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WHOSE MONEY IS IT, ANYWAY? A CUSTODIAL PARENT'S (NON)DUTY TO ACCOUNT FOR CHILD SUPPORT
© 2000 National Legal Research Group, Inc.

WHO PAYS, OR WHO DOES NOT PAY, CHILD SUPPORT

In March 1999, the United States Bureau of the Census issued its latest report on the collection of child support. U.S. Census Bureau, U.S. Dep't of Commerce, Child Support for Custodial Mothers and Fathers: 1995 (Current Population Reports, Series P-60, No. 196, Mar. 1999). According to this report, approximately 22.8 million children under the age of 21 lived with 13.7 million custodial parents, while the other parent lived elsewhere. Only 58% of these 13.7 million custodial parents had child support awards of any sort. The rest had no child support awards at all. The report further states that total child support awards due in 1995 were $28.3 billion. Yet only $17.8 billion, or 63%, of the child support actually owed was paid.

Despite the advent of child support guidelines, which were supposed to increase compliance, in 1995, the rate of compliance was still less than two-thirds. This poor compliance rate gives lie to the observations of the esteemed Professor Harry D. Krause, who stated in 1989:

I think the "better enforcement debate" is all but over. With mandated, formula-based setting of support obligations, with payroll deductions of support owed, and with computer-provided nationwide access to support-owing parents, the law now provides an effective arsenal for imposing the obligation as well as collecting child support.

Harry D. Krause, Child Support Reassessed: The Limits of Private Responsibility and the Public Interest, 1989 U. Ill. L. Rev. 367, 379-80 n.56 (1990).

What is the reason for such poor compliance? Noncustodial parents have put forth many reasons why they do not pay. In one study, the following reasons were given by parents for not paying support:

No money to pay - 38%

Not allowed to visit - 23%

No control of spending - 14%

Did not want child - 13%

Not the father - 12%

The most common reason put forth is that the noncustodial parent simply cannot afford to pay the child support award in full. Harry D. Krause, Child Support Reassessed: Limits of Private Responsibility and the Public Interest, 24 Fam. L.Q. 1, 13 (1990). This, however, cannot be the reason for most obligors. Seventy percent of noncustodial parents have incomes of at least twice the poverty line. Elaine Sorensen, A National Profile of Nonresident Fathers and Their Ability to Pay Child Support, 59 Journal of Marriage and the Family 785 (1997); Jan Larson, Everyone Pays When Dad's a Deadbeat, 1992 American Demographics 39 (July 1, 1992).

Another commonly advanced reason for non-compliance is that noncustodial parents do not see their children often enough to feel connected to the child. See also Judith A. Seltzer et al., Will Child Support Enforcement Increase Father-Child Contact and Parental Conflict After Separation?, Fathers Under Fire (Irwin Garfinkel et al., eds., 1998); David L. Chamber, Making Fathers Pay 127 (1979); Judith A. Seltzer & Yvonne Brandreth, What Fathers Say About Involvement with Children After Separation, 15 Journal of Family Issues 49 (1994). Although there is evidence that visitation and joint custody are associated with higher child support payment rates, see U.S. Census Bureau, U.S. Dep't of Commerce, Child Support for Custodial Mothers and Fathers: 1995 (Current Population Reports, Series P-60, No. 196, Mar. 1999), the evidence showing a direct causal link between visitation/custody and higher compliance is lacking. Chuck Shively, Examining the Link Between Access to Children and Payment Support, 11 Divorce Litigation 85 (May 1999); see also Diane N. Lye, Scholarly Research on Post-Divorce Parenting and Child Well-Being, Report to the Washington State Gender and Justice Commission and Domestic Relations Commission (June 1999) (full text available at ). Again, this cannot be the reason for such high rates of noncompliance.

Another common reason advanced by non-custodial parents for lack of compliance with child support orders is that they do not believe the custodial parent is using the child support payments for the benefit of the child. See Judith Wallerstein & Sandra Blakeslee, Second Chances 136 (1990); Leslie J. Harris et al., Family Law 470 (1996); David M. Betson, Fair Shares: Meeting the Financial Needs of Children After Divorce, Child Support: The Guideline Options 139 (Institute for Research on Public Policy 1994). Typical of this response is a letter that appeared in the Lexington, Kentucky, Herald-Leader on Monday, October 18, 1999, by Gary Ferguson, a father's rights activist, which stated:

This is a reason that courts and legislatures have glommed onto, perhaps because it is a reason they feel they can address. Thus, in the unceasing effort by federal and state governments to increase the rate of child support compliance, some legislatures have enacted statutes and some courts have developed a body of law under which a court may require the custodial parent to account for how child support is spent.

This article will argue that these types of accounting statutes are unwise public policy because they give the noncustodial parent inordinate control over everyday expenditures for child support to the detriment of the custodial parent's decisionmaking authority. Further, and perhaps more importantly, there is no evidence that such accounting statutes actually cause greater compliance with child support orders. Rather, it may be argued that the ability to call for an accounting results in lower rates of compliance because the award is more easily challenged. The answer to the question of how to increase compliance must lie elsewhere.

It should be noted at the outset that the duty to account for how child support is spent should not be confused with a custodial parent's fiduciary duty to account under the Uniform Gift to Minors Act or with the court's authority to impose a trust on child support received to insure that the recipient uses the child support for the child. See, e.g., Boyt v. Romanow, 664 So. 2d 995, 997 (Fla. Dist. Ct. App. 1995) ("[I]t appears a considerable part of child support monies will be devoted to the mother's charge card obligations or real and personal property purchases and luxuries"); Passemato v. Passemato, 427 Mass. 52, 691 N.E.2d 549, 552 (1998) (spendthrift mother ordered to establish educational trust fund for children); cf. Resong v. Vier, 157 Wis. 2d 382, 459 N.W.2d 591, 595 (1990) (in the absence of factual findings that the mother was incapable or unwilling to wisely spend the child support money, it was error for the court to dictate how those funds be spent). See generally Judith G. McMullen, Prodding the Payor and Policing the Payee: Using Child Support Trusts to Create an Incentive for Prompt Payment of Support Obligations, 32 New Eng. L. Rev. 439 (Winter 1998); Annotation, Court's Establishment of Trust to Secure Alimony or Child Support in Divorce Proceedings, 3 A.L.R.3d 1170 (1965).

II. STATES THAT AUTHORIZE ACCOUNTING

The idea of a noncustodial parent requesting that a custodial parent account for how child support is spent is not new. What is new is having the court order such an accounting, thereby bringing the pow-er of the state behind such requests.

In Bowen v. Gilliard, 483 U.S. 587 (1987), the Supreme Court considered the 1984 amendments to the Aid to Families with Dependent Children (AFDC) program that required that a family's eligibility for benefits take into account the income of all parents, brothers, and sisters living in the same house. In particular, the Court considered whether that requirement violated the Fifth Amendment to the Constitution when it is applied to require a family wishing to receive AFDC benefits to include within its unit a child for whom child support payments were being made by a noncustodial parent.

The majority held that the amendments were not unconstitutional. The dissent argued that considering one child's support as benefiting the entire family was an unconstitutional taking of the child's property. Interestingly, the dissent argued that requiring an accounting from the custodial parent might alleviate the concerns of the majority:

Id. at 630.

The dissenters obviously saw the solution of a noncustodial parent's disapproval not in government or court interference in the family but in family decisionmaking.

Nonetheless, 11 states have statutes that allow the court to demand an accounting from the custodial parent of how child support is being spent. Colo. Rev. Stat. Ann. § 14-10-115(3)(b)(III) (West 1999); Del. Code Ann. tit. 13, § 518 (1994); Fla. Stat. Ann. § 61.13(a)(1) (West Supp. 2000); Ind. Code Ann. § 31-16-9-6 (Michie 1997); Kan. Stat. Ann. § 60-1616(f) (1995); La. Rev. Stat. Ann. § 9:312 (West Supp. 1999); Mo. Rev. Stat. § 452.342 (1997); Neb. Rev. Stat. § 42-364(6) (1999); Okla. Stat. Ann. tit. 43, § 118(B)(21) (West Supp. 1999); Or. Rev. Stat. Ann. § 107.105(1)(c) (Supp. 1998); Wash. Rev. Code Ann. § 26.23.050(2)(a)(ii) (West Supp. 1999). Alabama also has authorized an accounting under the specific facts of the case, McDuffie v. Holland, 690 So. 2d 386 (Ala. Civ. App. 1996), and New York has hinted that such an action may lie, although current practice indicates otherwise.

The statutes vary in the level of proof the noncustodial parent must present in order to obtain the accounting from the custodial parent. A number of statutes provide no standards. For example, the Colorado statute, Colo. Rev. Stat. Ann. § 14-10-115(3)(b)(III) (West 1999), provides:

Similarly, the Florida statute, Fla. Stat. Ann. § 61.13(a)(1) (West Supp. 2000), provides:

The Oklahoma statute, Okla. Stat. Ann. tit. 43, § 118(B)(21) (West Supp. 1999), likewise provides:

The Oregon statute, Or. Rev. Stat. Ann. § 107.105(1)(c) (Supp. 1998), also provides that the court may, at any time, require an accounting from the custodial parent with reference to the use of the money received as child support. There is no required showing of necessity or good cause.

Some statutes provide that the court may order the accounting "for good cause shown." For example, the Delaware statute, Del. Code Ann. tit. 13, § 518 (1994), provides:

La. Rev. Stat. Ann. § 9:312 (West Supp. 1999), Mo. Rev. Stat. § 452.342 (1997), and Wash. Rev. Code Ann. § 26.23.050(2)(a)(ii) (West Supp. 1999) also require a showing of good cause before an accounting may be ordered. The Indiana statute, Ind. Code Ann. § 31-16-9-6 (Michie 1997), similarly states that after a "proper showing of necessity" the court may order an accounting.

At the opposite end of the spectrum is the Nebraska statute, Neb. Rev. Stat. § 42-364(6) (1999), which provides that an accounting may be had only after evidence of "abusive disregard" of the use of child support:

The Kansas statute, Kan. Stat. Ann. § 60-1616(f) (1995), is an accounting statute with a difference. Instead of making the custodial parent account for child support, the court can change custody if it finds that child support is not being spent for the benefit of the child:

Thus, although this statute on its face states grounds for modification of custody, it is, in fact, an accounting statute: The custodial parent may lose custody for failing to adequately account for child support.

Alabama, under unusual facts, also allows for an accounting. In McDuffie v. Holland, 690 So. 2d 386 (Ala. Civ. App. 1996), the parties agreed that the father would pay as child support $500 per month plus 25% of all moneys or other benefits the father would receive as the result of a personal injury suit filed on his behalf. Pursuant to this agreement, the father paid a lump-sum award of $61,434.31 to the mother for child support. The mother, however, brought a rule to show cause, alleging that the father had not complied with the agreement and that he owed additional support. After trial on the issues, the trial court ordered an accounting, and the mother appealed.

The appellate court held that the trial court has jurisdiction to protect the interests of the children with scrupulous care. This jurisdictional authority necessarily includes the authority to order an accounting where there is evidence that a significant amount of money awarded to a custodial parent for child support is not being used for the benefit of the child. Consequently, because the mother could not account for $30,000, the trial court's order for an accounting was not an abuse of discretion. Id. at 390; see also R.G. v. G.G., No. 2981140 (Ala. Civ. App. Feb. 18, 2000) (over dissent, appellate court concluded that trial court had erred in failing to award the husband an accounting of the monthly child support payments made on behalf of the child when the mother's claimed expenses were unreasonable).

New York also appears amenable to the idea of an accounting. In Schwarzman v. Schwarzman, 88 Misc. 2d 866, 388 N.Y.S.2d 993 (Sup. Ct. 1976), the ex-husband requested an accounting from the ex-wife. The court did not dismiss the idea altogether but, rather, held that there was no good cause to require such an accounting:

388 N.Y.S.2d at 995; see also Alexandre v. Davis, 90 Misc. 2d 368, 394 N.Y.S.2d 757, 761 (Sup. Ct. 1976) ("Defendant has failed to establish a triable question of fact with respect to his counterclaim for an accounting"); In re Diann P., 86 Misc. 2d 844, 383 N.Y.S.2d 1014, 1018 (Fam. Ct. 1976) ("Respondent's request for an accounting of all support payments received by petitioner, and the use thereof, must be denied, as no issues relating to support and alimony are before this court").

More recent New York law suggests, however, that a request for an accounting will be limited to those cases where the parents' total gross income exceeds $80,000 per year, and, under Cassano v. Cassano, 85 N.Y.2d 649, 628 N.Y.S.2d 10 (1995), the custodial parent must demonstrate the "reasonable needs" of the child. This was the case in Mitnick v. Rosenthal, 260 A.D.2d 238, 688 N.Y.S.2d 150 (1999), where the parties' total income was significantly more than $80,000 per year. The court held:

688 N.Y.S.2d at 151.

There is surprisingly little authority interpreting and applying the accounting statutes. Nonetheless, the cases are rather consistent that an accounting should not be ordered unless there is almost overwhelming evidence that the custodial parent is not applying the child support payments toward the benefit of the child.

In Olive v. Olive, 650 N.E.2d 766 (Ind. Ct. App. 1995), the court considered the Indiana statute authorizing an accounting "upon a showing of proper necessity." There, the court stated that it would be loath to order an accounting because it would place an undue burden on the custodial parent:

Id. at 767-68.

Relying on Olive, the court also denied an accounting in Kovenock v. Mallus, 660 N.E.2d 638 (Ind. Ct. App. 1996). In that case, the husband testified that he was concerned that child support payments were being used to subsidize a business and the living expenses of the wife and her present spouse. In particular, the husband alleged that the wife and her present spouse had traveled to Europe, where the wife's family apparently resides, and had purchased two vehicles since the dissolution, although they reported a total household income of between $18,000 and $19,000 in 1993. The husband did not contend that the basic needs of the children were being ignored, but he maintained that one child was not provided with swimming lessons and that both children were sometimes dressed in shabby clothes. The appellate court concluded:

Id. at 642.

In Delaware, where the statute permits a support obligor to apply to the court for an accounting where the petition "states with particularity the reasons why it is being sought," Del. Code Ann. tit. 13, § 518 (1994), the court in Dunfee v. Mace, No. F-8651 (Del. Fam. Ct. May 15, 1991), refused to allow an accounting, even though the petition had alleged that the child had ill-fitting clothes and clothes that were out of season. Moreover, the general allegation that the support recipient could be using the money for drugs, alcohol, and other purposes is insufficient without specific allegations with specific facts that the child support is not being used for the child and is being used for illicit purposes.

In Florida, there is no requirement in the statute that the accounting be for good cause or be based on particularity of allegations. Yet, such a requirement seems to have been imposed by case law. In Bacardi v. Bacardi, 727 So. 2d 1137 (Fla. Dist. Ct. App. 1999), the husband filed a request for an accounting, alleging that the wife was using money paid as child support to support her live-in boyfriend. The trial court ordered the accounting, but the appellate court reversed.

The appellate court held that because the parties' Marital Settlement Agreement stated that child support would be used to pay a variety of expenses, "including, but not limited to, the household expenses, utilities, maintenance, food in the home and away from home, transportation, lessons, entertainment, the housekeeper, etc.," it was evident that the parties had intended that the scope of legitimate child support expenditures be enormous in scope. The court concluded:

Id. at 1138.

The court in Rico-Perez v. Rico-Perez, 734 So. 2d 1177 (Fla. Dist. Ct. App. 1999), echoed the principle that an accounting represents an unwarranted intrusion into the custodial parent's financial affairs. In this case, the husband claimed that his monthly child support payments of $6,750 were being misused, and he sought an appointment of a guardian of his minor son's property in the circuit court. The court held that before a guardian could be appointed he must seek an accounting in the family court. The accounting, however, must not unduly intrude into the custodial parent's affairs or be otherwise burdensome.

Likewise, in Oklahoma, an accounting may be had when the court deems it "appropriate." Okla. Stat. Ann. tit. 43, § 118(B)(21) (West Supp. 1999). Nonetheless, in Blocker v. Martin, 868 P.2d 1316 (Okla. Ct. App. 1996), the appellate court affirmed the trial court's denial of the noncustodial parent's request for an accounting of expenditures of child support payments. "[I]n the absence of some evidence of abuse, custodial parents should not be required to account for child support they receive." Id. at 1318.

These cases make it clear that, no matter the standard, a demand for an accounting is generally considered to be burdensome and intrusive. Thus, an accounting (1) cannot be had so long as the children's needs are being met; (2) cannot be had if the parties agree that child support payments encompass many expenses; (3) can be had only on particularized, specific allegations of how the child support funds are being used for illicit purposes.



III. STATES THAT DO NOT AUTHORIZE ACCOUNTING

Many states have explicitly rejected the authority of a noncustodial parent to request an accounting from the custodial parent for a variety of reasons. One reason is that the custodial parent holds the child support as a fiduciary for the child. E.g., Jenkins v. Jenkins, 567 N.E.2d 136 (Ind. Ct. App. 1991); Varner v. Varner, 588 So. 2d 428 (Miss. 1991); Carter v. Carter, 735 So. 2d 1109 (Miss. Ct. App. 1999); see also Office of Tony Center v. Baker, 185 Ga. 809, 366 S.E.2d 167 (1988) (attorney's charging lien does not attach to child support payments because those payments are received and held by the custodial parent as a "trustee" for the child, and as a trustee the parent lacks sufficient ownership in the child support payments to grant a lien against the payments); Sue Davidson, P.C. v. Naranjo, 904 P.2d 354 (Wyo. 1995) (same). Thus, only the beneficiary, the child, can request an accounting; the noncustodial parent simply has no standing to request an accounting. See George G. Bogert & George T. Bogert, The Law of Trusts and Trustees § 970 at 363 (1983).

This principle was stated in Mississippi in Trunzler v. Trunzler, 431 So. 2d 1115 (Miss. 1983). There, the court stated:

Id. at 1116.

Similarly, in the Georgia case of Cohen v. Barris, 220 Ga. 131, 137 S.E.2d 469 (1964), the father petitioned the court for an accounting and an injunction, praying that the mother be permanently enjoined from misusing funds intended for the benefit of the minor children. The court stated:

137 S.E.2d at 470. The same result was reached in North Carolina as well. Tyndall v. Tyndall, 270 N.C. 106, 153 S.E.2d 819 (1967).

A second reason courts have given is that there is simply no statutory authorization for an accounting. For example, in the Arizona case of In re Marriage of Marce, 130 Ariz. 443, 636 P.2d 1225 (Ct. App. 1979), the court stated:

636 P.2d at 1228-29; accord Cohen v. Barris, 220 Ga. 131, 137 S.E.2d 469, 470 (1964). Illinois reached the same result. Williams v. Williams, 316 Ill. App. 6, 44 N.E.2d 63 (1942) (husband was not entitled to compel former wife to render an itemized accounting of expenditures of money contributed by husband for child support).

A third reason, closely related to the second, is that requiring an accounting would place an undue burden on the courts to supervise the custodial parent. In the Missouri case of D.M.S. v. P.E.S., 526 S.W.2d 361 (Mo. Ct. App. 1975), the court stated:

Id. at 363.

A fourth, and perhaps most persuasive, reason why courts have refused to impose a duty of ac-counting on a custodial parent is that it would unduly interfere with the custodial parent's decision-making authority that all custodial parents are deemed to have. See generally 2 Homer H. Clark Jr., The Law of Domestic Relations in the United States § 20.2 at 482 (2d ed. 1987) (authority to make decisions concerning the child's care, education, religion, or training is attributed to the child's custodial parent); see also Uniform Marriage and Divorce Act § 408(a), 9A U.L.A. pt. II, 437 (1998) (the custodian may determine the child's upbringing, including his education, health care, and religious training).

For example, in the Wisconsin case of Resong v. Vier, 157 Wis. 2d 382, 459 N.W.2d 591 (1990), the court stated:

459 N.W.2d at 595.

Simply stated, a noncustodial parent does not have the authority to petition the court to require an accounting of how child support moneys are spent by the custodial parent because such an imposition by the court would be an undue interference with the custodial parent's decisionmaking authority. For the same reason that a noncustodial parent cannot question or interfere with the decisions made by the custodial parent concerning child care, education, religious training, or other everyday decisions, the noncustodial parent should not be able to accomplish the same interference by way of a demand for an accounting.

One author has suggested, however, that if the parents have joint legal custody and, thus, joint decisionmaking authority the noncustodial parent should be able to request an accounting. See Judith G. McMullen, Prodding the Payor and Policing the Payee: Using Child Support Trusts to Create an Incentive for Prompt Payment of Support Obligations, 32 New Eng. L. Rev. 439 (Winter 1998).

IV. DOES ACCOUNTING ACHIEVE ITS GOAL?

As noted above, noncustodial parents have often stated that if they could just see how the child support money was being spent they would more willingly comply with the child support order. If this were true, then compliance should be highest in those states that allow the noncustodial parent to demand an accounting. This is not the case, how-ever. Indeed, compliance rates in those states that allow an accounting are below the national average.

Each year, the Office of Child Support Enforce-ment submits to Congress its report on collections of child support. The report contains a breakdown of each state's child support enforcement efforts, comprising the total number of cases handled, the total number of cases on which arrears are enforced, and the total collection rates (full report available at ). This report shows that in those states that allow accounting compliance rates are below the national average.

Further, each year, Professor Maureen Pirog publishes a comparison of child support guidelines awards in the periodical, Family Relations. In 1998, she also compared child support guidelines with average amounts of uncollected child support, rank-ing each state by its percentage of arrears. Maureen A. Pirog, Interstate Comparisons of Child Support Orders Using State Guidelines, 47 Family Relations 289 (1998) (full text available at ).Again, this shows that in those states that allow accounting compliance rates are below the national average. Can we conclude that if a noncustodial parent can demand an accounting then he or she has less incentive to make timely payments?

Some states think so. Those states that have refused the noncustodial parent the right to an accounting did so for three reasons: (1) only the child, as beneficiary of the fiduciary duty of the custodial parent, may request an accounting; (2) requests for an accounting would place an undue burden on the courts; and (3) requests for an accounting would place an undue burden on the custodial parent, effectively interfering with his or her right to make day-to-day decisions concerning the child.

The last reason is wise public policy and should be adopted by all courts. Custodial parents must be given the latitude to decide how child support will be spent: what clothes to buy, what camps to attend, what entertainment is appropriate and enriching. Allowing a noncustodial parent to demand an accounting effectively gives the noncustodial parent veto power over those decisions. It also imposes on the custodial parent tremendous recordkeeping obligations that no one could meet. For example, part of the child support obligation is for transportation. Does the custodial parent have to keep track of gas and car maintenance? Part of the child support obligation is for housing. Does the custodial parent have to break down what part of the mortgage is for the child? Does that also apply to utilities?

The authority to demand an accounting has not increased child support compliance. The burdens placed on the custodial parent by an accounting thus outweigh any benefits the accounting might achieve. States should therefore be encouraged not to enact statutes that authorize an accounting.

CLINTON v. CLINTON: THE DIVORCE SCENARIO

Pretend for a minute that Hillary was not as accepting of Bill's infidelity as she appeared to be. What issues would arise in the divorce case of Clinton v. Clinton? (Please note: The purpose of this exercise is not to discuss political issues or depict the Clinton marriage with any degree of accuracy. The purpose is to discuss the legal issues involved.)

I. MAINTENANCE ISSUES

Contributions to the Marriage

Under the laws of most states, the court is to consider the contributions each party has made to the earning capacity of the other party. From Hillary's point of view, she gave up her lucrative partnership at the Rose Law Firm to become First Lady. From Bill's point of view, he was the one elected President of the United States, and it was his accomplishment that make Hillary's future income possible. While Hillary undoubtedly sacrificed income, her earning potential is likely greater than it would have been without this sacrifice, considering future speaking engagements, book royalties, and her possible future position as Junior Senator from New York. Bill's future income is limited to his pension, his fees for speaking engagements, and book contracts.

Although it appears that Bill has a case for maintenance from Hillary, maintenance for men is still relatively rare. Further, Bill, as one of the youngest ex-Presidents ever, probably has a greater future earning potential than we can foretell. Consequently, because both parties have good earning capacities, certainly enough to be self-supporting, maintenance will likely not be awarded to either party.

Agreement of the Parties

Most states' divorce statutes provide that the court may consider any agreement the parties may have reached before or during the marriage whereby one spouse has agreed to forgo career opportunities in order to stay home to care for the children of the parties. In most marriages, of course, the parties reach agreements on roles, including income-producing responsibility. The most common agreement is regarding child-rearing responsibility. The wife claims, for example, that the husband agreed that she should stay home and raise the children.

Although Bill and Hillary did not enter into a formal, written contract as it relates to marital contributions, Hillary did leave a very lucrative position to become First Lady. Accordingly, Hillary should argue that, in the event she cannot find suitable sources of income, Bill, at least implicitly, promised to support her when he became President and for the years thereafter.

Bill's rejoinder, like the rejoinder of most husbands in this position, is, "That was then. This is now." With two households to support, the wife is not entitled to the luxury of staying home to care for a child, but must instead seek employment.

Typically, the court focuses not on fulfilling the agreement of the parties but, rather, on the effect the agreement had on the parties' earning capacities. For example, if the effect of the agreement was that Hillary left the job market to raise Chelsea, the court may well consider the effect of Hillary's absence from the job market in fashioning an appropriate maintenance award. If the effect was negative, the result may be longer rehabilitative maintenance, or even permanent maintenance. If the effect was positive, the court may consider the agreement irrelevant.

Early Retirement

Bill's plans after his second term ends are unclear. He has indicated, as one of the youngest ex-Presidents ever, that he does not intend to play the elder statesman. He may even run for the Senate from Arkansas.

Can Bill just sit back and enjoy his retirement? To what extent can the court insist, by imputing income to Bill, that he earn a living? States have different approaches in deciding whether to impute income to a spouse who takes early retirement. See Laura W. Morgan, The Effect of Early Retirement upon Support Obligations, 8 Divorce Litigation 114 (1996); see also Lewis Becker, Voluntary Reduction of Income Doctrine, 29 Conn. L. Rev. 647 (1997). In some states, a voluntary decision to take early retirement when the party still has the ability to earn income warrants imputation of income. E.g., In re Marriage of Stephenson, 39 Cal. App. 4th 71, 46 Cal. Rptr. 2d 8 (1995); Stubblebine v. Stubblebine, 22 Va. App. 703, 473 S.E.2d 72 (1996). In some states, the court focuses on whether the decision to retire early is reasonable given the economic circumstances of the parties. E.g., Deegan v. Deegan, 254 N.J. Super. 350, 603 A.2d 542 (App.

Div. 1992); Van Offeren v. Van Offeren, 173 Wis. 2d 482, 496 N.W.2d 660 (Ct. App. 1992).

Hillary will certainly want to argue that Bill has the obligation to take reasonable efforts to maximize his income. This income may come from speaking engagements, book royalties, or property development deals.

From Bill's perspective, Hillary cannot sit and wait for Bill to create income. Hillary also has vast earning potential from speaking engagements, book royalties, property development, and even cattle futures.

In this case, the income issues are too volatile to predict. Bill and Hillary would do well to settle the issue of support by having each party go his/her own way: Both parties have good earning potential, and both parties can be self-supporting.

Standard of Living

One of the more difficult considerations in maintenance is the standard of living enjoyed during the marriage. Typically, there is insufficient income available for both parties to enjoy the marital standard of living since there are two households to maintain after the divorce. In the case of the Clintons, the issue is even more difficult since the marital standard of living included taxpayer-subsi-dized mansions, jets, yachts, cooks, and servants.

Certainly, neither party can expect the other party to pay for this kind of standard of living. Both parties knew that their days of public service were limited, and living at a level within more modest means would be the norm. Thus, the court must consider the standard of living the parties would have enjoyed had the marriage stayed together.

II. PROPERTY DIVISION ISSUES

Dissipation of Assets

Even in a no-fault state, the law differentiates between marital misconduct and financial mis-conduct. Most, if not all, states allow a trial court to consider a party's efforts to preserve or deplete marital assets.

Hillary may certainly argue that any gift Bill purchased for Ms. Lewinsky constitutes the dissipation of assets. Although the amount is probably minimal, this would not be the first divorce case to use this type of evidence as a back door to introducing marital fault and casting the offending party in a more negative light.

Had Bill been convicted in the Senate and removed from office, Hillary could also have argued that Bill's actions depleted marital assets in that he lost his salary and pension.

Debts

Hillary probably has a good argument that many of the debts incurred during the marriage should be Bill's alone since they were incurred due to Bill's wrongful actions during the marriage. These debts include (1) the $850,000 settlement to Paula Jones; (2) contingent liability to Ms. Lewinsky; and (3) attorney's fees arising from the above and for defense during the impeachment proceedings.



III. TORT ACTIONS

Can Hillary file an action against Bill and Ms. Lewinsky jointly and severally for their conduct which served as the catalyst for the divorce? In most states, anti-heart balm statutes have been enacted prohibiting such an action.

Hillary and/or Bill might have other causes of action, however. Did Bill give Hillary a sexually transmitted disease? Was there any kind of abuse? Any wiretapping of phone conversations? Any economic torts, such as conspiracy to defraud the other party out of marital rights? If so, Hillary and Bill will have to check their state law to determine whether these actions must be joined in the divorce action or whether these actions can be brought independent of the divorce. If the latter, they must be careful not to waive the right to bring these actions by signing a general waiver in the divorce.

CONCLUSION

Hillary's best case lies with emphasizing the debts and obligations that arose out of Bill's non-marital conduct. Bill's best case lies with emphasizing Hillary's innate talents and her ability to become self-supporting. In any event, the case would not be dull.

BUTLER v. BUTLER: THE DIVORCE SCENARIO

Well, the most important divorce case in years— eclipsing Donald Trump v. Ivana Trump and Peter Pulitzer v. Roxanne Pulitzer—has finally been decided. It was published in September 1991, and the ramifications of the case may reverberate for centuries to come. It is the case of Rhett Kinnicutt Butler v. Scarlett O'Hara Butler. They were divorced by a decree of the court of South Carolina on March 26, 1875.

This, of course, is no ordinary divorce case. As the reader will recall, Scarlett loved a married man, Ashley Wilkes, but ultimately agreed to marry her third husband, Captain Rhett Butler of Charleston. Later, after the death of their daughter, Bonnie, Scarlett threw Captain Butler out, only to attempt, still later, a reconciliation that he firmly rejected. When Scarlett asked what would happen to her, Rhett is reported to have said, "Frankly, my dear, I don't give a damn." (At least, in her deposition, this is what Mrs. Butler claimed he said.) He then left the weeping Mrs. Butler in Atlanta and moved back to Charleston, where "there is a little bit of grace and charm left in the world" or, as the husband told a witness, one Margaret Mitchell, "to try to make peace with my people."

At that point, Captain Butler became a legal resident of the State of South Carolina, assuming he had been a resident of Georgia while residing in Atlanta or at Tara. In the new novel by Alexandra Ripley, Scarlett, the sequel to Gone with the Wind, Scarlett moves to Charleston to try to reconcile with her estranged husband. After a whirlwind of social activity, attendance at the St. Cecilia Society ball, and run-ins with Union troops still occupying the city, Scarlett utterly fails to convince Rhett to reconcile. There was even a boating accident in the (you guessed it) Ashley River. "‘It's the Ashley River.' Rhett pronounced the name with exaggerated distinctiveness," Ms. Ripley wrote. Divorce loomed on the horizon. But could they divorce in South Carolina?

As it turns out, South Carolina had a long and illustrious history of not allowing divorce. It was the most conservative of states. The leading historian of divorce, Roderick Phillips, described "the striking example of South Carolina in resisting divorce through most of the 19th century and half of the 20th." The Court of Errors of South Carolina held in 1846:

The silence of the Legislature is conclusive—regarding the sacred nature of the marriage contract as a matter of public interest, they will neither interfere with it nor delegate to others the power to dissolve it. The distinction between the authority to declare a marriage null and void, or to grant a divorce, has no sanction in either reason or authority.

Whether wisely or unwisely, the Legislature has thought proper to withhold these powers. They have delegated to no Court the authority to declare a marriage null and void, and they have never themselves exercised the authority. Cases of individual hardship have occurred, and will occur; but the observation of a different policy in other States, as well as the experience of our own, has served only to confirm the conviction that it is better to tolerate the occasional suffering than to jeopardize the peace of society, and open a wide door to fraud, imposition and other immorality.

32 S.C.L. (1 Strob. Eq.) 387, 392-93 (1846).

And so, when Rhett proposed a property settlement of $500,000 and a divorce, Scarlett rejected the offer, sure in the knowledge that there was no divorce in South Carolina. Two lawyers told her so, as did her uncle, Henry Hamilton, also a lawyer:

    Now, Scarlett, I don't know what you're holding over Rhett's head to get that kind of money from him and I don't want to know. Whatever he might have done to give you grounds to divorce him is none of my business either. I've never dirtied my hands with a divorce action, and I'm not going to start now. You would be wasting your time and money, besides. There is no divorce in South Carolina, and that is Rhett's legal residence now.
Scarlett's uncle and just about everyone else thought Scarlett wanted the divorce so that she could marry Ashley Wilkes. She did not even consider it.

Now, despite the plethora of good legal advice and in the very face of the fact that South Carolina law did not allow for divorce, Scarlett (after leaving Charleston, visiting Savannah, and traveling to Ireland to visit the O'Hara family home) received a document dated March 26, 1875. The novel describes Scarlett's receipt of Rhett's divorce decree:

Her hand was clutched painfully, nails biting into flesh. Crumbled in it was a statement from the sovereign state of Georgia that it had entered into its permanent records the absolute

decree of divorce granted to one Rhett Kinnicutt Butler on the grounds of desertion by his wife, Scarlett O'Hara Butler, by the Military District of South Carolina administered by the Federal Government of the United States of America.

Scarlett, it turns out, may have had one of the best legal malpractice cases ever. For lo and behold, all of the lawyers were wrong. And, naturally, it was all the fault of those carpetbaggers and scalawags who are universally to blame for everything that went wrong in the South from 1865 to 1963.

In 1868, the State of South Carolina was not governed, as it had been prior to the Civil War, by the ruling class of white planters, merchants, lawyers, and farmers. It was governed by the reconstruction government set in motion by the United States Congress and the Union Army. The state constitution was substantially revised in 1868, and, when Rhett sued Scarlett, the new constitution allowed, in Article IV, § 15, for divorce by the courts of common pleas. The 1872 General Assembly, dominated (we all learned in high school) by carpetbaggers and scalawags, did in fact pass an act authorizing a divorce on the grounds of adultery and willful desertion. That act continued in force for six years until 1878 when it was repealed by the conservative, "Redeemer" or "Bourbon," regime, led by former Confederate General Wade Hampton and elected after the Union Army was withdrawn in 1877. (Parenthetically, it was General Wade Hampton who wrote to Scarlett in the movie version of Gone with the Wind to inform her of the death of her first husband, Charles Hamilton.) The conservative state government of old-fashioned South Carolina continued to frown on divorce until 1949, when South Carolina allowed divorce again—the last state in the Union to enact a modern divorce law. So it is perfectly possible that Rhett could have brought an action in South Carolina for divorce based on Scarlett's willful desertion.

Of course, she would have had to have been served with notice of the suit, a summons, and a complaint, so she could defend herself. But perhaps Rhett did not know where she was and served her by publication in the Charleston newspaper of the day, The Courier. And, in 1875, the Butler divorce case would have been heard in the historic county courthouse at Broad and Meeting Streets in Charleston, the famous Four Corners of Law.

The story is even more complicated. First, despite the possible illegality of Rhett's Georgia divorce, he married Miss Ann Hampton, a Melanie-like character from—you guessed it—Charleston.

Scarlett, needless to say, was pregnant with Rhett's child when she left Charleston. (Leaving Charleston is an Alexandra Ripley specialty.) Rhett did not know about the child when he divorced Scarlett. Of course, legally, Rhett could divorce Anne if he could divorce Scarlett. But, as Scarlett says, "Rhett will never divorce Ann. She's his kind, from his people, from Charleston."

And, in any event, Rhett only had until 1878 to get a divorce in South Carolina. And tomorrow, after all, is another day.

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