ABA'S FIFTY STATES REVIEW INCLUDES SOME SURPRISES: A SPECIAL REPORT FROM THE ABA FAMILY LAW SECTION'S ANNUAL MEETING

Subjects: Premarital agreements
Fee collection - taking mortgage
Child Support - Second jobs
Child Support - Second Families
Child Support - Imputed Income
Child Support - Guideline variations - high income

For divorce practitioners, one of the great delights of attending the ABA Family Law Section's Annual "Family Law in the Fifty States" program is the chance to see how differently their fellow practitioners view similar legal problems in other states. It is surpassed only by the chance to observe how the problems they have to contend with are so much the same.

At this year's Fifty States Program the featured topics were antenuptial agreements, security arrangements for payment of counsel's fee, and support guideline variation factors such as imputed income. The discussion of antenuptial contracts showed a surprising degree of consensus. Increasingly, it seems, the top-level practitioners of matrimonial law in the various states have made the decision that they simply will not write these agreements. Among those that still do write them, there is almost always a policy against doing it just before the wedding date. The reasons are that the financial return to the practitioner is quite small and the malpractice exposure is enormous. Should there later be a divorce, neither party is likely to go to the drafting attorney for that legal work. One of the divorce lawyers will probably be attacking the antenuptial contract and the other forced to defend it. Drafting attorneys do not like the idea of having to defend their own work in a litigation context where allegations of malpractice and bar grievance are likely to arise. Also, they will probably be called as a witness, and hence be disqualified in that litigation.

On the subject of security for collecting fees, the discussion began with universal acknowledgment that collecting fees from the clients is a real problem everywhere these days. Only a very few of the representatives reported that their states had, like Virginia, ruled by Legal Ethics Opinion or court decision that taking a mortgage on the marital home to secure the attorney's fee is improper. Most practitioners, and particularly those from the big states with a large volume of high-dollar divorce litigation, indicated that it is routinely done and the practitioners regard it as their sacred right.

When debated, the intricacies of support-guideline-variation jurisprudence quickly become highly detailed and difficult to follow, the discussion indicated. Nevertheless, the various competing equities are argued nationwide. The courts and legislatures seem to be going off in many different directions on second-job incomes. There is certainly nationwide debate over whether the courts have any right to force one to work two or more jobs in order to provide support for others. It was reported that in a California case this Spring the judge tried to steer a careful line between equities by saying that if the second job was there to support "an effusively expansive style of life," the payor parent can quit the second job. But in Pennsylvania, if it is established that the second job was there to support the style of life, the payor can be forced to keep it.

Considering the possible child support obligations of a second spouse brings up widely-debated policy issues. Florida has adopted a shield-sword statute, declaring that if one claims extra expenses from a second-family child, the second spouse's income must be included in the income/expense statement. There is also hot debate on the two-pony rule -- that every child has a common-sense maximum of legitimate needs and excessive child support is nothing but alimony in disguise. Many practitioners appear to feel that the same proportion of a father's income is the sacred and constitutional entitlement of the child, no matter how high the income and the income split may go. However, it was reported that Delaware gives a judge a right to apply a capping rule when guideline support would go ridiculously high.

Practitioners from states where judges are enamored of income-imputation theory reported that the same judges seem to have a very hard time applying the same theory when the father has custody of the children and the payor happens to be female. The special equities that apply when the payor parent quits her job to have a new baby with the new husband, and the question of whether this is any different from the long-condemned "voluntary act of fathering new children" were discussed. At least one court facing these fascinating policy issues has gone the same way as the Virginia Court of Appeals in Brody v. Brody, 8 VLW 98, and imputed income to the high-earning mother who quits to have a second-family child.

The "Family Law in the Fifty States" roundup is published each year in the Section's Law Review, the Family Law Quarterly. While the reports of the fifty state representatives and the roundup in the Quarterly cover all family law issues, a few featured topics are selected for discussion each year.