Originally published in NEW WOMAN magazine in February 1991
Divorce doesn’t mean you and your children have to live in poverty. A leading divorce lawyer answers some common questions on how to safeguard your financial future.
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SOCIAL SCIENTISTS HAVE A NAME for divorced mothers: the new poor. One study shows former wives and their children in California suffering a 73 percent loss in their standard of living while ex-husbands gain 42 percent. Ironically, a significant number of women today are in financial need as a result of new divorce laws that declared them to be the legal equals of men rather than helpless dependents. But in most families men still control the money, and women in our society do not have equal career opportunities and earning power. In addition, judges in divorce cases, often older men, are not always sensitive to the true needs of mothers and young children. As a result, equality on paper has turned into deprivation in real life.
As a divorce lawyer I constantly see women wrenched from comfortable homes and thrown into near-poverty, struggling to give their children a semblance of the life they had before the family breakup. If you are facing divorce, it is best to seek a skillful, tough-minded matrimonial lawyer to represent you, because not all lawyers are experienced at anticipating a single mother’s financial needs, and state laws vary. There is also much that you need to know and do to protect yourself and your children. If you are already divorced, there are steps you can take to increase your support or collect it when your ex-husband stops paying. Here are answers to the most crucial questions.
My soon-to-be ex-husband tells me I’m entitled to only 17 percent of his income as support for our child. But this is not nearly enough. What can I do?
State guidelines for child support vary. New York, which is fairly typical, allots the following percentages of a couple’s combined income up to $80,000 a year: 17 percent for one child, 25 percent for two, 29 percent for three, 31 percent for four, and 35 percent for five or more. Judges still have much leeway, and their custody awards are uncertain, To obtain maximum support, you and your lawyer will have to start by getting a fix on how much of your family’s income has gone for the child’s upkeep in the past and then look ahead to the additional expenses of two households—a second car, the need for baby-sitters, etc. (One estimate is that it takes between 75 and 80 percent of the former family’s income for a mother and two children to live alone at the same standard.)
If your divorce goes to trial, you will have to present evidence about your family’s standard of living: vacations, private schools, summer camps, music lessons, and any other advantages the child has had. Beyond that, if you have stayed home and now are going out to work, you should anticipate what it will cost for child care.
I stopped working when my daughter was born five years ago. It will take time to get back into the job market. Can I get alimony for myself as well as child support?
Under the new laws, long-term alimony is rare. Now called rehabilitative maintenance, it is usually given for only two or three years to women in your situation. The courts assume this is sufficient time for a former wife to update her job skills or get training to enable her to support herself. How a woman is supposed to do this while raising a young child and trying to find affordable day care isa problem that judges (and ex-husbands) ignore. Your lawyer will have to make a strong case for how much you will need for how long and impress a judge with your sacrifice of earning potential during the marriage.
My ex-husband is willing to provide $10,000 a year for my two children and me. Does it matter whether we call it maintenance or child support?
It does—for several reasons. In almost all cases, you will pay taxes on maintenance but not on child support. Maintenance may stop after a few years, but children get support until they are 18 or 21 depending on state law. If you remarry, maintenance usually ends but child support goes on. And if your former husband suffers a loss of income beyond his control, he has more of a chance of persuading a judge to reduce your support than the children’s.
My kids are 2 and 4. What happens to the child support payments as they get older?
Nothing. Unless your agreement or the judge’s order calls for periodic increases, you will be getting the same amount for almost two decades, while inflation eats away at its buying power. And as your children grow, it will cost more to meet their needs; one estimate is that living expenses are 23 percent higher for teenagers than for younger children.
You should try to negotiate or get the court to order an annual increase of 5 or 10 percent, or a larger increment every two or three years, and at the same time specify all the major future expenditures yourformer husband will cover— private schools, summer camps, orthodontia, college and postgraduate tuitions (without such a provision, child support ends at 18 or 21).
During the divorce I was in a highly emotional state and only wanted to get out of a bad marriage as fast as I could. Now my kids and I don’t have enough to live on. What can I do?
You can ask the court for an upward modification, particularly if there has been a change of circumstance—e.g., your ex-husband’s income has gone up sharply while an illness or accident has caused unforeseen expenses you did not previously have.
Modification proceedings are like divorce trials. They can be time-consuming and expensive, but there are shortcuts. First, the threat of an action may pressure your ex-husband into negotiating a voluntary increase. Second, you may save lawyers’ fees by applying directly to the family court or domestic relations court in your community. It would be prudent to pay for a consultation with an experienced matrimonial attorney to go over the facts of your case and get advice on what to expect and how to proceed. If you can’t afford this, call your local Legal Aid Society for help.
My ex-husband stopped paying child support and threatens to disappear if I try to collect. Can he get away with this?
There are new ways to help you stop him. Each state now has an Office of Child Support Enforcement (O.C.S.E.) with the power to deduct overdue payments from a father’s salary or intercept any tax refunds he has coming. Or you can apply for help to your family court. In either case, you may be able to bypass the expense of legal fees. If large amounts are involved and/or your ex-husband has his own business, you may need to hire an experienced matrimonial lawyer who specializes in enforcement. Ask the local Bar Association for referrals. If your former husband does disappear, you may have to hire a detective to track him down. If you can’t afford one, try to get help from the O.C.S.E. or the local office of the Uniform Reciprocal Enforcement of Support Act, which was set up to collect child support across state lines.