When parents
divorce or separate, they encounter the difficult task of determining child support.
Since the late 80’s, mediators have been asking divorcing couples to create
parenting plans instead of fighting for custody. Similar logic supports the
same approach for child support. Such a shift in thinking is necessary today;
the rigid application of child support guidelines can create unfair results
when applied to individual divorce situations. Many states have implemented
deviations from the norm to address the inequities resulting from the use of
these guidelines, and when these changes are evaluated as a whole they reveal that
an alternate approach is necessary.[1] This article asserts that the
implementation of these deviations is necessary because current child support
guidelines are based on three flawed assumptions. These deviations attempt to
acknowledge and correct these flawed assumptions, and in turn create a more
fair an equitable child support system. Just as parenting plans have evolved
to allow families to co-parent after divorce, states should begin to implement
Child Support Plan legislation so that divorcing parents can eliminate the need
to rely on statutory deviations created by the inherent unfairness in current
child support guidelines.
This article
examines the current approach to creating and enforcing child support guidelines
and suggests a new way to achieve cooperation between divorcing and
never-married parents through the use of a “Children’s Checkbook ” [2] to manage the shared costs of raising
the children. The three major flawed assumptions in existing child support
guidelines are that the formulas assume that child support (1) must be
exchanged between the parents, (2) must be tied to the amount of time a child
spends with each of parent, without reference to how much each parent actually
pays for the child’s expenses, and (3) must be a single mathematical formula.[3] Each state has attempted to address
these flaws by setting forth situations under which courts may either deviate
from a rigid application of the guidelines or by adding on categories of shared
expenses.[4]
The fact that
most states have created, rely on, and indeed are gradually expandingdeviation
procedures from statutory child support guidelines marks the beginning of a
migration away from rigid formulas towards a greater use of itemizing and
sharing certain categories of expenses.[5] For this expanding list of add-ons, the
parents must learn how to cooperate when managing how they will pay these
expenses jointly. Currently, child support guidelines seem to view shared
categories of expenses as only deviations or additions to whatever existing
formula is applied. Instead, these deviations should be viewed as the core of
a solution, an evolutionary change in child support law moving toward a greater
emphasis on cooperation, similar to changes in custody law over the past ten to
fifteen years.[6]
More than twenty
years of mediation experience demonstrates that parents can more easily and
more cooperatively share the costs of raising children in two separate homes by
abandoning mathematical child support formulas and re-framing the child support
question from “how much money” the state requires them to pay or receive to
“how they will share the costs” of raising their children in two homes in the
future.[7] The change is a logical extension of
the movement in many states toward the adoption of parenting plan legislation,
where the basic goal is focusing more on generating future cooperation between
the parents.[8] Asking a different question, together
with using a joint Children’s Checkbook to manage the various expenditures
made on behalf of the children, this new approach creates a process that will
provide both cooperative and high-conflict couples with more tools to reach
consensus.[9] This approach could dramatically change
the way parents resolve the question of child support, just as re-framing the
child custody question dramatically changed the focus from good parent/bad
parent to building parenting plans through the use of mediation – an approach
which has resulted in greater flexibility of results and increased perceptions
of fairness.[10]
Finally, the
article recommends that state legislatures recognizing the near impossibility
of creating a universally fair child support formula might be well-advised to
consider taking a significant step and adopt a child support law implementing
Child Support Plans rather than taking another ten to fifteen years of small
steps to come to the same conclusion.
There are many
complaints about the child support guidelines, most of which seem to be from
the public. A Google search of “Child Support Guidelines Criticisms” reveals
many web sites that are vehement in their attacks on the guidelines system.[11] Current child support laws are perceived
as unfair,[12] lacking in practicality and ease of
calculation[13] and most importantly, failing in
compliance rates.[14] The inability of existing child support
statutes to properly serve divorcing and never-married couples is growing
increasingly acute, as more parents follow equal or near-equal time sharing
arrangements for exchanging their children. This trend has created more complex
spending patterns on behalf of the children.[15] Because guideline child support methods
are seen as rigid and often unfair in their application, there have been many
attempts to declare them unconstitutional; all have been unsuccessful.[16]
There are three
basic child support guideline models being used in the United States today. The Income Shares Model used by thirty-three states.[17] The second guideline model, used by
fifteen states, is the Percentage of Obligor’s Income (including two states
which use a hybrid that is similar) model.[18] Finally, the method usedused in just
three states, Montana, Delaware and Hawaii, is the Melson formula.[19]
The Income Shares
model is now the most commonly used.[20] It allocates an amount of support for
the child using a percentage formula based on the parents’ pooled or combined
income.[21] In Minnesota after January 1, 2007, the
determined child support amount is apportioned between the parents based upon
their respective Parental Income for Calculating Support (PICS).[22] The PICS calculates support by pooling
the income of both parents and then determining a base amount of child support
needed by the child. This amount is determined by applying a guideline table,
which is an amount of basic child support that uses the United States
Department of Agriculture’s Costs of Raising Children Studies, with marginal
housing costs applied.[23]
The Percentage of
Obligor Model is the most simple and easiest to calculate of all the guideline
models. This formula is used in nine states at
the time of this writing, including Minnesota from 1983 until January 1, 2007.[24] This model asks three questions: (1)
how many children are there, (2) what is the obligor’s income, and (3) who is
the less-time parent? The less-time parent, or the absent parent, as defined
by the Family Support Act of 1988,[25] is typically the parent who lost the
custody battle, or who by the parent’s agreement will physically have the
children for less time than the other and must send money over to the
greater-time parent.
Under the Melson
Formula – the most complicated guideline model – the child support formula is
applied to the income of the parents after first deducting the parents’ basic
living expenses from each of their respective incomes.[26] Although it is the most complex of the
three models, it builds on the concept of the income shares model by also
trying to factor in the number of children, child care, and extraordinary
medical expenses instead of seeing child care and medical expenses as add-ons
to the basic formula amount.[27]
Every states’
formulas require one parent to be the obligor, who is defined as the absent
parent in Congress’ originating legislation, and the other parent is seen as
the recipient of money from the absent or custodial parent.[28] Through an award of child support to
the parent with greater time or lower income, there is a rebuttable presumption
that such formulas are fair.[29] In order to deviate from the formula,
the court must make clear and specific findings stating the reasons for such
deviations.[30] Only in certain cases of equal time
sharing and equal incomes have the formulas permitted no exchange of child
support on the theory that each parent will simply pay for the cost items of
the child or children when needed, and the statutes and case law are silent on
the issue of who should pay for what.[31]
A common
conclusion is that child support implies an exchange of money. This conclusion
is supported by a reading of the entire Family Support Act of 1988,[32] the original impetus for all state guidelines,
which required all states to adopt child support guidelines that at a minimum
satisfy the following:
Notably, the
beginning words speak of the “non-custodial” parent.[34] Section 101 of the Family Support Act
authorizing support withholding speaks of the “absent” parent. For those
states that have adopted some form of Parenting Plan legislation, the concept
of an “absent” parent runs contrary to the intent and expectations of such
legislation.[35] Parenting plan legislation moves away
from the concept of absent parent, recognizing that both parents continue to
parent in divorce. Indeed, if we have learned anything from our experience of
moving from custody to parenting plans, we might want to recognize our new
found enlightenment and move from the “absent parent concept” to the concept
of “two involved parents” sharing the costs of raising their minor children.
The Family
Support Act of 1988 also required that the guidelines formulas be based upon
specific descriptive and numeric data.[36] This requirement has resulted in an
attempt to base a formula on economic data, such as the costs of raising
children studies by the Department of Agriculture.[37] Some formulas are tied to the Bureau of
Labor Statistics Consumer Expenditure Studies (CES).[38] One formula, Minnesota’s Percentage of
Obligor’s income model, was created before the adoption of the Family Support
Act by a retrospective compilation analysis of one jurisdiction’s averaging a
group of judges’ rulings on child support over a six month period examining low
income cases.[39] The resulting averages fell into a
pattern of ordering the non-custodial parent to pay 25% of net income for one
child, 30% of net income for two and so on up to 49% of net income for five or
more children.[40]
Regardless of
which guidelines formula is used, as noted above, three flawed assumptions
emerge. These three arethat child support (1) must be exchanged
between the parents, (2) must be tied to time with each parent and not tied to
who pays which children’s costs, and (3) must be a single mathematical formula.[41] One could argue that a main contributing
factor to all three flaws is continued reliance on the “absent parent” concept.
Each flaw also results in negative consequences that make it difficult to
establish fair methods of sharing the costs of raising children.
In all three
existing statutory child support models, one parent always pays money to the
other, and the guidelines formula used to establish how much money should be
paid is tied directly to who wins the custody battle, or alternatively, who is
the primary parent or residential parent. In the opinion of this author, this
notion that children are provided for completely by one parent who receives
money from an absent parent is flawed because it does not recognize both the
monetary and non-monetary contributions of the non-custodial absent parent.
When only one
person is allowed to send money to the other, and especially when the amount of
money sent is tied to who is more in charge, conflict inevitably arises over
who gets to be in charge. This results either in a custody battle or, in its
milder form, this assumption becomes the underlying fuel for a phenomena that
has been called “trading days for dollars,”[42] whereby couples fight over the exchange
schedule because increased or decreased time with a child affects the amount of
money the obligor will send. Sending money from one parent to the other, with
no participation in the decisions about how it will be spent also creates
mistrust, resulting in some states enacting legislation requiring the receiver
of child support payments to account for how money is spent.[43]
This problem of
“trading days for dollars” and the fight to “win” the custody battel will
continue to remain difficult when child support amounts are always tied to
custody or who is the primary parent. This obligor-obligee transfer payment
system is reminiscent of the military approach where a “supply sergeant” is
designated as the one person who manages all of the children’s material needs
and must collect money from the “absent parent” as defined by the originating
federal legislation.[44] Non-custodial parents rightly ask, “what
about the money I spend on my children when they are with me, even though I
send money to the other parent?” “And what if I start to spend more time with
my children, don’t I get a break on my child support?’ This question was asked
by Mr. Valento and the Minnesota Court of Appeals answered yes.[45] Yet, the fight for time with the
children still creates conflict, because most state child support guidelines,
including Minnesota’s income shares model, call for a reduction in child
support for the obligor when the obligor’s time with the children is increased
past a certain point.[46] In Minnesota, under the newly adopted
income shares formula, there is a “Parenting Expense Adjustment” whereby any
parent who has between 10% and 45% of the time with the children is allowed a
12% reduction in child support.[47] This somewhat wide range was
specifically designed to unhook the support from the schedule and encourage the
obligee parent to be more willing to allow the obligor parent to have more time
with the children.[48] What mediator or judge hasn’t spent time
listening to conflicted parents fight to the bitter end over whether there will
be equal time-sharing or primary custody to one, or for that matter, whether
there are going to be 12 overnights a month to Dad or 10 overnights per month
to Dad when the child support amount statutorily awarded under the formula
hangs on this determination?[49]
One possible
reason Family Law has relied exclusively on the obligor-obligee transfer of
payment model is because it is mandated by the Family Support Act,[50] and underlying the adoption of the
Family Support Act was the need to collect money from fathers who were content
to have the state support their children.[51] The concept of an “absent” parent
certainly does not assume cooperation between mom and dad. Indeed, traditional
historical definitions of child support have not typically included both
parents cooperating and discussing shared contributions towards their
children’s need. Family law
has traditionally analyzed the child support problem by first seeking to
determine the proper level of child support that one parent pays to the other
parent rather than asking about how support is shared and who should pay what
for what items. It is difficult to find any commentators who question this
basic theme of requiring a payment of child support from the parent who “loses”
custody (or has less time with the children) to the parent who “wins” custody
(or has more time with the children). Even Black’s Law Dictionary defines
child support as “the money legally owed by one parent to the other for
expenses incurred for children of the marriage.”[52]
Perhaps because the traditional custody approach assumed that only one parent
can be in charge of raising the children, the custodial-non-custodial hierarchy
was created to eliminate the need to cooperate when one parent is vested with
the most authority by being put in charge as the custodial parent receiving
money for child support. It is easy to see how the absent parent paying money
to the “supply sergeant model” occurred. There seems to be a common sense
notion among most lawyers and other professionals trained in using the
adversarial system, that if parents cannot cooperate enough to stay married,
then they certainly cannot raise their children together after divorce.
Therefore, it is best to put one parent in charge, including paying for the
costs of the children. Reliance on the rigid notion that only one parent pays
for the day-to-day expenditures of the children reinforces the idea that there
is always a custodial parent who has more power and control over the children’s
lives, and that there is always a visiting, non-custodial, secondary parent
whose job is to send money over to help out. Such an approach fails to
recognize that parents will continue to be parents after the divorce. They
might be able to terminate their marriage relationship, but they will never be
able to terminate their parenting relationship, and this is the principle that
all parenting plan legislation is based upon.[53]
This supply
sergeant approach also fails to recognize and give credit to the contributions made
by each parent, particularly the non-custodial visiting parent who might
occasionally want to buy a pair of shoes or pay for a soccer camp registration.[54] Some states have even given a “visitor’s
credit” to the non-custodial parent who exercises visitation in an effort to
solve this flaw.[55] The notion that only one person may be
trusted to pay for a child’s expenses is inflexible and can create competition
for the child’s allegiance through the purchase of special items as a result of
non-communication between parents about children’s expenses.
To be effective,
parents must learn how to cooperate around parenting their children and the
Minnesota Legislature recognized the need to involve both parents in
decision-making when adopting parenting plan legislation that was designed to
encourage both parents to cooperate around building the ground rules of a new
parenting plan rather than fighting over who was in charge.[56] Moreover, in what appears to be a
precursor to creating a child support plan, in connection with the passage of
parenting plan legislation, the Minnesota Legislature included a provision for
allocating children’s expenses between the parents. Subd. 8 of the Minnesota
Parenting plan legislation states (a): “Parents creating a Parenting Plan are
subject to the requirements of the child support guidelines under Chapter 518 A
and (b): Parents may include in the parenting plan an allocation of expenses
for the child. The allocation is an enforceable contract between the parents.[57]
Just as other
states have adopted some form of Parenting Plan legislation, isn’t it now
possible that we will begin to see other states adopt new child support
statutes that encourage the use of mediation and individual custom-designed
child support arrangements based on similar reasoning that sharing children’s
costs may include methods other than just exchanging money from the custodial
parent to the non-custodial parent? Perhaps the exchange of money is just too
ingrained in our system to challenge its premises. Indeed, most mediators,
some judges, and some practicing attorneys will attest to the fact that
frequently, the expectation that parents cannot cooperate is a self-fulfilling
prophecy. Moreover, we should learn from the success of mediation coupled with
Parenting Plan legislation that gives people a process of learning how to
cooperate in the new relationship of parenting which replaces the relationship
of marriage. The research results of one study that compared litigating
custody with building a parenting plan are astounding because parents were randomly
assigned to either a mediating group or a litigating group.[58] A follow-up with mediating parents up
to twelve years later showed significantly more contact between the “absent”
parent and the children when compared with the litigating parents.[59] Perhaps it is time to ask the question,
are they really that uncooperative, or is it something we are doing in our
adversarial system that actually creates conflict?
“Time tells me
little about who arranges for the children’s material needs.”[60]
The second flawed
assumption is that child support must be tied to time with each parent, and
that specific expenditures made on behalf of the children by each parent are
not important and will not be part of any formula. I submit that children’s
expenses should be tied to who pays for the child’s costs because this is where
the rubber hits the road. It
is incorrect to assume that the parent who spends more time with the children
will spend more money on them than the parent with less time. It is also
incorrect to assume that parents will spend money equally for their children
even if both parents have equal income and equal time with the children. The
only categories of expenses that are tied to time are food and utilities. That
is, the parent with less time will feed the children less and thus, will likely
spend less money on the children than the more-time parent, and the parent with
more time will likely spend more on the light bill and hot showers that
increase heat and electricity bills. However, other than these two categories
of food and housing , all other categories of costs related to the normal
raising of children can be paid by either parent, regardless of the time that he
or she spends with the children.
Minnesota’s new Income Shares formula still ties
child support to the amount of time the parent spends with the child insofar as
a different calculator is used when the child is with each parent more than 45%
of time or with one parent less than 10% of time. Thus, the 45% threshold may
produce resistance to requests for nearly equal time. After January 1, 2007 in
Minnesota, the amount of time a parent spends with a child must reach a
forty-five percent threshold before any downward adjustment is made.[61] This means that when a parent has
forty-five percent or more of the time with the children, that parent’s child
support role changes from that of visitor; the parent is recognized as a
contributor to the children’s costs and child support is further reduced.[62] This same concept was recognized in a
judicial modification of Minnesota’s previous Percentage of Obligor formula,
through the two cases of Hortis v. Hortis[63] and Valento v. Valento.[64] These two cases laid down the same
principle of reducing child support for the obligor based upon the consideration
of added time. However, it did not rigidly set 45% as the threshold. The
concept of these two cases called for the obligor to pay less child support until
a 50-50 equal timesharing and equal incomes situation was reached, and it was
presumed at that point that each parent would incur the same costs and would
have the same ability to pay for these costs when the children were with each
parent.[65]
Canada’s
child support model is similar to Minnesota’s. Canada, however, uses a
forty-percent threshold that reduces the child support when a parent exceeds
forty percent of the time with children when they are in a secondary parenting
role.[66] Carol Rogerson, writing in the Canadian
Journal of FamilyLaw succinctly outlines the fairness question when
a formula attempts to take into account the element of time.
The question
of whether to allow for an adjustment to guideline amounts in cases of increased
access and shared custody, and if so, how to structure such an adjustment,
raises complex and controversial policy choices. Pushing in favour of some
adjustment is a concern for fair and consistent treatment of payors who incur
increased expenses during the time they spend with the child. There are two
dimensions to the fairness claim. The first is fairness between the payor and
the support recipient, who is arguably being relieved of some costs assumed by
the payor. The second is fair and consistent treatment of the payor as compared
to payors at the same income level who may not be spending any money directly
on their children apart from the payment of child support. On the other hand,
allowing such an adjustment raises many concerns. Increased time spent with a
child does not necessarily entail increased spending on the child.[67]
One
Canadian judge, struggling with the 40% line in the sand, ruefully observed
that using a formula tied to time tells him nothing about who is buying what
for the children:
This crass
focus concerning the number of hours spent told me nothing whatsoever about who
bears the expenses of parenting. The 40% delineation offers no clue as to how
expenses of housing, feeding, clothing and other such expenses usually subsumed
in the regular expenses of children that are addressed by the table amounts in
the Guidelines, are paid. Many access parents who have the children somewhat
less than 40% of their hours still bear the expense of providing child suitable
accommodation and must nevertheless pay the table amount. Time tells me little
about who arranges for the children’s material needs.[68]
Justice Eperhard,
writing in the above case put his finger on another core piece of the puzzle
that has always been ignored in the zeal to create the perfect formula. It is
simply the notion that who pays for what is more important than time, than who
has custody, than who is the primary parent, than who is the residential
parent, or whether one has 38% of the overnights each month or whether one has
42% of the overnights each month.
Most states allow
an adjustment or deviation from the guidelines for greater time spent with the
children.[69] The assumption is that by having the
children more of the time, there will necessarily be higher costs. Minnesota does not require documentation of greater expenses, just that the time be more
than 45% for the reduction to occur. To find any discussion of who pays what,
we must look to the unusual cases for guidance. Some courts, when reviewing
high income cases have found it necessary to look at actual expenditures rather
than simply time. [70]
One commentator,
writing on cases of high income divorce couples, where the courts in several
states have found it necessary to require deviations, observes a principle that
is at the core of the Children’s Checkbook Method:
A support
award that is based upon the financial means of the parent rather than the
demonstrated needs of the child may also deprive the payor parent of a role in
deciding the child’s lifestyle. As the court indicated in Harmon v. Harmon an
award that was not based on express findings of the child’s actual needs would
trespass upon the right of parents to make lifestyle choices for their children.
As that court noted “although entitled to support in accordance with the
pre-separation standard, a child is not a partner in the marital relationship
entitled to a ‘piece of the action.’” Indeed, it has been suggested that
determinations as to the child’s appropriate lifestyle are not purely
mathematical determinations to be arrived at by application of child support
guidelines but more properly issues of parental decision making, particularly
where parents have joint legal custody and therefore should have equal input
into decisions as to the manner in which the child is reared. Such a
consideration may carry significant weight in the event that the parties’
spending habits during the marriage reflected expenditure patterns that were
modest in comparison with the available income. However, a concern that the
child not be “spoiled” by lavish spending on his or her behalf is less likely
to be credible if the parent’s frugality is newly acquired. [71]
As will be
discussed later, determinations as to the child’s appropriate lifestyle should
be made by the parents, not by a mathematical formula that attempts to fit
everyone into the same size shoe. Even in cases where the parents do not have
equal timesharing, it seems appropriate for the parents to make decisions about
how and how much to support their children. Indeed, in those instances where
the parents make equal incomes and have equal time sharing, the state of Minnesota says they can support their children as they wish, without any exchange of child
support monies between them[72].
The third and
final flawed assumption underlying the child support guidelines is that they
must employ a single mathematical formula that creates fairness. When this
notion exists, there will be unfairness because it is not possible to create
a single child support formula that will work for every one of the 1.2 million
couples who divorce in the United States every year.[73]Indeed, when one observes that there are four variables
existing in all situations that create a need to address child support, then
logic requires asking “how can one formula possibly create fairness among the
variables?” The four variables are: 1) mother and father have differing
incomes; 2) mother and father spend differing amounts of money on behalf of the
children; 3) mother and father spend differing amounts of time with the
children; and 4) over time, the costs of the children will change with the
ending of day care, the starting of extracurricular activities, the arrival of
driver’s education requiring increased car insurance, etc.
In any child
support formula, income is seen as the driving force.[74] Indeed, all guidelines formulas in the
fifty states and Canada start with some income base as the coefficient to plug
into the formula tables.[75] Income figures seem to be the
philosophical underpinning of formulas based upon trying to ensure that the
children have a lifestyle similar to what they had before the divorce.[76] Each state was permitted to devise its
own formulas and many looked to other states that used the number of children
and who has primary custody as the other two factors in establishing tables and
formulas setting a proper level of child support. However, a quick analysis of
the guidelines statutes shows a wide variation between the states in the
formulas.[77] One commentator even argues that the
guidelines have become the province of the economic consultants.[78] Notably absent in the guidelines of
every state is the factor of expenses incurred on behalf of the children.
These are not part of any state’s formula, but are dealt with in the deviations
and add-ons to the basic guidelines amount.[79]
However, one must
ask that if the guidelines do have a safety valve in their recognition of
categories of deviations, add-ons and other variables that permit deviation,
then why not simply acknowledge that everyone is an individual case and let the
couple create their own compete set of deviations, together with a method of
sharing the total costs of all expenditures made on behalf of the children,
regardless of whether their result is higher or lower than the guidelines in
their own particular jurisdiction? This question will certainly be met with
raised eyebrows and urgent gasps in many quarters, (particularly those who
believe that certain types of people are prone to forsake their obligations
towards their children) but do we not ask couples to create their own laws of
fairness when there is equal time sharing and equal incomes? Do we also have
an answer for them when they ask, why are the child support guidelines formulas
so different when moving across state borders? And, are we really being fair
when we allow high income parents, and those who have chosen equal time sharing
and have equal incomes, to come up with their own method of sharing the costs
of raising the minor children? Why not extend such expectations of rational
behavior to all parents who must determine a method to share the costs of
raising their minor children in two homes instead of one?
In fact, we could
be at the point where couples are expected to build Child Support Plans, just
as they are expected to build a parenting plan. Each state’s procedures for
deviating from the guidelines and continued reliance on and gradual expansion
of these deviations can be seen as a beginning migration away from rigid
formulas towards greater use of requiring couples to itemize and share certain
categories of expenses that are either paid jointly by the parents or paid by
one of the parents as a factor to consider in adjusting the amount of support
that may be exchanged. [80] Although child support statutes seem to
see shared categories of expenses as only deviations from or additions to
whatever formula is being applied, I suggest that when shared expenses are seen
as the core of a solution, the deviation principles are actually the beginning
step in building a comprehensive Child Support Plan.
Indeed, a compelling
argument can be made that all fifty states teeter on the verge of now being
able to adopt Child Support Plan legislation. Minnesota and other states have
adopted the use of parenting plans rather than custody battles, rejecting the
notion that it is necessary to determine who is a better or worse parent which
then provides one parent a higher level of ownership and control of the
children.[81] Under the parenting plan approach, the
battle over better or worse parent is discarded and couples self-design
agreements about schedules of exchanges, ground rules for conduct, methods of
communicating and other agreements about the shared parenting of the minor
children. Similarly, a Child Support Plan provides a workable model that
allows divorcing parents to address the realistic financial needs of their
children, and more importantly, address differences in expenditure levels for
the children tied to each family’s history and desires.
Mediators have
long known that there is great power in asking a different question. The form
of the question asked influences how the issue or dispute is defined.
Professor Morton Deutsch observes that “[c]ontrolling the importance of what is
perceived to be at stake in a conflict may be one of the most effective ways of
preventing the conflict from taking a destructive course.”[82] Perhaps the reason the Children’s
Checkbook has been successful with a variety of couples at Erickson Mediation
Institute (EMI) is the fact that EMI asks a completely different question than
the guidelines. While the guidelines formulas all ask a series of questions
about who is the absent or less time parent, what is that parent’s or both
parent’s incomes, and how many children are there, the most important piece of
the puzzle is left unasked by the guidelines formulas. This missing piece is
most importantly, what have you been spending on your children in the past and
what can you afford to spend on them in the future, given the fact that you now
must incur the cost of a second household? We must ask the parents how they
will share the costs of raising their children in the future and in order to
answer this question, we must know who will be paying for what items. Building
upon Deutsch’s principles, it is possible to take the typical child support
question and re-frame it from “How much do I have to pay in child support?” to
“How can we share the costs of raising our children in the future so that it
will be fair to both of us?” Thus, a mutual journey begins. In the task of
answering the question, parents will learn new methods of cooperation. They
will also have failures, but they will not view the task as a contest, where
one side wins and the other side looses. They will rather begin to view the
journey as a problem that must be solved. This new approach of creating a
Child Support Plan welcomes and accounts for the inherent complexities that
divorced and never-married parents face: they live in two separate homes, may
have differing incomes, spend differing amounts of money on their children, and
care for them differing amounts of time. Moreover, building a Child Support
Plan acknowledges the need for and allows flexibility for parents to deal with
the changes in children’s expenses, for example increased extracurricular or
sporting activities and expenses associated with becoming a teenager.
For too long, we
have assumed that the child support question could be simply answered by
looking at incomes and time variants and creating a formula. As long ago as
1989, some courts recognized that the wrong questions were being asked.[83] In an Idaho case, Justice Johnson’s Stockwell v. Stockwell concurring opinion showed that he understood the implications
of asking the correct questions by recognizing that the focus and questions
should be centered on the parent’s future decision making and not on ownership
rights or time with the child.[84] More recently, the Oregon Statewide
Family Law Advisory Subcommittee reached a similar conclusion by observing that
the need to frame family law questions in a future focus requires a paradigm
shift in thinking.[85]
Disputes in
Family law are poly-centric and do not always fit into neat patterns. The
Futures Subcommittee recognized the concept [of parenting plans] represents a
paradigm shift in family law. “Plan is a very different word than “award”: plan
is the future, award is the past; plan is collaborative, award is competitive;
plan implies problem-solving, award implies a contest. The help attorneys and
courts need to provide for families is to give them the knowledge and the
skills to develop their own plans, not to provide “cookie cutter” plans.[86]
To understand why
we keep asking the wrong question, what I submit is that it is helpful to
realize that how child support is paid is a factor in limiting our ability to
make this necessary paradigm shift in thinking. In order to make this shift,
we must acknowledge that there are really three methods for managing child
support, not just one. First, child support can be paid from the absent parent
to the other, but, second, it can also be paid by buying items directly for the
children, or, thirdly, it can be paid by both parents to a checkbook that is
then used to buy items or to pay for expenses for the children.
First, as
discussed above, the guidelines support model always puts one parent in charge
of buying items for the children.[87] This method assumes that because
parents cannot live together as husband and wife, they certainly cannot raise
their children together and therefore must put one parent in charge of the
children and their care, because after all, one of them is the “absent” or
perhaps “more absent” parent.[88] This method appears simple; it is the
least complicated and supposedly the least conflict producing because the
parents have no interaction other than money exchanging hands. Because the
guidelines say nothing about what items the child support should cover, a
complex system of deviations and add-ons has evolved.[89] Moreover, when nothing is said about
what the child support covers, the following may likely occur:
Son, I can’t
possibly buy you that new 12 speed mountain bike you have been asking for.
You’ll have to speak with your father, he earns three times as much as I do.”
(Next time son is with dad) “Son, what is your mother doing with all of the
money I send her, she gets $1,321 a month from me in child support. She should
use it on you.
The second method
of managing child support is for each parent to pay for items directly.
Indeed, there is beginning to be statutory and case law recognition of some
parts of the Children’s Checkbook principle.[90] Parents can pay for items directly, or
from a checkbook and not necessarily always be required to have the obligor
send a formulaic amount of money over to the obligee who becomes the supply
sergeant because we cannot trust them to cooperate. This method of direct
payment of children’s expenses is beginning to be more frequently used by those
couples who engage in approximately equal time sharing.[91] It is also the principle announced in
the Minnesota case of Valento v. Valento[92] whereby the court declared that the
higher income parent should send money to the other to help equalize the
disparity in incomes. Yet the underlying assumption of the Valento case
is that both parents will buy an approximately equal amount of food, clothing
and other items used by the children because the children are with each parent
equally. This is also the principle of the new Minnesota Income Shares Child
Support Model effective January 1, 2007 in Minnesota. Under the new statute,
there is no child support exchanged when there is equal income and equal time-sharing
of the children.[93] However, in order for couples to be
sure that they are each purchasing about equal amounts of child related items,
it is necessary to have some system of record keeping. One attorney familiar
with couples using the checkbook reports that those who do not use a checkbook
seem to have more conflict than those couples who use a joint checkbook for
paying and managing shared expenses.[94]
This second form
of child support, recognized not only in Minnesota but in other states, is to
share certain children’s expenses by paying these costs directly and then to
adjust, reimburse, or compensate the other for fronting the costs.[95] In the broad scheme of child support formulas,
sharing payment for these costs such as day care expenses or shared medical
support is not the central part of the core formula computation and paying for
these items directly has been seen as add-ons or a deviations. With the use of
a children’s checking account to create a Child Support Plan, all items that
are deemed to be shared expenses are paid directly from the checkbook and
either one or both parents uses the checkbook. Therefore, a third method is to
pay child support to a checking account and the checkbook is the mechanism for
sharing the children’s costs, much as several co-owners of a duplex may use one
checkbook to track income and expenses of the operation.
Although there
are a number of forms that a Child Support Plan could take, this article
recommends the use of a Children’s Checkbook as a tested and successful method
of developing a Child Support Plan. Of all the methods of managing child
support discussed here, a Child Support Plan and sharing the expenses through
the use of a joint checkbook is the only method that resolves the flawed
assumptions discussed above. Mediators have been using Child Support plans for
many years. For two decades, parents mediating their divorces at EMI have used
the Children’s Checkbook Method to calculate and share child support.
The idea for the
Children’s Checkbook was originated in 1981 as a suggestion by EMI to parents
adopting 50-50 time sharing. The Children’s Checkbook calls for each parent to
contribute monthly amounts into a joint account that is then used by each
parent to pay for all agreed upon, or court ordered, expenses, incurred on
behalf of the children. It establishes support levels based on the actual
needs of each family, rather than a one-size-fits-all approach.
Because the
amounts placed into the joint Children’s Checkbook are tied to the unique and
individual budget needs of the children, it allows the children to continue
their standard of living as was established during the ongoing marriage.[96] By unhooking the calculation of child
support from the custody and/or visitation determination, the checkbook
arrangement also solves the problem of trading days for dollars.[97] By using a proportionate contribution most
often based upon the gross incomes of the parents, the Children’s Checkbook
Method can also embrace another principle well established in the law which is
that child support should be based upon ability to pay[98] and in those states with an income
shares model, upon the abilities of both parents to pay[99]. Finally, and most importantly, the checkbook
method enhances cooperation by scheduling periodic reviews of the budget,
obviating the need for constant motions to amend.
On balance, this
approach does a better job of creating fairness, allows for a simplified method
of modification, and creates a written record for the parties of their shared
expenses that is automatically tracked through bank statements, all of which
results in better compliance and more cooperation, goals that have previously
eluded legislators, jurists and commentators of the current system. Because
this joint account is shared and managed by both parents, it provides for the
opportunity to not only create fairness, but to also more readily involve both
parents in providing for the children’s needs.[100]
Children’s Monthly Budget | |||
Expense Item | SeparatelyPaid by Mom Separately | Shared using Joint Checkbook | SeparatelyPaid by Dad Separately |
Food | 100 | 100 | |
Lunches | 78 | ||
Eating | 50 | 50 | |
Clothing | 100 | ||
Medical | (Through Mom) 121 | ||
Uncovered | 25 | ||
Prescriptions | 12 | ||
Eye | 15 | ||
Therapy | |||
Uncovered | 12 | ||
Orthodontia | 150 | ||
Gas/Oil | 45 | ||
Maintenance | 50 | ||
Auto | 120 | ||
License | 7 | ||
Recreation/Entertainment | 75 | 75 | |
Vacations/Travel | 50 | 50 | |
Personal | 25 | ||
Hair | 10 | ||
Child | 325 | ||
Tuition | |||
Books/Supplies | 10 | ||
Allowances | 25 | ||
Non-School | 45 | ||
Sports | 35 | ||
Piano | 55 | ||
Pet | 10 | ||
Gifts | 15 | ||
TOTALS: | 275 | 1290 | 275 |
EMI couples have
helped refine the delineation between a shared expense and a separately paid
expense not to be shared between the two parents. Much of this is common
sense, but a search of other state statutes reveals that may states see these
categories of additional expense as either added on to the basic child support
amount paid or as a shared expense between the parties.[101]
Prescriptions,
eye care, therapy, counseling, and orthodontia are expense categories are
traditionally seen as shared expenses, not only in the Children’s Checkbook
process but also in Minnesota.[106] The couple is asked not to predict what
these costs will be in the future, but to list a general level of family
medical expense needs based upon past experience. Some families rely heavily
on medicine while other families spend very little on this category of
expenses. Costs depend on a family’s level of health and access to medical
services.
Colorado lists a blanket reason for deviation:
“Deviation is allowed where application of the guideline would be inequitable,
unjust, or inappropriate.”[111] Most states appear to have a general
fairness deviation such as New York’s calling for deviation “if the amount is
unjust or inappropriate when considering the financial resources of the parents
and of the child.”[112] Arkansas has a peculiar blanket
deviation that to throws in everything except the kitchen sink. It says that
“relevant factors [for a deviation] include: food; shelter and utilities; clothing;
medical expenses; educational expenses; dental expenses; child care; accustomed
standard of living; recreation; insurance; transportation expenses; and other income
or assets available to support the child from whatever source.”[113] Finally, Minnesota’s new income shares
model lists deviation factors. The Senate author of the bill that created the
new statute writes:
Section 17 of
the new law includes a philosophical statement that “deviation is intended to
encourage prompt and regular payments, and to prevent either parent or the
joint child from living in poverty.” The author [of the bill] expects that this
statement will send a message to courts that they should allow deviation in
order to create fair child support orders.[114]
After completing
the task of building the budget, the parents have now answered the question of
what it costs their particular family to raise the children. They next must
determine how to share the costs as well as whether each of them is able to
meet their combined living expenses when their personal budgets are added in.
It is helpful when working with couples on this task to use a divorce planning
software program to calculate their income, expenses and budget shortfalls.
There are several available that are quite useful in helping couples view their
entire cash flow picture.[115] These software programs can also
calculate the guidelines child support amount in their state for comparison
purposes when discussing the use of the Children’s Checkbook.
I urge that
greater use of the Children’s Checkbook Method will lead to more cooperation
and mutuality of ownership of the final result. Child support statutes should
require mediation to be the first choice. If mediation fails, the couple can
always ask for a judicial ruling. This approach would begin to eliminate
unhealthy conflict and positional bargaining arguments so that the child
support arrangements are driven more by actual numbers and by family choices
rather than by which interpretation of a formula prevails. Or, as one
commentator has observed in support of settlement as opposed to relying on
court rulings for these intimate family decisions:
Through
individually adaptive solutions in settlement we may see the limits of law and
explore avenues for law reform. Settlement (and its sometime rejection of law)
could just as easily be seen as a democratic expression of individual justice
where rules made for the aggregate would either be unjust, or simply irrelevant
to the achievement of justice in individual cases. Settlement is, thus, not
“unprincipled,” but may be seen as aquestioning of particular principles or the
application of different individually adaptive principles.[116]
Indeed, when
parents are asked to jointly create a budget for what they believe they will
spend on the children in the next twelve months, they are essentially designing
their own deviations each time they decide what they can afford for their
children and what they want their children to have. Jim Coogler, the Atlanta attorney widely credited with being the first to create a structured process of
divorce mediation, often said to couples in the mediation room, “I want to help
you create your own law of fairness.”[117] He also found in his early work with
couples that when he assigned them a joint task to complete, they would engage
in the joint effort and forget about their differences.[118] When couples are engaged in the joint
task of discussing fairness and they are busy determining the amount of money
they have to spend on their children, they are building trust and fairness.
When couples are in the process of preparing for a temporary hearing, they are
more likely to feel as if they are in an adversarial process and are less
likely to recognize that because they are aligned together for the duration of
the children’s minority, they must find a way to cooperate.
The Oregon
Futures Commission recognized that when the focus of the task is changed from
finding an “award” to creating a “plan,” a paradigm shift occurs.[119] This shift in thinking is created by
redefining the problem in a more future-focused manner that requires a joint
effort to solve the problem. Perhaps other states could take the simplified approach
that Tennessee takes with its parenting plan legislation and require that
within 30 days of filing an action for dissolution, the parents must submit a
proposed Child Support Plan (together with their proposed parenting plan) and
if there are differences in the plans, the parties will be referred to
mediation.[120]
Account
for Differences in Each Family’s Expenditures
Child support
statutes should take into account the actual specific costs of child-related
expenses (sometimes referred to as ‘the needs of the children’) rather than
relying upon outdated or generalized national data about average costs of
raising children. In a curious backward way, the courts do take into account
the cost needs of the children when a rote application of the guidelines
formula to very high income parents results in unfair and preposterous child
support amounts, sometimes referred to as the “three ponies rule.”[121] If high income parents are permitted to
argue that the guidelines formulas infringe upon their right to “direct the
lifestyle of his or her children,” then why shouldn’t all parents be permitted
and indeed encouraged to engage in the same discussion about the level of
funding that their children need or require?
Account
for Who Pays Which Expenses of the Children
In addition to
allowing each family to decide for itself the level of child related expenses,
greater use of the Children’s Checkbook would also direct which parent pays for
which expenses of the children. This approach can take into account
differences in housing, when, for example, in mediation, parties will
frequently decide that the one parent should stay in the family home, even
though that home is quite expensive and requires a joint sacrifice to be made
by both parents. It is doubtful that judges could really “deviate” enough from
the guidelines in order to take into account the need for this sacrifice. This
is actually a decision that must be made by the parents.
Furthermore, in
order to prevent confusion and to lessen conflict, it would be helpful if all
couples getting divorced took some time to discuss exactly what items and at
what level of costs the recipient of child support should be expected to
purchase on behalf of the children. As more and more parents are engaging in
equal or near equal time sharing and as men’s and women’s incomes reach more
equivalency, the checkbook method assists couples in being clear and specific
about how they will equally share the costs of raising the minor children.
For almost all
parents who experience differing incomes, unequal time with the children, and
dissimilar purchasing patterns for the children, allowing parents to clarify
spending patterns through the use of the Children’s Checkbook would also likely
reduce the number of post decree motions to change child support.
The Children’s Checkbook Method
disconnects the child support calculation from the custody arrangement and the
problem of trading days for dollars is eliminated. In other words, it does not
matter whether one parent is the visitor, or the physical custody parent, or
whether the parties are calling their arrangement a shared parenting plan,
joint custody, split custody, sole custody, or whether the schedule is 50-50,
60-40, or 80-20 with each parent. The Children’s Checkbook Method recognizes
that the only expense that is really affected by changes in the schedule is the
number of meals provided by each parent (and perhaps in some cases the
electricity bill from kids leaving lights on and the water bill because of long
showers). Otherwise, all of the other expenses remain constant and can be paid
by either parent. It becomes simply a matter of determining who is going to
pay for which items needed by the children and what these costs are. When they
are paid through a checkbook mechanism, the real discussion can then center on
what can be afforded and how much more the higher income parent should be
contributing to these expenses. In most cases where couples are using and
being successful at the checkbook method, the parents contribute to the checkbook
on a proportional basis according to their gross or net incomes.
Both
Parents are Contributing to the Children’s Expenses
The checkbook
method allows for and encourages more participation from both parents and does
not allow for a slide back into the totally discretionary situation that the
guidelines were determined to avoid. Just as the parenting plan approach adds
much more detail to the typical one sentence custody award, the Children’s
Checkbook Method provides for a more comprehensive approach that also gives
parents an easy record to review when modification is needed. When both
parents participate in building the Support Plan, compliance with the final
agreement will likely increase because the parents participated in designing
the agreement themselves. Use of the checkbook allows for the lower income
parent to fully participate in the purchases of items for the children rather
than saying, “You will just have to get that from your mother, she makes more
than I do.”
Parents using the
checkbook method can readily see where the funds are being spent. There is no
need to keep track of and exchange receipts because the checkbook automatically
records everything for the parents. The whole system is open and transparent
to both. As to the obvious concern that one person will use the checkbook
approach to control or harass the other parent, many mothers (who will often
take on more of the purchasing of items for the children) report that the use
of the checkbook “really proves how expensive it is to raise children.” [122]
Courts could take
the posture of the Texas court in Bailey v. Bailey [123] and supervise the use of the checkbook.
They could also require parents to retain the checkbook for examination by the
court in any dispute. However, more likely, if the parents cannot maintain
cooperation around the use of the checkbook, the language as set forth in the
Appendix suggests that they will simply discontinue the method and follow the
existing child support statutes in force at the time they stop using the checkbook.
The language used
in the application of the checkbook method suggests that parents share the
total agreed-upon costs of the children through a proportional sharing of the
total monthly costs using gross income figures. Parents are expected to
exchange income verification each year (usually W-2 statements are sufficient
or some other verification mechanism such as tax returns) and as incomes
change, the pro rata contribution to the checking account will change.
It is time to
reject the notion that we might find the proper child support payment level
through application of a perfect formula. Rather, let us use our energy and
resources to encourage parents to create Child Support Plans.[124] We must recognize that, even when
deviations from the formula are meant to take off the rough edges of rote
application of the guidelines tables, fairness is always elusive, particularly
when someone other than the parents makes such important decisions for them.
If the impetus for parenting plans was a paradigm shift away from fighting over
who was a better or worse parent, we should likewise begin to frame the child
support question in a similar future-focused fashion that requires cooperation
to answer the question. We should ask parents to jointly build Child Support
Plans, and we must also give them the tools to accomplish this task. One of
the tools is the language found in the Appendix that sets forth language
developed by Erickson Mediation Institute during the past 30 years of practice.
Divorcingcouples can be successful at sharing the costs of raising
children in two separate homes when guided through a process of first
setting the amount of each category of children’s costs and then negotiating
the method of sharing these costs.
Realistically, a
Child Support Plan would be no more difficult for courts and hearing officers
to administer than the current task concerning parenting plans. However, most
parents would need the assistance of a neutral mediator, much as they are doing
now with the creation of parenting plans. Such a re-focusing of the statutes
would recognize the complexity of the task and would allow each family to find
fairness on its own with the guidance of a mediator. Just as the statutory
movement towards parenting plan legislation was recognition that cooperation
was better than adversarial posturing, this article argues that the use of a
Children’s Checkbook approach is consistent with the family court’s emphasis on
the greater use of mediation to encourage post-divorce cooperation. The use of
a Children’s Checkbook is also consistent with each state’s slow movement
towards creating more shared categories of costs.[125]
View Child Support Plan & Children’s Checkbook: Sample Language
View all footnotes for this article.
Ethan Katsh, interviewed by Colin Rule, for the International Council of Online Dispute Resolution (icodr.org) and Mediate.com -- August 6, 2020 https://youtu.be/2wxcJZrcDxk
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