Rinaldo Del Gallo: Several things that men need to know
I was invited to speak at the Forum Series at Berkshire Community College this Thursday. Though the male students may not know it, what I have to tell them may be the most important knowledge they will ever learn. This is one of those columns you might want to cut out and give to your sons, grandsons, and nephews.
* In all states, as a practical matter, no fault needs to be shown to get a divorce -- you may be "dumped." This is a result of legal changes known as "no fault divorce" that began in the 1970s. There is nothing really legally binding in a marriage. It does not matter if you were a model husband.
* Courts almost never give joint physical custody in contested cases -- physical custody is almost always given to the mother unless there is something profoundly wrong with her, and even then there are no guarantees.
* Most visitation orders men "win" in contested cases are in the neighborhood of getting your child every other weekend and a few hours every Wednesday -- judgments vary but this is the norm.
* Many fathers are shocked how easy it is for the mother to move away with the children. Courts routinely allow move-aways simply for better jobs, new boyfriends, or just to give the women a sense of a "fresh start." Move-aways do not remotely require exigent circumstances. Courts routinely equate the mother's wishes with the child's best interest in such matters.
* Most men are shocked at the magnitude of child support, In most states, it ends up being one-third of one's after -tax income and often leaves fathers destitute. For instance, in Massachusetts, a man who has two children who makes $1,000 per week will usually pay about 30 percent of their income in taxes (income, sales, property, etc.) according to the Tax Foundation. Thus, after tax income would be about $700. Child support would be $300, thus they would be trying to live off of $400 to pay for rent, bills, student loans, etc. A person making $500 per week with two children (roughly $350 per week after taxes) pays $149 in child support, leaving $201 to live on.
* Child support is determined by a formula using the father's income. However, judges often literally make up incomes and "impute" or "attribute" income and apply that to the formula so that one owes far more than one-third of their actual after tax income; child support orders sometimes exceed actual income. It is notoriously difficult to lower child support due to loss of income. Child support orders cannot be retroactively modified to affect monies already owed, limitations on garnishment are laughable, and child support cannot be discharged in bankruptcy. If you fall behind, you may lose your drivers license.
* While I recommend prenuptial agreements, it is shocking how unenforceable they are. Prenuptial agreements regarding child custody and visitation are not enforceable at all. Most agreements regarding child support are also not enforceable unless the court is convinced it was reasonable, which usually means something close to guidelines. Provisions regarding child support established long before a divorce appears on the horizon are seldom enforced. So you cannot really draft a meaningful prenuptial that would cover child custody or child support before you decide to have a child in the first place. In most states, as to property division and alimony, prenuptial agreements are routinely ignored in long-term marriages as being "outdated," just when the prenuptial agreement is needed the most because the awards are the most severe. Provisions regarding alimony or property division are sometimes enforced, but there is not enough consistency.
* Unless you are willing to accept a 50 percent possibility that you will become a non-custodial parent paying one-third of your after-tax income in child support to visit your child every other weekend and a few hours one day a week, you should not have a child. Be aware of the ramification of having a child should the relationship fail. At current rates, about one in two children will be fatherless by the time they turn 18, and if you become a father, you have about a 50 percent chance of being one of their fathers -- think about this before having a child.
* As to restraining orders, they are seldom denied unless the woman absolutely fails to allege real physical abuse. They have become regarded, and rightly so, as the poor woman's vacate order. If it is he-said-she-said with no corroborating evidence, the restraining order usually issues. You will have to move out, on a moment's notice, with little opportunity to retrieve your belongings. Restraining orders often are game changers in child custody cases.
Rinaldo Del Gallo is a practicing family law attorney and spokesperson of the Berkshire Fatherhood Coalition. His lecture is Thursday, Jan. 31, at 12:15 p.m. in the small theater in the Koussevitzky Building at BCC.