April 2009 Washington State Bar Bulletin

It’s Time To Radically Reform Dissolution Law

By Henry E. Lippek

Dissolution practice and procedure have become highly dysfunctional because these proceedings unduly increase adversity and discourage reasonable compromise among the parties. The rules have become too complicated and unpredictable, and the process costs too much. A recent Consumer Reports analysis of the most-costly financial blunders rated highly contested dissolutions as No. 2.1 A lifetime of accumulations can be, and all too often are, wiped out by divorce.

Courts or administrative agencies can perform tolerably in allocating objective financial responsibilities. But these systems are wholly unsuited for dealing with values, beliefs and emotions — and should get out of attempting to do so.

The present system makes a difficult transition far worse. It accentuates the negative, airs intensely private matters in public, invades privacy and can extract a horrific emotional and financial toll on parents and children. It’s time for change.

Many years ago the ”no-fault” dissolution model was adopted because it became clear that it was unproductive to try to determine who caused a marriage to break up. But the “fault” concept still is very much alive in determining parenting plans. Just as determining “fault” for a divorce is counterproductive, determining what is in the “best interests of the children” is equally elusive and futile because it encourages fabricated testimony, exaggeration of blame and a misplaced drive to punish for perceived wrongs. That should change, as well as several other outmoded concepts that now dominate dissolution proceedings.

The dissolution process is so repulsive that it may contribute to a majority of adults in the United States choosing not to marry.2 No one in their right mind would voluntarily submit to the indignities that a contested dissolution has become.

The process has become so oppressive and coercive that it threatens core freedoms and undermines social tranquility. For example, in the zeal to collect support, a child support or maintenance obligation cannot be retroactively modified or discharged in bankruptcy. In the United States today, not only can an obligor be imprisoned for non-payment of child support or maintenance, but his or her mobility and very livelihood can be extinguished.3 This obligation is enforceable in all states and in most foreign countries.

Dissolution orders are despised because people, who once loved but now hate each other, are by law financially bound long after their relationship is terminated. This approach is wholly unnecessary and counterproductive. It festers resentment, drains resources from current relationships, impairs fresh starts and promotes fraud.

The following new model would reduce the collateral damage of dissolution and protect children.

Parenting Plans Should Be Presumptively Equal

If the parties do not work out a different schedule themselves, the delivering parent drops the children off at school or daycare Wednesday morning and the receiving parent picks up the children at school or daycare Wednesday afternoon. Each has equal residential time on alternating weeks, both using the same school or daycare, throughout the year. There is no variance for holidays, birthdays or special occasions.

In the summer, each parent gets one month of exclusive time, upon reasonable notice. Each parent is free, without interference from the other, to schedule activities during his or her time, but not during the other’s time (except upon advance written agreement). Restrictions on a parent’s time due to neglect or abuse, drug or alcohol use, or other reasons would be handled by DSHS or other agencies outside of the dissolution proceeding.

No Child Support Transfer Payments

Each parent contributes to benefit the children during his or her respective equal residential time. The number of women employed in the U.S. is approaching the number of men, but the current unemployment rate for adult women is 20% less than for adult men.4 Washington and many other states have adopted an equal rights amendment.5

Child support transfer payments perpetuate a culture of dependence and victimhood. Once the marriage is dissolved, each parent should be responsible for his or her own destiny and should no longer look for financial support from the former spouse. If a parent is disabled, or otherwise not able to earn a living, that should be addressed by disability, unemployment, public assistance, adoption or other programs, without indemnification from the other parent.

Maintenance Eliminated in Most Cases

Neither former spouse would be eligible to receive maintenance from the other after separation if the parties had no children. Even if the parties had children, maintenance would be provided for two years only in an amount equal to 15% of the obligor’s adjusted gross income for federal income tax purposes, if — and only if — during the five years preceding the date of separation, the obligee did not earn an adjusted gross income for federal income tax purposes in excess of an amount equal to the minimum wage times 2,000 hours.

The purpose of maintenance would be to provide brief transition financial assistance to a party that did not work outside the home during the relationship.

Retained Separate Assets and Liabilities

If a party maintained separate liabilities or assets during the relationship, then the end of the marriage should not be an occasion for redistribution of these assets or liabilities.

Equal Allocation of Community Assets and Liabilities

Divide net community assets and liabilities in equal shares. The process can be further simplified if one party gets to value each asset and liability and the other gets to choose which asset or liability to take.

These reforms would encourage collaborative dissolutions wherever possible. But if the parties do not pursue that path, they would provide a stable, simplified and predictable framework for court imposition of dissolution decrees that reduce the unacceptable expense, uncertainty and emotional toll of the current process. This approach would implement the policy of RCW ch. 26.09 far better than the current system.

Most of these revisions could and should be adopted by amendments to local court rules and by the consistent exercise of discretion under existing statutes. It is important for judicial officers to move constantly to correct problems and repair damage, even without new legislation.6

* * * *

Counterpoint

Social engineering should have little place in dissolution proceedings. There are often differences in the economic prospects for each parent. The problem is that narrowing those differences in a contested case often costs more than the transfer payment at issue. These differences should be addressed by enforcement of equal pay requirements or celebration of different values:

One parent may want to maximize his or her income, which is often at the expense of time with children; the other parent may reduce income by pursuing employment with less pay, stress and hours, and instead focus on quality time with children. Children’s exposure to both approaches may be a net benefit compared to the present system of transfer payments.

Despite decades of effort and many studies, we still do not have agreement among parents or experts on the economic cost of children and the proper level of the child support schedule. The ultimate problem is that child rearing is under-compensated, and in most households both parents work outside the home.

After dissolution, there are even stronger pressures for both parents to work and neither parent spends direct personal time with his or her children during work time. Thus, an equal-time parenting plan is more appropriate to today’s needs than it would have been in the 1950s when one parent — then usually the mother — did not work outside the home.

Henry Lippek is a civil litigator with The Family Law Group, reachable at 206 689-8510 or lippek@aol.com.

1 “12 money mistakes that could cost you $1,000,000.” Consumer Reports, February 2008. The second most costly financial blunder: Launching a divorce war costs $49,000 to $188,000.

2 Sam Roberts, “51% of Women Are Now Living Without Spouse,” The New York Times, January 16, 2007, www.nytimes.com/2007/01/16/us/16census.html.

3 Subparagraph 3.5 of the mandatory Order of Child Support form provides in relevant part: “The obligor parent’s privileges to obtain or maintain a license, certificate, registration, permit, approval, or other similar document issued by a licensing entity evidencing admission to or granting authority to engage in a profession, occupation, business, industry, recreational pursuit, or the operation of a motor vehicle may be denied or may be suspended if the obligor parent is not in compliance with this support order as provided in Chapter 74.20A Revised Code of Washington.”

4 In February, 67 million women over 16 were employed compared to 75 million men. U.S. Department of Labor, Bureau of Labor Statistics, Table A-1, Employment Status of the Civilian Population by Sex and Age, Economic News Release (March 6, 2009) at www.bls.gov/news.release/empsit.t01.htm. In February, the unemployment rate for adult women was 6.7% and 8.1% for adult men. Id.

5 Wash. Const., Art. XXXI, Sec. 1: “Equality of rights and responsibility under the law shall not be denied or abridged on account of sex.”

6 Aharon Barak, The Judge in a Democracy (Princeton University Press 2006) at 5.

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