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
On Fri, 17 Jun 2005 09:51:06 -0400
"Chairman PWR & Florida CRC"
Is parent obligated to work to help
support kids? [Law Article from CNN.com]
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
Thursday, June 16, 2005 Posted: 2:06
PM EDT (1806 GMT)
(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.
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.
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.
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
Other states, however, have ruled
differently. And overall, America
features a checkered legal landscape
on the treatment of divorced parents
who forgo income in favor of at-home
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
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.
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
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.
Pursuant to a 1988 federal law, every
state today maintains child support
guidelines that dictate exactly how
much a noncustodial parent should
be obligated to pay. The guidelines
in each state are derived from a set
formula, which is supposed to produce
an appropriate amount of support to
meet children's needs.
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
States tend to follow one of three
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.
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.
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.
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.
Definition of income
While state definitions of "income"
vary, most permit judges to replace
actual income with earning capacity
in appropriate circumstances.
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
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
That is the question the Wisconsin
courts grappled with in Chen v.
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.
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
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
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.
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.
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.
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.
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?
The answer is: It's generally up to
the court's discretion.
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?
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.
Wisconsin has no statutory exception,
however. The statute permits the discretionary
imputation of income if it concludes
that a parent is "shirking"
- the state's term for voluntary un-
or under-employment. ("Shirking,"
despite its very pejorative connotations,
is used by Wisconsin courts simply
to describe any unreasonable voluntary
decision to reduce or forgo income,
regardless of motive.)
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.
Was decision reasonable?
The parties in the case all agreed
that the unemployment was voluntary,
and that the true purpose was for
Chen to spend more time with her children.
But was it reasonable?
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
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
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
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
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
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.