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ELIMINATION OF GENDER BIAS AND SUBSTANCE

ABUSE IN THE LEGAL PROFESSION

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MICHAEL LYNN GABRIEL

ATTORNEY AT LAW

B.S., J.D., M.S.M., DIP.(TAX), LL.M.(TAX)

ELIMINATION OF GENDER BIAS IN THE LEGAL PROFESSION

INTRODUCTION

Gender bias as related to domestic relations, child custody, child support, criminal matters, sexual harassment and domestic violence actions are major concerns for all legal practitioners. Sensitivity on these issues has developed recently in large part in response to the O.J. Simpson murder trial of his former wife Nicole against whom he was once convicted of spousal battery. In response to the growing awareness of spousal abuse many state supreme courts have instituted committees and task forces to render recommendations as to how to remove gender bias from the courts. California's Judicial Council Advisory Committee on Gender Bias in the Courts issued a 1990 report "Achieving Equal Justice for Women in the Courts". The Colorado's Supreme Court Task Force issued a 1990 report "Gender & Justice in the Colorado Courts". Connecticut's Legal Services Unit dispenses the 1991 report "The Connecticut Task Force on Gender, Justice and the Courts." In Florida there is the 1990 "Report of the Florida Gender Bias Study Commission." In Georgia, there is the 1991 "Gender and Justice of the Courts." Massachusetts issued in 1989 "Gender Bias Study of the Court system in Massachusetts" published in New England Law Review 745 and 23 Suffolk Univ. Law Review 576. In Minnesota, there is the 1989 "Report of the Minnesota Supreme Court Task Force on Gender Fairness in the Courts", published in 15 William Mitchell Lawreview 829. The Nevada Supreme Court created a gender bias task force who wrote a report entitled "Justice for Women." In New Jersey, a task force appointed by its Supreme Court prepared a report entitled "Women in the Law: Changing Roles, Changing Attitudes." In New York, there is the 1987 "Report of the New York Task Force on Women in the Courts." In Utah, there is the 1990 "Report of the Task Force on Gender and Justice." In Washington, there is the 1989 "Gender and Justice in the Courts". The United States Department of Justice issued a task force report on family violence called "The U. S.Attorney General's Task Force on Family Violence: Final Report." The National Center for State Courts wrote a report entitled "The Impact of Domestic Relations Cases on the New Hampshire Superior Court: Analysis and Recommendations." These are just a few of the judicial and governmental reports relating to the issue of gender bias. There have been many books and private studies and reports by law schools and citizens' review committees, all documenting some type of dramatic gender bias in the past. The purpose nowadays is to eliminate such gender bias so everyone faces a level playing field. Sometimes the gender bias works for the benefit of women, and at other times it works against them. Not all bias was bad in itself, in fact, in the area of criminal law gender bias worked for the benefit of the women criminal defendants in that studies show that they are charged less often or sentenced less harshly than their male counterparts.

A tricky analysis, for the purpose of determining theexistence of gender based wage discrimination, is the fact it is commonly stated women college graduates earn less than male high school graduates. As with most general statements, this may or may not be true in specific cases. A male high school graduate who goes into pro football will tend to earn more than most women college graduates and most men college graduates as well. Making this argument as support for the belief that women should be paid more is a mistake and hurts the issue of gender equality when you try to compare apples and oranges. The only true analysis is to compare the jobs and pay which women make to the exact same jobs which men engage in. The Equal Pay Act, which requires women be paid the same as men if they are doing the same job as men. The real difference in the pay discrepancy between a divorced husband and a divorced wife is the type of work they are engaged not the fact that they are being paid differently for the same work. The issue of comparable worth has been raised as a basis for paying women more in the general society despite the fact that they may not be doing the same identical work as men. Comparable worth is based upon a belief that when jobs require similar knowledge and competency to be performed then the persons doing them should be paid the same. Under this argument, a secretary with a high school education should be paid the same as a truck driver with a high school education. Comparable worth, as a legitimate doctrine, was considered by the United Supreme Court in County of Washington vs. Gunther (1981) 452 U.S. 161, 101 S.Ct. 2242. The Court held in thiscase that wage discrimination claims are not limited by the Bennett Amendment to Title VII. The Bennett Amendment states; "It shall not be an unlawful employment practice under this subchapter (Title VII) for any employer to differentiate upon the basis of sex in determining the amount of wages or compensation paid or top be paid to employees if such differentiation is authorized by the provisions of section 206(d) of Title 29 (The Equal Pay Act)." The Gunther decision incorporated the four affirmative defenses of the Equal Pay Act to Title VII wage discrimination claims but no longer operated to bar them altogether, such as in Lemon vs. City and County of Denver (1980) 620 F.2d. 228. The Supreme Court specifically limited the extent of its holding in Gunther. It stated that it specifically did not "decide in this case the precise contours of lawsuits challenging sex discrimination in compensation under Title VII." In fact, the Supreme was very clear in stating that its decision was not based on the "controversial concept of comparable worth" which was interpreted by the Court as seeking "increased compensation on the basis of a comparison of the intrinsic worth or difficulty of their job with that of other jobs in the same organization or community." To date, comparable worth is in interesting concept but no wide spread support exists for its implementation. Nonetheless, comparable worth studies have been useful in determining whether wage discrimination is being practiced. American Nurses' Asso. vs. Illinois (1986) 783 F.2d 716,Power vs. Michigan (1982) 539 F. Supp. 695. Oaks vs. City of Fairhope (1981) 515 F.Supp. 721, AFSCME vs. County of Nassau (1985) 609 F.Supp. 695, AFSCME vs. Washington (1985) 770 F.2d 1401, IUE vs. Westinghouse (1980) 631 F.2d 1094.

In an egalitarian society, a society based upon equal protection of the law, people should be treated equally. Judges have the discretion to sentence people differently based upon the facts of their particular case: the more willful the action, the harsher the punishment. The Nevada Supreme Court's Gender Bias Task Force in Justice For Women, stated:

"It is for these reasons that in legal disputes between men and women it is of utmost importance that each party understand as thoroughly as possible the position of the other party, The law should be made as clear as it possibly can be and special efforts should be made by all concerned that the parties understand what the law is and what reasonable expectations are for each party."

There should not be any preconceived notions by the court before sentencing or before the judge even sees or hears the facts of the case. Judicial favoritism based upon perceived ideas and beliefs are what courts and the legal profession are trying to abolish and to do away with, which is always good in the sense that when everyone is treated equally regardless of the results.

A. BIAS IN DOMESTIC RELATIONS

INTRODUCTION

It is in the area of domestic relations that gender bias is most encountered. The field of domestic relations, also referred to as Family Law, covers child custody, child support and most importantly, divorce. One of the most important aspects in any divorce is the economic reality that it forces upon the parties. Both the husband and the wife after the divorce, will be in a different financial and economic situation. Often after the divorce, the ex-husband and the ex-wife will have markedly different amounts of income coming into their respective households. In 1979, for example, 58% of all working women heading family households were concentrated in the service and clerical areas. In a 1981 study, U.S. Dept. of Labor, The Female-Male Earnings Gap: A Review of Employment and Earnings Issues, often cited by feminists, it was determined that women in these jobs were only earning $61 compared to every $100 earned by men in general. In reality, that is a distorted bias study because it is comparing men doing all different types of work than that of all women. There is no comparison based upon identical work. A more important aspect that those in the legal profession must bear in mind is simply that the women themselves were, in that study, engaged in low-paying jobs, regardless of whether it was through their desire to do those jobs or their inability to get a higher-paying job is irrelevant. It is the amount of money the spouses have coming in following their divorce which is important in the determination of propertydivision, child custody, child support and alimony.

One of the functions of any divorce court is to divide the property in the marital estate, also called the community or family estate, award child custody and child support, and to determine if either spouse should be entitled to alimony (spousal support as it is called in some states) from the other spouse. Today states do not require proof of fault in order to get a divorce although in some states it can still be alleged in the petition. All states have adopted some form of no-fault divorce based upon irreconcilable differences. Until relatively recently it used to be that a spouse could only get a divorce upon finding some degree of fault against the other spouse, and once the fault was determined the judge had the discretion to divide the marital property in any fashion in order to punish the spouse who caused the fault and therefore destroyed the marriage.

With fault not being an issue or grounds for a divorce, in most states, the community property is usually divided equally in accordance with the family law of the state in question. The no-fault laws for divorce grounds have also been carried over, in most states for alimony payments. Most states do not consider fault of a spouse in making alimony awards. For some states, however, fault may still be used or considered for in making property divisions or alimony orders. In Nevada, for instance, which permits no-fault divorce is unclear on the issue of considering fault as a factor for awarding alimony. In Heim vs. Heim (1988) 104 Nev. 605, the Nevada Supreme court stated:

"Although Nevada has made incompatibility a ground for divorce and has eliminated the fault concept in establishing grounds for divorce, it has neglected to deal with the question of whether fault should play a role in deciding questions relating to alimony.

Nevada is not alone on this regard; and when the question has been presented to the courts in other states, some have held that in the absence of legislative change corresponding to the enactment of no-fault grounds for divorce, fault should continue to be a factor in awarding alimony or property distribution. Other courts have held that permitting fault to be considered in these situations would be incompatible with the no-fault statutes. See e.g., Annotation, Fault in Consideration of Alimony Award 86 A.L.R. 3d 1117 (1978); Does No-Fault Divorce Portend No-fault Alimony 34 Pitt. L. Rev. 486 (1973).... we note, without deciding the point, that the past relations and conduct of the parties might be legitimately considered under the legislative direction that the courts may regard to the "respective merits of the parties."

Fault, in property distributions or alimony awards, is in some states, highly important. Fault may result in higher or lower alimony awards for the supported spouse. In addition, property divisions may, in states using fault as a factor, could likewise be increased or decreased as either punishment or an ward for good behavior on the part of the paying spouse.

Following or in conjunction with the property division are the awards for child support and child custody. Following the divorce, usually the custodial parent, which is most times the mother of the children, must go out and get a job. The reason for this is simply economic necessity. It really just comes down to the fact that most people work to earn money in order to survive, not particularly because they enjoy doing it. A recent survey that came out showed that most people do not like the job they are doing, but do it because they need the money. As a result, a parent who has childrenmust nonetheless support those children and therefore must work. Even if child support is being paid, often it is not enough to guarantee that the person receiving the child support will be able to stay at home and care for the children and do nothing else.

Social mores have changed quite a bit in the last thirty years. Throughout the 1950's, it was considered very improper for people to get divorces, and therefore it was understood under the mores that usually the wife would stay home and tend the children. If there was a divorce, the wife would normally get the children and therefore would receive enough alimony and support so she could continue to stay home and raise the children. Nowadays with the advent of the Women's Rights Movement, it is understood that women have the right to go out and get jobs in the real world and that if they choose to raise children at home, that is their choice. However, it is considered wrong by many people to require the

father to pay lifelong or permanent alimony for eighteen years so the ex-wife can stay home and simply raise the children.

It was shown in a 1994 study, that 20% of all single family homes involving children are headed by the father. In homes that are headed by a single father, no one makes the argument that the former spouse, i.e. the mother, should be paying permanent support to the father so that he can stay home and raise the children until they reach eighteen years of age. It is understood today that both spouses have a duty to raise their children and to pay for their support and therefore a job in most instances is considered proper by the custodial parent as much as the non-custodial parent. Merelybecause a custodial parent works does not mean that the custodial parent is earning enough money alone to support the family. It is required that both parents to work to support their children. The Census Bureau, for instance, in its report "Child Support and Alimony: 1983" concluded that 53% of single mothers failed to receive the court order child support payments from for their children. As such, if a parent does not support the child that parent could be subjected to criminally prosecution.

Every state now has enacted no-fault divorce laws. The purpose of no-fault divorce is just, as the name implies, to provide the means for a person to get a divorce without destroying the character and reputation of the other spouse. Prior to no-fault, when the grounds for divorce did not exist and the couple were just unhappy together, unless one spouse agreed to have his or her character falsely slandered in court, the couple could not get a divorce. There are two types of no-fault states.

The first type of no-fault state is one that permits a divorce only on the grounds of irreconcilable differences, irretrievable breakdown or incompatibility. The jurisdictions, which have adopted this form of no-fault divorce, are: Arizona, California, Colorado, District of Columbia, Florida, Hawaii, Iowa, Kentucky Michigan, Missouri, Montana, Nebraska, Nevada, Oregon, Virginia, Washington and Wyoming. In such jurisdictions, no evidence of fault is admitted into evidence in the court in any fashion. As such, neither spouse can accuse the other spouse of adultery, name a correspondent or attempt, in any way, to blackenthe other spouse's name. The second type of no-fault state is one which permits no-fault an additional fault grounds for a divorce. A person is permitted the option, in such states, to seek a divorce using either fault grounds or no-fault grounds. Fault grounds, are usually used, in those states which still consider fault as a factor in making alimony or child custody decisions.

Besides the spouses, themselves, anyone having an interest in the marital estate may also be brought into the divorce as a party. These parties, do not necessarily have to appear in the divorce proceeding but if their interests are adversely affected by it, they will have the right to appear and defend their position. In the same vein, either spouse may sue third parties and bring them before the divorce court for the determination of the marital's estate interest. For example, one spouse may sue the business partners of the other spouse for a determination if any of their business should be considered a marital asset. Additionally, some states, such as Iowa, will appoint an attorney to represent the children during their parents' custody battles. Furthermore, some jurisdictions, such as Delaware, District of Columbia, Georgia, Hawaii, Indiana, Kentucky, Massachusetts, Michigan, nebraska, Washington, West Virginia, Wisconsin and Wyoming require a public officer to be named in an uncontested divorce. The reason behind this requirement is to protect the family and assure that no fraud is occurring or will be practiced. This requirement was enacted in response to assertions by various women's rights groups that women were often taken advantage of and defrauded by their ex-husbands in uncontested divorces.

CHAPTER ONE

PROPERTY DIVISION

Probably the touchiest area in any type of divorce is the division of property. Virtually all states have some type of law that says in the division of marital property it goes equally among the spouses. Sometimes fault comes into play, but usually courts do not divide property that either spouse owned prior to the marriage or was acquired by gift, devise or by bequest. As stated, above, some states still employ the fault concept in making property distributions and alimony or support wards even though the divorce itself may be granted without a finding of fault. In dividing property, a court must first determine what property is actually part of the community or family estate along with the value of such property. This is often the hardest part in property evaluation. It has been consistently asserted that, in the situation of a business asset that the non-participating spouse in that business is at a severe disadvantage. Potential injustices may occur in such instances where the spouse controlling the business has the power to conceal or camouflage assets. In such instances, the non-business spouse is unaware of what the community property is and its value. It is not uncommon, unfortunately, for one spouse to transfer property out of the state in an effort to conceal it from the other spouse. in the past such conduct has been generally overlooked by the court, but that is changing. In 1995, forinstance, a doctor in Kern County, California was criminal charged in Federal Court for transferring property out of California in violation of a state court's order that no property be transferred until the conclusion of the divorce case. The doctor transferred $1.6 million to his father in India in violation of the family court's order. The money was subsequently returned following the federal charges being filed. The fact that a Federal Court would permit a criminal complaint being filed to punish the wilful transfer of property in violation of a state court's order is proof of the changing view on property distribution.

In 1983, the National Conference of Commissioners on Uniform state Laws created the Uniform Marital Property Act (UMPA). The purpose behind the creation of the UMPA was to settle the law in a chaotic field and to provide an equal and uniform procedure for the division of marital property. The UMPA was is the first to uniformly create a national standard for property division in a divorce rather than fifty individual standards which often lead to forum shopping and conflicting jurisdictional claims. The UMPA adopts as its standard the position of community property states that property acquired during the marriage as the result of contributions and efforts of both spouse is equally owned. The difference between the UMPA and community property laws is that its provisions governing management and control, survivorship titling and treatment of retirement plans. The UMPA's provisions for the above are based upon equitable distribution concepts and ratherthan hard fast laws as do the community property states. One of the major departures of the UMPA from community property laws is in the treatment of appreciation of one spouse's separate property. The UMPA has created an active appreciation rule, section 14(b), wherein if substantial appreciation of one spouse's separate property occurs as the result for the substantial efforts of the other spouse, without compensation therefore, it becomes marital property. Likewise, income generated from individual property including dividends, rent and interest is marital property as well under section 4. The effect of the UMPA is increase the marital estate and to treat income during the marriage as marital property regardless of its source. To date, the only state which has adopted the UMPA is Wisconsin although it has been proposed in at least another dozen legislatures.

Prior to the conscious raising activities of the Women's Movement, fraud or misrepresentation in property settlements were often overlooked and ignored by the courts. One case, in particular was widely used to highlight the indifference of courts to the plight of women in divorce cases. In Fisher vs. Wirth (1971) 38.A.D. 2d 611, 326 N.Y.S. 308 a couple divorced after nearly forty years of marriage. For the last twenty years of the marriage, the parties had agreed that the husband's salary was to be invested for their retirement. The husband held title in the invested property in his own name. At the divorce, the wife sought a constructive trust on the property to prevent unjust enrichment. The courtdenied the constructive trust finding that no fraud had occurred on the husband's part. In denying the wife's petition, the court held that while there

"may be a moral judgment that can be made on the basis of the respondent's conduct and the imperfectly expressed intention of some future benefit to appellant, but that is not enough

to set the court in motion."

The court's decision did not recognize any right of the wife to have acquired an interest in the property under even the basis equitable theory of detrimental reliance. There is little given the facts of the case that the wife had detrimentally reliance on the statements of the husband that the investment would be used for their "latter days". As a result of that promise, despite not being more specific, the wife stayed in the marriage and did not prepare for her own latter years. That is a classic example of detrimental reliance which the court could have so found. Nor did the court consider the equitable theory of an implied contract at law. The court's decision resulted in the wife, after forty years of marriage, not having any interest in the investments for which her husband had made despite his earlier assurances that they were for the benefit of each.

Today, the trend in family law is permit both a married and unmarried woman to assert implied contracts and equitable interest in property acquired, in part, through their efforts. The classic case on "palimony" is the California case, Marvin vs. Marvin (1976) 18 Cal.3d 660. The Marvin case permits an unmarriedperson to assert an implied contract in property acquired by the other person during the relationship if the parties had agreed that such property would belong to both or if the person earning the property promised to take care of the other. Where a woman has given up a promising career in order to be become a companion for a man on the promise that he will take care of her, many courts will find impose an equitable interest in the man's property under the theory of an implied contract at law. If Fisher, supra, were to be brought today in California, the courts probably would find the constructive trust earlier denied in New York.

Under the common law, property belonged to the spouse in whose name it was titled. Title, therefore, became the dispositive factor in property division during a divorce. A wife's property award, under the common law, was therefore based upon ownership of the property rather than any promise of sharing by the husband. Vassel vs. Vassel (1972) 336 N.Y.S. 2d 887. The common law concept for property division was adopted by forty states. The remaining states adopted the community property system based upon Spanish law or the Napoleonic Code which gave each spouse an equal interest in property acquired during a marriage except for that property acquired by gift devise or bequest.

One of the noticeable effects of the Women's Movement has been the easing of the common law's division of property based strictly upon title and consideration of "equitable distribution" in making an award. All states now, by either case law or statute, requiretheir judges to make fair and equitable distributions of marital property. Col. Rev. Stat. Sec 14-10-113, Ill. Stat.Ann ch.40 sec. 503, Md.Cts & Jud. Proc. Ann., sec. 3-65-05(b)(1), Pa.Const. Stat. Ann sec 23-401, Rothman vs. Rothman (1974) 65 N.J. 219, Parrot vs. Parrot (1982) 292 S.E. 2d 182. In fact, even New York which denied a marital interest in Fisher, supra would be compelled to do so today under N.Y. Dom. Rel. Law. sec 236 Part B 5d(6) which requires the court to consider such factors as the duration of the marriage; any equitable claim to, interest in or direct or indirect contribution to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career and career potential of the other party; and any other factor which the court shall expressly find to be just and proper.

Many states have either by statute or case law created a presumption for equal division of marital property. Ark. Stat. Ann sec. 34-1214, Wis. Stat. Ann. sec 767.255. The Guidelines for Property Division of the Domestic Relations Division of the Common Please Court of Cuyohoga County, Ohio (1981) states:

"The rational supporting the presumption of equal division is that marriage is a voluntary association with implied rights, duties and contributions,... as long as each party chose to remain in the relationship, he or she is deemed to have accepted the other's contributions as more or less equal to his/her own; and that therefore the property generated by the marriage should therefore be equally divided between the parties upon termination of the relationship.

At times, equity may requires a less than equal division.

The requirement of equal division is a rebuttable rule. When departing from equal division, the court should articulate the reasoning behind its decision in order to facilitate understanding by the parties and appellate review.

California, in 1974, revised its domestic relations law by adopting the 1974 Family Law Act. The major effects of the Act were that it removed fault as a requirement for a divorce or as a factor for property division. Prior to the Act, judges could divide community property in any proportion that it deemed just and fault often played an important part in the judicial division of the property. A common saying among California divorce attorneys, prior to 1974, was that the wife would get one half of the community property and the court would then divide the husband's half. Today, California community property is divided equally and fault is not a factor.

It has been suggested and proposed that to lessen gender bias in property settlements courts should adopt procedure that will

make it harder for spouses to conceal assets or hide their value. These recommendations have the effect of being directed primarily against the husbands because usually it is the husbands, by virtue of their control over the business estate of the family estate, who are in the best position to conceal such assets from the court. In accordance with this, it is suggested that courts and legislatures impose mandatory disclosure and inventorying of all community and marital assets. In addition, there should be severe criminal or contempt sanctions enforced for all willful refusals to cooperate with mandatory disclosure provisions.

The most common problem in a divorce is how to divide the marital assets acquired during the marriage. Often the courts will give the house to the wife because she has the children, and the business, that has an equal amount of value, to the husband because they look at the dollar value as if everything was sold right away. Again, when you do that, the house does not yield income and the wife is forced to look to other sources and means to get the money to survive. The husband, even though he doesn't own the house, owns the business, which in fact produces income. Most people don't own

businesses. Most people are just employees, so if you have a husband working for the local phone company, he has a job and from that job he will have to pay support. Usually, the husband will lose the house in the divorce. Usually, when the house is to be sold and the proceeds divided, the wife will have custody of the house until it is sold and divided.

Property of a marriage is divided in accordance with the individual state laws. Some states are referred to as common law states and other states are known as community property states. A common law state permits each spouse to acquire property, in their own names, during the marriage. The earnings of each spouse remains the sole property of the spouse earning it. A community property state, on the other hand, is one which holds that all property acquired during a marriage, except property acquired by gift, devise or bequest, is owned equally by each spouse. Community property states are Arizona, California, Idaho, Louisiana, NewMexico, Texas and Washington. In the divorce, the Court will divide the marital property in accordance with its state laws. If the parties had entered into a valid marital agreement directing how the property will be distributed in the event of a divorce, the Court will enforce that agreement, if it does not violate state law or public policy. A Court's property division order is only valid for property located within the state. A Court can not award or divide property located in another state. To get around this problem, a Court may make an inequitable distribution of property in the state and allow the other spouse to keep all of the out of state property. Given the fact that no-fault divorce is now available, in some form, in all states, the only contestable issues really remaining to be decided by the Court is property division, child custody and support. Marital property, not divided during the divorce, may be divided later by bringing the matter before the Court. This usually happens when property was concealed from the other spouse or occasionally was mistakenly overlooked.

The current trend is to have property acquired, during a marriage, equitably divided regardless of title has been codified by thirteen states: Alaska, Colorado, Illinois, Maryland, Massachusetts, Montana, New Hampshire, Pennsylvania, Utah, Wyoming Virginia, New Mexico, Texas and Washington. In addition, several states have specifically enacted legislation requiring their Courts to consider a homemaker's, usually the wife's, contribution towards the other spouse's ability to acquire property in making a divisionof assets. Colorado Rev. Stat. 14-10-113, Illinois S.H. Ann. Ch.40 Sec. 503(c), Maryland Ann. Code Repl. Vol. Sec. 3-6A-05(b)(1), Massachusetts Ann. Law Ch. 208 Sec. 34, Montana Code Ann. Sec. 40-4-202, Pennsylvania Stat. Supp. 23 Sec. 402. Pennsylvania invalidated the common law sex-based presumptions of ownership of marital property under the cases DiFlorido vs. DiFlorido (1975) 331 A.2d 174 and Butler vs. Butler (1975) A.2d 477.

Debts are usually divided by the Court in accordance to whether the debts are his, hers or theirs. A joint debt is a debt owed by both spouses of which was created for the benefit of the marriage. A separate debt is one that was incurred solely for the benefit of just one spouse. A debt that affected or benefitted only one spouse will be found to be that spouse's sole debt. Community property states hold that all of the community property can be used to pay a community property debt regardless of who incurred the debt. A community property debt is one that was incurred to benefit the community estate. Examples of community property debts are the bill incurred for putting a new roof on the house or repairing the family car which are community property assets. When a debt is held to be a community debt, then all of the community property is, likewise, held to be available to pay it. In a community property state, the separate property of the spouse, not incurring the debt, can not be attached or used to pay the separate property debts of the other spouse.

A married couple, who no longer wish to live together but whodo not want to get a divorce, can enter into a written separation agreement that does everything but acknowledge that the marriage is over. A separation agreement can deal with spousal support, property settlement and even child custody. The parties may agree to use a separation agreement rather than a divorce for a variety of reasons such as the fact that some religions do not recognize divorce, the effect on the children or financial concerns. Many courts will not enforce a separation agreement

if the separation has already occurred or occurs soon after the agreement is executed. Some states, such as New Jersey, specifically do not permit their use. Most states, however, do permit separation agreements to some extent and in accordance with their state law. While not openly rejecting separation agreements, North Carolina nd Oklahoma, in particular. do not favor them and narrowly construe them.

A separation agreement is, for all intents and purposes, just a special contract between the spouses. It is governed by the same rules as any other contract. There must be a meeting of the minds as to what the agreement is to accomplish and how it is to be structured to reach the desired result. In addition, there must be legal consideration given by each spouse under the agreement. Legal consideration is the promise to do or to refrain from doing something that the person has a legal right to do or not to do. Without legal consideration being given by each party to a contract, the contract is void from the beginning. The Court hasthe power to later, amend or invalidate a separation agreement, if it found that the separation agreement violates state law or is otherwise unfair. The Court will find a separation agreement unfair if one spouse concealed assets or misrepresented facts to the other spouse, if a spouse did not adequate representation or if one spouse took unfair advantage of the other. Most separation agreements deal in part with spousal support. Spousal support waiver provisions are usually enforced if the recipient received a fair property settlement in the separation agreement. There are, however,several states such as new York, New Jersey and Illinois for example, that do not permit a spouse to waive support in separation agreements. Some states, such as Indiana, North Carolina and West Virginia will only rarely enforce such a waiver provision. The reason behind some states' refusal to enforce a support waiver is the fact that all states have laws requiring each spouse to support the other spouse. All states view it as being against their public policy to permit as person to be in need while married to a spouse able to render support. Therefore, some states will not permit a spouse to wave support during the marriage or does so reluctantly even when a separation agreement is employed.

Besides property division in regular marriages, Courts often find themselves having to divide property in common law marriages.,There are still many states which recognize the doctrine of common law marriages. Under this doctrine, a man and wife living together, as such, for a fixed number of years, usuallyfive, will be treated as through a valid marriage has occurred. In such instances, a divorce is needed to terminate their relationship and the property acquired by the couple during the term of their relationship will be divided in accordance with that state's divorce law. A recent trial, on point, is Maglica vs. Maglica. The couple, though not married, lived together for twenty years. During that time Anthony Maglica formed a flashlight business that grew to a value of $300 million. Upon termination of their relationship, Mr. Maglica claimed the entire business belonged to him. Mrs. Maglica sued alleging a claim for a breach of fiduciary duty in that the couple had an oral agreement that she had an interest in the business. At trial, the jury awarded Mrs. Maglica $84 million. This case touched both common law marriages and the oral implied contract, also known as palimony, as discussed in the Marvin case supra.

The thorniest issue in any divorce and one in which the issue of gender bias comes into play is determining how to divide an asset that is really not divisible. An example of this issue is the situation where one of the spouses is a professional, with a degree in law or a medicine, architecture, etc, which permits that spouse to go out and practice the profession. The other spouse, in comparison, who is usually the wife, will not have a professional degree and cannot go out and practice any profession simply because she had once been married to a lawyer, doctor, architect etc. How professional license is treated in a divorce is an area of on goingdevelopment. Under the common law, a professional was not an asset to be divided or considered in a divorce. Today that view is changing. Many states, now tend to treat the earning capacity by the licensed spouse as a community asset, and will order the spouse to pay a percentage of that income for the rest of the spouse's professional career to his former spouse. While such may be considered an emerging view, is still not the majority view. Most states will, in a divorce, value the office on a fair market value basis, as if the practice was sold immediately, as if the spouse had quit practice. If, for example, the spouses have an professional office or practice that is worth $200,000 as fair market value, many states will treat $100,000 as belonging to the divorcing spouse and divide it that way, but all future earnings would belong to the licensed spouse.

A common horror story, is where someone has worked to support their spouse through medical school. law school, etc. and as soon as the spouse obtained the degree he or she filed for divorce. The inevitable question is what interest or rights does the non-degreed spouse have in the other spouse's degree? Many states have now adopted the policy to avoid such biases by requiring a spouse who has been supported by the other spouse, to give the equivalent support to the other spouse. If, for example, a wife worked to put her husband through medical school for five years, the husband would be required to give the equivalent support of whatever it was to put the wife through medical school for five years if she wantedto, or to furnish her some other type of equivalent support for the next five years.

An additional concern in property division is the effect of spousal support. Under the common law, a husband was almost always required to support a wife, even after a divorce, until the wife remarried. A wife, almost never was required to support an ex-husband. Such black letter law has virtually disappeared. Today, spousal support can be awarded to either a husband or a wife but it is not longer required to be awarded. Instead, the view toady is that alimony or spousal support should only be awarded to the extent necessary for the receiving spouse to learn the skills necessary to go forth and earn a living without such alimony. It is, however, recognized that because of age or disability, a spousal might be permanent alimony or spousal support because he or she will never be able to be fully independent. A very real problem in gender bias, as recognized by everyone, is what happens when a long-term marriage falls apart and one spouse has a better earning capacity than the other. In the situation where both spouses are working and earning similar amounts of money, there probably will not be an aware for spousal support because they each have similar amounts of income. As long as the people are in an equal living situation, there will usually not be an issue of gender bias. Where for example, both spouses are living in poverty, they are equally suffering and thus without gender bias. Where, however, after a 40-years plus marriage one spouse, usually the wife, becomesdestitute and the other one is able to lead a fairly decent life, there is a duty to support. In this situation, courts will consider spousal obligations in making property divisions and thus may make impose orders or make property distributions so as to assure or guarantee that support payments to the other spouse will be made.

CHAPTER TWO

SPOUSAL SUPPORT AND ALIMONY

INTRODUCTION

One of the most controversial areas of gender bias in the law is the award by a court of spousal support or alimony. In no other area of law is there such a discernable difference between how men and women are treated as in the overall awards of spousal support and alimony. Prior to the Women's Liberation Movement beginning in the late 1960's, permanent alimony was viewed simply as a result of social mores and served as a form of punishment against the paying spouse (usually the husband) for getting or causing a divorce. Under the common law, the payment of support to the former spouse continued virtually forever regardless of how many years she was to receive it. Many states actually had laws that forbade the award of alimony to ex-husbands unless the ex-husband was disabled. It took a 1978 United States Supreme Court decision in the case Orr vs. Orr 440 U.S. 268 to make laws banning alimony awards to men as an unconstitutional denial of equal protection. Even before the Orr decision the states were beginning by statute or case law to ban gender based discrimination for alimony. Henderson vs, Henderson (1974) 327 A.2d 60, Holmes vs. Holmes (1978) (Ct. Common Pleas) 127 P.L.J. 196. Many movies (usually comedies), made throughout the 1930's to the 1970's, depicted ex-husbands' efforts to get their ex-wives married so as to cut off the alimony payments that hadbeen on-going for years and years. The common law view was that even a wife in a short term marriage was entitled to lifetime alimony. The basis for the common law view is founded directly upon the institutionalized gender bias of the Victorian Age. Up until the 1960's, family law in the United States reflected the societal view that women were primarily homemakers and that they should work outside the home. Therefore, under this view, husbands were required to take care of and support their wives. Divorce, for that reason, was socially unacceptable. Alimony awards wee therefore premised with the dual function of both punishing the spouse for causing the dissolution of the marriage and to compensate the wife for the time spent in the marriage. Generally, under the common law, the wife was entitled to lifetime alimony unless the wife caused the dissolution of the marriage usually through unfaithfulness or adultery. As stated above, ex-husbands, in most states could not petition for alimony awards from their ex-wives unless they were disabled, a requirement not imposed on ex-wives.

In the movies, the ex-wife was often portrayed as having no intention of getting remarried because she was free, had a good strong income in the form of alimony and therefore had no financial reason for remarriage. In the old divorce decrees, the right to receive alimony was usually terminated upon either getting re-married or moving in with someone of the opposite sex. By such provisions in the divorce decrees, states wanted to make sure that if the ex-wife was living with another man, the spousal supportstopped. The reason for such provisions were not only to cut off unfair alimony payments by the ex-husband but also to assure that the ex-wife did not choose in live in sin and therefore weaken the moral fabric of society. Until relatively, it was often stated that society had a duty to preserve the sanctity of marriage and for that reason it was deliberately made difficult for couples to get a marriage and alimony awards were viewed as means to punish the spouse for causing the divorce.

To grant a divorce, a court need only have jurisdiction over the plaintiff spouse. A divorce action is a "rem" action and the "res", the marriage, follows each spouse. Having jurisdiction over the plaintiff spouse gives the court jurisdiction to adjudicate the marital rights of both spouses which includes granting a divorce. The United States Supreme Court in Williams vs. Williams 317 U.S.287 held that the domicile of the plaintiff spouse is sufficient for the court to grant a divorce even though the court does not have personam jurisdiction over the other spouse. In such instances, the full faith and credit clause requires every other state to recognize the effects of the divorce. In addition, even when a spouse obtained an ex parte divorce, such as moving to another state to get the divorce, that does not stop the ex-spouse from seeking alimony in another state. Throughout the 1960's, for example, women would come to Reno, Nevada, called the divorce capital of the United States, because of Nevada's easy divorce laws, stay for six weeks and then get a divorce. Nevada did nothave jurisdiction to award alimony because the ex-husband was not before the court. Following the grant of the divorce, the ex-wife could move back to her home state and seek alimony and property division there. In Vanderbilt vs. Vanderbilt 354 U.S. 116, the United States Supreme Court upheld a New York law which permitted an ex-spouse to seek alimony despite the fact that an ex parte divorce was obtained in another state. Not all states, however, allow their courts to award alimony after a judgment of divorce was rendered in another state. In addition, some states that will allow post ex parte divorce alimony will not grant it to a non resident ex-spouse, usually the wife. The treatment of alimony in the ex parte divorce situation is very important because the plaintiff-spouse's, who is usually the ex-wife, could be seriously jeopardized by getting a divorce in such a manner.

The Women's Rights Movement brought about a change in views towards marriage and the idea of alimony awards as punishment. The Women's Movement began to first step towards the elimination of institutionalized and de facto gender bias in the legal profession. As a result, no-fault divorce is now available in virtually every state. In addition, it is no longer considered a women's right to receive alimony forever even if she had only been married for just a couple of months. The modern view has developed, in contrast to the earlier common law view, that women owe a duty to themselves to look out for themselves, and therefore be able to earn their own living. As a result of this, courts have backed away from the ideaof permanent alimony, and in its place have substituted formulas and procedures by which they will require one spouse to pay the training and education expenses for the other spouse to be able to support himself.

Under the common law, a husband had a duty to support his wife but the wife had no duty to support her husband. Today, all states have enacted laws which impose the duty upon each spouse to care and support the other spouse while they are married. Such support is defined as providing the necessities of life. Such laws require that once it is proven to a Court by a spouse or interested party, such as a relative or government entity, that the spouse is unable to provide for his or her necessities of life, the Court will require the other spouse to provide them to the extent possible. A spouse is not expected to suffer deprivation or to be forced into bankruptcy as the result of supporting the other spouse. In practice, it is easier for a woman to obtain a support order than it is for a man. Generally, support for a man is only ordered when he is disabled, to the extent that he is unable to care for himself. In the property division of a marital estate, the Court will first divide the debts into his, hers or theirs.

Under the common law, the husband was totally liable for payment of the wife's debts whereas conversely she was not liable for her husband's debts. This difference led to the development of two separate sets governing the property rights and distributions between a husband and wife based upon their sexes. Today, eachspouse is responsible only for their own debts and those created jointly with the other spouse. On a joint credit card, for example, both spouses are liable for the outstanding balance no matter what was purchased or by which spouse. However, the outstanding balance on a spouse's individual credit card, one only in that spouse's name, is owed only by that spouse. The only exception to this treatment is when credit charges were incurred for the necessities of life purchased for the other spouse or, in some states, for were incurred to benefit the marital estate. In such an event, the other spouse will be required to reimburse the costs incurred in providing those benefits. In community property states, the community property in the marriage is liable for the community property debts of either spouse. A community property debt is defined as any debt incurred by either spouse during the marriage

on which the creditor looked to the community property estate for repayment or which was incurred to benefit the community property estate or arose as an obligation from the community estate. The separate property of the spouses remained as discussed above.

A judicial property division is not limited to divorce alone. Property division can also occur in a legal separation in which the same rules will apply. A legal separation is virtually identical to a divorce proceeding except for the fact that the marriage is not ended. The effect of a legal separation is that the parties:

1. remain legally separated;

2. neither spouse is responsible for the debts of the other spouse after the date of the court's order.

3. child custody and support is determined by the court.

4. the court divided the property of the estate in accordance with state law unless a valid separation agreement was entered by the parties. Inn such an event, the court adopts the settlement agreement as its order and divides the property as covered therein.

The usual reason for doing a legal separation rather than a divorce is that the couple no longer wish to live together by either for religious or financial reasons do not want to obtain a divorce. A legal separation does not later prevent the parties from obtaining a divorce. In a legal separation, the actual separation of the couple is a requirement for the court to grant a legal separation. If the couple does not separate, then a property settlement portion of the court's order mat still be enforced but the other elements of a legal separation will not be given effect. To do otherwise, would be against public policy because it result in a Court being used to redefine the marital relationship for a married couple living together in ways that it is not permitted to do.

As part of a legal separation many couples decide for themselves how their property will be divided through the sue of a separation agreement which defines their rights in each other's property along with property acquired during the marriage. A separation agreement is used, as the name implies, when the parties intend to separate and live permanently apart. All states permitthe use of separation agreements if used in a legal separation. However, not all states will enforce a property settlement agreement that is entered without the intent to seek a legal separation. In other words, if the couple simply decides to split the property and live apart, some states will not automatically adopt the property settlement agreement because they deem such an agreement to violate public policy and promote the dissolution of families. as discussed in Chapter One. If a valid separation agreement has been executed and one spouse subsequently moves to another state, it would be prudent to verify if the separation agreement violates the laws of the new state. Each state will enforce a separation agreement validly created in another state but usually only to the extent that it does not violate its own laws. this has caused a great deal of litigation, over the years over the enforceability of separation agreements across state lines when not adopted as part of a legal separation.

In any property division, it is important to know whether the division will be made under community property law or the common law. A minority of states: Arizona, California, Idaho, Louisiana, New Mexico, Nevada, Texas, Washington and Wisconsin and, to an extent, Oklahoma have based their family law under the Spanish law or the Napoleonic Code which hold that all property acquired during a marriage, except property acquired by gift, devise or bequest, to be jointly and equally owned by both spouses. The earnings of both spouses, in a community property state, for their work performedduring the marriage along with their retirement benefits earned during the marriage are also considered to be equally owned by the spouses.

Since community property is held to be owned by each of the spouses equally, it is given special tax treatment upon the death of a spouse. Under federal tax law, when one spouse dies the tax basis of both halves of the community property will be increased, stepped-up, to fair market value. This is an great tax advantage upon a death of a spouse but is of no consequence in a divorce. A tax advantage that community property has in a divorce is that there is no tax liability incurred with one spouse being awarded his or her interest in the community property. Because of the tax implications in holding property as community property, it is important that attorneys and judges properly characterize the status of the property in the marital estate as either community property in nature or common law depending on the applicable law. A couple who moves from a community property state into a common law state may have the property divided in accordance to the community property law of the state in which it was acquired and not the state in which they currently reside or where the divorce or separation action was brought.

The Respondent can also file for divorce in the same action as the Petitioner. In such a case, even if the Petitioner subsequently drops the divorce, it will still go forward because of the Respondent's petition. A more complicated situation arises whenboth spouses file for divorce separately and in different states. In such an instance, both states may have authority and jurisdiction to grant the divorce. This can cause a great deal of problems in deciding how the divorce and its related issues are handled. Many states have adopted the Uniform Divorce Act which determines which state should handle a divorce when the spouses seek it in different states. Under this act, jurisdiction is based upon the respective parties' contacts with the state where the children, if any, live and where the property of the marriage, if any, is located although a court may make an order for the division of property located out of the state if the Court has jurisdiction over both of the spouses.

Spousal support is also referred to as alimony. It is support paid in cash or property from one spouse to the other to cover the necessities of life. Spousal support is paid separate and apart from any property settlement and is for recipient spouse's continued care, maintenance and support. Under the common law, a divorced woman was entitled to receive alimony for the rest of her life regardless of the length of marriage with the only proviso that she not remarry. Likewise, the amount of alimony which a wife received under the common law was to be sufficient to keep her in the manner and style to which she had become accustomed. In contrast, under the common law, a husband was not permitted to receive alimony under any circumstances. It took a United States Supreme Court case, Orr vs. Orr (1979) 440 U.S. 268 to finallyresolve the issue of whether a man can receive spousal support in a divorce. The Court held:

"Even if sex were a reliable proxy for need and even if the institution of marriage did not discriminate against women, these factors would still not 'adequately satisfy the salient features of' Alabama's statutory scheme

*****

There is no reason therefore to use sex as a proxy with need. Needy males could be helped along with needy females with little if any additional burden on the State."

The common law rule which was iron-clad absolutely forbade a husband from receiving spousal support under any conditions or circumstances. Gradually, some states began to recognize the inequity of this position and passed laws permitting a husband to receive some spousal support under strict conditions. However, it was not until the Supreme Court's Orr decision that the right was extended to all men. Toady, all states have laws that permit men to receive spousal support on the same conditions as women. While the laws permit spousal support for men., in practice Courts tend to award it only when the man is disabled or os otherwise unable to foreseeably earn a living. The Courts, as a whole, still evaluate more intently the need of men seeking support than is done for women seeking support. Even before the U.S. Supreme Court's decision in Orr, states had begun to invalidate the gender based laws which imposed different requirements for men and women for theaward of spousal support, Henderson vs. Henderson (1974) 327 A.2d 60. As an off-shoot of the Women's Rights Movement, men are, today, permitted to receive alimony today if need is shown. Furthermore, most states now only award alimony for the length of time that the Court considers reasonable for the recipient spouse to acquire the ability to earn a living. In making its support order, the Court looks to the property available to each spouse, their respective ages, and the recipient spouse's need and ability to earn in the future.

The modern view of spousal support has sparked considerable criticism from the feminist movement. It is argued that older women, who were never trained to earn their own living, find themselves with little or no income after a divorce. These women, it is argued, are unreasonably expected to fend for themselves by a certain date when they never had an opportunity to learn or acquire the skills and experience needed to do so., A Court may make temporary support orders while the divorce is pending. Because the support order is temporary, the Court can make its decision without a full consideration of the merits of the issue. A Court will base its temporary support order on the financial statement presented by the Petitioner. The spousal support order will be based on what the Court determines is needed for the maintenance of the spouse during the divorce. Often temporary support is more important that the final support order because the spouse requesting the temporary support may have a lot of assets but verylittle cash. In such an event, the spouse needs temporary support while those assets are converted into cash. When that is doe, the spouse may no longer need additional spousal support. In some states, the temporary support that is awarded is taken into consideration when dividing the property of the marriage. In such states, the paying spouse may receive a credit against the amount of property to be awarded to the recipient spouse for the temporary spousal support previously paid.

The Court has wide discretion in directing how spousal support payments are to be made. Support payments are usually awarded monthly but, if the circumstances warrant it, then the Court may order the payments to be made in limp sums or even quarterly. A lump sum or quarterly payment of support is usually ordered when the payor spouse receives income all at one time. An example of a spouse who may be ordered to pay support in a lump sum may be a farmer who is paid only when his crops are sold. A Court may also order the payor spouse to place sufficient assets into a trust and make the spousal support payments from the income of the trust.

Insurance can also be considered by the Court as an element of spousal support. A Court could order the payor spouse, as part of the support award, to pay for the recipient spouse's health, disability and/or life insurance. The Often will often order that health, car and home insurance be maintained in the recipient spouse during the divorce. Courts tend to split on the ordering of life insurance to be paid because upon the death of the recipientspouse the support obligation ends. However, if there are minor children of the marriage, life insurance on the recipient spouse may be order to protect those children as an additional form of child support. Court ordered insurance is treated the same as any other support obligation. The failure of the payor spouse to furnish and maintain the insurance exposes the payor spouse to contempt charges.

Support orders are fully enforceable Court orders. The willful failure to comply with Court ordered support obligations is held to be contempt against the Court. The payor spouse may be fine and/or jailed for failure to make the support payments if there is no legitimate excuse for the non-payment. In addition to seeking enforcement through contempt proceedings, the recipient spouse may execute on the support order in the same manner as any other court judgment. Property of the payor spouse may be attached and sold to pay the support obligations. In addition, the wages of the payor spouse amy be garnished (seized) to apply to the support payments. Many state shave adopted the Uniform Reciprocal Enforcement of Support Act. The states adopting this Act have agreed to enforce the support orders of the Court of the other signatory states. This Act is intended to prevent spouses, order to pay support, from evading and avoiding their support obligations by moving to another state. In fact, it is now a federal crime to do so.

Usually a Court will award attorney fees and costs to the recipient spouse who has had to take the payor spouse to Court inorder to enforce the spousal support award. In addition, there is legislation that will permit recipient spouses to attach the payor spouse's tax refund check. Such attachment is permitted by government agencies as reimbursement for financial assistance rendered to a recipient spouse because the payor spouse 's failure to make court ordered support payments. A recipient spouse, who has not received payment, should report the payor spouse to the local district attorney who may seek enforcement through a criminal proceeding. Attorneys should be careful when representing a recipient spouse on this issue. The attorney, under the canons of Professional responsibility can not threaten criminal action in order to achieve a civil settlement. Therefore, while the client may threaten the non-paying spouse with going to the District Attorney, the attorney can only to proceed with civil collection action if the support payments are not resumed.

While a divorce may be granted without the respondent being in the Court, spousal support will not be awarded unless the respondent has been validly served and is subject to the Court's jurisdiction. A Court's jurisdiction over a person, rather than property, is called "personam jurisdiction" and requires that the person either be a resident of the state or have significant contacts with it. All but two states, Maryland and vermont, treat divorce and spousal support as separate matters. The majority of states will grant a divorce even though they do not have personam jurisdiction over the respondent spouse sufficient to make asupport order. It is possible for a spouse to file a for a divorce in one state and the other spouse to seek spousal support in another. The determining factor on spousal support is which state has personam jurisdiction over the spouse from whom the support award is sought.

Some states still take fault, i.e. the grounds for awarding a divorce, into consideration in awarding spousal support. The rationale for doing so is that the spouse seeking the support should not be rewarded for doing wrong. Likewise, under this rationale, a spouse who did wrong should be punished for causing the divorce. When fault is at issue, spousal support that would otherwise be awardable may be reduced or denied altogether. In states which have straight no-fault divorce laws, spousal support is awarded regardless of fault on the part of the parties.

All states view spousal support awards as being modifiable whenever changed circumstances warrant it. The following states have statutes which specifically state that spousal support awards are always modifiable:

END OF SAMPLE VIEW

Even in those states which do not have specific laws stating that support is modifiable, the Courts usually insert clauses in their final decrees reserving jurisdiction to modify spousal support asthe circumstances change. Either party may seek modification of a spousal support award for changed circumstances. The payor spouse may seek to have payments reduced while the recipient may later seek to have them increased.

The most common reasons for a change in spousal support are the remarriage of the recipient spouse or the recipient spouse getting a better paying job. Some states, such as California, Colorado and Illinois, have laws which terminate support immediately upon the recipient spouse's remarriage. A change in the financial status of the payor spouse may also justify the modifying of the support award. Likewise, an increase in assets or a job by the recipient spouse may reduce the need for spousal support. Modification of spousal support is usually made by filing a motion before the Court where the divorce was granted. However, if the recipient has moved, the suit may be filed where the recipient spouse lives but the law employed will usually be the law of the original state.

1. DETERMINATION OF SUPPORT OR ALIMONY

Today, both spouses may seek an award of alimony from the other. Alimony or spousal support, as it is called in some states is common. The United States Census figures for 1980 showed that fourteen percent of all divorces alimony was awarded. The National Commission on the Observance of The International Women's Year...To Form a More Perfect Union 102-09 (1976) conducted a poll of 1522 women in 1975 regarding alimony. The poll found that fourteenpercent of the divorced worm were awarded alimony but only 46% received that spousal support regularly. In individual states, the percentage of divorces for which alimony is granted is can be substantially higher. In 1974, for instance, Florida courts awarded alimony in 24.4% of all divorce cases. As a form of alimony, Florida awarded the family home to the ex-wife received the 72.4% of the time, the husband received it 7.9% of the time and rest of the time it was sold and the proceeds divided among the -parties. Generally, however, it is women who still receive most of the alimony awards. The reason behind awarding women more alimony than men results from the economic realities of society. Men tend to earn thirty percent more than women. The discrepancy in overall earning capacity between men and women is based upon the fact that men tend to have higher education and work at higher paying jobs. While men earn more money in the higher paid jobs then also tend to die earlier than women because of those jobs. In 1970, for example, the life expectancy of steel workers, almost entirely men, was 60 years of age when the overall life expectancy of men was 65 years of age. In contrast, for the homemaker in 1970, the life expectancy was nearly 71 years of age. As a result of the fact that men tend to earn more than women even though they tend to die sooner because of it, they usually are not awarded alimony. There are exceptions, where the husband stays at home and takes care of the kids or does not earn as much of as the wife. In such instances, the husband will receive alimony. Statistics, however, should that nearly 90%nationwide of all alimony and spousal support awards go to women. For this reason, this section is devoted to the gender bias factors used in making alimony and spousal support awards to the ex-wife.

A few decades ago, women were not expected to work outside the home and therefore an ex-husband was expected to support the ex-wife until her remarriage. Society's view of that earlier time was that every woman should be married and a divorced woman was expected to seek remarriage. In the 1950's a divorced woman was viewed very negatively by society. Even in Hollywood at the time, a divorce could ruin a woman's screen career. Many Hollywood stars had moral clauses in their contracts which permitted their termination from the studios if their conduct offended the public morals such as getting a divorce. Today, the support award to an ex-wife is primarily designed to train her to be able to go forth an earn a living. The argument raised against such temporary alimony is that it is sometimes unfair against an older divorcee from a long term marriage. Statistics show that older women, no matter how much training they may receive, may not be able to get into the job market. Many of the older women receiving divorces have never worked a day in their lives having ben homemakers throughout their adult lives. many homemakers have only a high school education earned one, two or three decades ago. For such older homemakers, it may simply be unreasonable to expect them to acquire the skills to be earn the ability to maintain their pre-divorce life style. Under the prior common law view, a husband wasrequired through alimony payments to keep the ex-wife in the style in which ha had made accustomed. Today, the style of living for the ex-wife is a minor consideration for the courts. The courts now determine what amount of alimony and support award would be sufficient to allow the ex-wife to get some type of job training.

In Ohio, a five year study was undertaken to evaluate the effects of ex-wives life styles when they were able to get one or more years of training. It was found that such women were able to enter into the labor and get better paying jobs within two years. The MLS Mature Women's Cohort: A Socioeconomic Overview, Ohio State University (1978). This study supported the long held belief that it is cost effective for both the ex-husband and society as well for ex-wives to receive training to support themselves.

This modern view was first touted by the Women's Movement as a means of forcing women to take responsibility for their life and therefore liberating themselves from control by men. Toady, many feminist organizations state the general denial of permanent alimony has actually worked to the detriment of many women. Such women organizations now assert that for a court to put limitations on the amount or time for which the ex-wife will receive support can force her into a poverty situation. In Nevada, a survey of 25% of its judges showed they rarely or never awarded permanent alimony after a long-term marriage. Another 44% of these judges stated that they sometimes gave permanent alimony. The Nevada Supreme Court in Baker vs. Baker (1990) 106 Nev. 412 held that permanent or lump sumalimony is appropriate when the spouse paying the alimony (usually the ex-husband) has a much shorter life expectancy than the spouse receiving it (usually the ex-wife).

It is understood that divorced women, as a rule, do not have very marketable job skills. Most divorced women basically can take jobs only in the clerical or low-skill areas, simply because they are not trained for anything else. Being a housewife does not necessarily train someone to be a fork lift operator. That does not mean by any stretch of the imagination, that women cannot be trained to be a fork lift operator. This is where the judges come into play and they have to figure out what type of support and how long to render it. A study for spousal support in California covering the 1970's showed that long term divorcees suffered as a result of the divorce. Such California ex-wives with a pre-divorce family income of between $20,000 and $30,000 had a median income of only $6,300 following the divorce. "The Alimony Myth: Does No-Fault Divorce Make a Difference." Family Law Quarterly, Vol. 14, No.3 (1980). If the ex-wife has been a housewife for ten years and likes doing it, she may not want to go out and get a job, but would rather continue on as a housewife and raise the children. In that situation, however, the ex-husband may not want to support two households and pay to have the ex-wife stay at home. That view is supported by many feminists as well who do not believe that women should be staying at home to raise children. Where the wife has been a homemaker for many years, such as thirty or forty years, noamount of training will usually be able to put her in the job market because of the time factor. If the woman wants to go to school and become a lawyer, for example, and has no college education, she would be looking at four years of college and three years of law school. If she is fifty two years of age, at the time of the divorce, she will be sixty years of age by the time she's an attorney and she may have many problems in getting a job. The age of the ex-wife works against her even though there are age discrimination acts. While someone could not discriminate against her for age alone, the bottom line is she wouldn't have the experience of someone the same age. A woman of the age of fifty or sixty years with a new degree and no experience will be competing against younger people with probably a lot of job related experience. As a practical matter there is discrimination to be expected on that aspect. Judges should bear that in mind and should be awarding permanent alimony where the ex-wife will never be expected to be able to earn a decent living. She may have to earn some money. If she does, the ex-husband will still have to pay support but not as much. All states permit the award of permanent alimony when the facts justify it on a case by case basis. In the case In re Marriage of Branther (1977) 67 Cal.App.3d 416, the court recognized that permanent alimony may be required in certain circumstances on a case by case basis:

"In those cases in which the decision of the parties that the women becomes the homemaker, the marriage is of substantial duration, and at separation the wife is to all intents and purposes unemployable, the husband simply has to face up to the fact that his support responsibilities are going to be of extended duration--perhaps for life. This has nothing to do with feminism, sexism, male chauvinism or any other social ideology. It is ordinary common sense, basic decency and simple justice."

There should be some understanding that training alone will never suffice in all circumstances. Judges need to understand the economic realties present in society. Specifically, Judges need to realize that spouses who were homemakers for many years may never be able to fully support themselves because of their age. In such instances, the award of permanent spousal support is proper.

A judge is willing to give spousal support for four or five years almost routinely, but beyond that, the judge usually rules that at the end of four to five years the wife can find some way to earn income. The ex-wife can become a secretary or whatever by the end of that time. That part of it is true. The ex-wife can get training, but can she get a job. That argument has been used several times, sometimes quite successfully but sometimes only moderately so. While an ex-wife can go out and become a secretary, if she in her 50's and starting out against someone in her 20's, it doesn't always work. The national statistics show that 74% of all divorced women with children under 6 years of age are in the work force. As a practical matter, most women who do have children do work, and the idea of paying support so the ex-wife and mother can stay at home and raise the children is really the exception. In most courts, the ex-husband will be required to pay support, butthe wife is going to be required because of the level of support the ex-husband is going to pay, to go out and get a job. The reality of the situation is that most people do not earn enough money to support two families. In any event that income the ex-husband makes has got to be used to support both his new family if he remarries and the children from the former marriage, in addition to any support to be paid to the ex-spouse. The ex-husband usually does not earn enough to fully maintain two separate households unless he is a wealthy person. Many states, such as California and Nevada, have minimum support scales for child support. In these cases the husband or father is expected to pay these minimum amounts, period. These payments come right off the top of the husband's net earnings. If the husband does not make enough money, he must bite the bullet and live at a reduced standard so as to make the payments. The real issue arises on spousal support. How much should a judge order an ex-husband to give the ex-wife in order for her to survive? The average divorce does not involve wealthy people. The average man and wife earn $40,000 per year together. Often the wife has never worked and now the ex-husband has to support the ex-wife and their two children. If the ex-husband re-marries he is going to have another wife to support and maybe children from that family. Most states will have a schedule that will guarantee minimum payments for the children of the first marriage, but as for paying spousal support for the ex-wife, that will usually be based upon a few years in order for her to acquirethe skills necessary to earn a living. If ex-wife is older, the husband may have to pay alimony for a long period of time. There are no set standards because there are none. The Social Security Administration estimated in 1975, that the average full-time housewife did work that had the value of $7,500 per year. That was a 1975 figure, so nowadays that figure would be up to around $20,000 per year in today's money. In a family situation, for example, assume one spouse (usually the wife) who stays home, and the other spouse is earning $30,000 per year. Using the estimate of the Social Security Administration, the at home spouse is contributing $20,000 per year of income at home toward the family income and is, in essence, earning 40% of the total support to the family by what is being done at home.

The need for alimony is often exacerbated if there are minor children in the marriage. A Census Bureau study, "Child Support and Alimony: 1983" showed that fifty three percent of single mothers failed to receive support for their children. The lack of child support from the father, whether court ordered or not, has the obvious effect of increasing the monetary concerns of the mother.

The study went on to compare the standard of living of divorced men and women in California. it was determined that the standard of living for divorced men increased by 42% following a divorce whereas the standard of living for divorced women actually decreased by up to 72%. In 1979, for instance, 58% of all women heading family households worked in the clerical and service area.In 1985, such jobs were paying $61 for every $100 earned by men. The payment for the jobs are based upon the availability of people willing to work for that pay. Women without sufficient job training simply lack the ability to get, as a whole, better paying jobs.

A study that was conducted in the late 1970's showed that only

23.8% of all alimony awards were permanent (paid for an indefinite period of time). Over 76% were rehabilitative alimony which is paid for a period of time to allow the spouse to be re-trained and earn a skill to support herself. In the cases where such rehabilitative alimony was granted, women with children received higher alimony that women without children and non-working ex-wives received more alimony than working ex-wives. All of this is rather interesting when it is considered that the purpose of the alimony is for training. In this case, they tend to determine how much alimony is awarded based on the income the spouse has coming in. Most interesting is the fact they give more alimony to working women with children when, as a concept, child support is supposed to be awarded separate from alimony. It is not supposed to be related to alimony. Regardless of whether or not alimony is awarded, child support is supposed to be awarded separately to the custodial parent. To give more alimony simply because there are children is to give child support twice. Nonetheless, that happens and that is a form of reverse gender bias. When considering spousal support, gender bias comes into play because most judges do not understand the economic reality of a divorce. In making support awards, judgesshould consider the earning capacity of the ex-wife and her ability to actually earn sufficient training to get a job, given her age. While such is very important and it can be hard to do. Most judges have taken the view to be politically correct they only have to order a set amount of income for a period of time, and then let the ex-spouse pull herself up by the bootstraps and get a job. If they use anything other than that, they risk the criticism of the liberal left that they are being patronizing. In reality that is the wrong consideration because judges should always look out for the best interest of the people who are before the court. It is wrong to go in with pre-conceived notions that they should never award permanent alimony because there are circumstances where it should be awarded. In most long-term marriages, it may, in fact, be the only way to go, because the spouse (usually the wife who needs the support) cannot realistically earn a decent living, regardless of the amount of training. Judges should be aware of that, and if they are not, they may be unintentionally creating de facto gender bias in the opposite direction by assuming that everyone is equal, when in these situations they may not be equal. It is very easy for a judge to be politically correct, and rule that in five years anyone, including am ex-wife without a marketable skill, can earn a degree and be self-sufficient by that may not be true and therefore work an hardship on the ex-wife. In many states, the amount of alimony or spousal support which a spouse receives is based in art on the property division. The equitable distributionof property, as now followed in most states, was, for example, codified in the Wisconsin Marital Property Act which reformed its common law based family law. The Wisconsin Marital Property Act: Highlights of the Wisconsin Experience in Developing a Model For Comprehensive Common-Law Reform, 1 Wisconsin Women's Journal 5.

Collection of alimony can be a problem. A court order does not always guarantee payment. According to the Statistical Abstracts of the United States, 1985, only forty percent of the divorced women actually received their court ordered alimony.

CHAPTER THREE

CHILD CUSTODY AND SUPPORT

INTRODUCTION

One of the obvious instances of gender bias occurs in the award of child custody. Unlike most forms of gender bias, in child custody the discrimination is often practiced against the father. Until very recently, many states had laws that automatically awarded child custody to the mother unless the father could prove that she was unfit. The view that women are naturally the better parent, while no longer written into the law, is still widely pervasive. Today, all states have statutes that require that child custody wards be made only on the best interests of the child. In practice, however, the presumption still remains that it is in the best interest of the child to be with the mother. Now while Judges still tend to be paternalistic in their view of child custody, that can work towards the detriment of certain women. Some judges view non-traditional life styles of a woman as being able to override their traditional belief that the children belong with the mother. In particular, some judges believe that it is in the bet interests of a child to be raised by a fit, straight father or grandparent rather than a lesbian. Other judges feel that while a lesbian could raise a daughter it would be in the best interests to have the boy raised by a father or grandparent who is fit to do so. This has been an ongoing debate. Only a few years ago, society would not have considered awarding child custody to homosexual parent overthat of a straight and otherwise fit parent. Gay liberation has, however, has resulted laws being enacted in some states that require homosexuals be treated on the same basis as straight person sin the awards of child custody. The effects of baby being raised by a homosexual parent has never been fully documented. As such, in many states, judges still retain the right to consider sexual preference on the part of a parent in making child custody awards.

There is no reason to believe that men are inherently unfit to raise their children. In fact, up to the 20th Century, child custody was usually awarded to the father.Father's Rights and Feminism: The Maternal Presumption Revisited, 1 Harv. Women's L.J. 107. The earlier common law, presumed that fathers, given their management and control of family assets and the ability to earn a living, were in the best position to properly raise and provide for the children. The New Hampshire Supreme Court stated the common law presumption for child custody in State vs. Richardson (1980) 40 N.H. 272:

"It is a well-settled doctrine of common law that the father is entitled to the custody of minor children... that he is bound for their maintenance and nurture, and he has the corresponding right to their obedience and their services.

The view that men were by the very nature of their economic position, better suited to raise minor children had throughout the 19th Century been the rule rather than today, the exception. The New York Court of Appeals held in People ex. rel. Nickerson (1837) 19 Wend 16:

"In this country, the hopes of the child in respect to its education and further advancement, is mainly dependent on the father, for this he toils through life, the desire of its accomplishment operating as one of the most powerful incentives to industry and thrift. The violent abruption of this relationship would not only tend to wither these motives but necessarily in time, alienate the father's natural affections..."

The Court went on to further find that no evidence had been presented to show that the best interests of the child would be served, "pecuniary or otherwise, to commit custody to the mother." Under the common law, the father's obligation to support his children only existed for as long as he had custody. Children were viewed, in the 19th century, as virtual chattels of the parents having custody and the obligation to support the children followed the custodial parent alone. A father without custody was generally presumed not to have a duty to support the children. Brow vs. Brightman (1883) 137 Mass. 187.

Beginning in the late 19th century, was the development of the "Tender Years Doctrine" which held that young children were better off with their mothers. The Tender Years Presumption in Child Custody Disputes 15 J. Fam.L 423. The Tender Years Doctrine held sway in custody awards throughout the 1970's until replaced with the broader concept, "Best Interests of the Child". The "Best Interests" doctrine requires that custody of children should be given to the parent or other person which would have the best effect on the child. Only Utah, still has the tender years doctrine codified in statute although the Utah Supreme Court rejected itsuse in Pusey vs. Pusey (1986) 728 P.2d. 117 and applied the best interests test. Over thirty five states have expressly rejected the tender years doctrine whereas the remaining states apply the tender years doctrine in conjunction with the best interests test when all other factors are equal.

The facts regarding child custody and the impact on American society are alarming, Family Facts. As of 1995, forty percent of all first time marriages end in divorce, as compared to only 6% in 1960. The United States has led the world in the percent of fatherless families, since 1986, when it passed Sweden. In 1960, 5 million children lived in single-parent families whereas in 1993 that number was 18 million. The number of children in such families grew as well from 63.7 million in 1960 to 66.9 million in 1993. A study of living arrangements with children of single parents showed that only 3.5% lived with their father. Forty percent of single parent children had not seen their fathers for over a year and over 50% of such children had never been in their father's home.

As bad as the above statistics appear, they bode even worse for society as large. Seventy-two percent of adolescent murderers grew up without fathers. Sixty percent of all rapists likewise grew up without fathers. Seventy percent of all children in juvenile reform institutions were from single parent homes. behavioral studies show that children exhibiting violent behavior are eleven times more likely to live in a single parent home. Children from low earning two parent homes out achieve children from high incomesingle parent homes by nearly two to one. In 1960, 5.3% of all live births were to unwed mothers. As of 1993, the percent of live births to single mothers reached 30% and is expected to reach 40% by the year 2000.

I. CUSTODY CONSIDERATIONS

Family law is the generic term for the body of law dealing with the personal relationships of families and the rights of all members therein. Family law is the most litigated field in civil law. As much as sixty percent 960%) of all civil filings involve some area of Family law. The most commonly contested area of family Law us, not unexpectedly, child custody and support. Only relatively recently have states eliminated fault as a requirement for obtaining a divorce. As such, the major areas of contention left in a divorce are property division, spousal support, child custody and child support. With recent influx of women into the non-traditional work force, the traditional nuclear family has been reduced. As there are more working mothers appearing in divorce courts, states have begun to rethink their traditional notions of always awarding child custody to the mothers. Many states have enacted laws requiring joint child custody and even mandate that their Courts presume, until proven otherwise, that fathers are equal with mothers in ability to rear their children. All of these actions have served to increase litigation and further fill court dockets.

In every state, the Court having jurisdiction over the childand one of the parents is the proper forum for bringing an action for child custody and support. In making its decision, the Court is guided by the tenet of what is in the best interest of the child. While the parents may agree among themselves the issues of child custody and support, the Court is not bound by any such agreement. The Court will not award child custody to any parent whom it feels is unfit. The Court looks at many factors when it makes its decision as to what is in the best interest of the child. Some of the basic factors which the Court weighs in making its decision are:

1. the age, health and sex of the child;

2. the age, health and sex of each parent;

3. the home environment of each parent;

4. the character of each parent;

5. any criminal record of any parent; and

6. the financial ability of each parent to support a child.

To aid in its determination, the Court may appoint a social worker to investigate the parents and to make a recommendation on custody. The traditional view, still held by many judges, is that the mother should always have custody. This belief was based upon the fact that since mothers did not work outside the home that they were best able to raise the children as long as they received adequate support. Since many mothers now work full time, many states now recognize that the traditional reason for awarding custody to the mother no longer exists. In such states, fathers are given theopportunity to seek child custody on an ostensibly equal footing with the mothers.

Children can not select the parent with whom custody will be awarded. Nevertheless, most courts will, at least, listen to their preference and try to understand their reason for it. The child's preference is one factor but not the only one upon which a Court will base its decision. The Court is always to be guided by the desire to do that which is in the best interest of the child. When everything is taken into consideration, the preference of the child may be an important factor if not the deciding one. The Court will consider the weight to be given to the child's preference. A younger child's desire will naturally be given less weight than that of an older teenager.

Generally, most courts feel that it is in the best interests of a child to be raised in a two parent home. Thus, if the non-custodial parent remarries and seeks custody, the court may consider that to be an important enough change as to merit a modification of its custody order. The Bureau of Census, U.S. Dept. of Commerce's, report on Characteristics of Households and Persons

Receiving Selected Non-Cash Benefits :1980 found that families headed by single women had a median income of $10,830 as compared to $18,775 for single men and married couples who had a median income of $23,180. This translates into a belief that on a financial basis alone a father is usually in a better financial position to provide for the child, especially if remarried. Theimportance of a remarriage increases if the step-parent is a homemaker and the custodial parent has a full-time job. The Court may then feel that the homemaking step-parent may be able to spend more quality time, both caring and nurturing, the child, Webb vs. Webb (1981) 7 FLR 3051, Blnosky vs. Blnosky (1980) 405 N.E.2d 1112. If the child is not of school age and the custodial parent must put the child in day care while working, the Court could decide that the better environment would be with the other parent who could raise the child at home. One area of gender bias is that when a non-custodial mother remarries, the step-father's presence in the home is generally not considered sufficient to merit a change in custody because the step-father is usually not going to stay at home and be the primary caregiver to the child. Simmons vs. Simmons (1978) 576 P.2d 589.

It was not so long ago that a parent living with another

another person of the opposite sex was automatically denied child custody. Such conduct was perceived to be immoral and created a harmful environment in which to raise children, Simmons vs. Simmons supra. As a result of the Women's Movement, today's view of such conduct is not so well-defined. In Gould vs. Gould (1984) 118 Wis.2d 493, the Court refused to take custody away from a divorced mother living with a man and give it to the remarried father unless it could be shown that the mother's relationship was harmful to the child. The court is required to do what is in the best interest of the child but that often is a subjective determination. As such,the Court is often called upon to determine if a custodial parent's home life poses moral or psychological harm to the child. many Courts, particularly in California, will not consider such a relationship will itself be destructive to the normal development of the child. Courts in other states view the matter differently and have even gone so far as to order the unmarried partner of a non-custodial parent out of the home when the child visits. It is all dependent on the development of the child and the effect such a relationship will have on the child's normal development.

If the Court finds that neither parent is capable of providing for the needs of the child, the child may be placed into a foster home until the custodial parent, or parent, are found to be able to properly care for the child. In an extreme case, the Court may terminate parental rights and place the child up for adoption. Such interference with a parent's parental rights is extreme and exercised only when the welfare of the child is in jeopardy.

Joint custody exists in two parts: physical custody which determines the amount of time the child depends with each parent and legal custody which requires the parents to jointly make decisions about the child's education, health and overall welfare. Joint custody is used predominantly by a couple who feel that it affords the best means to provide the most stable environment in which to raise the children. The concept of joint custody has been gaining ground in the last few years although not without opposition. Some states, such as California, now require thatpreference be given to joint custody petitions unless it is in the best interests of the child not to do so. The traditional form of custody is sole legal and physical custody to just one parent. In the traditional custody arrangement, the non-custodial parent, usually the father, has no input into the manner in which his child is raised. this arrangement has long been recognized as both weakening the parental bond and fostering juvenile delinquency. Joint custody has been touted as a means of maintaining stability in the child's life following the parents' divorce. Joint custody works best when the parents agree to work together for the sake of their children and establish a joint goal for which they strive to attain. In the situation where one or both parents are unable to work together, the court will terminate the joint custody and award one parent the sole and legal custody. It is usually very difficult to terminate joint custody and the court is not apt to award sole physical custody to the non-cooperative spouse without good reason.

The child custody award is never final. The Court always retains the power to change the custody order when the best interest of the child warrant it. For example, if it can be demonstrate that a step-parent poses a risk to the child such as by child abuse or drug abuse, then the court will change child custody. in fact, many states now will terminate child custody if a step-parent has a pattern of spousal abuse because it is considered to be an unhealthy atmosphere to raise children. The problem with this scenario is that it is heavily dependent on theelusive element of proof. It has become almost axiomatic in child,custody cases for one parent to accuse the other or a step-parent or friend of child abuse or drug abuse in an effort to gain child custody. The problem that results is that it often slanders innocent people, crowds the legal systems with frivolous complaints and delays the processing of legitimate complaints. Even so, there is complete agreement that all necessary steps must be taken to protect the child from such dangers. Towards that end, when an unwholesome environment is expected, a parent should amass all the proof possible and pursue relief through the child protective services of the child's county of residence, Because a child custody award is never final, it can and should be modified when the facts call for it. The original custody order was made with certain facts in mind. As the facts change upon which the custody order was made then modification of the custody order may be warranted.

The most common modification of a child custody award is a change resulting from the custodial parent's wish to move out of state. Generally, the move will adversely affect the visitation rights of the non-custodial parent and the court must consider the effects of the proposed move on all parties. In decision whether to permit the custodial parent to take the children out of state, the court will consider, among other factors:

1. the age of the child;

2. the effect on the child in being away from the custodial parent;

3. the effect of the move on the visitation rights of the non- custodial parent;

4. the closeness of the relationship with the non-custodial

parent; and

5. whether the move is just to deny visitation to the non- custodial parent.

Moving out of state is a common ground for modifying custody order. In such an event, the courts often permit the custodial parent to take the child out of the state but gives the non-custodial parent one or more months of custody during the summer and alternate holidays.

Just as the child custody order may be modified so too can the child support order be modified when circumstance change. Remarriage of either the custodial or non-custodial parent is an important factor for the court to consider in determining whether a child support should be modified. Modification of a child support award may go up as well as down depending on the circumstances resulting from the remarriage. Child support is based upon disposable income which is the amount of income a parent has left over after all of the necessities of life have been paid. When a parent remarries, the new step-parent may be contributing to the cost of running the home and thus actually increases the parent's disposable income. On the other hand, if the step-parent does not work or contribute to the cost of running the home or has newchildren, then the disposable income may go down. This could be grounds for reducing the child support for the payor spouse or increasing child support for the recipient spouse depending on who it was that remarried.

In a few states, if the non-custodial parent is denied visitation by the custodial parent, then the non-custodial parent may be excused from the paying of child support. Most states, including California, treat the requirement to pay child support separate and unrelated to child visitation. The majority view is that the non-custodial parent can always go to court and gain redress if the custodial parent interferes with visitation and therefore there is no justification in resorting to self-help and not paying child support. In many instances, this has resulted in the committing of many injustices. The non-custodial parent, usually the father, who has been denied visitation for years, may suddenly face criminal prosecution and a huge judgment for back child support. Recent studies have shown that when a father is permitted to see the child then support payments are made over 90% of the time. When, however, child visitation is deliberately prevented then the drops to less than 40%.

Child napping is the taking of a child by a non-custodial parent in violation of a valid custody order. It is usually a felony punishable for up to five years and a termination of all parental rights. In addition, it is also a federal offense. Since most custody awards are to mothers, it is not surprising that mostchild nappers are fathers although it is usually only the child napping committed by mothers which is highlighted by the media. As, however, more courts are rendering joint custody awards, the number of women engaging in child napping has been steadily increasing.The reasons for child napping vary but the one most often cited is the feeling that the ex-spouse is exposing the child to an wholesome or immoral atmosphere and that child napping is the only means to protect the child. The following steps should be taken when child napping has occurred:

1. The local police should be contacted immediately and a missing person's report completed;

2. A report should be filed immediately with the FBI's National Crime Information Center's computer. If local

authorities refuse to do it, then the report should

be made directly with the FBI;

3. The National Center for Missing and Exploited Children should be contacted at 1-800-843-56788 for local support groups;

4. The local district attorney should be contacted to determine if criminal prosecution is possible. If there

was no custody order in effect, then no crime may have

been committed.

5. A petition should also be filed with the Court by the non- child napping spouse to terminate parental rights and obtain full custody. If the court had not previously entered a custody order, no crime will exist until the order is entered. For this reason, it should be done as soon as possible.

Both parents have legal rights and obligations towards their children. Neither parent can unilaterally interfere with the rights and obligations for the other parent. Even though a divorce may be pending, visitation and contact with a child can not be denied without a court order. Usually during a divorce, temporary court orders are obtained which specify child visitation rights. These court visitation orders are not final and may be modified in the final custody order.

Feminist organizations have objected to a judge's use of financial considerations in making a child custody award. The argument has been advanced that financial considerations should be employed in determining child custody because it usually benefits the father. It is argued that a father often earns more than a mother and therefore has more money available to dote on the child. To base a child custody award simply upon disposable income of the parent is, in essence, simply selling the child to the more affluent parent. In Dempsey v. Dempsey (1980) 96 Mich.App. 276 it was held to be error to base a father's custody award solely upon his superior financial wherewithal when the mother had been furnishing the child care. While it is true that financial consideration should not be the sole ground for awarding child custody it, nonetheless, should be a factor to be considered. Notto consider financial security for the child is to negate an important factor in the favor of one parent, usually the father. It is true that child support is intended to reduce the importance of the non-custodial parent's financial wherewithal but it does not, in reality replace it.

The best interests of the child is not determined solely upon which parent has the nicest home or best toys. In Gould v. Gould, (1984) 116 Wis.2d 493, the court refused to award custody solely based upon financial considerations:

"While the economic well-being of child of divorced parents must be provided for, it is best achieved by the court's making appropriate child support and maintenance awards and by focusing judicial resources on enforcement of awards and not by considering financial ability as a criterion for custody."

Intangible factors such as parental love, attention and support are more important. Nonetheless, even of these factors are heavily influenced by the financial security of the parent. If for example, both parents are loving and fit, a parent who must work sixty hours per week will have less time to spend raising the child than a parent who can afford to stay home and tend the child's interests. This has always been the primary reason for warding child custody to the mother. The belief that most women, even if they remarry will stay at home and raise the child has been the primary reason for awarding child custody to the mother. In order to lessen gender bias in custody decisions it is recommended that judges give weight to the importance and strength of the emotional bond between the child and the primary custodial parent in evaluating what custodywould be in the best interests of the child. Justice for Women", Nev. Sup. Court Gender Bias Task Force.

The traditional view that women will stay at home and therefore are entitled to raise the child custody as be turned on its head in recent years. Therefore if the father is a fit parent there is no reason to award custody to the mother on the sole belief that she will be available at home to raise the child. In such an instance, the question is who is the better parent to raise the child when both parents work. Today, most women with children work. Many states have begun to recognize this fact and hold that a working mother is not be held unfit to raise children simply because she is working. The California Supreme Court in Burchard v. Garay 724 P.2d 496 held that since

"over 50% of mothers and 80% of divorced mothers work, the courts must not presume that a working mother is a less satisfactory parent or less fully committed to the care of

her child."

This issue was highly publicized in the divorce of Marsha Clark the prosecutor in the O.J. Simpson murder trial. The ex-husband of Marsha Clark sought custody of their children alleging that the overtime she was spending was adversely affecting her child rearing responsibilities. Feminists immediately attached the father as a sexist merely because he wanted custody of his children based upon a belief that they were being neglected. The argument being raised was not that custody should be removed because Marsh Clark was working but because of the allegation that the work unreasonablyinterfered with her parental responsibilities. The reason that most women get child custody is the traditional belief that they have more time to spend with the child. Now that most women work that assumption is no longer valid. If Marsha Clark was man, Matt Clark, with custody and the mother brought the action on the same grounds, there would not been the hue and cry that Matt Clark was being punished because he was a working father. As an aside, the press stated that Marsha Clark earns almost twice that of her he ex-husband. As such, financial considerations favor Marsha Clark over her husband a fact that many feminists loudly assert in her favor while, in the past, having espoused their nonuse when the use favored fathers.

One of the hardest child custody problems occurs when the non-custodial parent, usually, the father remarries. In such situation, the father is able to offer a conventional and traditional home environment with both a father and step-mother being present. In such a situation, the court must consider whether it is better for the child to have two parents or just one. The best interests of the child are supposedly at issue and not the personal wants and desires of the parents. Feminist organizations take the position that remarriage of the father should not result in modification of the mother's custody rights. Such a view is not the law. Child custody rights are always modifiable if the circumstance merit it. The traditional basis for awarding child custody has been made on the belief that two parents are better than one but when only oneparent can have custoDY it should be the mother because of her ability to stay at home and dote o the child. If both parents are fit and the father is remarried with a stay at home wife, then that situation is closer to the traditional view than an single working mother raising a child.

There have been many instances where women have attempted to sabotage the father's right to participate in the raising of a child. A classic case of this occurred in 1991 in California. In this case, the mother was given custody of a girl remarried and moved with her new husband to Germany. While in Germany she sent a letter to the father stating that the child died. Several years later, the father received notice that the step-father wanted to adopt the child. The child had not died and they had all,moved to South Carolina. The father objected to the adoption and wanted to have custody of the child. A family law judge in California terminated the father's parental rights in the child because he had no contact with the child for years. The appellate court reversed and granted the father limited visitation rights recognizing that the mother's actions probably poisoned any attempt to ever have a true father-daughter relationship. This case highlights the extent which gender bias afflicts the judiciary. The court rewarded the mother for her despicable act of inflicting emotion distress on the father by telling him that his daughter was dead and thereby preventing him from having any contact with her for years. The result of this was that the court ended up letting the motherretain nearly complete control of the child.

A relatively new concept in child custody is that of joint custody. In joint custody, both the father and mother have equal right to make decisions affecting the child but only one spouse is given physical custody of the child. the purpose of joint custody is to keep the non-custodial parent, usually the father, involved in the raising of the child. Joint custody has its own set of problems that are not present in the sole custody relationship. Joint Custody requires both parents to work together to raise the child. Often that is not possible. In making a joint custody order, a judge should investigate the ability of both parents to work together in an on-going spirit of cooperation and decision-making. In implementing a joint custody order, a judge consider the viability of court order mediated or counseling. Joint custody usually gives one parent the physical custody of the child but both parents have the right to make decisions regarding how the child is raised. Joint Custody: An Alternative for Divorced Parents 26 U.C.L.A. L.Rev. 1084 (1979). Legal custody vests both parents with the rights to make decisions regarding child residency, medical care, religious training and discipline. Burger v. San Francisco (1953) 41 Cal. 2d 608. Joint Custody is followed in over half of the states. The remaining states still follow the common law wherein only one parent is given physical and legal custody with the other parent being given only a specific visitation schedule and an order to pay a specific amount of child support. JointCustody Awards; Towards the development of Judicial Standards 48 Fordham L. Rev. 105.

Several states, Connecticut, Hawaii, Kentucky, Maine, Michigan, Minnesota, Montana, North Carolina, Oregon and Pennsylvania, give their courts the option of awarding joint custody when it is in the best interest of the child to do so. Criticism of the option statute is that it fails to establish any limits or guidelines for the court in awarding joint custody. It is felt that many courts simply award joint custody as an option to avoid hurting the feelings of the parent who would otherwise be denied legal custody. Dodd v. Dodd (1978) 83 Misc 2d 641, 402 N.Y.S. 401. This option can also have the effect of forcing parents who are not in agreement to work together. Sometimes the parents can work the differences out without court intervention often they can not and then the court must step forward and terminate the joint custody and award sole custody to only one parent. Joint Custody, 13 Fam. L.Q. 345. Some states, Kansas, Louisiana, Massachusetts, Ohio, Texas and Wisconsin, will award joint legal custody only where both parents request it. The court still retains the authority to deny joint custody when it finds it in the best interest of the child to do so. New York permits joint custody awards by case law only where the parents agree. Braiman v. Braiman (1978) 44 N.Y.2d 584. Similar to the joint custody option is the right of a court to award it upon the request of either parent which is permitted in California, Hawaii, Michigan, Montana, NewHampshire and Pennsylvania. As with the option statutes, a court can end up forcing parents who can not work together to do so in order to raise their children.

Many states, California, Connecticut, Florida, Idaho, Michigan, Nevada, New Hampshire and new mexico, have enacted statutes requiring their courts to first consider joint custody before awarding separate child custody to just one parent. This position was taken to combat the discriminatory view of many old time judges that a mother should always be awarded custody unless the father proved her to be unfit. Many other states have bills pending to enact the presumption requirement. Under these presumptions statutes, it is presumed that joint custody is in the best interests of the child unless proven otherwise.

A minority view for the award of child custody is to base it upon the primary care presumption. The West Virginia Supreme Court in its decision Garska v. McCoy (1981) 278 S.E.2d 357. has, to date, adopted the presumption that children should be awarded to the parent who has been the primary care giver. The Minnesota Supreme Court in Pikula v. Pikula (1985) 374 N.W.2d 705 also applied the primary care provider, "absent a showing that parent is unfit to be the custodian". Washington, by statute, requires that the greatest weight be given to the "relative strength, nature and stability of the child's relationship with each parent, including whether a parent has taken greater responsibility for performance of parental functions relating to the daily needs of the child".Most states have not adopted the primary caregiver test because it is a very narrow test which applies to only one standard. Most judges want to make as complete a determination as possible and therefore want to consider all relevant factors before making a determination and not be limited to just one element.

II. CHILD SUPPORT

A parent has a duty imposed by law to support all child born or adopted