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The Role of the Children

The Role of the Children
By Sam Margulies, Ph.D., J.D.

Many people on the cusp of divorce ask if the children can decide with whom they will live. Generally, children, particularly young children, do not play a role in the decision. In most states, the preferences of the children are accorded more weight as they get older, and a child of 15 or 16 will have great influence if the parents cannot agree. From a psychological perspective, asking children to choose between parents is quite destructive because it gives children a kind of power that frightens them -- no matter how they choose, they worry about betraying one parent. When you and your wife start to make the decisions about parenting, you will already know the preferences of your children, and there is little to be gained by asking them. You do your children a great favor by not asking them and by acting like parents by making the important decisions yourselves.

Can Parenting Arrangements Be Changed Later?

Until a child reaches the age of emancipation, the court retains ultimate jurisdiction over the child. This means that you can always go back to court to seek a change in the parenting arrangement. You and your ex-wife can make any changes at any time if you are both in agreement, but unilateral change against the will of the other parent can be made only with the permission of the court.

Child Support: Who Pays?

Supporting the child financially is the responsibility of both parents. Child support refers to the arrangement that has been worked out to share the expenses of the child. In the typical scenario, where the child lives primarily with one parent, that parent administers the financial needs of the child. She buys clothing; pays the medical bills; and pays for lessons, gifts, activities, school supplies, and the myriad other expenses that children require. Generally the pattern of spending after divorce simply reflects that which existed before the divorce. Because the primary residential parent spends most of the money budgeted for the child's needs, the other parent makes child support payments to defray the costs of raising the child.

Although monthly child support payments are typical, some parents do it differently. When the incomes of the parents are more or less equal, and when they have a full shared parental pattern in which each parent has the children half the time, each parent will simply pay the room and board expenses of the children when they are with that parent. Then they will keep track of expenditures for clothing, lessons, and other expenses of the child and share them equally. Cost sharing in this manner may be more satisfying for some parents even as it requires somewhat more complicated administration.

The Amount of Child Support

How much children cost depends on many things, including the family's income, where the family lives, and choices made by the parents. If you decide you want your children to attend a private school, you will spend up to $30,000 a year for this choice. If you believe that your children have to be dressed to the height of fashion, you will spend more than if you are less enthused about dressing in the latest styles. Because these choices can vary so widely, deciding on how much to spend on the children -- and therefore how much child support should be paid -- can become a subject of hot dispute. About 15 years ago, the federal government imposed on all states the requirement that each state establish minimum child support guidelines for divorce. The purpose of the guidelines was to establish a floor under child support amounts so that a judge could not order clearly inadequate support or no support at all. We have seen several generations of guidelines as states have attempted to make them acceptable to more parents. You will need to investigate the guidelines in your state. Don't be surprised to discover that they are too low to reflect the pattern of spending you have chosen in the past for your children.

Changing Child Support over Time

Child support is subject to change as the needs of the child and the financial capacity of the parents change. Children are entitled to share in the good fortune of their parents, so if you are paying child support and you sustain a dramatic increase in income, you can expect that you will be asked to pay more child support. Child support ends when a child is emancipated, generally when a child reaches age 18 or upon graduation from high school, whichever occurs first. A number of states, particularly the more urbanized states, will delay emancipation until the child graduates college. If you live in such a state, you will be expected to contribute to the cost of putting the child through college. No state that I am aware of has extended the requirement of child support past undergraduate education.

Many separation agreements provide for periodic review of the subject of child support. Ideally, you and your wife will work out a relationship in which over time the two of you will negotiate changes as appropriate. On the other hand, if change is needed and you are unable to resolve the issue between yourselves, you can always resort to the court for adjudication. I encourage all my clients to include mediation clauses in their settlement agreements so that if a dispute of this kind arises, they return to mediation to resolve it.

Alimony

Alimony is the toughest issue in divorce. It is also the subject of least consensus among lawyers and judges. Alimony, also called spousal maintenance or maintenance support, is paid to a former spouse. The statutes that deal with alimony are gender neutral -- either spouse can be required to pay alimony to the other. With the rising incomes of women, it is no longer unusual to see cases in which women pay alimony to their husbands. But alimony is most frequently paid by men to women. Most divorces do not involve alimony payments. We have terribly inadequate data on divorce, so there are no precise statistics available. A study that was popular in the late 1970s claimed that fewer than 14 percent of women received alimony. I can't vouch for that statistic, but I suspect that not more than one-third of divorces involve alimony.

Some women earn salaries comparable to their husbands' and do not need alimony. So the cases in which alimony is an issue involve couples in which there is a significant disparity of income between the parties, a fairly long duration of marriage, and a demonstrated need of the wife for alimony.

The way in which these standards are applied is influenced by cultural factors such as attitudes toward sexual equality. Paradoxically, as the women's movement gathered momentum in the 1970s, there was a backlash against alimony. "If they want to be independent, let them be independent" was the attitude of a male-dominated judiciary and legal profession. But as time





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