Spoke at an international conference about creating marketing channels for jungle gyms in Hanford, CA. Spent two years building robotic shrimp for farmers.
In either case of a deceased estate, a probate court of competent jurisdiction issues a finding of fact, including that a will has or has not been filed, and that an executor or administrator has been appointed. These are often referred to as “letters testamentary”, “letters of administration” or “letters of representation”, as the case may be. These documents, with the appropriate death certificate, are often the only license a person needs to do the banking, stock trading, real estate transactions, and other actions necessary to marshal and dispose of the deceased’s estate in the name of the estate itself. If you are named as executor or appointed by the court, you will take responsibility for properly handling and distributing the assets in the decedent’s estate.
Understanding an Executor’s Duties
Learn what an executor does: Generally, an executor (or “administrator” or “personal representative”) preserves the deceased’s estate in order to pay off debts and taxes before distributing the remainder to the people entitled to it. The full set of duties is extensive. A partial listing includes:
• Finding the deceased person’s assets and keeping them safe: You will need to collect estate property held in the hands of other people. You must also protect them. This may require that you rent storage facilities.
• Contacting agencies and businesses: You will need to close various accounts that the deceased had, such as bank accounts, credit card accounts, and various insurance policies. You will also need to contact pension plans, the Social Security Administration, and any other governmental or private organization that paid the deceased benefits.
• Finding creditors the deceased owed money to and paying off legitimate claims: If you know the creditors by name, then you will contact them directly. You will probably also have to advertise in a newspaper where the decedent lived. After you receive claims on the estate, you will have to decide which are legitimate and pay them.
• Contacting anyone in debt to the deceased and collecting on the debts: As the executor, you will need to make sure that you collect on debts owed to the deceased so that this money can be added to the estate and then distributed to beneficiaries.
• Distributing property specifically given to beneficiaries or heirs:
The will likely designates specific pieces of property to individual beneficiaries. You will be responsible for coordinating with the beneficiary for delivery or pick-up.
• Closing the estate: As the executor, you will be responsible for informing the court that all assets have been distributed and you must petition to close the estate.
Understand potential liability: As an executor, you have a duty to exercise reasonable care when dealing with the estate’s property. You also owe the beneficiaries a duty of loyalty and good faith. If you breach either of these duties, then the beneficiaries could sue you in court.
• You will discharge your duty of reasonable care if you use the same amount of care when handling the estate’s property as you would use when handling your own. You discharge your duty of loyalty when you administer the estate solely in the beneficiary’s interest and not in your own.
• State law may impose additional fiduciary duties, which can often be quite specific. For a full list of fiduciary duties, you should contact a lawyer.
Research potential compensation: You typically can be compensated for the work that you perform as the executor. Compensation levels depend by state. States often peg the amount of compensation to the size of the estate.
Weigh the pros and cons: Before taking on the responsibility of becoming an executor, you should take some time to consider whether or not you want to do the job. A good executor is careful, patient, organized, and focused on doing an excellent job. You should also consider:
• The amount of time you have to commit: Look over the list of responsibilities and then take a look at the size of the estate. An executor can spend six months or more administering an estate.
• How well you get along with the beneficiaries: If you are afraid of being second-guessed, or if you think emotional disputes are likely, you may not want to serve.
• You should realize that even if you are named as the executor in a will you can decline.
• Also realize that you can stop being the executor at any time. You will need to provide the probate court with a written record of what you have done.
Meet with an attorney: If you have questions about being an executor, including the extent of fiduciary duties, then you should contact an experienced attorney. A probate attorney can also help you consider whether or not you want to be the executor in the first place.
• Should you become the executor; some states will require that you hire an attorney. You can find an experience probate attorney by contacting your state’s bar association, which should run a referral service.
Requesting Appointment as Executor if not Named in the Will
Get a copy of the form for appointment as executor: If you have determined that you are qualified to serve as the executor of the decedent’s estate, then contact the probate court to get the form necessary for appointment as executor from the Clerk of Court.
• You can get the form online or by visiting the court in person: Forms vary from state to state, so make sure that the form you fill out specifically references your state.
Fill out the application form properly: Make sure that you follow all instructions when completing the form. Avoid common mistakes when filling out the form. These might include:
• Not correctly notating the full name of the deceased.
• Incorrectly completing the information asked for.
• If you have any questions about completing the application, contact the clerk of the probate court. Many clerks will help potential executors and answer questions.
Have form notarized: Most states require that the form be notarized, sworn to or witnessed. Find a notary public in your area.
• Be sure to bring sufficient personal identification. Typically, a valid driver’s license or passport will suffice.
Send out a Notice of Application: Typically, you must also notify persons with an interest in the estate that you are applying to be executor. Most states have a “Notice of Application” that you may send out to all estate beneficiaries or interested parties.
• Publish a notice in the local newspaper. Check with the court to ensure you are doing this properly.
• Send a notice to beneficiaries, heirs and creditors.
• Alert the court that you have distributed Notice of Application.
Obtain a surety bond if required: Some states require that the proposed executor post a surety bond insuring the value of the estate. A surety bond is an insurance policy against wrongdoing. When the executor purchases a bond, the insurer agrees that if the executor makes a mistake in the process of settling or handling the estate, either deliberately or unintentionally, it will compensate the beneficiaries under the will for any money lost.
• If the will’s testator names an executor in the will, the bond may be waived. This may be the case if the testator specifically states that the executor does not have to secure a bond.
• A bond is typically required in all other circumstances. That is, a bond is required when the will does not waive the requirement for the named executor. A bond is also required if the will does not name an executor at all.
• To obtain a surety bond, search online for a company that provides bonds for your area. You can also check with the Clerk of Court, who will be able to recommend a reputable company.
Attend the hearing: At the hearing, any beneficiaries or heirs present may object to your appointment as executor. At the same hearing, the court will attempt to validate the will, which may also be challenged by someone.
• If there are no objections to either the will or your appointment as executor, then there may not even be a hearing.
• Consult with an attorney experienced in probate law, with experience in trial work. You can look at the attorney’s website to see if he or she has handled contested wills or appointments before. Be sure to ask about any relevant experience when you meet for a consultation.
• Also look for certification in probate. Some states will grant specialty certification to attorneys in various areas, including probate. To qualify, the attorney must have demonstrated significant involvement in the field and pass a written exam.
Develop a trial strategy: You may not know why you are being challenged. Nevertheless, there are common grounds for challenging the initial appointment of an executor. For example:
• The objector might argue that the will is invalid. For example the will may have been forged or improperly witnessed.
• The objector might claim that you are unfit to serve. For example, if you served jail time, then the court could find you unfit. Also, if you lack sufficient mental capacity, then the court may grant an objection to you serving as executor
Schedule a trial: If someone contests your appointment as executor, the probate court will schedule a trial. The trial will allow you and your challenger to present your respective cases.
• You will probably attend a hearing before the trial. At the hearing, you will learn why the objector is challenging your appointment. You will also set a trial schedule and trial date.
Present your case at the trial: You or your attorney can present your case to the judge. It is best to have an attorney, as probate issues can be complicated.
• Your evidence will track whatever the objection is. For example, if the objector claims that the will was improperly witnessed, then you will need testimony from the witnesses. This testimony should affirm that the deceased was in sound mind when he or she signed the will.
Wait for the judge’s ruling: After hearing both sides of the case, the Judge will either rule on your appointment immediately or take the issue under advisement and issue a written ruling at a later date. If you are appointed, the court will prepare a certificate of appointment for you, which will designate you as the executor of the estate. In some states, this document is called the “Letters of Administration.”If you are not appointed, the Judge will appoint another executor in your stead.
Don’t delay after being appointed executor. Some decisions must be made fairly quickly. Any delay may result in more difficulty in locating and preserving the assets. If you are appointed as executor, consult with an attorney experienced in probate law.
Currently, the United States has a child support enforcement system that is the product of a strong federal-state partnership with highly particularized niches of authority. The balance of power within this partnership, however, has not always been stable. Early initiatives, those taken prior to the creation of a comprehensive program, emanated from Washington, D.C., as national legislators focused on strengthening each state’s Aid to Families with Dependent Children program–the primary cash assistance vehicle serving low-income families–as a means to support families in need. Later efforts involved building the new child support program itself, and debates about the federal-state balance were largely decided in the states’ favor. Today, states find themselves once again in an evolving relationship with the federal government. National policymakers have increasingly placed new requirements on the states to meet specific policy goals, but the states have retained a certain degree of autonomy in meeting those goals.
Proper child support is an issue that has confronted American society for over a century. Today, we see the most conspicuous ramifications of this problem everywhere, from those impacted children living in desperate poverty to those who go to bed hungry every night to those who lack basic medical care. Perhaps even more widespread are those effects that are less overt but equally invidious–children who perceive, because of their lack of financial support, that their parents do not care about their well-being. These are the children who end up dropping out of school, becoming pregnant, having scuffles with the law, and becoming involved with drugs. In each of these cases, the underlying problem remains the same. What do we, as a society, do when a father, usually the primary breadwinner of the family, cannot or will not provide for the children he brings into this world?
Both during and immediately after the Revolution, American courts lacked a common law version of a child support duty. This was because most American laws were based on English precedent, and there was no basis in English law for mothers to collect support from their former spouses. In fact, all that the English law provided was a “principle of natural law” that all parents should support their children; no third party–including a mother–could attempt to collect money from her former spouse to help her raise her children.
American courts thus “invented” the common law notion of child support, without reference to any European standard, in the early nineteenth
century. The courts first recognized the right of third-party benefactors to sue an alleged father for financial damages. This third party could be a friend, a relative, or simply a merchant who supported the father’s children by providing them with a variety of goods and services. In order to win the claim, however, the complainant had to prove that (1) the items purchased were necessities, such as food and clothing, and (2) that the father in question had failed to make available such resources.
One widely cited case that began to articulate the third-party basis for suing was Van Valkinburgh v. Watson and Watson (1816). In this New York case, a child attempted to purchase a coat on his father’s credit. The merchant sold the child the coat, and then tried to collect the money from the father. The court laid out its legal foundation in favor of all parents’ providing for their children by asserting:
A parent is under a natural obligation to furnish necessaries for his infant children; and if the parent neglects that duty, any other person who supplies such necessaries is deemed to have conferred a benefit on the delinquent parent, for which the law raises an implied promise to pay on the part of the parent.
In this case, the justices maintained that the father was actually successfully supporting his son, and that therefore the merchant had no claim in compelling the father to pay for the coat. Thus, while articulating a principle of parental responsibility, the court asserted that only cases where third parties provided necessities to minors could result in enforceable claims.
While the plaintiff could not recover damages in this case, Van Valkinburgh v. Watson and Watson did lay the groundwork for the principle of allowing third parties to recover significant child care costs. Tomkins v. Tomkins (1858), decided in the New Jersey court system, endorsed this precedent, and in this case found the father liable to a third party. The specifics of the case were as follows. In 1833, Mr. Tomkins left his wife and his child, and he failed thereafter to provide them with any material support. The mother sought aid from an almshouse, and the child went to live with her grandmother. Representatives of the grandmother, the mother, and the child aimed to convince the court that the father had deserted them, and thus sought proper restitution. Lawyers for the father claimed that the father was under no legal requirement to support his child, an assertion that the court quickly rejected. Lawyers for the father make the claim that a parent is under no legal obligation to support his child, and that whoever furnishes a child with necessaries, must do it gratuitously; that no recovery can be had for such necessaries, unless they were furnished under an express contract with the parents…. Such is not the law in New Jersey. A parent is bound to provide his infant children with necessaries; and if he neglects to do so, a third person may supply them, and charge the parent with the amount.
The court went on to further castigate the father in question for his delinquent behavior; at the same time, the justices recognized that they were, in fact, “creating” new law. The court maintained that
if a case can be suggested where the moral obligation of a father to provide for his offspring can be enforced as a legal one, it would be difficult to find one more apposite than this. The complainant left his child, about three or four years of age, with its destitute and heart-broken mother. He abandoned them both to the charities of the world. The mother found shelter in the alms-house. The daughter was forced upon its grandmother, a woman then advanced in life, and of moderate means for her own support. There is no evidence that for the fifteen years the child was under the care of its grandmother, the father ever made any inquiry as to its whereabouts or welfare. Now, in view of all these facts, if there was any doubt as to the legal obligation of the father to provide for his child, and of his legal liability to such as should supply that child with the necessaries of life, the moral obligation is so strong that a court of equity would feel but little inclined to grant relief, on any such ground as that the moral obligation had been converted into a legal one.
In Tomkins, the court found the father to be delinquent in his responsibilities toward his family–a breach of what the judges viewed as his natural duty. As reflected in this quotation, part of the finding of fault rested upon the court’s visceral reaction to a father’s abandonment of his offspring. In the court’s opinion, there was an unspoken standard of family life that needed to be protected. Now, with the establishment of this case law, a father’s delinquency provided third-party supporters with the ammunition they needed to sue for reimbursement.
Mothers as Complainants in Court
In addition to third parties, mothers themselves who wished to sue for support could also file civil claims. The mothers who made these claims, however, faced an additional burden in court. Not only did they have to prove that they were destitute, they also had to show that they were not at fault with respect to the divorce. Significantly, if the wife were at fault, then she would not be entitled to collect support.
Connecticut’s Stanton v. Stanton (1808) was one of the first cases that outlined the legal course of action for mothers acting on behalf of their children. In this case, Eunice Stanton sued the estate of her deceased exhusband, John Bird, in order to recover expenditures laid out for their children that were subsequently paid for by her second husband, Joshua Stanton. The facts of the case were straightforward. Eunice married John Bird in 1789, had three children, and subsequently divorced him in 1797. She immediately took custody of her two youngest children, William and Maria; her oldest son, John Herman, continued to live with Bird. In 1803, Eunice married Joshua Stanton, after which, in 1805, her eldest son came to live with her (he claimed abuse by Bird). During the time that the three children lived with her and then with her new husband, Eunice Stanton claimed the expenses.
With only the bare bones of a legal precedent establishing a fundamental duty of parents to provide for their children, the justices in the state of Connecticut nonetheless carved out such a duty in their decision by pointing to the financial “dissolution” of the wife upon marriage.
Parents are bound by law to maintain, protect, and educate their legitimate children, during their infancy or nonage. This duty rests on the father; and it is reasonable it should be so, as the personal estate of the wife, and in her possession at the time of the marriage, becomes the property of the husband, and instantly vests in him. By the divorce, the relation of husband and wife was destroyed; but not the relation between Bird and his children.
As was common law at the time, when a woman became married, all of her assets were transferred to her husband’s name. This was the doctrine of coverture, which had evolved as part of English law beginning in the Middle Ages. As the husband was defined as lord of the manor during the Middle Ages, men were defined as “personifying” the entire marital relationship during the eighteenth and early nineteenth centuries in America. The court reasoned that this transferal, while a boon to the husband financially, also bestowed upon him certain responsibilities for his children. The court therefore ordered the estate of John Bird to reimburse his ex-wife for the expenses.
Charity Organizations And Local Law Enforcement
While the courts were beginning to establish a common, civil basis for third-party benefactors and mothers in search of child support, certain social trends during the latter half of the nineteenth century prompted the legislative branch to address the nonsupport issue as well. The first set of trends involved the changing nature of the American family, and the second revolved around the breakdown of the poor relief system that had served as the primary safety net for decades across American towns. These trends gave rise to the most powerful agents for action in the child support system prior to the early 1900s–private charity organizations working with local law enforcement.
Divorce was rare in the American colonies, as the early settlers brought with them from England the most strictly interpreted traditional and religious ideas concerning the sanctity of marital vows. Once the Americans achieved independence, however, they began to experiment with new ways of developing family law. The states first eliminated the private bills of divorce granted by the legislatures that had been common in the initial years of the republic, replacing them with general divorce statutes applicable to all divorce-seeking parties. Despite this liberalizing trend, the number of couples filing for divorce remained quite low. With the country still heavily reliant on agriculture to fuel the economy, families were wedded to one another in tight-knit communities. These interconnections provided strong social sanctions against any type of misbehavior, such as adultery or desertion, that might serve as a precursor to divorce.
The rise of industrialization in the latter part of the nineteenth century, however, brought with it a massive disruption in the social order of American life. For the first time, the cities drew workers by the thousands to labor in factories, offices, and all types of manufacturing plants. With the transplantation of families from the rural countryside to the urban centers also came the anonymity of city life and the newfound freedoms associated with such a constantly mobile existence. No longer subject to the community sanctions that had preserved family units in the countryside, workers–in particular, male laborers–were much more willing to flout their responsibilities to their wives and children in the name of individual financial, emotional, or sexual gain.
Changes in state divorce laws reflected these new economic realities, although these transformations were by no means uniform. By 1905, while South Carolina still disallowed absolute divorce, and New York permitted divorce only in cases of adultery, most other states had enumerated a much longer list of justifiable actionable causes. These included bigamy, extreme cruelty, conviction of a felony, habitual drunkenness, as well as other factors. These more liberal divorce laws provided the opportunity for increasing numbers of couples to seek out a legal end to their union. Although early divorce statistics are somewhat sketchy by modern standards, it has been estimated that there were 2.8 divorces per 100 marriages in 1867. By 1890, the number of splits rose to 5.8 per 100 marriages, and by 1910, to 8.8 per 100 unions.
As divorce was becoming more prevalent, Americans were changing their views of children. In the early 1800s, most Americans viewed children as “miniature adults” capable of the same thought processes, emotional responsibilities, and physical tasks as their older counterparts. Children commonly worked in factories, logging in roughly the same hours as the adults seated next to them. This was especially true in working-class families. Children, and not wives, were normally sent out to be the secondary wage earners in their families. Their labor was seen as a normal part of growing up, or simply as the price to be paid for receiving room and board within a traditional family unit. With children seen as economic assets, fathers normally assumed custody in cases of separation or divorce.
One of the most enduring changes brought about by the Progressive movement was the complete transformation in this dominant perception of children. Reformers, as represented by labor unions, women’s suffragists, and other charitable organizations, argued that this prevailing notion of children as small adults was not only completely erroneous, but also devastatingly harmful. Activists, largely from the middle and upper classes, argued that children constituted a special class of people, with unique needs, desires, and opportunities for growth. In this new, more romanticized view, children needed to be protected from the harsh vicissitudes of the world, and especially from the filth, abuse, and other ravages of the labor market. As a result of the spread of these new ideas, restrictions on labor market participation and other child protective laws became more commonplace as the century progressed. Between the years 1900 and 1930, the number of children between the ages of ten and thirteen working in nonfarm occupations dropped from 186,358 to 30,000.
With the spread of these new attitudes in the industrial arena, the states themselves took a greater interest in protecting the well-being of the children living within their borders in other respects as well. By the middle of the nineteenth century, most states had adopted some version of the Elizabethan poor laws, which had been developed in England in 1601. One of the laws’ central components was the provision that required parents to support their children if the youngsters–in the absence of such support–would otherwise become paupers. But this provision was very loosely interpreted.
In brief, a mother’s need set in motion a chain of events that was supposed to provide the family with the basics of an income safety net. The triggering mechanism for assistance was simply a mother who requested aid from her town in order to support her children. After her request was registered and money began flowing in her direction, the courts would require fathers to reimburse the towns for the support of their children. The punishment meted out for this violation in England, however, was almost nonexistent. As Blackstone commented, children were expected to work in order to prevent their pauperization, and “the policy of our laws, which are ever watchful to promote industry, did not mean to compel a father to maintain his idle and lazy children in ease and indolence.” Initially, American courts replicated this policy by compelling fathers to reimburse the towns only at extremely low levels, if at all.
With the spread of industrialization and the ramifications created by a loosening social structure, however, the towns experienced increased pressure to help families in need. This pressure, interestingly enough, fell upon the charity workers–the precursors of today’s professional social workers–who were then laboring in mostly private organizations. As fathers began to desert their families in higher numbers than ever before, charitable organizations were overwhelmed with single mothers requesting financial support. Aid was not disbursed liberally or freely, however. The type of relief that these private groups favored was very specific and pivoted on one specific moral theme: it could not serve to weaken the character of the person receiving the aid.
This vision of a great and upstanding society was propagated by leaders of the Charity Organization Society (COS) movement. The first such organization began 1878 in Buffalo, New York, and the movement spread throughout the country from there. While each local group was different, generally its members shared at least one common belief. In their view, striving to be an affluent member of society should be the goal of every man and woman across the nation. If someone were poor, according to Mary E. Richmond, one of the movement’s leaders, it was probably the result of a moral failing on his or her part. Public relief, therefore, had to be condemned at every turn, since it only fed into this depraved moral state. The proper role of charity, then, was simple. Private citizens should set an example for the lowly, inspiring them to find the direction and the help that they needed through personal efforts and family relationships to rise above their current situation in life. What this meant in practice was that local Charity Organization leaders would take it upon themselves to visit families “in need” in order to determine the true cause of their deprivation. Only truly deserving families would receive financial assistance; the others–the lazy, the slovenly, and the cheats–would have to pull themselves up by their own bootstraps.
The COS movement and all of its affiliated private agencies held fast to this belief system in all areas of welfare work, including the case of deserted children. In her analysis of the issue, Richmond argued that the problems of children being raised by “married vagabonds” were difficult to solve, but not impossible. The teams of “friendly visitors” played an important role in addressing these families’ needs, and were much more important than the provision of public relief.
In order to insure support for families over the long run, then, COS movement leaders advocated a hard-line approach. To the greatest extent possible, aid had to be kept to a minimum. Only when all else had failed would the town provide assistance and use the full extent of the law to pursue the wayward father.
When it came to actually attending to the problems of single mothers, however, charity workers, while mostly attentive, were simply overwhelmed by the task before them. Most of these organizations simply could not meet the demand at hand, and therefore took two forms of remedial action to address the crisis. First, charity workers appealed to the state legislatures to enact stricter criminal penalties for fathers who deserted their families. They advocated jail time, fines, or some combination of the two punishments. These lobbying efforts were critical because, at the turn of the century, only four states considered desertion or abandonment to be a felony, thereby reducing the possibility of punishment for wayward fathers to close to zero. Moreover, even those states that did have laws against desertion on the books typically had low fines (approximately $100) and brief mandatory jail sentences (three months). However, by 1911, organized charity workers had pushed seven states into passing tough new felony laws, and had increased penalties in eighteen other states to fines up to $1,000 and jail sentences of up to one year.
Second, relief workers in private agencies began to serve as important liaisons among mothers, fathers, and the state. The new criminal laws passed by the states enabled the support collected from fathers to be directly transferred to the mothers in question or–even better, from the agencies’ point of view–through the agencies from the fathers to the mothers. Private agencies took advantage of this legal remedy by acting as intermediaries between these parties: representatives from these groups began bringing charges against specific fathers in the court system in order to compel them to pay.
An additional complication for the towns that were seeking financial compensation for helping single mothers in need was the problem of interstate flight. As fathers became more mobile and job opportunities opened all over the country, fleeing one’s state of origin became a common method for escaping the obligation of supporting one’s children. The National Conference of Commissioners on Uniform State Laws (NCCUSL), the organization that encourages uniform legal standards across the country, attempted to deal with this problem on numerous occasions. In 1911, the commission proposed the Uniform Desertion and Non-Support Act (UDNA), which was later adopted by eighteen states. The UDNA made it an offense for a father to willfully desert his children and fail to pay support. Unfortunately, the initial incarnation of this interstate enforcement law was inadequate, because it was difficult to prove whether a father had “willfully” left his family or simply left his hometown temporarily in search of employment. The Uniform Support of Dependents Law (USDL), adopted by several states in 1944, improved upon the UDNA by requiring that fathers support their children in other states that had similar support laws. Yet, despite these improvements, interstate enforcement continued to be an enormous problem.
Beyond these laws that applied to the families just described, it is important to point out that there were three categories of children to whom standard child support policy did not pertain: out-of-wedlock children, African-American children, and children with deceased fathers. Society held parents of these children to different standards, and thus meted out either rewards or punishments according to highly particularized rules and norms. By far, out-of-wedlock and African-American children fared the worst, while children of widows received relatively better treatment under the law.
Standard child support laws also did not apply to African-American families. Under the system of slavery, official marriages between African Americans were largely prohibited by law. Slavery made the white male slaveholder the head of household for all blacks–adults and children that he “owned.” Even during the post–Civil War era, child support was not an issue, since whites often seized upon black children as indentured laborers under the notorious Black Codes. These practices persisted well into the 1880s, when legal reformers finally managed to overturn these chattel-like arrangements. Prejudice, however, continued unabated, so that few social reformers or law enforcement personnel would assume the responsibility of bringing a case against a deserting African-American father. These children were simply not seen as worth the bother and expense of a legal pursuit.
Finally, standard child support laws also did not apply to widowed mothers, although their fate stood in marked contrast to the situations involving out-of-wedlock and African-American children. Widowed mothers were placed in a special category of assistance, more deserving of guaranteed financial assistance than a divorced mother or the mother of an out-of-wedlock child. During the early part of the twentieth century, the majority of states created “mothers’ pensions.” If a woman lost her husband through death, and she faced dire economic circumstances, she could apply for state-based aid. This assistance prevented her from having to give up her children to local authorities for lack of support.
Although by 1921 forty states had such programs in place, there were two severe problems that prevented the programs from making a substantial impact on the largest number of potentially eligible women. First, the benefit levels were, by any standard, extremely low. States permitted localities (usually counties) to run these programs, and most never came close to funding the program at an adequate level. In 1930, when the mother’s aid committee of the White House Conference on Child Health and Protection recommended average grants of at least $60 per month, only eight cities throughout the United States were meeting this goal. In 1931, the median grant was $21.78 per month. Most mothers therefore had to find supplemental income even if they were able to secure a pension. Second, women had to qualify for the benefit by passing a character test; if caseworkers found that the mothers were unable to provide a suitable home for their children, these women were immediately expelled from the rolls.
For the majority of children born to white, divorced parents, the history of child support enforcement up through the early 1900s was dominated by two primary players: individual complainants and private charitable organizations working with local law enforcement personnel. Each of these avenues of recourse presented enormous problems to mothers in need. Individual efforts to attain support through the courts were haphazard and largely tools of the upper classes. When charity workers and local law enforcement became involved, mothers often did not fare any better. Private agencies collaborated with law enforcement personnel by bringing support claims to their attention, securing orders of support from local judges, and working as virtual collection agencies by redistributing the money collected from the fathers back to the mothers. Awards were low, and societal “behavior monitoring” was high. Children born out of wedlock and African-American children were largely ignored, and children whose fathers had passed away received only subsistence-level benefits, if they received any at all.
A new child support system seemed desirable, a system that would guarantee consistency in payments and not discriminate among potential recipients.
At the turn of the century, a newly evolving profession–the social workers–began advocating on behalf of a completely revolutionary approach to child support enforcement. In doing so, they entirely overturned the conventional wisdom of the private charity workers and law enforcement personnel who had come before them. According to the social workers, families did not necessarily need to be reunited; in fact, in cases of physical, emotional, or substance abuse, family unification would be a harmful outcome. Of course, by making this argument, they placed themselves at the center of the policy solution. According to their new perspective, instead of focusing on rehabilitating fathers, social workers would champion the cause of single mothers. Women needed as much help as possible in raising their children, including education, day care, and job training. And since these were such enormous tasks, private charities could not do the job alone. The federal government needed to step in with a massive infusion of aid to get these women back on their feet. The only question was when these social workers could make their move and pitch their agenda effectively to the American public, and they found their opportunity during the Eisenhower, Kennedy, and Johnson administrations.
Beginning in the early nineteenth century, the United States was known as a country where private charities, churches, and other philanthropic organizations were the sole service-oriented entities to take care of those in need. The Charity Organization Movement had institutionalized a series of policies and procedures to deal with the problems of the poor. This involved using “friendly visitors” and intensive casework to help correct the perceived moral failings of those in need. Movement organizers frowned upon public relief while extolling the virtues of private volunteers to assist in moving families out from the ranks of poverty. While the Great Depression and the resulting New Deal programs had somewhat softened the nation’s attitude toward increased governmental involvement in the economy, reliance on private charities with their focus on holding fathers accountable continued to be the dominant social service safety net paradigm.
In addition to opposition from private charities, social workers advocating a larger public role for themselves also encountered difficulties from state law enforcement personnel. Since the nonpayment of child support was considered a criminal act, it was up to the local police to apprehend these offenders. Police did not consider the mothers to be the problem–it was the fathers who needed jail time and local rehabilitation. District attorneys agreed with this approach, and repeatedly filed charges against fathers who had abandoned their most basic of duties–the financial support of their families. Social workers who advocated a new public role for their profession thus faced two sets of incumbent policy entrepreneurs that would be difficult to thwart. They therefore had to carefully craft highly effective and cooperative risk-reduction strategies in order to move their case forward.
The Great Depression highlighted divisions within the occupation of social work that had been brewing for several decades. On one hand, thousands of social workers continued to support the efforts of private charity societies to handle the economic devastation of the early 1930s. They insisted that casework was still the most appropriate model for handling poverty in single-parent families, and they rejected the notion that social workers should engage in cooperative relationships with federal officials in order to achieve certain societal goals. Moreover, they frowned on what they viewed as the dilution of their membership by untrained, unskilled relief workers who had no commitment to the occupation’s status as a whole. By remaining insulated from these external pressures, they hoped to preserve the integrity of the profession.
Social workers who advocated on behalf of a more public approach to their profession, of course, viewed their role vis-à-vis society completely differently. The massive dislocation of workers during the 1930s had infused in them a new mission and sense of urgency. With the number of needy families increasing exponentially all around them, these publicly oriented social workers welcomed the financial support they received from the federal government in such legislation as the Federal Emergency Relief Act and the Social Security Act. They recognized that with the weaknesses inherent in the modern economy, they could no longer work in isolation from the public purse. Instead, they needed to work in conjunction with federal programs in order to best achieve their goal of a more affluent and productive society.
By the mid-1970s, child support enforcement in the United States had undergone a massive transformation. Gone were the days when social workers controlled the agenda. Gone were the days when the primary focus of this public policy was distributing benefits to mothers and providing them with intensive job training and educational services. Gone were the days when welfare budgets would continue to rise without accountability. No, these were the days when the conservatives reigned supreme in child support policy. Through the early 1970s, they carefully constructed a new child support program that placed the federal government in a new partnership with the states to pursue fathers for financial resources, rather than to offer services to single-parent mothers. This approach, they reasoned, would provide solid relief for their current budgetary woes, where deficits prompted by exploding welfare costs dominated the election-year debates.
Indeed, the program met with marked initial success. By early 1976, over 11,700 people were employed across the country to enforce support. These employees were in charge of working the over 1.9 million AFDC cases that immediately came onto their books. Yet there was a steady undercurrent of duress on the system. Women not receiving welfare, or non-AFDC women, were not guaranteed the same rights, benefits, and privileges for child support assistance as AFDC clients. Some states offered them services, while others did not. But the demand for services was very real. By 1981, while the AFDC caseload had climbed to about 5.1 million cases, the non-AFDC child support caseload was catching up.
Women leaders wasted no time in laying out what they viewed as the dismal state of the child support system as it existed in the mid-1980s. While during the 1960s social workers had argued that the child support crisis was the product of a lack of economic opportunity for families, and during the late 1970s conservatives argued that it was the result of familial breakdown and welfare dependency, in the 1980s women located the cause in the realm of financial vulnerability. To women leaders hearing from their female constituents, the key factor behind the child support crisis was the government’s lack of effort in preventing women from becoming dependent on AFDC in the first place. If women not receiving welfare wanted to receive child support, they had to turn to the courts for help.
In the 1970s, then, most elected officials argued that middle and upper income fathers would simply “do the right thing” without the government having to oversee the execution of their financial obligations. The legislative language that established the 1975 child support program reflected this perspective, with the majority of resources directed at fathers of children on welfare. Yet, as women leaders pointed out in the mid 1980s, Senator Long’s optimistic predictions about paternal behavior in middle-class families did not come to fruition. Non-AFDC fathers were simply not doing the right thing.
The non-AFDC population thus faced an entirely different institutional environment than its AFDC counterpart with respect to the child support problem. In this separate legal framework–the courts–they had a unique set of policy tools at their disposal, which were designed, in theory, to meet their unique needs. Yet the courts, as will be demonstrated, were not adequate to the task at hand.
To complicate matters from the start, each state was unique in its method of deciding child support cases. During the 1970s, the level of court complexity was overwhelming. One result of this disjointed court organizational scheme was the duplication of child support services. One court would enter a judgment on a case, and then another would do the same without knowledge of the first court’s action. Moreover, even if the record showed that another order existed, judges would often take liberties and go about modifying these earlier decisions anyway. Linked to this duplication problem was a similarly frustrating issue–the fragmentation of responsibility that prevented support cases from being processed in an orderly way.
Without a single source of accountability, many families were at a loss when a discrepancy occurred in their case account or when a father missed a payment completely. Tracking the path of a single check through this byzantine system proved to be too overwhelming for many single parents, who resigned themselves to accepting nonpayment as a fact of life.
Beyond the problems that afflicted the court system as a whole, individual state judges possessed wide and often arbitrary authority over whether child support should be paid, and if so, at what levels. As it first developed, the guiding philosophy behind this flexibility seemed reasonable enough. Judges were trained professionals, who, by virtue of their education and experience, were considered capable of assessing the merits of each family case separately. This was so because, inevitably, special circumstances would arise: fathers might be in school, with less money available to pay support; children might be spending the majority of time with the mother even though the father had custody, and so on. During the 1950s and 1960s, the conventional wisdom suggested that such special factors should be considered thoroughly before a judge handed down a support decision. Yet, for mothers who relied on a consistent stream of income to feed and clothe their children, this type of judicial discretion spelled financial disaster. Irresponsible judges were simply too numerous to control.
Both the federal government and the states were slow to recognize this problem. Indeed, prior to 1984, only half of the states were offering full or partial enforcement services to non-AFDC families who requested aid in obtaining support. Interestingly, the more services for non-AFDC women the states did manage to offer, the more non-AFDC families began to petition the states for help.
With the 1984 Child Support Enforcement Amendments’ passage into law, there was, undoubtedly, a historic sense of accomplishment. Women now had a better chance than ever before of recovering the support that they deserved for their families. And only four years later, with the Family Support Act of 1988, Congress provided women with more economic insurance by requiring the mandatory use of financial guidelines in assessing support awards.
Moreover, after Reagan left the presidency, women legislators and women’s groups continued to successfully pressure the federal government to tighten enforcement provisions. For example, the Child Support Recovery Act of 1992 imposed a federal criminal penalty on fathers for the willful failure to pay a past-due child support obligation for a child living in another state. The Ted Weiss Child Support Enforcement Act of 1992 amended the Fair Credit Reporting Act to require consumer credit agencies to report all child support delinquencies. Under President Clinton, the Bankruptcy Reform Act of 1994 prevented child support obligations from being discharged in bankruptcy proceedings, and the Full Faith and Credit for Child Support Orders Act required each state to enforce orders issued in other states. Also in 1994, the Small Business Administration Reauthorization and Amendments Act required that all recipients of financial assistance be not more than sixty days delinquent in paying their support, and the Social Security Amendments of 1994 required that state child support agencies improve paternity determinations by a set standard or face federal financial penalties.
In addition, with women continuing to enter public office in greater numbers than ever before, the states also began to pass their own individual laws to help enforce support. Among the many new policies that were launched during this era, revoking drivers’ and professional licenses for the nonpayment of support became extremely common. Other states placed themselves on the cutting edge of reform by requiring employers to report all new hires immediately to their state employment agency, using their W-4 forms. Still other states passed versions of the Uniform Interstate Family Support Act (UIFSA), which promised enhanced interstate enforcement.
Father’s Rights Lawyers
Since the passage of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), fathers have become much more vocal about their disappointment with the current policy environment. In many ways, PRWORA represented the culmination of women leaders’ efforts to tighten child support provisions after the introduction of full services to non-AFDC mothers in 1984. PRWORA introduced a national directory of new hires to track down delinquents, required states to improve their interstate collection mechanisms, and mandated that all states have procedures in place to revoke driver’s and professional licenses when fathers fall behind in their payments. PRWORA even authorized states to deny food stamps to those fathers who fail to support their children.
In response to what they perceive as these draconian measures, fathers have become active protesters against the status quo, taking their grievances to the streets, to their legislators, and to the media.
Although fathers’ rights groups are numerous and their goals varied, one constant theme has emerged throughout their short history: their central goal has been to modify child support awards, usually in a downward direction. Fathers’ rights groups maintain that the country’s monomaniacal zeal to catch and punish “deadbeat dads” has produced a child support enforcement system that is inherently inequitable and unjust to fathers. States are pursuing them to the fullest extent of the law, without regard to their capacity, willingness, or desire to pay. According to this perspective, this single-focused mission has forced many men into poverty, or into the underground economy. Fathers have been stalked, and the states have been doing the stalking.
Not only have men been forced into financial ruin because of current child support policy, they also have been forced into emotional ruin.
When fathers are treated as nothing more than open wallets, it is no wonder that they become confused over the proper role they should take in their children’s lives. The father–child bond undoubtedly weakens over time, as men perceive themselves as having nothing more to offer their offspring than loose change.
To fathers’ rights leaders, most fathers, then, are not “deadbeat dads” but simply men trying to survive economically. But the myth of the “deadbeat dad, ” some experts argue, has become so pervasive over the past two decades that all fathers have suffered under the weight of unnecessarily harsh child support laws.
Fathers have come to recognize the importance of their spending time with their children, and have done everything in their power to “share parenting” with their former partners. Most fathers’ rights groups remain strong proponents of shared parenting arrangements. To these groups, shared parenting provides a variety of benefits to the children, including stronger familial ties, an enhanced emotional support system, and a consistent relationship with both parents. Shared parenting generally involves a child spending more than 20 percent but less than 50 percent of his or her time with the noncustodial parent (anything under the 20 percent threshold is the “ordinary visitation” that typically occurs in most sole custody cases). Fathers would also like to be financially compensated for this increased time spent with their children through reductions in their child support awards.
Child support guidelines, however, have not kept up with these changes. According to fathers’ rights groups, child support guidelines continue to assume that the mothers are the primary caretakers of the children. This mindset holds even as fathers claim that they are not only increasingly spending more time with their children but also are becoming more emotionally invested as well. Fathers want their new roles to be taken seriously, and are demanding that the courts and the child support agencies compensate them for the increased time that they are allotting to their children, especially under shared parenting agreements.
In June 1995, President Clinton initiated action by instructing all federal agencies, via a memorandum, to help strengthen the role of fathers in families.
To support these diverse roles, DHHS policymakers laid out five beliefs that would thematically link their programs together in the upcoming years. These included the following: (1) all fathers can be important contributors to the well-being of their children; (2) parents are partners in raising their children, even when they do not live in the same household; (3) the roles fathers play in families are diverse and related to cultural and community norms; (4) men should receive the education and support necessary to prepare them for the responsibility of parenthood; and (5) the government can encourage and promote fathers’ involvement through its programs and through its own workforce policies. While many states have pursued their own projects for low-income fathers, the most important cross-state program has been the Parents’ Fair Share Demonstration (PFS), which used an experimental design for quality evaluation purposes. Implemented in 1992, PFS focused on low-income fathers in the following seven cities: Los Angeles, California; Jacksonville, Florida; Springfield, Massachusetts; Trenton, New Jersey; Dayton, Ohio; Grand Rapids, Michigan; and Memphis, Tennessee. The program offered nonpaying or delinquent noncustodial fathers several types of opportunities: enhanced contact with local child support enforcement personnel, peer-group meetings for similarly situated noncustodial fathers, and mediation services for fathers facing conflicts with custodial parents. The center piece of the program, however, was job training. Across a number of sites, noncustodial parents worked part-time while acquiring skills that would be useful in the ever-changing economy. Agency directors established contacts with local businesses to ensure that workers ultimately had a good chance at long-term, stable employment. Additionally, “job club” activities helped fathers to polish their résumés and to present themselves effectively in interviews.
If you are a father who believes your exwife is using child support to destroy you economically or you are the mother who is seeking child support to look after the minor child, an experienced Lehi Utah divorce lawyer is your best friend. An experienced Lehi Utah divorce lawyer will ensure that you don’t have to pay the child support that you cannot afford as a father and as a mother, you receive a fair and just child support in the given circumstances.
Alimony In Divorce
The word alimony is derived from the Latin term for nourishment or sustenance, alimentus. The concept of alimony, or the support of a wife who was living apart from her husband, stems from the provision made for wives who were successful in obtaining limited or bed-and-board divorces in the English ecclesiastical courts. Until the mid-19th century there was no form of absolute divorce for the general English population. Only the rich and powerful might obtain this form of marital termination through an Act of Parliament. This feudal arrangement, dictated under English Common Law, enabled the husband to gain control of his wife’s property. He controlled her income and rents and profits from real estate she owned. In return he was obligated to support her. Usually this obligation was carried out within the family home. However, if a bed-and-board divorce was obtained because the husband was guilty of cruelty or adultery, he could be required to pay alimony when the wife was authorized by the court to live separately from him. This protected the wife from falling into destitution because the husband legally remained in control of her property and earnings.
A similar award mechanism was established in the United States. Under the Married Woman’s Property Act of the 19th century, the government stripped husbands of control over their wives’ property. However, husbands continued to be legally responsible for spousal support. Therefore, when absolute divorce became available, the husband was obliged to continue to support his former wife in these cases, as well as in those involving limited divorce or judicial separation.
Marriage is a wildly popular institution—so popular that failure of a first marriage usually does not deter spouses from marrying again. Approximately 75 percent of divorcing women remarry within ten years, 54 percent within five years. These second marriages are at least as likely to fail as first-time marriages.
For some who marry a second time, marriage demands a hefty admission price not imposed on first-timers: any alimony claim against a former spouse will likely terminate. The intuition of most observers is that this is the right result—an ex-husband should not pay alimony to a former wife who is married to someone else. Indeed, the vast majority of states including Utah, either through case or statutory law, provide that a recipient’s remarriage automatically terminates alimony, or at least creates a prima facie case for termination.
The remarriage-termination rule begins with the general principle that an alimony award, unlike a division of property, is modifiable. Often, judicial authority to modify alimony is specifically granted by statute. The Uniform Marriage and Divorce Act (UMDA), for example, allows modification “only upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable.” Ordinarily, the changed circumstances that trigger modification involve economics—a reduction in the payor’s resources, for example, or an improvement in the recipient’s financial status—that warrant a decrease in alimony. When an alimony recipient remarries, however, a different rule applies: alimony is not merely modified, but terminated, usually with no possibility of revival, and without regard to the financial impact of the recipient’s new marriage. Remarriage alone is thus the termination trigger, typically without regard to any other factors usually relevant to modification. Whether it appears in statutory or case law, this notion that alimony should terminate upon a recipient’s remarriage is a baseline of contemporary American law.
The rationale for alimony was once simple enough: upon marriage a husband undertook a lifetime obligation to support his wife. While he could obtain a legal separation, rarely could he fully sever marital ties. The husband’s duty of support thus continued throughout the wife’s life, and alimony was the tool for enforcing his obligation. An integral part of this vision was the system of coverture, under which a married woman’s identity merged into that of her husband. However a husband’s support obligation managed to survive divorce, that obligation is surely cut off when a new man takes on the task of supporting her. Upon remarriage, a new man becomes the ex-wife’s protector and provider, taking her under his wing and finally releasing the first husband from responsibility for her. This vision is neat enough: a husband has a lifetime obligation to keep his wife from need until the obligation is assumed by another. To take this reasoning a step further, allowing a woman to be the beneficiary of two husbandly duties of support would amount to polygamy, or at least to prostitution. The implication of such reasoning is that while a wife requires a husband’s support, the law does not much care which husband supports her. One husband is enough, and any husband will do. The remarriage-termination rule thus seems historically grounded in an unsettling view of husbands as necessary, if fungible, providers.
Fault-Based Rationales: Damage Awards and the Ultimate Betrayal
If the appearance of absolute divorce undercut alimony’s rationale, fault-based divorce sometimes supplies a new one. Cast as the remedy of an innocent spouse against a guilty one, divorce under a fault-based regime depends upon proof of marital wrongdoing, such as adultery, cruelty, or abandonment.
Fault may indeed explain alimony—at least in some states and in some cases. An adulterous spouse, for example, might be required to pay alimony as damages for breach of the marriage contract. Of course such a fault-based rationale would require only guilty spouses to pay alimony to innocent spouses; that is, no innocent spouse would ever pay alimony and no guilty spouse would ever receive alimony. Because such a limitation does not describe the law of alimony, fault can at best provide a partial rationale.
If alimony is cast as a damage award against a guilty spouse, what explains the remarriage-termination rule? Drawing further on the contract analogy, alimony might be designed to give an injured wife the benefit of her bargain—that is, to put her in the position she would have been in had her husband shared his income with her, for life according to traditional views of marriage. Nothing in this analogy to contract, however, explains why alimony should terminate upon a wife’s remarriage. Certainly, in contract generally, a party’s good fortune subsequent to a damage award does not require her to forfeit her damages. Even when a wife’s remarriage amounts to good fortune, it is difficult to see why her improved financial footing should absolve a former husband of liability for the wrongdoing that triggered the alimony award. A contracting party who wins the lottery need not return a damage award. And of course not every remarriage is a winning lottery ticket. Yet the remarriage-termination rule cuts off alimony, good fortune or no.
An analogy to mitigation of damages is unhelpful. The mitigation principle ensures that a court “ordinarily will not compensate an injured party for loss that that party could have avoided by making efforts appropriate, in the eyes of the court, to the circumstances.” If applied to alimony termination, mitigation principles would suggest the peculiar conclusion that a wife should remarry in order to mitigate her losses and save her ex-husband money. Mitigation principles are also awkward because the timing is wrong. Opportunities to mitigate loss will ordinarily serve to decrease a damage calculation before it is reduced to judgment. In the case of divorce, however, a wife cannot avoid loss through remarriage at the time alimony is initially calculated, since she is not yet divorced. While it is true that alimony is modifiable and thus theoretically capable of repeated recalculation, mitigation principles would at most support a reduction in alimony commensurate with a wife’s improved financial status, yet the remarriage rule usually applies without regard to financial consequence and completely eliminates, rather than proportionately reduces, alimony.
Neither can principles of novation or renunciation explain the remarriage-termination rule. Novation occurs when a creditor (the ex-wife) takes a third party’s promise to pay (the new husband’s support obligation) in satisfaction of a debt (the ex-husband’s alimony obligation). Under this analogy, the new husband’s support obligation would substitute for the exhusband’s alimony obligation, thus discharging the ex-husband. The difficulty with this reasoning is that novation requires the agreement of the original parties—that is, both the ex-husband and the ex-wife. Novation thus explains the remarriage-termination rule only if the wife’s remarriage constitutes her implicit agreement to forgo alimony, a strained interpretation of remarriage given the negative economic consequences of termination and, in the end, an interpretation that begs rather than answers the question of why alimony terminates on remarriage. The failure of an ex-wife to expressly forgo alimony similarly undercuts any rationale for termination based on renunciation of rights, since renunciation also supposes a voluntary agreement to forgo alimony. Contract principles simply cannot explain the remarriage-termination rule.
No-Fault Rationales: Handouts and Masked Need
Central to the no-fault movement was a new vision of divorce as an opportunity for a fresh start and a clean break—a vision that leaves little room for alimony. As we have seen, general no-fault alimony statutes give courts discretion to award alimony on the basis of a spouse’s “need,” though “need” is not defined. Moreover, “need” alone provides no rationale for alimony, for it fails to explain why a former spouse should be responsible for a claimant’s need.
Can a need-based alimony model explain the remarriage-termination rule? Not by a long shot. If need triggers an alimony handout, then termination of alimony should depend on the elimination of need (or a payor’s inability to meet need). Yet the remarriage-termination rule commonly applies without regard to need. Under the automatic-termination rule and, except in extraordinary cases, also under the prima facie rule, alimony terminates upon a recipient’s remarriage whether or not her financial position has improved.
Even when an alimony recipient marries someone of sufficient earnings or assets to maintain or improve her standard of living, this economic improvement may be only temporary. Should her second marriage also end, an alimony recipient may be just as needy as she was prior to her remarriage, especially when the second marriage is short and she therefore can qualify for little or no new alimony. This is an especially serious concern for older women who remarry after a long-term first marriage. Advancing age is an irreversible impediment to a second long-term marriage and thus a counter-indicator of significant alimony the second time around. Moreover, the job or career opportunities available before a first marriage may not spontaneously reappear when a second marriage ends. The education, career, and personal life choices available at age twenty-five may simply not be available ten or twenty or thirty years later. The point is that while remarriage may mask need, it does not necessarily eliminate it.
What explains this judicial intuition that continuing alimony beyond a recipient’s remarriage would be unseemly, repugnant, unconscionable, or at least unreasonable? While dramatic adjectives signal a conclusion rather than an explanation, the sense of impropriety evident in judicial prose hints at a familiar theme: a virtuous woman cannot have two husbands at once, and since alimony evidences a husband’s support obligation, it must end when a woman takes a new husband. Under the historical model of alimony, a wife needs and deserves her husband’s protective cover only until a new man takes on the obligation to support her. No woman can or should have the support of two men at the same time, for this would amount to polygamy, or at least to prostitution, both of which are positively unseemly. The problem with such reasoning, of course, is that it reflects nineteenth-century views of marriage that have little in common with contemporary notions of marriage as a partnership of equals. Another popular explanation for the remarriage-termination rule is that the wife who chooses to remarry has thereby elected to relinquish her alimony. As the Nebraska Supreme Court explained in 1968, an alimony recipient has a “privilege to abandon the provision made by the decree of the court for her support … and when she has done so, the law will require her to abide by her election.” “If the dependent spouse has entered into a new marital relationship,” said the Alaska Supreme Court, “we think that the remarriage should serve as an election between the support provided by the alimony award and the legal obligation of support embodied in the new marital relationship.” “The policy behind terminating sustenance alimony after remarriage is that the wife has elected to be supported by a new husband,” reasoned the Ohio Supreme Court.
The election rationale does not depend on whether a second spouse is actually able to provide support, as one court acknowledged in terminating alimony upon a recipient’s remarriage to a man whose income consisted of social security and minimal retirement benefits. The low income of the wife’s new husband, said the court, “in no way diminishes the choice she voluntarily made to share her living expenses with him.”
Closely tied to the election rationale is the proposition that upon remarriage the second husband substitutes for the first. As a Nebraska court explained in 1956, “the reason for the discontinuance of alimony allowance upon the recipient contracting another marriage is that, in that event, the legal obligation of the second husband supplants that of the first.” “Absent extraordinary circumstances,” said the Massachusetts Supreme Court in 1995, “the former spouse should not be required to pay alimony when another person has assumed the support obligation.”
At the core of the election rationale is the dubious assumption that remarriage necessarily implies a choice to forgo alimony. What explains this assumption? Is it the historical view of alimony as a husband’s obligation to sustain his wife, from which it must naturally follow that only one man at a time can owe a woman this obligation? Why must an alimony recipient choose between remarriage and alimony? Why can’t she choose remarriage and alimony? Rather than offering a reasoned explanation for this forced choice, the election rationale merely describes the consequence of the remarriage-termination rule. It is thus the remarriage-termination rule, rather than any reasoned rationale for it, that forces the recipient to choose between remarriage and alimony.
Alimony is complex. Nowhere is this complexity more evident than in the search for a conceptual basis for alimony in contemporary marriage. Numerous commentators have proposed theories of alimony that aim to answer a simple question: Why should anyone be forced to share income with a former spouse? If divorce severs the tie between spouses, if each spouse is entitled to a clean break and a fresh start as no-fault laws teach, what is the rationale for alimony? Contemporary commentators have long struggled to explain alimony in an age of easy divorce and equality rhetoric, but there is still no consensus on the answer to these questions.
In extreme cases, the pragmatic justification for alimony is simple enough: alimony protects the state from the job of supporting a divorced spouse who without alimony would be thrust into poverty.
In extreme cases, the pragmatic justification for alimony is simple enough: alimony protects the state from the job of supporting a divorced spouse who without alimony would be thrust into poverty. Indeed, state statutes typically identify a claimant’s need as an alimony trigger. But need alone does not explain why one’s ex-spouse rather than one’s children, siblings, parents, or community should be responsible for meeting need. Moreover, trial courts are given broad discretion to define “need,” and state self-interest does not explain cases in which need is defined in ways that have little to do with avoiding poverty. Nor can pragmatism alone answer the many questions surrounding an alimony award: How much? How long? On what grounds modification or termination?
The law’s inability to articulate a justification for alimony is more than an abstract concern. The broad discretion vested in judges to determine alimony eligibility, duration, and value, in the absence of a theory to guide decision making, has produced an alimony regime marked by unpredictability, uncertainty, and confusion.
If you are seeking alimony, speak to an experienced Lehi Utah divorce lawyer. The lawyer can assist you get the alimony that your rightly deserve.
Divorce and Pension
No-fault divorce rested on a “clean-break” principle that influenced alimony and property distribution. Divorcing spouses were supposed to get on with their lives, as best they could. Yet, even during a short marriage, one spouse sometimes greatly enhances his earning power, while the other drastically reduces hers by staying home with the children. Earning power is often the most valuable asset of the marriage. If so, then it is unfair to confine the distribution to traditional property, and without taking future earnings into account. Hence, modern divorce law has begun to focus on “new property”—things that can’t be touched or held, but nonetheless have economic value: pensions, business goodwill, professional licenses, and professional degrees. An experienced Lehi Utah divorce lawyer can advise you on how you can protect your earnings in case of a divorce.
Lehi Utah Divorce Lawyer Free Consultation
When you need legal help with a divorce in Lehi Utah, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We can help you with alimony. Child Support. Child Custody. Modification of Divorce Decree. Property Division. Debt Division. And Much More. We want to help you.
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Telephone: (801) 676-5506
A loan modification is a complete re-structuring of your home mortgage. The lender who holds your home mortgage may agree to modify your home mortgage in one or more of the following ways:
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Although you can apply for a loan modification yourself you may need or want to retain the assistance of an attorney to help you. Utah Bankruptcy performed by Ascent Law LLC and its attorneys has assisted hundreds of individuals obtain loan modifications in all the ways discussed above (reduction in amount of mortgage payment and interest rate, adding arrears to end of loan, reducing principal balance, etc.). To succeed, it is important to present yourself and your financial picture in the most favorable and accurate light possible to increase the likelihood the Lender will approve your application for modification. It is also important to demonstrate that the loan modification benefits both you and the Lender. Utah Bankruptcy does affect your credit; but keep in mind that your attorney can assist you in knowing the consequences in preparing, organizing and evaluating documentation requested in applications for loan modifications. Ascent Law LLC has helped numerous individuals create the means of increasing income to their households to qualify for a loan modification. The Lenders are very demanding in their requirements that all requested documents are submitted with the application for loan modification. There are often multiple additional requests for documentation.
Document Communications and Submissions To The Mortgage Lender
The follow up and documentation of the application process is crucial. It is important to keep detailed conversation logs and notate each time any documentation is submitted, and then verify it was received within 2-3 days after submission (time needs to be allowed to have documentation loaded into their system). It is also important to review the documentation to ensure the lender will see that you will be able to make the payment once the modification is complete, without making it appear you can make the current payment without modification. It is important to review any offers to ensure they meet your needs.
Loan Owners Approve Or Deny Applications For Loan Modifications
Loan modifications are either approved or denied by the lender who owns your loan and its designated servicer. The lender’s designated servicer reviews the submitted paperwork and renders a decision based on the loan owners’ guidelines. To clarify, most mortgages today are owned by pension funds and investment groups, and serviced by banks and loan servicing companies. Many consumers falsely believe that major banks such as Wells Fargo and Bank of America own all the mortgage loans they service. The truth is that while they do own some of the loans, they act as a servicer for most loans. As a result, they are instructed by the owner of the note on what guidelines are to be used to determine whether a loan application is approved or denied. However, lenders have been pressured by the government to modify mortgages to assist homeowners, and in cases where the mortgage is owned by a government sponsored entity the lenders are directed to modify a mortgage payment equal to 32% of gross income, if reasonable. However, the government left the means to the Lender for determining income was left to the lender along with the definition of “if reasonable”, no timeline was given under which they had to review the modification documentation, and the 32% of gross income to mortgage payment was vague as they were not required to modify to the percentage, only asked to when reasonable.
Appealing Denials
Utah Bankruptcy Professionals has helped many individuals save their homes and lower their mortgage payments by appealing Lenders’ denials of applications for loan modifications. Many Utah homeowners are struggling to remain in their homes. In some instances, unemployment or other financial issues make it difficult to make mortgage payments. In other cases, falling home values have homeowners questioning the wisdom of paying more money toward a bloated mortgage. But a mortgage modification may solve your housing worries. Talk to a loan modification attorney to learn whether you qualify.
The Basics of Getting Your Home Loan Modified
When a lender approves a loan modification, it’s typically doing one of several things:
• Lowering the mortgage’s interest rate, particularly if the homeowner is locked into a high interest rate and ineligible to refinance the loan
• Forgiving some of the loan’s principal balance, particularly if the home is “under water,” or worth less than the value of the loan
• Extending the length of the loan
• Waiving some of the penalties and late fees that have accrued, particularly if the homeowner is facing financial issues—such as unemployment, divorce or medical issues that make it difficult to make the full loan payments in a timely manner.
Loan modification risks
Loan modifications are changes made to an existing loan’s terms beyond the specifications of the original agreement. With mortgages, loan modifications are often used to help homeowners catch up on their obligations and avoid foreclosure. Examples include:
• Reducing the interest rate
• Reduce the amount of the principal
• Extend the terms of the loan
• Apply a cap to monthly payments
• Home saver advances
Here’s a typical example. You’re struggling to make your mortgage payments, so you’ve approached the lender to obtain a mortgage loan modification. The bank representative has suggested that you seem to qualify and are presently under review for a modification approval. Then one day you receive a Notice of Default and realize you are now in foreclosure. Whatever happened to the loan modification you were practically promised? For loan modifications, this can be problematic because lenders never actually sign these documents. They simply send out the paperwork and express willingness to honor the modification until they suddenly and unilaterally terminate it – which they can, because they never signed it. In the meantime, unwary consumers have come to rely on the modification and change their payment habits accordingly, only to be struck with an unexpected notice of default.
There is no law that specifically states, “This person qualifies for a loan modification, and that person does not.” However, there are guidelines and certain criteria that most lenders look for when considering a borrower for modification. These are:
• Valid economic hardship. A valid economic hardship is caused by unavoidable circumstances or events outside of the control of the borrower. There are many types of valid economic hardship. Ability to pay. Lenders want to see that the borrower has some source of regular income, although the amount of income may be less than what it was earlier. A borrower with a reduced income may qualify for a lower monthly payment. A borrower who has resumed earning income after a period of unemployment, during which the borrower fell behind on mortgage payments, may also qualify for lower monthly payments.
• Fallen property value: little or no equity. An underwater mortgage (where the value of the home is less than what is owed on the mortgage) makes refinance impossible and can make foreclosure commercially senseless. None of these criteria are set in stone. They are merely the criteria generally considered by lenders. Ultimately, you are seeking a new deal–one in which the financial numbers make more sense for both parties.
Short Sale
In a short sale, your lender agrees to stop the foreclosure while you list the property and attempt to sell it. When an offer comes in, you present it to the bank and offer the sales proceeds amount (though “short” of the full loan amount) in exchange for a release from the mortgage obligation, preferably without your owing the difference, known as the deficiency. There may also be tax implications after a short sale. If a short sale isn’t successful, you can offer the lender a deed in lieu of foreclosure by signing the property over to them in exchange for a release from the mortgage obligation. As with a short sale, you should have your lender release you from any obligation to pay the deficiency; get this release in writing as part of your deed in lieu of foreclosure agreement. There may also be tax implications from any release. A three-month short sale attempt is sometimes required by lenders before they will start negotiations on a deed in lieu of foreclosure. In a short sale and a deed in lieu of foreclosure, as well as a loan modification, you will have to deliver to your lender as part of your application a hardship letter (or affidavit) and other information for your lender to review.
Home Affordable Modification Plan (HAMP)
The Obama Administration introduced HAMP as part of the Making Home Affordable plan to stabilize the housing market. Under the federal loan modification plan, your monthly loan payments are reduced by modifying one or more components of your mortgage:
• Lower the interest rate
• Extend the life of the loan
• Lower the loan principle
• The Home Affordable Foreclosure Alternatives (HAFA) Program – Government assistance for a short sale or deed-in-lieu of foreclosure
Other Loan Mod Programs
• VA Loan – If your home mortgage is a Veterans Administration (VA) loan, then there is a specific government program called the Cal Vet Modification.
• FHA Loan – There is a loan modification program specifically for Federal Housing Administration (FHA) loans
• None of the Above – Banks who do not participate in the government programs may have their own unpublished loan modification programs with a different set of qualifications.
How to apply for a loan modification
If you are currently facing a financial hardship and want a loan modification, then know that time is of the essence. You have a greater ability to negotiate with your lender earlier on in the foreclosure process than later. Get started today:
• Collect Your Financial Information
• Collect Your Mortgage Information
• If you’re ready to begin negotiating for a loan modification, get some free advice before contacting your lender. Talk to a nonprofit housing consultant from a HUD-approved agency and find out how likely you are to qualify for a loan modification based on your individual mortgage and financial situation.
Nonprofit housing consultants from a HUD-approved agency can provide you with:
• All available loan modification options
• A customized action plan
• Budget suggestions
• Help in negotiating with your lender
Government Programs
Depending on the type of loan you have, it might be easier to qualify for a loan modification. Government programs like FHA loans, VA loans, and USDA loans offer relief, and some federal and state agencies can also help. Speak with your loan servicer or a HUD-approved counselor for details. The federal government offered the Home Affordable Modification Program (HAMP) beginning in 2009, but that expired on Dec. 31, 2016. The Home Affordable Refinance Program (HARP) expired two years later at the end of 2018. But HARP has been replaced by Freddie Mac’s Enhanced Relief Refinance Program and by Fannie Mae’s High Loan-to-Value Refinance Option, so these might be a good place to start for assistance.
Why Lenders Modify Loans
Modification is an alternative to foreclosure or a short sale. It’s easier for homeowners and it tends to be less expensive for lenders than other legal options. You get to stay in your home, and your credit suffers less from modification than it would after a foreclosure. Otherwise, your lender has several unattractive options when and if you stop making mortgage payments and it must foreclose or approve a short sale. It can:
• Attempt to collect the money you owe through wage garnishment, bank levies, or collection agencies
Start with a phone call or online inquiry, and let your lender know about your financial situation. Just be honest and explain why it’s hard for you to make your mortgage payments right now. Lenders will require an application and details about your finances to evaluate your request, and some require that you also be delinquent with your mortgage payments, usually by 60 days. Be prepared to provide certain information:
• Income: How much you earn and where it comes from
• Expenses: How much you spend each month, and how much goes toward different categories like housing, food, and transportation
Sometimes a lender or servicer will offer you a “streamlined modification.” The servicer picks an amount they believe you can afford and that they will accept as a monthly payment, offer it to you and upon three successful payments, your loan is modified. If the lender or servicer does not offer a streamlined loan modification, the process will depend on the mortgage lender, the ability to work through the procedure with your lawyer and other factors. The loan modification process could take to 3-6 months.
How Does a Loan Modification Affect Your Credit Score?
Attempting to modify your mortgage is like a part-time job. The paperwork is exhaustive and not so easy to understand. Unlike applying for a mortgage, the servicer or lender will not assist you. An experienced lawyer can guide you through the loan modification process. There are also numerous situations where homeowners were led to believe that the bank was working with them on a loan modification and trying to help them avoid foreclosure, but the bank foreclosed on their property anyway. If your mortgage lender is pursuing foreclosure while also deciding on your loan modification application, or if they are in violation of federal and mortgage service rules, a lawyer can help you enforce your rights. If the lender denies your modification request, you will need more time and assistance to appeal. An attorney can show why the loan servicer made a mistake in dismissing the loan modification application and may be able to push for approval of your modification request.
