Loeb & Herman, S.C. ::: Articles | Comments on Divorce and Family Law In The Twenty-First Century

Comments on Divorce and Family Law In The Twenty-First Century

By Leonard L. Loeb
Milwaukee Messenger

Wow! How times (and the legal profession) have changed since the more than one quarter-century ago when Comments on Divorce and Family Law for the Fall 1972 issue of Gavel was written.

Having taken Comments out of the time-capsule and dusted it off for review, it provided an enlightening commentary of the progression, or arguably regression, of the character and morality of husbands, wives and the legal profession as it relates to family law.

The genesis of "no-fault" divorce in the 1970s has resulted in divorce-on-demand. Gone are the familiar grounds of: cruel and inhuman treatment, adultery, alienation of affection and the like. From a practical standpoint, all that is required to now obtain a divorce is: (1) meeting modest residency requirements, (2) the expiration of 120 days from the date the summons and petition were served on the respondent, (3) a statement from one party that the marriage is irretrievably broken, and (4) a marital settlement agreement or trial on the unresolved custody, placement and financial issues.

On one hand, no-fault has served to ease the high-charged emotions caused by having to make on-the-record and often embarrassing allegations and proofs with regard to improper marital conduct, when clearly the marriage could not be reconciled. On the other hand, the more streamlined system has enabled parties, predominantly younger couples, easy access to the "bail-out" solution. The shear number of currently failed two, three and four year marriages staggers the imagination. The devil’s advocate may argue that easy divorce is not the problem, but rather easy marriage. Some states, including Wisconsin, have begun investigating the notion of a voluntary "covenant marriage" which requires the parties to undertake substantial efforts to become married, as well as to overcome certain burdens to get a divorce. In essence, parties would have the option to resurrect the former fault system.

On the positive side, from a custody and placement standpoint, more fathers appear interested in having greater periods of physical placement with their children. Tainting this achievement is an ever-growing number of parents whose desires for increased placement are merely a thinly-veiled attempt to obtain a reduction in the amount of their child support obligation.

Along those same lines has been a trend in the family law field for a call for gender equity or neutrality in trial court decisions. Such a concept would intimate that the court would reach the same determination if the parties’ positions would be reversed. However, there remains an unwritten presumption that a mother shall have primary placement with the minor children. Further, given that more women are professionals outside the home that earn substantially more income than at the time of the Comments article was written, the number of cases wherein a wife is ordered to pay maintenance (formerly "alimony") to her former husband are de minimus. Also, although adultery is not to be considered in support determinations, many comment that women who engage in such conduct tend to feel a more punitive impact from trial courts than do men in similar situations. Relatively speaking, the notion of gender equity / neutrality is still in its infancy and the courts have unequivocally committed to achieving this worthy goal.

The award of child support has been simplified (?) in that there is a presumption that a percentage of payor’s gross income guidelines, dependent on the number of minor children, will apply. Formulaic adjustments are made if the parent with secondary placement has greater than 30% placement with the children, and the payee’s income is considered once the parent with secondary placement has placement in excess of 40%. Exceptionally high or low income levels may warrant appropriate deviation from the percentage guidelines.

"Simplified" was appropriately followed by a question mark in the above paragraph as the battles created from the implementation of the percentage guidelines include: the calculation of exactly how much placement each party has and, as discussed above, fights for greater placement to reduce child support.

Child support terminates upon the child reaching age eighteen, or pursuing a high school diploma or equivalent, but in any event shall terminate at age nineteen. At this time, neither parent can be ordered to support a child past this period, unless they contract otherwise. However, a recent supreme court paternity case approved a trial court in a high income household that ordered that the overage resulting from the child support percentage guideline amount, less the actual needs of the child, be held in trust for the higher education of the child. Its application to divorce cases remains unresolved.

Maintenance, formerly known as alimony, requires the court to consider a number of statutory factors, including but not limited to: the length of the marriage, the earning capacity of the parties, the parties’ health, the feasibility that a party will become self-supporting at the same standard during the marriage, mutual agreements (i.e. one party breadwinner, one party homemaker) and contributions to the education, training or increased earning power of the other spouse.

A common theme in the last twenty-five years has been a sharp increase in parties shirking their responsibility to pay support. In such a case, the courts have the authority to impute income to the shirking party and set the support amount from that imputed income figure.

More recently, the effect on retirement accounts, predominantly pensions, on the ability for a maintenance payor to have maintenance terminated upon retirement has gained first billing on the list of family law hot topics. Although at reasonable retirement ages maintenance payors commonly feel that they have earned retirement and should enjoy the fruits of their post-divorce labors, which is often when the pensions are valued for purposes of distribtuion, recent court cases can be interpreted to frustrate such a notion.

Unlike the other areas discussed herein, property division has seen an evolution, as opposed to a revolution. Absent a showing of hardship, all property of the parties, except that received by gift or inheritance, and not commingled with other joint assets, is considered marital property. Marital property is subjected to a presumption of a 50/50 division, and deviations from 50/50 are very rare. However, courts properly refuse to condone unjust enrichment. Thus, most often in very short term marriages, the courts take a "no harm, no foul" approach, that is, each party leaves with what they came.

From a valuation perspective, assets are still to be valued as of the time of divorce. Business valuation issues such as marketability and minority discounting, valuation and divisibility of goodwill and appreciation of non-marital stock interests in businesses have not played themselves to definitive conclusions in the appellate courts. Rather, for every case addressing the aforementioned issues in favor of a client, there exists another case opposing that position.

Much of this uncertainty in property division issues falls with the notion that virtually all decisions made by a trial court in a family law matter are discretionary. Therefore, if a judge exercises reasoned judgment and carefully explains its rationale, affirmance is probable. The positive feature to the discretion of a trial court is that the court has the ability to carefully tailor its decision to the specific facts of a given case. The great negative is that it becomes very difficult to counsel a client as to the law in support or opposition of their position, and rather the focus becomes heavily weighed on the inherent tendencies of a particular judge.

The last issue worth addressing relates to professionalism and congeniality as the twenty-first century approaches. The tone of the family law bar has become substantially more aggressive and attacking over the last twenty-five years. The increase in the number of lawyers competing for the same dollar, the number of non-family lawyers practicing family law as a default specialty and the increased emotional involvement family lawyers apply in their cases certainly contribute to the aggressive posturing. Clearly, litigation is an important facet of family law when both parties have strong positions and settlement has failed. However, litigation should be the last option, not the first.

Negotiation skills badly need enhancement and all too often they have been replaced by the "take it or leave it" style of negotiating. The expense, both financial and emotional, attendant to endless and ruthless litigation almost exclusively exceeds the benefits of a total and complete victory, if there is such a thing. Parties are far more likely to adhere to the provisions of a stipulated settlement than a decision forced upon them by a court, who merely knows the parties by a case number. We have a duty to do all within our power to enable our clients to receive reasonable results in their matter and most importantly, to provide closure.