Prodding the Payor and Policing the Payee: Using Child Support Trusts to Create an Incentive for Prompt Payment of Support Obligations

Judith G. McMullen^*

  Introduction

The nonpayment of child support by noncustodial parents of minor children in the United States is a national scandal. Study after study concludes that many parents who owe child support underpay or do not pay at all.⁽¹⁾ Various explanations have been offered for this phenomenon and many purported remedies have been implemented.⁽²⁾

Many efforts to improve the child support payment records of noncustodial parents are aimed at punishment and deterrence. For example, suspension of a nonpayor's driver's license or a bad report to a credit agency are punitive consequences which many hope will cause nonpayors to pay up and deter would-be nonpayors from falling behind. Even the newest enforcement mechanism, the new federal database which allows states to track parents as they change jobs,⁽³⁾ is at best a deterrent mechanism in the sense that parents are on notice that changing jobs will no longer make it easy for them to evade wage withholding to satisfy child support obligations.

Another possible approach is to provide positive motivation so that parents will be more inclined to pay in the first place.⁽⁴⁾ Some attempts to motivate take the form of major changes in law or social policy. For example, part of the reason joint custody was made the preferred outcome in many states is the belief that continuing a significant relationship with both parents would motivate noncustodial parents to meet their emotional and financial support obligations.⁽⁵⁾ This Article will examine another possibility: using a child support trust to provide a different payment option for parents obligated to pay child support.⁽⁶⁾ It will be demonstrated that, at least for some parents, a trust arrangement could provide a further incentive to pay support.⁽⁷⁾

First, the Article will describe the mechanics, the policies, and the noncompliance problems which exist despite current child support laws.⁽⁸⁾ Possible reasons for the high rate of noncompliance will be discussed.⁽⁹⁾ Next, the situations in which trusts are currently used for child support will be examined.⁽¹⁰⁾ Then a plan for more extensive use of child support trusts will be proposed.⁽¹¹⁾ Finally, possible objections to the proposal will be addressed.⁽¹²⁾

  The Child Support Obligation

In the mid-eighteenth century, Blackstone asserted that parents had a moral duty to provide for the support of their children:

The duty of parents to provide for the maintenance of their children, is a principle of natural law . . . . By begetting them therefore, they have entered into a voluntary obligation, to endeavour, as far as in them lies, that the life which they have bestowed shall be supported and preserved. And thus the children will have a perfect right of receiving maintenance from their parents.⁽¹³⁾

However, despite Blackstone's proclamation of a moral duty, a legal duty to support one's children was only inconsistently enforced until the early twentieth century.⁽¹⁴⁾ Today, the obligation to support one's children is recognized both as an enforceable legal obligation and as a basic human obligation that exists independently from any court's order:

"A parent's legal obligation to meet [his or her] human and social responsibility of supporting children which they, of their own free will, bring into this society exists regardless of a support order setting an amount. . . . The support order does not create the support obligation, but rather reaffirms it and sets a specific sum to be paid."⁽¹⁵⁾

Of course, the "`human and social responsibility'" referred to derives most of its force from the child support statutes in force in each of the fifty states.⁽¹⁶⁾

Parents are now legally obligated to support their children, at least until those children reach the age of majority.⁽¹⁷⁾ This responsibility exists whether or not the parents of a child ever entered into a legal marriage.⁽¹⁸⁾ Originally, the duty to support was primarily the father's liability, but current laws make both parents liable for the support of their minor children, with the actual allocation of responsibility depending on the relative resources of the parents.⁽¹⁹⁾

Generally, this obligation to support one's children is seen not only as a duty to provide the minimum funds necessary to ensure survival, but as an obligation to provide support that enables the child to enjoy a lifestyle commensurate with the parents' respective lifestyles.⁽²⁰⁾ "The purpose of a support order is to protect and to advance the welfare of the child. The responsibility of the parents, to support the child to the best of their ability, consistent with their own station in life, is `well nigh absolute.'"⁽²¹⁾ In cases where a parent enjoys an affluent standard of living, the expectation is that a child will share in this bounty, at least to some extent.⁽²²⁾ However, even in cases where a parent is poor, the expectation is that the parent will provide some support for the child.⁽²³⁾ When parents split up, the law attempts to protect the minor children from some of the harsh consequences of that decision. There is a strong public policy objective of protecting the best interests of the child and providing enough financial support so that ideally the child will not suffer economic hardship because of the parents' actions.

At least in theory, child support payments are meant to ensure that the child will enjoy a standard of living commensurate with that experienced before the marital breakup.⁽²⁴⁾ If the noncustodial parent experiences a significant increase in standard of living subsequent to the divorce, the usual expectation is that the child will share in some of the benefits of that as well.⁽²⁵⁾ Of course, a collapse in a parent's financial fortunes could also result in a reduction in required child support payments. Thus, a child's standard of living remains tied to the resources of the noncustodial parent as well as the custodial parent.

A.  Mechanics of Assessment, Payment, and Enforcement

Once a duty to support has been established, the amount of the support obligation must be calculated. There are numerous ways this could be done and, historically, there has been neither uniformity nor predictability in the process.⁽²⁶⁾ Judith Areen, in her casebook on family law, concluded that "[s]tatutes that authorize courts to award child support tend to be written in so general a fashion as to leave judges almost total discretion in the matter."⁽²⁷⁾ However, pursuant to the requirements of the Child Support Enforcement Amendments of 1984,⁽²⁸⁾ all states now provide child support guidelines.⁽²⁹⁾

The traditional child support approach is based on a model where one parent is the primary caretaker of the children and the other parent is essentially a visitor. Thus, the "visiting" parent pays support to the custodial parent. The three most commonly used models for calculating child support are the income shares method, the percentage of income method, and the Melson formula.⁽³⁰⁾ All three focus mainly on the parents' incomes and the number of children,⁽³¹⁾ while ignoring in-kind support which may be provided directly to the children.⁽³²⁾

As of 1995, Areen reported that the income shares model was the most commonly used method of computing child support guidelines.⁽³³⁾ "[T]he income shares model calculates child support as the share of each parent's income estimated to have been allocated to the child if the parents and child were living in an intact household."⁽³⁴⁾ The calculation is done in three steps.⁽³⁵⁾ First, the total income of both parents is computed.⁽³⁶⁾ Second, a child support obligation is determined by estimating the amount of the combined income which would have been spent on the children if the family were intact, and adding any actual extra expenses, such as "extraordinary medical expenses."⁽³⁷⁾ Finally, the obligation is pro-rated between the parents based on the ratio between their respective incomes and the total income.⁽³⁸⁾

Calculation of a percentage of the noncustodial parent's income to be paid as child support is the next most common method of determining how much child support a parent will be required to pay.⁽³⁹⁾ Typically, state statutes or regulations specify a percentage of income to be paid by the noncustodial parent. This percentage varies somewhat from state to state and depends on the number of children to be supported.⁽⁴⁰⁾ For example, a paying parent with one child would normally pay seventeen percent of his income in Wisconsin⁽⁴¹⁾ or New York,⁽⁴²⁾ but would pay twenty percent of his income in Illinois.⁽⁴³⁾ For two children, Wisconsin, New York, and Illinois all set twenty-five percent of income as the guideline.⁽⁴⁴⁾ Deviation from the percentages might be allowed if the court finds that the imposition of the usual percentage would cause a result which is unfair to either parent or to the children.⁽⁴⁵⁾ For example, courts may refuse to assess a straight percentage where the paying parent has a very high income because the resulting payment would be so high that it could not possibly be used up in the support of the child.⁽⁴⁶⁾

Finally, a few states use the so-called Melson formula, which starts by deducting a subsistence income from each parent's total income.⁽⁴⁷⁾ An amount for basic child support is assessed only if the parent has income in excess of the subsistence amount.⁽⁴⁸⁾ By the same token, however, the parent may keep additional income only after the child's basic needs have been met.⁽⁴⁹⁾ If there is sufficient income to cover the basic needs of both parents and all minor children, the children are entitled to share in the benefits of any additional income earned by the noncustodial parent.⁽⁵⁰⁾

Still other ways of arriving at a fair allocation of child support obligations have resulted because in recent years there has been new interest in joint custody and more equal physical placement.⁽⁵¹⁾ In addition to the approaches described above, there are some methods of calculating child support which take into account the expenses associated with having physical placement of the children for a significant percentage of the time.⁽⁵²⁾ Usually, these methods give the paying parent credit for placement time which is over a certain minimum amount.⁽⁵³⁾ The costs of this time are deducted from the amount the parent would otherwise have to pay to the other parent and only the difference is due.⁽⁵⁴⁾

Once an amount has been established, there are a number of ways in which payment of child support could be made. Obviously, the most straightforward method is for the payor to deliver a check or cash to the payee parent. Federal law requires that states offer the option of payment to a court officer, such as the county clerk of court, if this is requested by either party.⁽⁵⁵⁾ Payroll deduction is another option.⁽⁵⁶⁾ This Article focuses on another option, payment into a child support trust.

Methods of enforcing child support orders have become more varied over time. The traditional remedy is a finding of contempt of court, with resulting jail time if payment is not immediately forthcoming.⁽⁵⁷⁾ Other methods include garnishment of wages, revocation of driver's licenses, intercepting income tax refunds, and publication of the would-be payor's name and photograph in a "deadbeat" poster. As the next section demonstrates, however, even these fairly drastic enforcement mechanisms have not sufficiently raised the compliance level.⁽⁵⁸⁾

The most recent enforcement mechanism, the National Directory of New Hires required by the 1996 welfare laws, will require employers to provide data "including names, addresses, Social Security numbers and wages" for every person hired after October 1, 1997.⁽⁵⁹⁾ The hope is that this information will make it easier to locate people who move from state to state, change jobs, or both, in order to avoid child support orders and the wage withholding that accompanies them.⁽⁶⁰⁾ States, such as New York and Missouri, which are already using a similar directory system report greater success in locating absent parents and a significant increase in the amount of child support collected.⁽⁶¹⁾

B.  Problems of Nonpayment

Studies on child support consistently reveal that a shockingly high percentage of noncustodial parents pay less support than they are required to pay, or never pay at all.⁽⁶²⁾ In 1989, the U.S. Census Bureau reported that half of the approximately five million women who were owed child support received less than what was due to them, if they received anything at all.⁽⁶³⁾ In a report to Congress, the General Accounting Office recently reported that in four out of five cases, delinquent parents ignore court orders to pay child support, with the result that less than twenty percent of the child support owed is actually collected by custodial parents.⁽⁶⁴⁾

While the vast majority of nonpaying parents are still fathers,⁽⁶⁵⁾ mothers can be nonpayors as well. "Available data suggest that custodial fathers face a similar situation. According to a study which used Wisconsin data, only 30% of custodial fathers had a child support award. Of those with an award, 40% received no payment."⁽⁶⁶⁾

In her 1985 book, The Divorce Revolution, Lenore Weitzman summarized the data this way:

There are three consistent findings reported in the research on compliance with child support orders. First, not one study has found a state or county in which even half of the fathers fully comply with court orders. Second, the research suggests that many of the fathers who are ordered to pay support pay it irregularly and are often in arrears. In several studies, the average arrearage is for half or three-quarters of the money owed, and in one study the average reached 89 percent. . . . Third, the research indicates that a very sizable minority of fathers--typically between a quarter and a third--never make a single court-ordered payment.⁽⁶⁷⁾

The problem is worse than these statistics reflect because these figures do not include children whose custodial parents do not have child support orders. Some children, for example, do not receive support from an absentee parent because paternity was never established.⁽⁶⁸⁾ United States Census Bureau data from 1989 indicates that forty-two percent of custodial mothers have no child support orders.⁽⁶⁹⁾

These abysmal payment records have severe repercussions for the economic well-being of children. For example, "[i]n 1991 the poverty rate for married-couple families with children under age 18 was 8.3%. . . . [T]he poverty rate for single-parent families headed by fathers was 19.6%; for single-parent families headed by mothers, it was 47.1%."⁽⁷⁰⁾ Weitzman noted that:

Child support payments are also a major determinant of whether or not a woman applies for public assistance. In a 1978 census sample, 38 percent of women who were not receiving child support from the father of their children received public assistance income, compared to only 13 percent of women who had child support income.⁽⁷¹⁾

C.  Reasons for Nonpayment

Various theories have been offered as to why such a high percentage of noncustodial parents do not fulfill their child support obligations. Some authorities believe that nonpaying parents simply cannot afford to pay the ordered support and "suspect that large numbers of defaulting fathers do not have (and never had) the missing money."⁽⁷²⁾ "Many a defaulting father's obligation, even if originally assessed fairly, does not correspond to his current economic circumstances, and current law or practice does not afford him an adequate opportunity to effect an appropriate modification."⁽⁷³⁾

However, true inability to pay is simply not a factor for many nonpayors. Wallerstein and Blakeslee concluded in Second Chances, the 1989 book describing their longitudinal study of sixty divorced families, that "[w]ealthier men do not have a better record of child support."⁽⁷⁴⁾ It has been estimated that seventy percent of noncustodial parents "have incomes of at least twice the poverty line."⁽⁷⁵⁾ "`Men with incomes between $30,000 and $50,000 were as likely to fail to comply as those with incomes of under $10,000.'"⁽⁷⁶⁾

Other theories have also been offered to explain why so many noncustodial parents do not fulfill their child support obligations. For example, failure to pay or underpayment have sometimes been attributed to a loosening of the parent-child bond which occurs after a divorce.⁽⁷⁷⁾ Lack of actual contact with a child seems like the most logical indicator that the parent-child bond has been loosened.⁽⁷⁸⁾ In his 1979 book, Making Fathers Pay, David L. Chambers found that in the men he studied, those who had moved out of the county and those who did not have visitation with their children had the poorest child support payment records.⁽⁷⁹⁾ However, in both types of cases, Chambers concluded that it was difficult to establish which factor was the cause and which was the effect.⁽⁸⁰⁾ Moving out of the county sometimes appeared to be a result, caused by a desire on the part of nonpaying fathers to avoid the penalties associated with nonpayment.⁽⁸¹⁾ However, moving also appeared to be a cause for nonpayment, at least in some of the cases.⁽⁸²⁾

Likewise, while enforcement officers often identified visitation problems as a cause of nonpayment, Chambers found that at least some of the time

the father seems to have precipitated the squabble over visitation in order to have an excuse not to pay: he arrives for the children half drunk, leaves them in his car while he sits for an hour in a bar, or repeatedly arrives at the wrong time; the mother understandably responds by insisting on different behavior; he claims she is interfering in his relationship with the children and begins to withhold payments. Sometimes it is the mother who starts the process.⁽⁸³⁾

Lenore Weitzman also questions the theory that visitation problems cause fathers to become nonpayors:

Here again the empirical data directly contradict[s] the assertion: there is no correlation between compliance and complaints about visitation. That means that men with no visitation problems are just as likely not to pay child support as they are likely to pay. It also means that men who comply with child support awards are just as likely as those who do not comply to say they have some visitation problems. Canadian researchers similarly report the lack of a statistically significant relationship between visitation and compliance.⁽⁸⁴⁾

Other post-divorce changes could also indicate a loosening of the original parent-child bond which might lead to a lesser commitment to make full child support payments. Remarriage of either the father, mother, or both have been posited as causes for nonpayment, or at least for interruptions in payment.⁽⁸⁵⁾ If a noncustodial father remarries,

[h]is own reattachment to a new woman may lessen his attentiveness to the needs of his original family. Moreover, if his new partner is not employed, his living costs will increase. Each of these aspects of his realignment--diverted attention and diverted income--grows more powerful as a disincentive to payment if his new wife or companion already has children of her own who live with them or if the two beget new children.⁽⁸⁶⁾

Similar shifts in loyalty and conflicts of interest may arise if a custodial mother remarries.⁽⁸⁷⁾ Chambers suggests that the former husband may feel jealous and may believe either that the children do not need the money anymore because their new stepfather is capable of supporting them or that the money will go to support the new stepfather.⁽⁸⁸⁾

Despite the apparent logic of these theories, the data is quite mixed about the effects of remarriage on child support. Chambers' own study did not show a correlation between reduced payment and the remarriage of either party.⁽⁸⁹⁾ On the other hand, a study by Kenneth Eckhardt showed an immediate drop in payments in a significant number of cases where one party had remarried.⁽⁹⁰⁾ Wallerstein and Blakeslee also reported that several men in their study cut their child support payments when their ex-wives remarried or if they themselves remarried.⁽⁹¹⁾

Why would these or any other post-divorce events lessen support payments to one's own children? Another theory posited by Chambers is that making the payments can be a painful reminder of happier times.⁽⁹²⁾ A slightly different reason, which has not received much attention, is that many noncustodial parents who resist paying do so because they believe that the payments will not be used for the benefit of the children, but will instead benefit the ex-spouse or others.⁽⁹³⁾

There are some references to this phenomenon in the literature. Wallerstein and Blakeslee mention the resentment a man feels when he believes "that his ex-wife is using his child support money for her own selfish or frivolous purposes."⁽⁹⁴⁾ One family law casebook notes that "[n]oncustodial parents often justify their resistance to paying child support by their claim that the money `isn't really going to the kids.'"⁽⁹⁵⁾

In Making Fathers Pay, David L. Chambers refers to the case of Jerry Neal who stopped paying child support after his wife remarried.⁽⁹⁶⁾ Jerry's excuse? "`I quit paying because he'd [the new husband] just sit on his butt and . . . take the money and not give it to the kids. Nobody was getting it but him.'"<sup>(97)</sup> Chambers confronted him with the incredible nature of this conclusion, "`[c]ould he really support them [on your support payments]? Live in that house and feed all of them on fifty dollars a week?'" Chambers asked.⁽⁹⁸⁾ "`Well, he was taking the money, though, and leaving them with nothing. That's the heck of it,'" Jerry replied, sticking to his belief.⁽⁹⁹⁾

Similarly, a group of Canadian researchers concluded that the inability to control the funds so as to assure that they inure to the benefit of the children makes paying parents resistant to paying child support:

Child support is like the tax system in that non-custodial parents do not like the idea of having their income taken from them and not having control over how it can be spent. . . . [T]he benefits of the child support payments are diminished in the eyes of the non-custodial parent by the knowledge that the payments are making the custodial parent better off.⁽¹⁰⁰⁾

Sometimes, reported cases will refer to payor concerns about the uses to which child support payments will be put. For example, Resong v. Vier⁽¹⁰¹⁾ involved a father who was in arrears on his child support payments.⁽¹⁰²⁾ In requesting a reduction in support payments or, in the alternative, the establishment of an educational trust out of the support payments, the father "also expressed concern that [the mother] was using support money to finance her horse farm."⁽¹⁰³⁾

There is also anecdotal evidence that lack of ability to assure that the funds are used for the children is one reason for nonpayment. Practicing lawyers sometimes report that a fear that child support will benefit the ex-spouse, her new husband, or others rather than the payor's children is a motivating factor for many who do not fully pay their support obligations. For example, in a brief written survey distributed to members of a family law chapter of the American Inns of Court, twenty out of the twenty-eight lawyers responding indicated that persons in arrears on child support payments attribute their failure to pay at least partly to a concern that the support money will not actually be spent on the children.⁽¹⁰⁴⁾ However, the survey results also suggest that at least some lawyers suspect that this proffered excuse is not the real reason for a failure to pay.⁽¹⁰⁵⁾ When the lawyers were asked what reasons they believed explain the failure of a parent to pay court-ordered child support, eighteen, as opposed to twenty, out of twenty-eight respondents indicated that the payor is concerned that the money will not actually be spent on the children.⁽¹⁰⁶⁾

Lobbyists and legislators also provide anecdotal evidence that the question of whether child support payments are actually used to benefit the child is an important concern to at least some payors. For example, the following excerpt is from testimony given before the Wisconsin Legislature during the Spring 1997 session in which several child support bills were being considered:

I am a mother of one, and I work outside of the home. My husband also works very hard, but we are little by little financially going backwards due to the amount of child support taken out of my husbands [sic] check. We are literally living in the poverty level, while his ex-wife, who earns as much if not more than my husband, has the extra income to buy jewelry, clothing, take trips and etcetera for herself. While the two children which are in her care are going without. I am not saying we shouldn't help with the support of the children, but what I am saying is we shouldn't have to support the ex-wife and her habits. I feel along with several other families that the money should go for the children only, and should and must be somehow accounted for.⁽¹⁰⁷⁾

To the extent that reluctance to pay stems from a fear that the payor's children will not receive the benefits of the money, this Article will argue that this fear could be allayed through the use of a properly tailored child support trust. In fact, courts sometimes order child support trusts already and parties sometimes agree to such trusts without court prodding.⁽¹⁰⁸⁾ Before turning to the argument that the use of such trusts should be more commonplace, let us examine those situations where child support trusts are already utilized.

  Using Voluntary Trusts as an Option to Encourage Compliance

A.  How Trusts Are Currently Used for Child Support

Many state courts, and some legislatures, have provided for the use of child support trusts in certain circumstances. Some states have specific statutes which expressly authorize the family court to impose a trust on property to ensure payment of child support.⁽¹⁰⁹⁾ For example, section 767.25(2) of the Wisconsin Statutes provides that "[t]he court may protect and promote the best interests of the minor children by setting aside a portion of the child support which either party is ordered to pay in a separate fund or trust for the support, education and welfare of such children."⁽¹¹⁰⁾

Similarly, an Illinois statute provides:

The court if necessary to protect and promote the best interests of the children may set aside a portion of the jointly or separately held estates of the parties in a separate fund or trust for the support, maintenance, education, and general welfare of any minor, dependent, or incompetent child of the parties.⁽¹¹¹⁾

Other states have generally worded statutes which give the courts broad powers to ensure the proper care and support of minor children.⁽¹¹²⁾ Sometimes such broad statutes have been construed to empower courts to impose trusts to ensure the payment of child support.⁽¹¹³⁾ For example, a West Virginia court held that a court had the power to impose a trust for security for payment of child support as long as "some significant circumstance" justified the trust.⁽¹¹⁴⁾ The pertinent statute relied on in that case was quite broad, providing that, "`upon ordering the annulment of a marriage, or a divorce, the court may make such further order as it shall deem expedient, concerning the care, custody, education and maintenance of the minor children.'"⁽¹¹⁵⁾

As the following discussion will show, many states have cases which authorize the imposition of child support trusts as an appropriate exercise of a court's statutory discretion over child support issues, whether that statutory discretion be general or specific. In invoking general or specific statutory authority to utilize a child support trust, we will see that courts often point to specific facts which show that the child's best interests could best be furthered by the imposition of a trust.

Circumstances justifying the creation of a child support trust tend to fall into four categories: (1) Where the paying parent has a variable income;⁽¹¹⁶⁾ (2) Where the payor is financially able to establish a trust fund to cover future educational expenses;⁽¹¹⁷⁾ (3) Where a trust is deemed necessary because the payor or payee have acted in an irresponsible way;⁽¹¹⁸⁾ and (4) Where the parties have entered an agreement whereby a trust is established in lieu of monthly child support payments.⁽¹¹⁹⁾ The first three categories can all be broadly understood as situations where the court concludes either implicitly or explicitly that the children's best interests require that a trust be used to protect their right to consistent and adequate support.

1. Payor Has Variable Income

A traditional child support order, which requires a certain percentage of income or a certain sum be paid each month for support of minor children, makes the most sense when the paying parent has a steady monthly income that is fairly predictable in amount. Some payors, however, have income that is either variable, unreliable, or both. In such circumstances, courts have sometimes ordered child support payments be handled through a trust.

A classic example of this type of situation is provided by a case where the paying parent is a professional athlete. Depending on the sport, the athlete may be highly paid, but likely has an expected career length far shorter than the length of any other kind of career. For example, In re Paternity of Tukker M.O.⁽¹²⁰⁾ involved a father-payor who was a punter in the National Football League (NFL).⁽¹²¹⁾ Although Tommy had been a punter for six years at the time of the family court proceeding, there was testimony to the effect that the average career of an NFL punter lasts 4.03 years.⁽¹²²⁾ While his income had ranged between $70,000 and $430,000, there was also testimony that he did not have any other known skills or abilities which would enable him to find other employment.⁽¹²³⁾ The child's mother indicated that her child support needs were $1500 per month, an amount far lower than the usual seventeen percent of income required by state law.⁽¹²⁴⁾ However, the court refused to deviate from the percentage standard and instead ordered monthly payments of $1500 to be made to the mother, with the balance of the seventeen percent to be paid into a trust.⁽¹²⁵⁾ The trust had the dual purpose of securing future support payments in the event of a drop in the father's income and providing for big expenses, including college tuition.⁽¹²⁶⁾

In holding that the combination of the percentage of income method of calculation and a trust were fair despite the large payments involved, the family court expressed its concerns as follows:

"`if we have, as the evidence clearly did demonstrate, . . . an earner, a payor whose income stream, as it stands, is short-lived. . . . [I]t's an important idea. Because it shows us that we really do have to take some steps to capitalize on what he's got for right now and in the future hope that he works, but if he doesn't, insure that his child is well cared for.'"⁽¹²⁷⁾

An Iowa case, Mason v. Hall,⁽¹²⁸⁾ provides another example of a court-imposed child support trust where the continuation of the payor's income was unlikely.⁽¹²⁹⁾ In that case, the father-payor was a professional baseball player who was earning $18,000 per year at the time of the initial child support order.⁽¹³⁰⁾ His income soon skyrocketed, reaching $280,000 per year three years later, and exceeding $800,000 per year six years after the initial order.⁽¹³¹⁾ The mother had periodically applied for an increase in the original support payments of $100 per week.⁽¹³²⁾ These applications had resulted in small increases, first to $150 per week, then to $250 per week.⁽¹³³⁾ When the father's income exceeded $800,000, the district court increased the support to $1000 per week, with $250 going directly to the mother and the remaining $750 going into a trust.⁽¹³⁴⁾ The mother appealed the imposition of the trust, arguing that she should receive the money directly.⁽¹³⁵⁾ The district court affirmed the order, citing an Iowa statute which authorized the court to require that payments of child support be made to a trustee,⁽¹³⁶⁾ and further noted that "[t]he court's concern about the reliability of Melvin's future child support payments is well founded, both because of his uncertain earning future and his past record of child support delinquencies."⁽¹³⁷⁾

However, in Barlow v. Ray,⁽¹³⁸⁾ an analogous case where the paying parent received an unsustainable financial windfall, the appeals court overturned a court-imposed child support trust, concluding that it was an abuse of discretion.⁽¹³⁹⁾ In Barlow, the father-payor won $16,000,000 in the Ohio lottery.⁽¹⁴⁰⁾ He elected to take the lump sum payout, which amounted to approximately $4.9 million, after taxes.⁽¹⁴¹⁾ His investment income from these funds was approximately $250,000 per year.⁽¹⁴²⁾ Upon consideration of the mother's request for a modification in the child support award, the family court magistrate increased the child support obligation to $2400 per month, with approximately $1000 of it to be paid into a trust which would be used for the health, education, and welfare of the child, with the specific purpose of providing her with a college education.⁽¹⁴³⁾

The mother appealed, claiming among other things that it was improper for the court to order a trust instead of having the larger support payments paid to her directly.⁽¹⁴⁴⁾ The appellate court held the creation of a post-majority trust to be improper and that payment into a trust rather than to the mother was improper when there was no finding that the mother was incapable of properly utilizing the funds for the child.⁽¹⁴⁵⁾

The mother also challenged the magistrate's calculation of the father's new income, claiming that the $4.9 million lump sum payout should have been included as income.⁽¹⁴⁶⁾ The appeals court upheld the magistrate's decision citing a statutory section which excludes from income "`[n]onrecurring or unsustainable income or cash flow item[s].'"⁽¹⁴⁷⁾ Interestingly, the court did not discuss the concern expressed in the professional sports cases that the father would spend the windfall and his income would revert to pre-lottery levels.

Sometimes, a reduction in income is due to the personal career choices of the paying parent. Even if the career change is made in good faith, a court may impose a trust on existing assets to mitigate the effects of abrupt income fluctuations on the children. In Lynn v. Lynn,⁽¹⁴⁸⁾ the father was a doctor specializing in hematology and oncology, with a reported income of $110,000 in the year prior to the divorce.⁽¹⁴⁹⁾ While the action was pending, the father sold his medical practice and accepted a three-year residency in psychiatry, which provided an annual salary of $17,000.⁽¹⁵⁰⁾ The trial court held that this career change was made in good faith and was not made to avoid family financial responsibilities.⁽¹⁵¹⁾ Despite the father's protestations that child support should be based only on his current salary, the trial judge ordered support payments of $375 per week for the three children: $150 per week was to be paid out of current earnings, and the remainder was to be paid out of a trust fund set up with the bulk of the father's share in the marital assets.⁽¹⁵²⁾

Although it was remanded for consideration on whether some of the mother's assets should also be included in the trust corpus,⁽¹⁵³⁾ the superior court upheld the trust arrangement, including the consideration of the father's earning potential as evidenced by his previously high salary in setting the amount of the child support obligation.⁽¹⁵⁴⁾ The court reasoned:

We do not believe that [the father's] decision to change the course of his medical career should impact so abruptly upon his young children as to require their support to be gauged by an income of $110,000 in one year and $17,000 in the next. Our conviction is reinforced by the limited duration of the self-imposed period of diminished earnings--three years. If the family had remained intact and [the father] had altered his career course, we cannot believe that he would have resorted only to his current earnings of $17,000 for their support over his medical residency. Almost certainly savings and capital would have been invaded during the interim to reinforce earnings and maintain some consistency of life-style.⁽¹⁵⁵⁾

In a similar Illinois case, In re Marriage of Andrew,⁽¹⁵⁶⁾ the appellate court also upheld the trial court's creation of a child support trust.⁽¹⁵⁷⁾ This case involved an appeal from portions of a divorce decree, including a court-imposed trust on $200,000 of the net proceeds from the sale of the marital residence.⁽¹⁵⁸⁾ The wife had been a homemaker throughout the thirty-two year marriage and the husband was a lawyer who had pursued a lucrative corporate management career.⁽¹⁵⁹⁾ In 1988, his adjusted gross income was $861,000.⁽¹⁶⁰⁾ He quit working at his corporate job in 1989 and chose to be self-employed as a consultant with an income for that year of $495,000.⁽¹⁶¹⁾ After seven months, he quit working altogether.⁽¹⁶²⁾ His income in 1990 was between $90,000 and $100,000, all of which was income earned from investments.⁽¹⁶³⁾ The husband testified that he had quit working because "he had been depressed and that he had to guard the marital residence."⁽¹⁶⁴⁾

The trial court ordered that $200,000 of the proceeds from the sale of the residence be placed in a trust to ensure the support and educational needs of the one remaining minor child.⁽¹⁶⁵⁾ In doing so, the trial court invoked section 503(g) of the Illinois Marriage and Dissolution Act, which provides that a court can protect the best interests of minor, dependent, or incompetent children by setting aside "`a portion of the jointly or separately held estates of the parties in a separate fund or trust for [their] support, maintenance, education, and general welfare.'"⁽¹⁶⁶⁾ The appellate court did not comment on the validity of the father's quitting his work, but upheld the trust arrangement on the grounds that it was appropriate to use a trust to protect the minor child's interests in a situation where neither parent was working at the time of the trial.⁽¹⁶⁷⁾

Thus, in cases such as the above, where vast fluctuations in income have occurred or are likely due to choice, luck, or circumstances, courts have been willing to invoke their discretion to further the best interests of the children by protecting a future stream of child support payments in a trust.

2. Higher Education Trusts

As the above cases of Tukker M.O. and Barlow illustrate, courts sometimes authorize the trustee of a court-imposed child support trust to pay out funds for the child's college expenses, as well as for other expenses of support. Although parents are not generally required to provide post-majority support, if a payor parent is financially able, a court may order the creation of a trust solely for college or other post-majority educational expenses.

The court, in Tukker M.O., agreed with the family court and ordered the payor's child support payments to be allocated between present support needs and a trust designed "`to provide the cash flow for the support of [Tukker], a minor, over the period of time to meet the statutory criteria of child support and to meet the post-minority responsibilities of going off to college.'"⁽¹⁶⁸⁾

The case of Acosta v. Acosta⁽¹⁶⁹⁾ provides an example of a slightly different approach. There, the court established an "`educational trust,'" which it later renamed the "`educational fund.'"⁽¹⁷⁰⁾ This fund consisted of $1500 per month which the father was ordered to pay to the mother for her to manage and use for the post-secondary education of the three children of the marriage.⁽¹⁷¹⁾ Any funds remaining after the youngest child reached the age of twenty-seven or completed graduate school were to be divided equally between the father and the mother.⁽¹⁷²⁾ When the father challenged the judgment on the grounds that there was insufficient monitoring to prevent dissipation of the funds by the mother, the court upheld the creation of the fund.⁽¹⁷³⁾ However, the court modified the final decree to leave the educational fund under the control of the court until the funds were either used up for educational expenses or divided between the parties according to the terms of the decree.⁽¹⁷⁴⁾

The fact that parents are not generally required to provide support for their children once those children have attained the age of majority, presents a theoretical stumbling block to the imposition of a trust on funds to be used for post-minority expenses. This was one basis for the appellate court overturning the creation of a child support trust in Barlow.⁽¹⁷⁵⁾ The court held that support funds are meant to be used for the current needs of a child, and keeping funds in trust for seven years past the age of majority was an abuse of the court's discretion under the statute.⁽¹⁷⁶⁾

Similarly, in In re Marriage of Alt,⁽¹⁷⁷⁾ the appeals court overturned a child support trust included in the divorce decree by the district court.⁽¹⁷⁸⁾ The district court had provided that if the father were to sell certain real estate inherited from his father before the minor child reached the age of majority, one-third of the sale proceeds were to be placed into a trust for the higher education and welfare of the child and were to be paid to the child on his eighteenth birthday.⁽¹⁷⁹⁾ In holding that the district court had abused its discretion in establishing this trust, the appeals court stated that under the relevant Montana statute, child support trusts

are to be established only for support and maintenance of minor, dependent or incompetent children. The trusts are to be in compliance with Montana law that a parent's obligation to support a child ends upon the child becoming eighteen years old, unless the child is retarded or otherwise unable to care for itself.⁽¹⁸⁰⁾

The relevant Montana statute contained the following language:

In a proceeding, the court may protect and promote the best interests of the children by setting aside a portion of the jointly and separately held estates of the parties in a separate fund or trust for the support, maintenance, education, and general welfare of any minor, dependent, or incompetent children of the parties.⁽¹⁸¹⁾

The Montana statute, listing factors to be considered by a court in setting the amount of child support, directs that the court consider the child's educational needs,⁽¹⁸²⁾ but the Alt decision clearly limits that consideration to minority educational needs.⁽¹⁸³⁾

On the other hand, the court in Tukker M.O. held that the establishment of a trust to cover post-secondary education was permissible under Wisconsin paternity law.⁽¹⁸⁴⁾ Wisconsin has a statutory provision similar to the Montana statute in Alt, which generally authorizes the use of child support trusts where required to protect the child's best interests.⁽¹⁸⁵⁾ However, in Tukker M.O., the court focused on language in the paternity statute "which allows the family court in a paternity action to consider the `need and capacity of the child for education, including higher education'" in setting child support payments.⁽¹⁸⁶⁾ The court concluded:

the legislature must mean to permit courts to undertake efforts in appropriate circumstances to see that a child's capacity for higher education is served by making preparations, including financial preparations, for attendance at an institution of higher learning. A trust is a logical and feasible device to accomplish this end.⁽¹⁸⁷⁾

Similarly, in Boyt v. Romanow,⁽¹⁸⁸⁾ the court upheld the use of a child support trust account despite the father's protests that possible use of the funds for post-secondary education expenses constituted an impermissible award of post-majority support.⁽¹⁸⁹⁾ The court reasoned that:

The benefits of child support paid during the child's minority can extend beyond majority. Such would be the case if the custodial parent decided to dedicate a portion of the periodic payments to a trust for the child's postmajority college education or other needs. We see no distinction if such a fund is mandated by the court.⁽¹⁹⁰⁾

However, Boyt has been strongly criticized by another Florida case, Finley v. Scott.⁽¹⁹¹⁾ Finley addressed the issue of whether "Florida has become a support-plus state."⁽¹⁹²⁾

In other words, are parents in Florida not only required to meet the day-to-day expenses necessary to maintain their children in the standard of living determined to be appropriate by the custodial parent but also to contribute a portion of their income into a trust account or guardianship account in order to meet the future but unspecified needs or wants of their children?⁽¹⁹³⁾

In answering this question in the negative, the court cited Grapin v. Grapin,⁽¹⁹⁴⁾ which "held that to require a divorced parent to send his or her child to college without requiring married parents also to do so would be a denial of equal protection under the law."⁽¹⁹⁵⁾ The court commented that just as Grapin held that the equal protection concern could not be circumvented by increasing alimony payments so that the custodial parent could afford to send the child to college, neither could the concern be circumvented by requiring divorced parents to set up "`good fortune'" trust accounts to cover college expenses.⁽¹⁹⁶⁾ The court concluded:

Other than Boyt, there appears to be no authority for requiring that a parent's estate be "shared with the child" in the form of contributions into a trust account. The state is empowered, even obligated, to require parents to appropriately provide for their children; however, any state-mandated payment in excess of the amount required to meet this parental obligation exceeds any child support justification. Current law does not appear to authorize a "good fortune" award separate and distinct from adequate child support which maintains the child in the appropriate standard of living.⁽¹⁹⁷⁾

Given the great resistance in law to court-ordered higher education trusts, it is likely that most college trusts are established by mutual agreement as part of the divorce settlement where the parties are in a financial position to bargain for such a fund. Enforcement of these trusts would be a matter of enforcing the contract between the divorcing parties and would not depend on the court's discretion, or lack thereof, to oppose additional obligations. However, it is difficult to ascertain the frequency of such private agreements and certainly beyond the scope of this Article.

3.  Protection from Parental Irresponsibility

Some family courts use their discretion to create child support trusts where a trust is believed to be necessary to protect the children from the irresponsibility of one or both of their parents. There may or may not be an explicit finding about the child's best interests. The usual situations where the children's best interests are found to be served by the establishment of a trust are in cases where a payor has been in arrears or where a payee has failed to use the support payments for the children.

Sometimes, concerns about a payor's level of responsibility will lead a court to include provisions for a child support trust in its initial order. In Iverson v. Iverson,⁽¹⁹⁸⁾ the court affirmed the trial court's award of $350 per month in child support, which was insured by placing a lien on the payor's real estate.⁽¹⁹⁹⁾ The judgment had further provided that if the real estate (a ranch) were ever sold, "a net sum of $50,000 from the proceeds shall be held in trust by a named bank for the payment of the child support payments, the amount held in trust to be subject to being reduced as the child advances in years."⁽²⁰⁰⁾ The court's concern that the father might not be reliable in his payment was evident in its detailed reprisal of the episodes of drunkenness, irresponsibility, and physical abuse in which the father had engaged.⁽²⁰¹⁾ The opinion did not specifically state that this arrangement was in the minor child's best interests, relying only on a South Dakota statute which gave the court power to require security for payments and to enforce its orders "`by any other remedy.'"⁽²⁰²⁾

Another case, Aycock v. Aycock,⁽²⁰³⁾ involved a trust set up in the original divorce judgment, but the reported opinion does not indicate why this was thought to be in the children's best interests.⁽²⁰⁴⁾ Aycock involved a jury verdict requiring the father to place two rental properties in trust.⁽²⁰⁵⁾ The rental income from the properties was intended to generate child support payments and the jury in fact made no other provisions for child support.⁽²⁰⁶⁾ The trust arrangement was clarified and upheld on appeal.⁽²⁰⁷⁾

Some courts have refused to find authority to impose a child support trust on property after the original divorce decree is entered, unless there is specific statutory authorization to do so. In Stemple v. Stemple,⁽²⁰⁸⁾ the appeals court refused to uphold a child support trust that the trial court had ordered to be created out of the father's inheritance from his own mother.⁽²⁰⁹⁾ The trust was intended to thereby guarantee consistent support payments, since the father had been in arrears.⁽²¹⁰⁾ The court concluded that while a court might have implied power to create a child support trust under a general statute authorizing a court to make property and support arrangements that were just, "the establishment of such a trust must be incorporated in the divorce decree and not in a subsequent proceeding. A court has control of the division of the property of the parties at the time of [the] divorce decree and not thereafter."⁽²¹¹⁾

However, most courts hold that they have the power to impose post-judgment trusts, at least where there is statutory authority to impose child support trusts in the first place. For example, in Griswold v. Savage,⁽²¹²⁾ the father was ordered to pay thirty dollars per week for the support of his son and had fallen behind on numerous occasions, when his own mother died leaving him as her sole heir.⁽²¹³⁾ Upon a request for a modification of the support order by the mother, the court increased the weekly payments to seventy-five dollars.⁽²¹⁴⁾ It also required the father to deposit $37,500 in an interest-bearing account.⁽²¹⁵⁾ The account would be the source of the weekly payments, as well as uninsured medical expenses, and $4500 per year for four years of college.⁽²¹⁶⁾ The appeals court affirmed the order, stating that an Indiana statute authorized trial courts to order the payment of child support into a trust.⁽²¹⁷⁾ The court noted that because the father had previously fallen behind in his payments, a trust was proper so that "[t]he child and [his mother] are both assured of regular and minimally adequate support payments, and the child's needs are met consistently from week to week."⁽²¹⁸⁾ As the above language makes clear, the father's irresponsible payment pattern was the key consideration in the imposition of a trust.

As Griswold illustrates, nonpayment of child support may itself be egregious enough to justify imposition of a trust on later payments.⁽²¹⁹⁾ Any other behavior that demonstrates a failure to put the children's welfare first may also justify a trust. In Maly v. Maly,⁽²²⁰⁾ it was held that the trial court had properly exercised its discretion to set aside approximately $11,000 in trust to guarantee monthly child support payments of $324.13.⁽²²¹⁾ The trust was deemed necessary to protect the children's best interests because the father "had stated that he would rather go to jail than pay child support."⁽²²²⁾

In an unpublished Minnesota case, Lee v. Lee,⁽²²³⁾ the court affirmed placement of lawsuit settlement proceeds in a trust to secure the father's child support obligations.⁽²²⁴⁾ The court held that this arrangement was supported by the father's poor track record, which included falling in arrears on his support obligations, using an insurance check for his children's medical expenses for other purposes, and using his entire pension distribution to pay debts other than his child support obligations.⁽²²⁵⁾

However, at least one court has refused to impose a child support trust over the payor's objections where the tardy payment of support was found to be a temporary and explainable lapse not likely to be repeated in the future.⁽²²⁶⁾ In In re Marriage of Swan,⁽²²⁷⁾ the father-payor suffered a work-related injury which resulted in reduced earning capacity.⁽²²⁸⁾ After settling his workers' compensation claim with his employer, the father resigned from his job and returned to school to obtain training in a different line of work.⁽²²⁹⁾ He filed a modification action, requesting a reduction in his child support obligations due to his changed circumstances.⁽²³⁰⁾ His ex-wife filed her own modification action, alleging that the father was behind in his support payments and asked the court to impose a child support trust on the remaining funds from the workers' compensation settlement.⁽²³¹⁾ The district court reduced the amount of the father's child support obligation and refused to impose a child support trust on the settlement proceeds.⁽²³²⁾ Both the appeals court and the Iowa Supreme Court upheld the trial court's refusal to impose a trust, despite the existence of Iowa Code section 598.21(1) which specifically authorized the court to set aside a portion of parental assets in a child support fund.⁽²³³⁾ The Iowa Supreme Court summarized its rationale as follows:

Except the months preceding the hearing in this action, [the father] had been generally prompt in paying child support. We think that the circumstances leading to his tardy payment of support after his injury should not affect his payment of support in the future. His support payments have now been reduced to a level consistent with his current financial status and there is no reason that [the father] cannot make his support payments on time.⁽²³⁴⁾

The above case illustrates the courts' tendency to use forced child support trusts as a remedy of last resort. In rejecting the trust option, the court, in Swan, was partly motivated by a desire to avoid unfairly burdening the payor by removing the payor's property from his own reach.⁽²³⁵⁾

Courts may also be loathe to impose a trust on child support payments without the consent of the payee custodial parent because of the interference with parental decision making and consequent burden on the payee which is potentially caused by such a trust.⁽²³⁶⁾ One court has stated that "[e]liminating a custodial parent's right to make spending decisions is more akin to altering the parents' custodial powers than it is to a modification of the amount of child support."⁽²³⁷⁾ Thus, a finding that imposition of a trust is necessay to protect the best interests of a child, or a finding that the payee parent has demonstrated an inability to properly handle the funds, or both, may be required before a trust will be imposed.⁽²³⁸⁾

Boyt v. Romanow⁽²³⁹⁾ provides one example where a trust was imposed because of the trial court's conclusion "`that it appears a considerable part of child support monies will be devoted to the mother's charge card obligations or real and personal property purchases and luxuries.'"⁽²⁴⁰⁾ The case involved a high income father whose monthly child support obligation of $2,654.09 was far in excess of the actual current needs of the three-year-old child.⁽²⁴¹⁾ Therefore, the trial court ordered that $1500 per month would be paid to the mother and the remainder would be paid to a trust account for the child.⁽²⁴²⁾ In upholding the arrangement, the appellate court held that "the court has the inherent power within its sound discretion to safeguard the minor child's well-being for the present and for the future."⁽²⁴³⁾

4.  Voluntary Agreement Between the Parties

Sometimes, the parents will agree to the establishment of a child support trust either for the support of the children, or for their post-secondary education, or for both. It is almost impossible to ascertain the number of cases where the parties agree to some sort of trust arrangement and then go on to implement it without incident, simply because these cases never go to litigation, appeal, or reporting. However, there are some indications that these agreements do occur. Voluntary trust arrangements do sometimes result in litigation, and even where the trust arrangement itself is carried out without incident, there may be litigation about other issues surrounding the divorce. In either situation, the reported case mentions the existence of an agreed to trust, thereby proving that such a thing exists, even if we cannot say for sure how often it occurs.

Perkins v. Parkins⁽²⁴⁴⁾ involved a property settlement which provided that the father would establish an irrevocable insurance trust funded with a minimum of $15,000 per child.⁽²⁴⁵⁾ The trust was to provide for certain medical and dental expenses, as well as educational expenses.⁽²⁴⁶⁾ The mother later appealed the family court's interpretation of the trust, claiming that it should have been funded with immediately available funds.⁽²⁴⁷⁾ The appellate court upheld the family court's conclusion that "[t]he trust was to consist only of `insurance money'; that is, the proceeds of insurance policies."⁽²⁴⁸⁾ Thus, while there was later disagreement about how to interpret the funding provisions of the trust, it is clear that the trust itself was initially agreed to by both parties.⁽²⁴⁹⁾

Bauer v. Bauer⁽²⁵⁰⁾ also involved a child support trust which was negotiated and agreed to between the parties, then later incorporated into the divorce decree.⁽²⁵¹⁾ There, the parties had agreed to fund the trust for the benefit of the children in lieu of having the father pay any periodic support payments to the mother who had custody.⁽²⁵²⁾ The trust corpus consisted of 1000 shares of Modern Homes Investment, Inc.⁽²⁵³⁾ The agreement was incorporated into the decree and the trust was set up and administered as planned.⁽²⁵⁴⁾ About one year later, Modern Homes Investment, Inc. was sold, resulting in an increase in the value of the trust shares from approximately $40,000 to approximately $200,000.⁽²⁵⁵⁾ The father's efforts to revoke the trust were unsuccessful, with the Washington Court of Appeals holding that the father was estopped from attacking the validity of the trust.⁽²⁵⁶⁾

B.  Proposal: More Extensive Use of Court-Ordered Child Support Trusts

More common use of child support trusts could provide another needed incentive to pay support fully and promptly. Routine use of trusts would provide assurance that child support payments are in fact going to the benefit of the children. Moreover, a properly structured trust would not have to strip custodial parents of autonomy or control over spending decisions. It would, however, make it more difficult for the occasional parent who does use child support payments for non-child-related expenses to do so without detection.

Some of the cases discussed above illustrate how a child support trust could be structured. In most cases, the trust could be quite simple in structure and administration.

1.  Trust Corpus

The first question to address is how to fund the trust. One option is to designate as corpus some property that is either owned by the parties at the time of divorce, or owned by a nonpaying parent after the divorce. The value of the property so designated would obviously vary with the financial circumstances of the respective parties, as well as with the projected amount of child support payments that will be due over the course of the child(ren)'s minority. One possibility, proposed in the Delaware case of Arteaga v. Howard,⁽²⁵⁷⁾ is to require that the entire projected amount of child support be placed in a trust.⁽²⁵⁸⁾ Similarly, the Iverson case required that if the payor ever sold his ranch, then he would be required to place $50,000 in trust to be used for child support.⁽²⁵⁹⁾ The voluntary agreement reached in the Bauer case discussed previously,⁽²⁶⁰⁾ also provided for the creation of a trust fund, this time out of shares of stock which were subject to property division at the time of divorce.⁽²⁶¹⁾ If, as in Bauer, the parties have the means to sufficiently fund the trust, the lump sum payment into the corpus may serve the dual purpose of guaranteeing all future child support payments, as well as relieving the payor of any future payment obligations.

Another option, which was eventually adopted by the court in Arteaga, is to require that the paying parent pay enough to purchase an annuity to cover child support expenses.⁽²⁶²⁾ An annuity payment could, but would not have to be, subject to trust provisions. While the Arteaga court left the details of the arrangement to the further negotiations of the parties, clearly some sort of trust agreement was envisioned because the court specified that the father retain an interest in the principal in case there was a premature termination of the child support obligation.⁽²⁶³⁾

Finally, many people will simply not have sufficient property to allow payment of a significant lump sum into a trust. In fact, most divorcing couples may fit into this category since it has been estimated that less than half of all divorcing couples have any significant assets to divide.⁽²⁶⁴⁾ In such cases, the initial corpus of a child support trust could simply be a token amount necessary to open a checking or savings account. Thereafter, all child support payments would be made to the trustee. In these cases the main purpose of the trust would not be preservation of existing assets so that they will be available for future support payments, but rather the use of a trust device would provide some accountability for how the money is spent.

2.  Trustee

The sophistication required of the trustee would obviously vary with the size of the trust corpus. In cases involving large amounts of property, a corporate trustee could be employed. However, in most cases, a lay person could perform the necessary duties. In cases where the parties are especially cooperative, the court could appoint the parents to serve as co-trustees. In other cases, an independent third party could be agreed to by the parties or appointed by the court. Neutral relatives would be likely choices, however, law firms or accounting firms could offer this service at a reasonable price by utilizing paraprofessionals. Obviously, any trustee's performance would be governed by fiduciary standards. Moreover, it would not be difficult to change trustees in the event of conflicts or other problems.

3.  Trust Terms

The trust purpose would be to ensure the continued support, education, and medical care of the minor children. Obviously, the crux of the trust would be the conditions under which the trustee could appropriately pay out trust assets to the custodial parent. I would suggest the following: Expenses directly attributable to a particular child, such as clothing, tuition, summer camp, or orthodontia, would be paid by the trustee upon presentation of a bill or receipt from the provider of those goods and services. In some circumstances, periodic payments such as tuition or orthodontia could be made by the trustee directly to the provider of those services. Expenses for items shared by the custodial parent and the children would be paid (upon presentation of a bill or receipt) at a rate where a fixed percentage of the total cost is attributed to each child. For example, twenty percent of rent or mortgage costs might be attributed to each child. Food costs could be divided evenly among the members of the household, or could be prorated according to age or other factors. Utilities, transportation, and household furnishings are other examples of expenses which could be allocated among family members.

To illustrate, assume a mother has primary physical placement of two minor children. Child support payments of $1000 per month would be paid into a child support trust. Assume further that the trustee is authorized to pay twenty percent of housing expenses and twenty-five percent of food expenses for each child. If the monthly mortgage payment is $800 and the monthly food bills are $500, upon presentation of bills and receipts, the mother would receive $320 for housing and $250 for food. If in addition, one child had clothing expenses of $150 and the other child had a summer camp fee of $100, plus $100 for clothes, the trustee would be authorized to pay out another $350, or a total of $920 for the month. The remaining eighty dollars would be available for other prorated or individual expenses, or it could remain in the account for the next month. In the event the expenses exceed funds available, the trustee could hold the receipts and pay out when new support payments come into the trust.

In the above example, the percentage amount of common expenses that would be allocated to each minor child was chosen at random, but the actual percentage (or fixed amount) allowed would be negotiated in each case. Certain economies of scale concerning food, housing, transportation, and other costs would provide reasonable starting points. For example, a custodial parent will have certain minimum housing costs whether or not she has custody of the children. She will probably need a larger house or apartment should the children live primarily with her. The most logical amount of housing costs to allocate to the children, therefore, would be the difference in cost between the apartment she would need as a single person and what she will need as a person with children at home.

If the mother in our example could obtain a one bedroom apartment for $500 per month and a comparable two or three bedroom apartment for $800 per month, the difference could be fairly allocated to the children. Food costs also present economies of scale, since larger households can purchase larger, more economical food packages. Children also become more expensive to feed as they get older, with teenagers being notoriously big eaters. Similarly, a custodial parent may need a car whether or not the children are living with her, but may need a bigger car and will likely have higher gas and maintenance expenses if she needs to do a lot of driving for her children.

In addition to paying proportionate amounts for shared expenses such as those discussed above, I am also proposing that the trustee would be authorized to pay out for any exclusively child-related expense, as long as proof of the expense is submitted and there are sufficient funds in the trust. This policy would preserve the custodial parent's right to make unencumbered spending decisions, while providing documentation that the money is in fact being spent on the children and not on the ex-spouse or others.

However, there is an undeniable potential for conflict here. Some paying parents will no doubt feel compelled to second guess every spending decision and will want to micro-manage every trust distribution. One can easily imagine a paying parent balking if a custodial parent seeks trust reimbursement for $150 "Air Somebody" athletic shoes. The paying parent could well argue that the shoes are extravagant and unnecessary and the child could make do with a forty dollar pair of sneakers. However, as long as the custodial parent can document the expense and can receive whatever funds are in the trust but no more, this decision should be made without interference by the noncustodial parent. If the court feels that the paying parent is becoming too interfering, it could order a neutral trustee to release only broad categories of information in the trust accountings to the payor. Thus, instead of listing athletic shoes at $150 and socks and underwear at $30, the accounting would simply list $180 for clothing expenses.

Sometimes, though, attempts to micro-manage may be more effectively thwarted by giving an itemized list of expenses. Anyone who has ever looked at the monthly total on the VISA bill and exclaimed, "That's impossible, I couldn't possibly have spent that!" understands the powerful effect of looking at the actual list of expenditures: $100 for shirts and a sweater, $40 for dinner at a restaurant, etcetera. The usual reaction is a resigned "I guess it adds up." Many paying parents may have the same rueful response when faced with cold, hard figures.

In addition to routine payouts, the trust should have provisions for payout where the trust terminates when the youngest child reaches the age of majority, dies, or marries prior to that time. While many trusts will essentially be monthly conduits for support payments and will not accumulate principal, parents who have more financial resources may fund trusts so that there will be principal in excess of ordinary monthly expenses. What happens to that principal is another subject for negotiation between the parties at the inception of the trust, but three possible dispositions stand out. One option is to return the remaining principal to the paying parent. The second possibility is to pay out the remaining principal in equal shares to the children when the youngest reaches the age of majority. Finally, the parties could agree to use any leftover funds for the post-majority educational expenses of the children. Which option is chosen would depend on the desires of the parties, as well as on their financial resources.

C.  Objections to the Proposal and Responses to Them

There are at least four different objections which could be raised to the proposal which has been outlined. One objection is that the difficulties and expenses of utilizing a trust would not be cost-effective in most circumstances. A second objection is that the system outlined could be subverted by fraud on the part of the payee parent. Thirdly, a trust arrangement at least potentially interferes with the traditional autonomy and decision making power accorded to a custodial parent. Finally, this system will not provide a payment incentive for payors whose nonpayment results from concerns other than whether the children are actually benefiting from the payments. Each of these will be examined in turn.

1.  Difficulties and Expense of Trust Administration

One potential problem is that the costs of managing a trust, including investment of funds and record keeping, will be prohibitive unless huge amounts of money are at stake. There might also be difficulties involved in finding and retaining a qualified trustee given the likely discord between the parties.

As far as expenses are concerned, the problem is easily handled. No matter how detailed the trust documents, the actual level of complication in trust management is directly related to the amount of property in the corpus. For a trust funded with millions of dollars worth of assets, management of the corpus will be complicated and will necessitate brokers' fees, accountants' fees, and the like. However, for the vast majority of cases where the funds are much more modest and where payments are measured by hundreds of dollars or less, the trust could be set up using only an interest-bearing savings or checking account in the name of the trust. Accountings could be simple lists of expenses, possibly accompanied by photocopies of documentation and a record of each payment from the trust.

While finding a suitable trustee may seem like a formidable challenge in some cases, the fact remains that neutral parties are routinely utilized in other capacities in divorce cases and thus can usually be found. For example, in difficult custody cases, parents are sometimes required to produce their children for visitation at the office of a neutral third party such as a grandparent, attorney, or social worker. Sometimes the third party presides over supervised visitation. In the case of a trustee, a grandparent or other relative might be willing to act as a trustee. The fact that trustees are bound by fiduciary obligations and are liable for violations thereof, provides protection against unfair or fraudulent actions by the trustee.

If no relative or friend can act as a trustee and the parties themselves cannot cooperate enough to act as co-trustees, the function could be performed by a professional. While this would introduce a fee into the equation, the routine nature of handling smaller trusts suggests that the service could be provided for a nominal fee. Certainly, if child support trusts became common, the possibility would exist that paraprofessionals could go into the trustee business. For example, many cases could doubtless be handled by legal assistants in the law offices of the attorney for either party or of a neutral attorney. The incentive to avoid management fees might even induce some divorced parents to cooperate in finding a willing individual to act.

2.  Opportunities for Fraud by the Payee Parent

Another potential objection to the proposed trust solution is that enterprising parents could find ways to fraudulently use trust payments for expenses that are not child-related. For example, a parent could present a receipt for school clothing, obtain a distribution from the trust and then return the clothing to the store. Or a custodial parent could collude with a landlord to overstate the amount of rent. Certainly, if a parent is bound and determined to get away with something, it would be possible to do so.

There are at least two responses to this problem. For one thing, where there is evidence of fraud, the court could order additional requirements for payout. Suppose that the custodial parent is requesting a payout from the trust for clothing expenses, but the child's clothing is routinely old and outgrown, suggesting that any clothing purchases may have been returned after payout. In such a case, additional requirements could be imposed on the payee, such as turning over the original receipts to the trustee. Since most stores will issue only store credits when merchandise is returned without a receipt, this would reduce the incentive to engage in this type of fraud. Even so, some potential for fraud remains, since a store credit could be used to purchase something for the parent's own use, instead of purchasing something needed by the child. Another solution might be to require the trustee to make payments directly to the providers of goods or services.

Ultimately, the most powerful response to the claim that fraud would be easy is that, in most cases, child support payments do not come close to covering the actual costs of raising a child.⁽²⁶⁵⁾ In other words, most parents will have little incentive for fraud because they do not need to resort to fraud to get the maximum payout from the trust.

3.  Interference With the Autonomy of the Custodial Parent

Perhaps the most serious objection to routine imposition of trusts on child support funds is that such an arrangement interferes with the decision making authority traditionally accorded to the custodial parent. As noted previously,⁽²⁶⁶⁾ some courts view the restriction of spending decisions as an interference with the custodial arrangement.⁽²⁶⁷⁾ After all, the custodial parent is usually intended to be the one with the most decision making power over the child. As one scholar has noted, "courts . . . define custody as embracing the sum or [sic] parental rights respecting the rearing of the child, including its care, the right to services and earnings, and the right to direct the child's activities, to [sic] and to make decisions concerning the care, control education, health and religion of the child."⁽²⁶⁸⁾ Spending decisions certainly fall into categories such as directing a child's activities, and making decisions about care, education, and health.

However, even though the concern with preserving the autonomy of a custodial parent is a valid one, it is not at all clear that imposing a trust on child support payments interferes with the custodial parent's decision making rights.

For one thing, in many cases where there is one parent with primary physical placement of the children, the parents share joint legal custody. In other words, the parents may already share decision making authority over the children. Sometimes, this arrangement results in elaborate agreements or decrees detailing exactly which decisions will be made by each parent, which decisions must be made jointly, and how deadlocks will be resolved.⁽²⁶⁹⁾

[A]n award of "joint custody" without specific directions concerning which parent has authority to make decisions about the child's care, or concerning the way in which such decisions are to be made in the event of disagreement between the parents can result in an impasse which may have adverse effects on the child and on parental cooperation.⁽²⁷⁰⁾

In cases where the decision making powers are shared between the parents already, it is questionable that the imposition of some formal accountability significantly alters the balance of custodial powers.

In addition, it should be possible to draft trust provisions so that the primary decision maker's powers remain intact. The type of child support trust described previously in Part II of this Article would require documentation of expenses, but would not require approval of any spending decisions whatsoever, either by the trustee or by the paying parent.⁽²⁷¹⁾ Although the payee parent does experience some delay and sacrifices some privacy, I would argue that her discretion to make decisions is not compromised. Surely any delay is insignificant compared to the infinite delay of unpaid child support. The potential loss of privacy is also arguably insignificant, since any noncustodial parent who has contact with his children has them as a ready source of information about the custodial parent's spending habits anyway. Thus, I do not believe the custodial parent need suffer any significant loss of autonomy if the trust is reasonably drafted.

There may, however, be a psychological feeling of lost autonomy, at least for some people. Trusts sometimes conjure up the image of having to beg a stranger for every penny, whether or not that is actually the case. In deciding whether a child support trust is appropriate anyway, the custodial parent and the court will have to honestly weigh the importance of that reaction against the pain and expense (both individual and systemic) of unpaid child support payments. I am not claiming that child support trusts are always appropriate, but only that they could be utilized to advantage much more frequently.

4.  Lack of Incentive Where Nonpayment Is Due to Other Factors

As discussed in Part II of this Article,⁽²⁷²⁾ the reasons for nonpayment of child support are complex, varied, and not always readily identifiable. Assuming some people do not make ordered payments because they suspect the payments are not used for the children, many other people may fail to pay for reasons having to do with other issues such as poverty, second families, or mere selfishness and immaturity. People who fail to pay for these other reasons most likely will not have improved payment records if a child support trust is ordered.

My response to this objection is simply that failure to solve the whole problem is not an excuse for neglecting to solve part of the problem. Given the dismal payment record of noncustodial parents overall,⁽²⁷³⁾ it seems that any chance for at least partial improvement should be given a chance.

  Conclusion

In this Article, I have argued that the time has come for courts to routinely use child support trusts as a mechanism for increasing the incentive of noncustodial parents to make court-ordered child support payments. I have attempted to show that trusts have already been successfully, if sparingly, used in the context of child support payments. Given evidence that many paying parents are concerned with the actual uses to which support payments will be put, it is time to use trusts to provide documentation and assure accountability in the child support process.

* Associate Professor of Law, Marquette University Law School; A.B., University of Notre Dame; J.D., Yale Law School. I would like to thank the students in my Fall, 1996 Divorce and Dissolution Course. Their insightful discussions led me to develop my thesis for this Article.

1. Judith Areen, Family Law: Cases and Materials 797-98 (3d ed. 1992). Areen cites a 1988 survey conducted by the U.S. Bureau of the Census, which concluded that only 51% percent of parents who were owed support in 1987 received the full amount, while the rest received less than the amount due, or nothing at all. See id. Other analysts report similarly bleak compliance rates. See infra notes 62-71 and accompanying text.

2. For example, it has been suggested that failure to pay could be due to factors as varied as financial difficulties, emotional distancing that may occur subsequent to a divorce, or visitation problems to name a few. See infra notes 72-108 and accompanying text. Traditional enforcement includes a finding of contempt of court, often accompanied by jail time, but other methods are also used. See infra notes 57-61 and accompanying text.

3. See Robert Pear, U.S. Inaugurating a Vast Database of All New Hires, N.Y. Times, Sept. 22, 1997, at A1.

4. See infra notes 257-64 and accompanying text.

5. See Judith S. Wallerstein & Sandra Blakeslee, Second Chances 256-58 (1990).

6. See infra Part III.B.

7. See infra Part III.B-C.

8. See infra notes 26-71 and accompanying text.

9. See infra notes 72-108 and accompanying text.

10. See infra notes 109-256 and accompanying text.

11. See infra Part III.B.

12. See infra Part III.C.

13. 1 William Blackstone, Commentaries *447.

14. See Leslie J. Harris et al., Making and Breaking Connections Between Parents' Duty to Support and Right to Control Their Children, 69 Or. L. Rev. 689, 692 & n.6 (1990).

15. Resong v. Vier, 459 N.W.2d 591, 594 (Wis. Ct. App. 1990) (quoting State v. Duprey, 439 N.W.2d 837, 838-39 (Wis. Ct. App. 1989)).

16. Id. (quoting Duprey, 493 N.W.2d at 838).

17. See infra notes 168-97 and accompanying text.

18. See infra notes 19-25 and accompanying text.

19. See 2 Homer H. Clark, Jr., The Law of Domestic Relations in the United States § 18.1, at 347 (2d ed. 1987).

20. See Commonwealth ex rel. Kaplan v. Kaplan, 344 A.2d 578, 579 (Pa. Super. Ct. 1975).

21. Id. (quoting Commonwealth ex rel. Firestone v. Firestone, 45 A.2d 923, 924 (Pa. Super. Ct. 1946)).

22. See id. at 580; see also Hecht v. Hecht, 150 A.2d 139, 143 (Pa. Super. Ct. 1959).

23. See National Center for State Courts, Development of Guidelines for Child Support Orders: Advisory Panel Recommendations and Final Report (1987), reprinted in Harry D. Krause, Family Law: Cases, Comments and Questions 1051 (3d ed. 1990) ("The subsistence needs of each parent should be taken into account in setting child support, but in virtually no event should the child support obligation be set at zero.").

24. See Hubert v. Hubert, 465 N.W.2d 252, 257 (Wis. Ct. App. 1990) ("The award of child support must recognize that it is in the best interests of the children that they continue at a standard of living substantially equal to what they enjoyed before this action was commenced.").

25. See Graham v. Graham, 597 A.2d 355, 358 (D.C. Ct. App. 1991) ("[W]e think it proper that a material increase in the non-custodial parent's income can be the basis for an increase in child support. Although spouses may divorce, the children's legal relationship with both parents continues, and `[t]he children's station in life should not therefore be fixed forever to their parents' station in life at the time of the divorce.'" (quoting Cole v. Cole, 409 A.2d 734, 741 (Md. App. 1979))).

26. See Areen, supra note 1, at 754.

27. Id.

28. See 42 U.S.C. §§ 602-67 (1994).

29. See Areen, supra note 1, at 767; id. at 157 (Supp. 1997).

30. See Robert G. Williams, Guidelines for Setting Levels of Child Support Orders, 21 Fam. L.Q. 281, 290-301 (1987).

31. See id.

32. See id.

33. See Areen, supra note 1, at 767; id. at 157 (Supp. 1997).

34. Williams, supra note 30, at 292.

35. See id. at 292-93.

36. See id. at 293.

37. Id.

38. See id.

39. See Areen, supra note 1, at 767; id. at 157 (Supp. 1997).

40. See Williams, supra note 30, at 290.

41. See Wis. Stat. Ann. § 767.25(1j) (West 1993). This section requires the court to apply the percentage standard set by the Department of Workforce Development. This standard is currently set out in chapter HSS section 80.03(1) of the Wisconsin Administrative Code (1995). The percentage may be adjusted if the court deems it to be unfair after the consideration of factors listed in section 767.25(1m).

42. See N.Y. Dom. Rel. § 240 1-b(b)(3)(i) (McKinney Supp. 1997).

43. See 750 Ill. Comp. Stat. Ann. 5/505(1) (West Supp. 1997).

44. See id.; N.Y. Fam. Ct. Act § 413(3) (McKinney 1997); Wis. Admin. Code § 80.03(1) (1995).

45. See, e.g., Wis. Stat. Ann. § 767.25(1m) (West 1993).

46. See, e.g., In re Marriage of Bush, 547 N.E.2d 590, 596 (Ill. App. Ct. 1989).

47. See Williams, supra note 30, at 295.

48. See id.

49. See id.

50. See id.

51. See Wallerstein & Blakeslee, supra note 5, at 256. "Joint custody" has two components: legal decision making power with respect to the child, and physical placement of the child. Id. "Joint legal custody" technically refers to the legal decision making aspect, and may or may not result in physical placement which is more equally divided between the parties. Id. However, when laypersons use the term "joint physical custody," they frequently assume that both parents have significant, if not equal, physical placement time. Id.

52. See Marygold S. Melli & Patricia R. Brown, The Economics of Shared Custody: Developing An Equitable Formula For Dual Residence, 31 Hous. L. Rev. 543, 560-69 (1994).

53. See id. at 560. For example, in Wisconsin, the law provides for the reduction of the support obligation where a parent spends between 31% and 59% of the time with a child. See Wis. Admin. Code § 80.04(2) (1995). This percentage is usually determined according to the number of overnights a child spends with each parent, but the court may also determine that the parent has spent substantial time which is the equivalent of overnights. See id. The parent then has to pay a percentage of his original child support obligation which is calculated by multiplying a percentage set out in the regulation tables by the original support obligation. See id.

54. See Melli & Brown, supra note 52, at 560-64.

55. See 42 U.S.C. §§ 602-54 (1994).

56. See Pear, supra note 3, at A1.

57. See Areen, supra note 1, at 805.

58. See infra Part II.B. However, harsher and more varied penalties have led to some notable improvements in compliance, even if they have not totally eliminated the problem. See, e.g., Mark Tosczak, State Says Efforts Working: Child-Support Payments Up, The Herald Sun, Jan. 31, 1997, at C1 (reporting a 16% increase over the year before where past-due support payments were collected under a new North Carolina program which authorizes revocation of driver's and professional licenses, use of most-wanted posters, and seizure of insurance settlements).

59. Pear, supra note 3, at A1.

60. See id.

61. See id. at A1, A16.

62. See Adam Clymer, Child-Support Collection Net Usually Fails, N.Y. Times, July 17, 1997, at A16.

63. See Jan Larson, Everyone Pays When Dad's a Deadbeat, American Demographics, July 1, 1992, at 39, 39.

64. See Clymer, supra note 62, at A16.

65. One 1983 article estimated that fathers account for 95% of parents who fall behind in support. See Patricia A. Avery, On the Trail of Those Deadbeat Dads, U.S. News & World Report, Mar. 21, 1983, at 70, 70.

66. Paula G. Roberts, Child Support Orders: Problems with Enforcement, in 4 The Future Of Children 101, 103 (Center for the Future of Children, 1994) (footnote omitted). While I have tried to use gender-neutral nouns and pronouns in my discussion of the problem of nonpayment, many of my sources refer to men or fathers as the culprits, simply (I suppose) because they still constitute the vast majority of nonpayors. See supra note 65 and accompanying text.

67. Lenore J. Weitzman, The Divorce Revolution: The Unexpected Social and Economic Consequences for Women and Children in America 284 (1985) (footnotes omitted).

68. See Larson, supra note 63, at 39.

69. See Roberts, supra note 66, at 103 (citing U.S. Bureau of the Census, Current Population Reports, P-60-173, Child Support and Alimony: 1989, at 5 tbl. C (1991)).

70. Id. at 101 (footnote omitted).

71. Weitzman, supra note 67, at 284 (footnote omitted).

72. Harry D. Krause, Child Support Reassessed: Limits of Private Responsibility and the Public Interest, in Divorce Reform at the Crossroads 166, 175 (Stephen D. Sugarman & Herma Hill Kay eds., 1990).

73. Id. (footnote omitted).

74. Wallerstein & Blakeslee, supra note 5, at 136.

75. Larson, supra note 63, at 39.

76. Avery, supra note 65, at 70 (quoting Lenore J. Weitzman of Stanford University).

77. See David L. Chambers, Making Fathers Pay: The Enforcement of Child Support 127-28 (1979).

78. See id. at 127.

79. See id. at 126-27.

80. See id. at 126.

81. See id.

82. See id. at 126-27.

83. Chambers, supra note 77, at 128-29.

84. Weitzman, supra note 67, at 297 (footnote omitted).

85. See Chambers, supra note 77, at 129-30.

86. Id. at 129.

87. See id. at 129-30.

88. See id. at 130.

89. See id. at 130-31.

90. See Kenneth Eckhardt, Social Change, Legal Controls, and Child Support: A Study in the Sociology of Law (1965) (unpublished Ph.D. dissertation, University of Wisconsin), in Chambers, supra note 77, at 130.

91. See Wallerstein & Blakeslee, supra note 5, at 136.

92. See Chambers, supra note 77, at 129-30.

93. See Wallerstein & Blakeslee, supra note 5, at 136.

94. Id.

95. Leslie J. Harris et al., Family Law 470 (1996).

96. See Chambers, supra note 77, at 130.

97. Id. (quoting Jerry Neal).

98. Id. (quoting David L. Chambers).

99. Id. (quoting Jerry Neal).

100. David M. Betson, Fair Shares: Meeting the Financial Needs of Children After Divorce, in Child Support: The Guideline Options 139 (Institute for Research on Public Policy, Cananda, 1994) (on file with the New England Law Review).

101. 459 N.W.2d 591 (Wis. Ct. App. 1990).

102. See id. at 591-92.

103. Id. at 592.

104. The author distributed a brief written survey to the member family lawyers in attendance at the September 9, 1997 meeting of the Leander J. Foley, Jr. Matrimonial Chapter of the American Inns of Court. See Survey from the Leander J. Foley, Jr. Matrimonial Chapter of the American Inns of Court, to Family Law Attorneys (Sept. 9, 1997) (on file with the New England Law Review). Question three asked:

When you have represented persons who are in arrears on their child support payments, what reasons do they give for their failure to pay? Please circle all that apply.

a) Lack of money or financial difficulties

b) Perception that the ordered payments are unreasonably high

c) Desire to use money for new spouse or children from a subse-

quent marriage instead

d) Revenge against former spouse

e) Concern that the support money will not actually be spent on

the children

f) Indifference to the children

g) Self-centered attitude

h) Other (please specify)Id.

Twenty out of 28 respondents indicated that "e) Concern that the support money will not actually be spent on the children" was a reason given. Id. This was second only to "a) Lack of money or financial difficulties," which was selected 26 times out of 28 responses. Id.

105. See id.

106. See id. The lead reason, that the "[p]ayer lacks money or has financial difficulties," showed a similar small decrease in selection. Id. When asked their own opinion (as opposed to the clients' explanations), 23 (as opposed to 26) lawyers indicated that a payor's lack of money or financial difficulties was an explanation for the failure to pay child support. See id.

107. Letter from JoDee Ramin, submitted as written testimony, to the Wisconsin State Legislature public hearing on child support legislation (May 1, 1997) (on file with the New England Law Review).

108. See infra Part III.

109. See, e.g., 750 Ill. Comp. Stat. Ann. 5/503(g) (West Supp. 1997); Wis. Stat. Ann. § 767.25(2) (West 1993).

110. Wis. Stat. Ann. § 767.25(2) (West 1993).

111. 750 Ill. Comp. Stat. Ann. 5/503(g) (West Supp. 1997).

112. See, e.g., W. Va. Code § 48-2-15 (1996).

113. See Prather v. Prather, 305 S.E.2d 304, 308 (W. Va. 1983).

114. Id.

115. Id. at 307 n.3 (quoting W. Va. Code § 48-2-15(b) (1980) as then in force); see also Jones v. State, 376 P.2d 361, 366 (Idaho 1962); Hemman v. Hemman, 251 S.W. 313, 314-15 (Tex. Civ. App. 1923). The West Virginia statute has since been revised to describe specific relief that a court may grant upon ordering a divorce. See W. Va. Code § 48-2-15(b) (1996). The list does not specifically mention trusts, and given the specificity of the language, the section arguably precludes trusts. See id.

116. See infra Part III.A.1.

117. See infra Part III.A.2.

118. See infra Part III.A.3.

119. See infra Part III.A.4.

120. 544 N.W.2d 417 (Wis. 1996).

121. See id. at 418.

122. See id.

123. See id.

124. See id. at 418-19.

125. See id. at 419.

126. See Tukker, 544 N.W.2d at 419.

127. Id. (quoting the Family Court). The family court decision was overturned by the appeals court, which held the use of the percentage standard to be unreasonable in such a high income case and that the use of a trust to cover post-majority expenses was improper. See id.; see also In re Paternity of Tukker M.O., 525 N.W.2d 793, 795-97 (Wis. Ct. App. 1994). However, the Wisconsin Supreme Court decision cited above reversed those parts of the appeals court's decision and upheld the family court judgment, citing with approval the above language from the family court transcript. See Tukker, 544 N.W.2d at 423.

128. 482 N.W.2d 919 (Iowa 1992).

129. See id. at 920.

130. See id.

131. See id.

132. See id.

133. See id.

134. See Mason, 482 N.W.2d at 920.

135. See id.

136. See id. at 920-21 (citing Iowa Code Ann. § 675.27 (West 1987)).

137. Id. at 921.

138. No. 9-96-68, 1997 Ohio App. LEXIS 2009 (Ohio Ct. App. May 2, 1997).

139. See id. at *7-9.

140. See id. at *1.

141. See id. at *2.

142. See id.

143. See id. at *2, *7.

144. See Barlow, 1997 Ohio App. LEXIS 2009, at *3.

145. See id. at *7-8.

146. See id. at *3-4.

147. Id. at *4-5 (quoting Ohio Rev. Code Ann. § 3113.21.5(A)(11) (Anderson Supp. 1996)).

148. 398 A.2d 141 (N.J. Super. Ct. App. Div. 1979).

149. See id. at 143.

150. See id.

151. See id.

152. See id. at 146.

153. See id. at 148.

154. See Lynn, 398 A.2d at 147-48.

155. Id. at 147.

156. 628 N.E.2d 221 (Ill. App. Ct. 1993).

157. See id. at 225.

158. See id. at 223.

159. See id. at 222.

160. See id.

161. See id.

162. See Andrew, 628 N.E.2d at 222.

163. See id.

164. Id.

165. See id. at 223.

166. Id. at 224 (quoting 750 Ill. Comp. Stat. Ann. 5/503(g) (West Supp. 1997)).

167. See id. at 224-25.

168. In re Paternity of Tukker M.O., 544 N.W.2d 417, 419, 422-23 (Wis. 1996) (quoting the Family Court).

169. No. 03A01-9403-CV-00081, 1994 Tenn. App. LEXIS 433 (Tenn. Ct. App. Aug. 8, 1994).

170. Id. at *8.

171. See id. at *4, *9.

172. See id. at *10.

173. See id. at *8-10.

174. See id. at *10-11.

175. See Barlow v. Ray, No. 9-96-68, 1997 Ohio App. LEXIS 2009, at *7 (Ohio Ct. App. May 2, 1997).

176. See id. at *7-8 (citing Pratt v. McCullough, 654 N.E.2d 372, 373-74 (Ohio Ct. App. 1995); Bailey v. Mitchell, 587 N.E.2d 358, 359 (Ohio Ct. App. 1990)).

177. 708 P.2d 258 (Mont. 1985).

178. See id. at 262.

179. See id. at 260.

180. Id. at 262 (citations omitted).

181. Mont. Code Ann. § 40-4-202(2) (1997).

182. See id. § 40-4-204(2)(d).

183. See Alt, 708 P.2d at 262.

184. See In re Paternity of Tukker M.O., 544 N.W.2d 417, 422-23 (Wis. 1996).

185. See Wis. Stat. Ann. § 767.25(2) (West 1993) ("The court may protect and promote the best interests of the minor children by setting aside a portion of the child support which either party is ordered to pay in a separate fund or trust for the support, education and welfare of such children.").

186. Tukker M.O., 544 N.W.2d at 422 (quoting Wis. Stat. Ann. § 767.51(5)(e) (West 1993)).

187. Id.

188. 664 So. 2d 995 (Fla. Dist. Ct. App. 1995).

189. See id. at 999.

190. Id. (citation omitted).

191. 687 So. 2d 338 (Fla. Dist. Ct. App. 1997) (en banc).

192. Id. at 339.

193. Id.

194. 450 So. 2d 853 (Fla. 1984).

195. Finley, 687 So. 2d at 343; see also Grapin, 450 So. 2d at 854.

196. Finley, 687 So. 2d at 343.

197. Id.

198. 241 N.W.2d 583 (S.D. 1976).

199. See id. at 585.

200. Id.

201. See id. at 584-85.

202. Id. at 586 (quoting S.D. Codified Laws § 25-4-42 (Michie 1992)).

203. 303 S.E.2d 456 (Ga. 1983).

204. See id. at 459-60.

205. See id. at 457.

206. See id. at 459.

207. See id.

208. 230 N.E.2d 677 (Ohio Ct. C.P. 1967).

209. See id. at 679-80.

210. See id. at 679.

211. Id. at 680.

212. 569 N.E.2d 970 (Ind. Ct. App. 1991).

213. See id. at 971.

214. See id.

215. See id.

216. See id. at 971-72.

217. See id. at 972.

218. Griswold, 569 N.E.2d at 973 (emphasis added).

219. See id. at 971, 973.

220. No. 86-1166, 1987 Wisc. App. LEXIS 4094 (Wisc. Ct. App. Sept. 15, 1987).

221. See id. at *13.

222. Id.

223. No. C7-91-525, 1991 Minn. App. LEXIS 843 (Minn. Ct. App. Aug. 14, 1991).

224. See id. at *3-5.

225. See id. at *5-6.

226. See In re Marriage of Swan, 526 N.W.2d 320 (Iowa 1995).

227. See id.

228. See id. at 322.

229. See id.

230. See id.

231. See id. at 323.

232. See Swan, 526 N.W.2d at 323.

233. See id. at 323, 326; see also Iowa Code Ann. § 598.21(1) (West Supp. 1997).

234. Swan, 526 N.W.2d at 326.

235. See id.

236. See, e.g., Resong v. Vier, 459 N.W.2d 591, 595 (Wis. Ct. App. 1990).

237. Id.

238. See id. at 594-95; see also Atkinson v. Atkinson, 429 N.E.2d 465, 467 (Ill. 1981) (holding that the requirement that the father set up a $100,000 trust for the support and education of the two minor children was "`inappropriate in the absence of evidence showing some need to protect the interests of the children.'" (quoting Atkinson v. Atkinson, 402 N.E.2d 831, 838 (Ill. App. Ct. 1980)).

239. 664 So. 2d 995 (Fla. Dist. Ct. App. 1995).

240. Id. at 997.

241. See id. at 996-97.

242. See id. at 997.

243. Id. at 998.

244. 309 S.E.2d 784 (S.C. Ct. App. 1983).

245. See id. at 786.

246. See id.

247. See id. at 786-87.

248. Id. at 786 (quoting In re Reynolds Estate, 268 N.W. 480, 486-87 (Neb. 1936)).

249. See id.

250. 490 P.2d 1350 (Wash. Ct. App. 1971).

251. See id. at 1350-51.

252. See id.

253. See id. at 1350.

254. See id. at 1350-51.

255. See id. at 1351.

256. See Bauer, 490 P.2d at 1356-57.

257. No. CS89-3723, CPI Nos. 91-1-279 CVS, 91-4-88CV, 1992 Del. Fam. Ct. LEXIS 30 (Del. Fam. Ct. July 1, 1992).

258. See id. at *3-7.

259. See Iverson v. Iverson, 241 N.W.2d 583, 585 (S.D. 1976); see also supra notes 198-202 and accompanying text.

260. See Bauer, 490 P.2d at 1350-51; see also supra notes 250-56 and accompanying text.

261. See Bauer, 490 P.2d at 1350.

262. See Arteaga, 1992 Del. Fam. Ct. LEXIS 30, at *8-12.

263. See id. at *12.

264. See Weitzman, supra note 67, at 55-57. Weitzman discusses a 1977 survey which showed that at that time, "close to 50 percent of the divorcing couples ha[d] less than $10,000 net worth." Id. at 57. She reported that "the median net worth of divorcing families was $11,000 in 1978," which she estimated to be about $18,000 in 1984 dollars. Id. (footnote omitted).

265. See Martha L. Fineman, Implementing Equality: Ideology, Contradiction and Social Change, 1983 Wisc. L. Rev. 789, 827-30 (1983).

266. See supra notes 236-38 and accompanying text.

267. See Resong v. Vier, 459 N.W.2d 591, 595 (Wis. Ct. App. 1990); see also supra notes 236-38 and accompanying text.

268. Clark, supra note 19, § 20.2, at 481 (footnote omitted).

269. See, e.g., 1 Leonard L. Loeb et al., System Book For Family Law: A Forms and Procedures Handbook ch. 8, at 32-38 (State Bar of Wisconsin CLE Book, 4th ed. 1997) (on file with the New England Law Review).

270. Clark, supra note 19, § 20.2, at 482 (footnote omitted).

271. See supra Part II.B.

272. See supra Part II.C.

273. See supra Part II.B.