Divorce cases outnumber any other category of civil case in state courts (nearly half of the docket of the Virginia Court of Appeals is made up of family-law cases), and redistribute far more money from any other category of case. And decisions by divorce courts on how to set alimony and child support payments can be potent disincentives to setting up a small business.

Virginia courts routinely do things that are economically inefficient and unfair, like allowing awards of permanent alimony even after very short marriages (Bristow v. Bristow, 1980), then allowing child support or alimony levels to be reset based on upward changes on the paying spouse’s income (Conway v. Conway, 1990), but not downward changes (Antonelli v. Antonelli, 1991), and allowing child and spousal support levels to be set based not on what the paying spouse actually makes (which would be an easy mechanical calculation that would not require any lawyer time or attorneys’ fees to compute), but rather based on higher, hypothetical (and sometimes arbitrary) estimates of what the paying spouse could make (”imputed income”), as in the cases of Cochran v. Cochran (1992), Antonelli v. Antonelli (1991), and Auman v. Auman (1995).

Setting support levels based on hypothetical rather than actual income results in lots of argument between opposing lawyers about what the hypothetical income should be, generating work for lawyers at the expense of the paying spouse. Similarly, allowing permanent alimony based on very short marriages results in lots of demands for such alimony by wives, and lots of arguments by their lawyers, even though such demands are often rejected anyway by the courts (see, e.g., Bruemmer v. Bruemmer).

Virginia’s divorce laws are an impediment to small business creation by divorced people, who comprise more than a million Virginia residents. As Richard Crouch once noted, Virginia courts employ a “heads-I-win, tails-you-lose” approach to people who try to start small businesses. See Richard Crouch, Support Obligations in Mean Times: The Virginia Courts and the Recession, Family Law News (a Va. State Bar Publication), Fall 1992 Issue.

If you leave a steady salaried job in order to try to set up a small business, and it succeeds, increasing your income, you will have your child support payments increased over their prior levels (and perhaps your alimony payments as well). (Conway v. Conway, 1990).

But if the business fails (as most small businesses do), resulting in your income falling below its prior levels, the courts will force you to pay alimony and child support as if you were still making the higher income you made at your prior job, rather than at the income you currently make (Antonelli v. Antonelli, 1991).

As Crouch notes, “So much for encouraging small business. The wage-slave working stiff is shackled forever to salaried employment with big business, which he leaves at his peril.” Virginia gets a undeservedly generous rating from some business groups for how its courts treat businesses, but those ratings really only take into account how big business fares in tort lawsuits, and in reality, it’s Virginia’s fair-minded juries — not state judges — who make Virginia relatively “pro-business” in that respect

I have often used gender-specific words such as “father” and “husband” to describe those who pay alimony and child support in my above discussion, even though state laws do not prevent judges from giving a father custody of the children or awarding support to the father. I do that because, in practice, it is usually the husband and father who pays them, and the law is not applied in a gender-neutral fashion, as Richard Crouch noted in his 1992 article in Family Law News. (For example, the Virginia Court of Appeals denied alimony to a father even though his ex-wife made five times what he did, and he was the caregiver for the couple’s children, and instead ordered him to pay his ex-wife 40 percent of his meager disability pension, in Asgari v. Asgari [2000]. It is hard to imagine a similarly-situated ex-wife not receiving alimony for at least a few years. For example, in Calvin v. Calvin [1999], the appeals court awarded a wife alimony despite describing her as adulterous, “vindictive and cruel”). As Crouch notes, in Virginia family law, “sex is the difference that makes a difference.”

Defenders of these rulings sometimes claim that they are needed to offset imaginary financial advantages enjoyed by non-custodial parents or men. Those claims are based on ignorance. Arizona State University’s Sanford Braver conducted his own study in the late 1980s, using better methodology, and found that ex-husbands do no better than ex-wives following a divorce, as he recounts in Divorced Dads (1998). Indeed, his study probably understates divorced husbands’ losses as a result of a divorce nationally, since it was conducted in Arizona, which has lower than average child-support collections (as the U.S. Supreme Court observed in Blessing v. Freestone (1998)) , and since it was conducted before increases in child support resulting from Congress’s passage of the 1988 Family Support Act, which prompted state legislatures to substantially increase state child support guidelines, awards, and enforcement.

Similarly, in 2000, a Virginia study (the JLARC study) erroneously claimed Virginia’s child support guidelines were too low only because it compared apples and oranges. It compared just one part of the state’s child support guidelines (the “basic” schedule, excluding statutory add-ons for health insurance and day care expenses) to ALL child-rearing costs, making the guidelines appear artificially low. It also treated as child-care expenses housing and other expenses shared by the custodial parent, for which the custodial parent could seek alimony — potentially resulting in the custodial parent getting paid twice for the same expenses, first in alimony, then in child support. If these errors had been remedied, the study would have found Virginia’s child support levels to be too high.

In 2014, Virginia increased obligations under its child-support guidelines for most households, based on similarly faulty data, as I explained in the Richmond Times-Dispatch and Examiner.com. In computing the amount of child support needed, the Virginia Child Support Guideline Review panel ignored the tax benefits received by custodial parents (like refundable child tax credits, earned-income tax credits, and daycare tax credits), which can be most of the cost of raising a child for low-income couples, and also ignored recent tax increases on upper-income households, resulting in inflated child-support awards for such households as well. The child-support increase bill also contained a dispute-spawning provision designed to enrich trial lawyers at parents’ expense.

Perhaps as a result of the unfounded belief that men generally suffer less than women after a divorce, states periodically rewrite their divorce laws to make life harder for breadwinner spouses. For example, Texas, which once forbade alimony as against public policy, now permits it under certain circumstances. North Carolina, which required a showing of fault by the breadwinner spouse to impose spousal support until the mid-1990s, no longer does. And as Richard Crouch notes, courts apply child and spousal support laws in a gender-biased fashion.