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#How Will Proposed Changes In Custody Laws Affect Divorcing Women Financially?

I’ve written before about alimony reform and how new laws eliminating lifelong alimony and reducing judicial discretion can pose real financial hardship to divorcing women. Unfortunately, there’s another legislative trend sweeping the nation that’s just as concerning. According to The Wall Street Journal. some 20 states are considering laws that would substantially change the way child custody is decided in divorce.

As with alimony reform, much of the proposed “shared parenting” legislation targets judicial discretion. Rather than evaluate individual cases based on their circumstances, judges will be strongly encouraged, or even mandated, to enact custody arrangements that are as close to 50-50 as possible. In some states, including Colorado, New York, and Washington, the proposed laws make that the mandatory default. To make a different arrangement, it must be proven that the child would not be best served by spending substantially equal time with each parent.

Such legislative changes have been proposed by men who feel they’ve been treated unfairly by a system that has, for many reasons over the years, favored mothers as custodial parents. I understand that. As a father myself, I can absolutely imagine how painful it would be to be unfairly denied time with my children.

But here’s the thing: that’s what judicial discretion is for! Experienced, knowledgeable judges are empowered to evaluate the circumstances of each case before them, and direct the litigants to the fairest possible solution to their individual case. The proposed laws remove or severely limit that flexibility. To my mind, that’s the wrong solution. If judges need to be reminded to be fair to fathers when considering custody arrangements to avoid systemic bias, that’s one thing. But to tie the hands of family court judges in child custody decision-making, steering them to a one-size-fits-all (unless you can prove it doesn’t) solution, is to show complete disregard for how nuanced such cases can be.

And of course, some cases are not just nuanced, but dangerous. Critics of the proposed child custody laws rightly contend that insisting on a 50/50 custody arrangement gives undue influence to abusive husbands, and wrongly places the burden on the spouse in the weaker position – usually the wife – to have to prove that the arrangement is not right. Furthermore, say the critics, the vast majority of custody cases are settled out of court. The ones that go to litigation are the ugliest and most contentious cases – arguably the ones for which shared custody, an arrangement requiring maturity and cooperation, is least likely to succeed.

What does this mean for divorcing women, financially? Well, the sad truth of the matter is that some fathers fight for 50/50 custody with the primary, cynical goal of reducing their financial obligations to their ex-wives. With “shared parenting” legislation, I foresee single mothers having to make do with less financial support, but not necessarily having less of the parenting responsibilities. Many divorced mothers can tell you that no matter what the agreement says on paper, it’s the mother who shoulders more of the work of child-rearing.

Child support, too, is undergoing “reform.” The New York Times recently reported about a demoralizing cycle in which men who can’t afford to make payments are jailed for failure to pay, then lose their jobs, then get deeper in arrears with child support payments, and so on. This is certainly a problem. Reform advocates claim that the current practice of calculating child support on the basis of imputed income (what a person is expected to earn) instead of actual income is unfair and unrealistic when jobs are hard to find and making payments is just not possible. The federal government is reportedly proposing to use actual income to calculate child support and also to consider that the noncustodial parent must have enough to live on himself.

At first glance, this seems reasonable, and even good – so why do I find it troubling? Well, as a divorce financial professional who works exclusively with women, I can tell you that such legislation could have many unintended consequences. Where some see progress toward a fairer approach to child support, with my experience in this field I see potential for unchecked fraud and abuse. If actual income as opposed to imputed income is used to calculate child support payments, I predict you will see people quitting or changing jobs when divorce is on the horizon. Business owners will pull every trick in the book to make sure they show little or no income. Ex-husbands will have an easier time shirking their financial obligations, and ex-wives (and their children) will be left to figure out how to make ends meet.

Together, alimony reform, “shared parenting” legislation, and using actual income vs. imputed income for child support payment calculations spell financial disaster for divorcing and divorced women. My advice is to stay on top of developments in your state, and work with your attorney and divorce financial advisor for strategies to best cope with the implications of new or proposed legislation.

Jeff is the author of the Amazon best-selling books, Divorce: Think Financially, Not Emotionally – What Women Need To Know About Securing Their Financial Future Before, During, And After Divorce, Volumes I II . and the forthcoming book, Think Financially, Not Emotionally – A Woman’s Guide To Financial Security After Divorce .

All articles/blog posts are for informational purposes only, and do not constitute legal advice. If you require legal advice, retain a lawyer licensed in your jurisdiction. The opinions expressed are solely those of the author, who is not an attorney.

For further information, please go to our website at: http://www.BedrockDivorce.com or email Jeff at Landers@BedrockDivorce.com .