What would you do with $129,755.00 per month?  That is the question that Kevin Costner’s attorneys are posing of his estranged wife, Christine Baumgartner, in their on-going divorce that is playing out on a very public stage.  According to Baumgartner, the nearly $130,000.00 in temporary child support ordered by the court is less than half of what is needed to “maintain the children in their accustomed lifestyle.” Costner, on the other hand, contends that a majority of the expenses included by Baumgartner in her needs’ calculation are related solely to Baumgartner’s wants and desires and are not for the benefit of the children.  For his part, Costner offered to pay $51,940.00 per month in child support, along with all of the children’s expenses, but Baumgartner found the offer to be “completely inappropriate.” 

At first glance, the Costner-Baumgartner child support battle seems absurd.  After all, how can anyone complain about receiving over $50,000.00 or $100,000.00 per month, tax-free, for the foreseeable future?  And why should Costner be outraged with paying less than 10% of his gross monthly earnings in temporary support for his wife and children?  Or more importantly, why should we even care?  While albeit Hollywood stars are often not like the rest of us in terms of lifestyle or monthly liquidity, these same questions are posed by even those clients and litigants of more meager means.  Divorce, it seems, like so many other things in life, is all relative. 

Let’s look at the statistics.  Numerically, women are nearly 1.5 times more likely than men to file for divorce.  [See https://www.asanet.org/women-more-likely-men-initiate-divorces-not-non-marital-breakups/]. An interesting statistic given that, in my experience, initiation is often not accompanied by preparation for the financial realities of a divorce.  A lot of focus and attention at the outset is given to maintaining the marital residence following a divorce, without fully understanding the associated costs or financial hardships of doing the same.  As the case moves forward and legal costs escalate, liquidity not only becomes a central issue, but often a barrier to maintenance of the pre-separation lifestyle.  Acceptance of that new standard of living is an extremely difficult proposition, especially for those spouses who are not gainfully employed.  In a state where traditional families (men at work and women maintaining the home) are more common, the failure to adapt to the new circumstances of post-divorce life can have disastrous consequences.  In fact, studies have found that women experience on average a 30% decline in their standard of living following a divorce, while men often experience an increase of nearly 10%.  [See Leopold, Thomas. “Gender Differences in the Consequences of Divorce: A Study of Multiple Outcomes.” June, 2018].  This is not to say that men and fathers do not experience socioeconomic hardships following a divorce.  Many do, but statistically they have a much higher likelihood of financial recovery than their female counterparts. 

In terms of financial support for children, the needs amongst families also varies greatly.  So too do the laws in each State.  Despite the varying nature of these needs, Texas has established child support guidelines and caps that are presumptively in the best interest of the children and seem to be applied in nearly every case.  The basic guidelines are simply percentages and are based on the number of children for whom the paying party (the obligor) owes support, the number of children before the court, and the obligor’s monthly net resources:

1 Child                =             20% of net monthly resources

2 Children           =             25% of net monthly resources

3 Children           =             30% of net monthly resources

4 Children            =            35% of net monthly resources

5 Children           =             40% of net monthly resources

6 Children           =             not less than the amount for 5 children

Resources, for purposes of the guidelines, includes all wage and salary income, interest, dividends, royalty income, self-employment income, net rental income, and all other income actually being received.  While this may sound lucrative, or overly burdensome depending on the audience, the Texas Legislature has implemented a cap on net resources of $9,200.00 per month ($110,400.00 net annual income or roughly $147,000.00 gross annual income), thus instituting a maximum amount of guideline support that can be ordered, regardless of the net monthly resources available to the obligor.  For one child, maximum guideline child support is $1,840.00 per month.  For two children, the maximum guideline child support is $2,300.00 per month.  In families where the gross annual income may be two or three times greater than $147,000.00 per year, the guidelines provide relatively scant support but fertile ground for a high disparity in lifestyles between the parents’ households following a divorce.  In many cases, the loss of household income following a divorce forces parents to work longer hours and/or decrease expenses by selling the marital home.  Such change in residence may lead to lost friendships, school environments, and other support systems for children of divorce.  With increased inflation and skyrocketing interest rates, the ability of the less monied spouse to own a home, particularly within the environment in which the children were raised pre-divorce, significantly decreases.  This increased disparity in living arrangements can often lead to children favoring the more monied spouse, where luxury items such as cars, phones, or vacations are more likely to be provided.  This reality can become particularly worrisome for custodial parents of teenagers, who are often more focused on immediate gratification or lax rules and boundaries, thus paving the way for modification of previous custodial arrangements.  Child support, unfortunately, rarely succeeds in bridging these gaps.

For those who find the child support guidelines to be “completely inappropriate”, all is not lost.  The Texas Legislature has granted discretion to trial courts to deviate from the child support guidelines based upon various circumstances of the parties and the children, which could include certain mental or physical disabilities of a child.  In terms of exceeding the guidelines, for those obligors having net monthly resources exceeding $9,200.00, trial courts may order additional amounts to be paid based on the income of the parties and the proven needs of the child.  Such amounts cannot exceed the presumptive guideline amount or 100% of the proven needs of the children.  While the term “proven needs” is not defined by statute, Texas courts agree that the same includes more than simple bare necessities of life.  However, the lifestyle of the family is not determinative, and child support cannot be used as a means of equalizing the standard of living between the parties.  What may be a proven need for one child of a family, may not be for the other children of that same family or for another family.  These are fact-driven inquiries, and the outcome of each case will vary greatly depending on the circumstances of each family and the judge hearing the case. 

The harsh truth for Texas litigants is that child support, in all likelihood, will not come close to replacing the amount of income lost as a result of the divided household.  In some cases, the child support ordered to be paid will not even cover the basic needs of the children, especially if the obligor is unintentionally unemployed or disabled.  And what happens when that child support terminates once the children are 18 and have graduated high school; or worse, if the obligor fails to pay the court-ordered child support obligation?  Courts are reactive and not proactive, meaning that months may pass before a judge is even able to hear any issues surrounding non-payment of child support.  In my experience, child support is an unreliable source for gauging post-divorce liquidity and should be treated as such.

Regardless of your financial circumstances, post-separation and post-divorce life will bring new challenges and changes.  Being prepared for the financial realities of the same is essential for anyone considering a divorce.  Preparation includes building a team of trusted advocates who will take the time to know your goals and needs and prepare you to meet both, inside and outside of the courtroom.