Balancing the Interests: The American Law Institute's Treatment of Child Support

Family Law Quarterly

Volumn 33, Issue 1, 1999, Pages 39-95

  Blumberg, Grace Ganz ^a  

^a NONE

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EID: 0346245538     PISSN: 0014729X     EISSN: None     Source Type: Journal    
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References (135)

1. The scope of the project is limited to the private law rights of the parties inter se. Nevertheless, the chapter accepts and incorporates the familiar principle that the state is an interested party in the dissolution of the family.
2. Unless otherwise indicated, all references are to PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION: ANALYSIS AND RECOMMENDATIONS, Tentative Draft No. 3, Part II (Apr. 8, 1998) [hereinafter referred to as Tentative Draft No. 3].
3. The other chapters of the PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION deal with property distribution, compensatory payments (traditionally called spousal support), child custody, nonmarital cohabitation, and spousal and nonmarital agreements. All the chapters of the PRINCIPLES share certain common characteristics. They eschew relatively unfettered judicial discretion in favor of determinate rules that facilitate efficient mass administration of justice but that are nevertheless tailored to register and reflect the particular circumstances of the parties. See generally Ira Mark Ellman, Inventing Family Law, U.C. DAVIS L. REV. (forthcoming 1999). The child support and the child custody rules are specially designed to avoid "once size fits all" resolution but still to embody determinate principles that yield results that are predictable and consistent in like cases. Although the child support chapter is related to the other chapters and all the chapters of the PRINCIPLES are designed as an integrated work, the child support chapter is also intended to stand alone as a self-contained guide for the rulemaker responsible for establishing a state's child support rules.
4. The other chapters of the PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION deal with property distribution, compensatory payments (traditionally called spousal support), child custody, nonmarital cohabitation, and spousal and nonmarital agreements. All the chapters of the PRINCIPLES share certain common characteristics. They eschew relatively unfettered judicial discretion in favor of determinate rules that facilitate efficient mass administration of justice but that are nevertheless tailored to register and reflect the particular circumstances of the parties. See generally Ira Mark Ellman, Inventing Family Law, U.C. DAVIS L. REV. (forthcoming 1999). The child support and the child custody rules are specially designed to avoid "once size fits all" resolution but still to embody determinate principles that yield results that are predictable and consistent in like cases. Although the child support chapter is related to the other chapters and all the chapters of the PRINCIPLES are designed as an integrated work, the child support chapter is also intended to stand alone as a self-contained guide for the rulemaker responsible for establishing a state's child support rules.
5. Ultimately, assigning parents the primary support obligation does, in part, shape the amount and nature of support payable by the parents. If, for example, one were to conclude that parents should have no obligation to support their children and the obligation should fall entirely on the state, one might define the state's obligation to support all children differently than a parent's obligation to support his or her own children. (Cf. text infra at notes 23-24.) Thus, the reader should bear in mind that at some level of abstraction the issues of who should support and how much support should be required are inseparable. Nevertheless, this article limits itself to the premise that parents able to support their children should be required to do so and then defines the amount and character of support that parents should be required to provide.
6. OECD standards, used for international comparison, show a U.S. poverty rate of 60 percent for one-parent families, as compared to 11 percent for two-parent families. Lee Rainwater & Timothy M. Smeeding, Doing Poorly: The Real Income of American Children in a Comparative Perspective, Luxembourg Income Study Working Paper No. 127, at 12 (1995). In the United States, poverty is experienced by children who reside with divorced, as well as never-married, mothers. For all divorced women with minor children, the likelihood of living in poverty is 39%; for women with children under six, it is 55%, sources collected and cited in Jay Teachman & Kathleen Paasch, Financial Impact of Divorce on Children and Their Families, in CHILDREN AND DIVORCE 64 (Richard Behrman & Linda Sandham Quinn, eds.), 4 THE FUTURE OF CHILDREN No. 1 (1994). The poverty experienced by children who reside in female-headed families is not likely to be of short duration. For poor persons generally, the average spell of poverty is less than two years; for female-headed families, it is seven years. Id. at 68.
7. OECD standards, used for international comparison, show a U.S. poverty rate of 60 percent for one-parent families, as compared to 11 percent for two-parent families. Lee Rainwater & Timothy M. Smeeding, Doing Poorly: The Real Income of American Children in a Comparative Perspective, Luxembourg Income Study Working Paper No. 127, at 12 (1995). In the United States, poverty is experienced by children who reside with divorced, as well as never-married, mothers. For all divorced women with minor children, the likelihood of living in poverty is 39%; for women with children under six, it is 55%, sources collected and cited in Jay Teachman & Kathleen Paasch, Financial Impact of Divorce on Children and Their Families, in CHILDREN AND DIVORCE 64 (Richard Behrman & Linda Sandham Quinn, eds.), 4 THE FUTURE OF CHILDREN No. 1 (1994). The poverty experienced by children who reside in female-headed families is not likely to be of short duration. For poor persons generally, the average spell of poverty is less than two years; for female-headed families, it is seven years. Id. at 68.
8. Although the ALI accepts the context as a given, it is not uncritical of it. In particular, the ALI would prefer the state to play a more active and generous role in the support of children whose parents are economically unable to provide adequately for them. The ALI understands the PRINCIPLES to indirectly advance this goal by establishing parental obligations that would tend to assure the state that the parents have done all that may reasonably be expected of them and therefore that public support, when still needed, should be forthcoming.
9. For purposes of child support, Chapter 3 characterizes the parents as "residential," "nonresidential," or "dual residential." The terms generally correspond with "custodial," "noncustodial," and "joint (physical) custodial." The choice of terminology is explained in a subsequently drafted definitions section, PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION: ANALYSIS AND RECOMMENDATIONS, Council Draft No. 5 (Oct. 8, 1998), § 3.02. Section 3.02 provides, in relevant part: (2) "Residential responsibility" is overnight responsibility for a child. (3) "Primary residential responsibility" is predominant overnight responsibility for a child. (4) A "residential parent" is a parent who has primary residential responsibility for a child and who is not a dual residential parent. (5) A "dual residential parent" is a parent who, under § 3.14, shares primary residential responsibility for a child with the other parent, each providing a residence substantially equivalent to a primary residence. (6) A "nonresidential" parent is a parent who does not have primary residential responsibility for a child and who is not a dual residential parent. This article follows the terminology of Chapter 3.
10. This early version has been included in Tentative Draft No. 3 as an appendix. In prior drafts it was included as a plausible, albeit less desirable, alternative to the ALI formula. See PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION: ANALYSIS AND RECOMMENDATIONS, Council Draft No. 4, Vol. II (Sept. 26, 1997), and Preliminary Draft No. 7, Vol. I (June 9, 1997). However, successive deliberative bodies of the ALI found the ALI formula sufficiently more attractive to warrant taking the early version out of the draft and attaching it only as an informative appendix.
11. This early version has been included in Tentative Draft No. 3 as an appendix. In prior drafts it was included as a plausible, albeit less desirable, alternative to the ALI formula. See PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION: ANALYSIS AND RECOMMENDATIONS, Council Draft No. 4, Vol. II (Sept. 26, 1997), and Preliminary Draft No. 7, Vol. I (June 9, 1997). However, successive deliberative bodies of the ALI found the ALI formula sufficiently more attractive to warrant taking the early version out of the draft and attaching it only as an informative appendix.
12. Commonwealth of Massachusetts Administrative Office of the Trial Court, Child Support Guidelines, effective January 1, 1998. The Massachusetts guidelines generally provide somewhat greater child support than the illustrative ALI formula. In the language of Chapter 3, for obligors earning gross income of more than $500 weekly, the Massachusetts "preliminary assessment" (see infra text at notes 79-81) is 27% of gross income for one child, and 30% of gross income for two children. At, for example, $3,000 of gross monthly income, approximately 72% remains after taxation. (About 20% is taken by federal and state income taxation and 8% by social security taxation.) See generally LEWIN/ICF, ESTIMATES OF EXPENDITURES ON CHILDREN AND CHILD SUPPORT GUIDELINES, REPORT TO THE U.S. DEP'T OF HEALTH AND HUMAN SERVICES 6-21 to 6-23 (1990). Thus the Massachusetts preliminary assessment of 27% of gross income for one child is equivalent to 38% of net income (.27 divided by .72). The ALI preliminary assessment percentage for one child is 34% of net income. For two children, the Massachusetts preliminary assessment of 30% of gross income is equivalent to the ALI preliminary assessment of 42% of net income. However, these Massachusetts percentages apply only to children under the age of seven. The Massachusetts guideline increases the amount payable as child support by 10% when the oldest child is age 7-12, and by 15 percent when the oldest child is age 13-18. The residential parent's "income exemption" in Massachusetts (see infra text accompanying notes 82-83) is $1,250 gross monthly, as compared to the ALI's illustrative income exemption of $1,000 net monthly. When a residential parent earns income at this level, taxation should increase, not decrease, net income because the residential parent should realize a net tax benefit from application of the Earned Income Tax Credit (EITC). For discussion of the income issues raised by the EITC, see Tentative Draft No. 3, § 3.12, Comment j and Reporter's Notes for Comment j.
13. D.C. CODE ANN. § 316-916.1.
14. See, for example, the discussion of child support in joint physical custody, or dual residence, cases in text infra at notes 96-99.
15. See, for example, the description, at text infra accompanying notes 90-94, of how the ALI formula takes into account the residential parent's interest in not being economically disadvantaged, as compared to the nonresidential parent, on account of the financial opportunity costs of child-rearing.
16. See Lawrence H. Ganong, Marilyn Coleman & Deborah Mistina, Normative Beliefs About Parents' and Stepparents' Financial Obligations to Children Following Divorce and Marriage, 44 FAM. REL. 306-315 (1995), and sources summarized and cited therein. Generally, nonresidential parents are expected to contribute in proportion to their resources and in light of the needs of the children's household. As the income of that household increases, the amount a nonresidential parent is expected to contribute decreases. N.C. Schaeffer, Principles of Justice in Judgments about Child Support, 69 Soc. FORCES 157-179 (1990). Ganong et al. found that the support obligation of the nonresidential parent is expected to decline when the residential parent remarries a person of substantial income, even though the law has not generally taken the same view of stepparent income. The child support rules of Chapter 3 are generally consistent with these normative beliefs. The prevalent marginal expenditure guidelines are generally not.
17. See Lawrence H. Ganong, Marilyn Coleman & Deborah Mistina, Normative Beliefs About Parents' and Stepparents' Financial Obligations to Children Following Divorce and Marriage, 44 FAM. REL. 306-315 (1995), and sources summarized and cited therein. Generally, nonresidential parents are expected to contribute in proportion to their resources and in light of the needs of the children's household. As the income of that household increases, the amount a nonresidential parent is expected to contribute decreases. N.C. Schaeffer, Principles of Justice in Judgments about Child Support, 69 Soc. FORCES 157-179 (1990). Ganong et al. found that the support obligation of the nonresidential parent is expected to decline when the residential parent remarries a person of substantial income, even though the law has not generally taken the same view of stepparent income. The child support rules of Chapter 3 are generally consistent with these normative beliefs. The prevalent marginal expenditure guidelines are generally not.
18. See Lawrence H. Ganong, Marilyn Coleman & Deborah Mistina, Normative Beliefs About Parents' and Stepparents' Financial Obligations to Children Following Divorce and Marriage, 44 FAM. REL. 306-315 (1995), and sources summarized and cited therein. Generally, nonresidential parents are expected to contribute in proportion to their resources and in light of the needs of the children's household. As the income of that household increases, the amount a nonresidential parent is expected to contribute decreases. N.C. Schaeffer, Principles of Justice in Judgments about Child Support, 69 Soc. FORCES 157-179 (1990). Ganong et al. found that the support obligation of the nonresidential parent is expected to decline when the residential parent remarries a person of substantial income, even though the law has not generally taken the same view of stepparent income. The child support rules of Chapter 3 are generally consistent with these normative beliefs. The prevalent marginal expenditure guidelines are generally not.
19. ALI approval of a "Tentative Draft" is similarly "tentative," subject to revisions on matters of detail that a reporter may make in response to discussion preceding the vote of approval.
20. Section 3.03 objectives are not simply aspirational or hortatory. Instead they are intended to be operative goals. They are concrete and determinate, and their achievement is measurable. Commonly, state child support guidelines are preceded by a list of objectives. Not uncommonly, the objectives are inconsistent and thus incapable of realization. Even when the objectives are coherent and thus theoretically capable of realization, the guidelines that follow are generally incapable of realizing the stated objectives. The Institute determined to do an honest job, that is, to set goals and to achieve them. The PRINCIPLES may thus be criticized for the goals that they adopt or the manner in which they achieve them, but not for hypocrisy.
21. In their representative California sample, Maccoby and Mnookin found that "[n]early half of the separating couples had only one child, and most of the rest had only two." ELEANOR E. MACCOBY & ROBERT H. MNOOKIN, DIVIDING THE CHILD: SOCIAL AND LEGAL DILEMMAS OF CUSTODY 59 (1992). Specifically, their data showed: Number of children from this marriage Percentage of families One 47.1 Two 40.9 Three 10.0 Four 1.6 Five or more 0.4 100.0% (N = 1,124) Id. at 61. With respect to number of children, Maccoby and Mnookin observed that their California sample was quite similar to a national sample of divorced mothers. Id. at 62.
22. Chapter 3 tests for basic economic adequacy with national poverty threshold figures and compares relative economic outcomes with the Bureau of Labor Statistics Household Equivalence Scale. See infra text at notes 52-59.
23. This category also includes direct payments to third party vendors for a child's medical and dental care and may also be understood to include payments for care of the child during the residential parent's hours of gainful employment. Neither form of payment is germane to the text discussion at this point. Child care expenditure is treated later in the article.
24. Like all contemporary American child support rules, Chapter 3 applies equally to the support of children who reside with one parent after family dissolution and children whose parents have never resided together. See Tentative Draft No. 3, § 3.01.
25. Under the PRINCIPLES and under prevailing law, the allocation of residential responsibility for the child is normally not a function of fault as a parent or responsibility for the dissolution of the family relationship.
26. Section 3.16 states that "[t]he child support rules should provide that a child should not suffer loss of life opportunities that the child's parents are able to provide without undue hardship to themselves or their other dependents." Most importantly, such life opportunities include "postsecondary education, including undergraduate, graduate, and professional education, and vocational training." They also include primary and secondary education, and specialized education and training appropriate to the child's special talents or disabilities. Section 3.16 describes the relationship between child support ordered for "life opportunities" and child support ordered under the § 3.05 child support formula. Section 3.16 also describes ways in which the parents may be required to set aside savings for the child's life opportunities.
27. Satisfaction of the child's need for parental care is best served by child support rules that enable the residential parent to make reasonable choices between gainful employment and provision of parental care. The child's need for vendor care is best served by child support rules that fairly apportion the cost of such care between the child's parents.
28. Additionally, the interests of society figure strongly in the identification of the minimum welfare goals of child support.
29. This interest is implicitly recognized as well in the calculus proposed by Chapter 5, Compensatory Payments, where compensatory payments are ordinarily insufficient to raise the income of the lower-income spouse to that of the higher-income spouse. See generally AMERICAN LAW INSTITUTE, PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION, Proposed Final Draft, Part I, Chapter 5 (Feb. 14, 1997). In Chapter 5, income equalization may occur, if ever, only in very long marriages where each party is unable to achieve the marital standard of living at divorce and thus each experiences loss. It reaches that result, however, not from a rationale for income equalization itself but because income equalization is the consequence, in those cases, of a different principle endorsed by the Comment - the principle that for marriages of the longest duration, the parties should be equally responsible for the financial loss each experiences from the dissolution. Where both have a loss, then income equalization is a result of this principle's application. Where one spouse has no loss, however, income equalization does not follow from that principle. Id. at § 5.05, Reporter's Notes to Comment g.
30. Id. Chapter 5 compensatory payments are calculated before child support and, for purposes of child support, are treated as income to the payee and as a deduction from income for the payor. The effect of payment of compensatory payments is to reduce the amount of child support payable by a higher-income obligor. The principle that the higher-income obligor or obligee should enjoy a higher standard of living is necessarily confined to the existing family at the time of family dissolution. The higher-income obligor or obligee may, of course, subsequently undertake new financial obligations that lower his or her standard of living.
31. Chapter 3, and the PRINCIPLES generally, take into account only the financial costs of family dissolution. See infra text accompanying notes 37-40.
32. The residential parent may also have other claims against the support obligor at the dissolution of their family relationship, but the PRINCIPLES follow the traditional distinction between child support and spousal support, refashioning the latter as "compensatory payments." Child support claims are those that arise solely from allocation of post-dissolution residential responsibility for a child. By contrast, Chapter 5 compensatory payment claims, if any, arise from other aspects of the pre-dissolution domestic relationship of the child's parents.
33. The claim to compensation for the value of services provided to the child is sometimes expressed as a claim for homemaker or child-caretaker compensation. This claim is not recognized by Chapter 3 or the PRINCIPLES generally.
34. For example, the parent who comes home after a full day of work at the office and spends the evening tutoring a child in math may provide the child with a valuable service. The value of that service may be measured by the cost of hiring a comparable tutor, but the value of the service is not a financial cost to the parent. Nor is the value of the service a reasonable proxy for the parent's financial opportunity cost of providing the service. In this example, there would appear to be no financial opportunity cost. The opportunity cost is the parent's evening leisure.
35. Full compensation is provided, for example, when an employer grants an employee fully compensated parental leave.
36. Although the ALI child support formula does not attempt direct measurement of the financial opportunity costs of child-rearing, the effect of the ALI formula is, in appropriate cases, to take such costs into account. This point is elaborated in the description and analysis of the formula at text infra accompanying notes 90-94. Chapter 3 employs a method similar to that used for another purpose in Chapter 5 compensatory payments. Chapter 5 adjusts the relative economic inequality between the adult parties at dissolution in light of various aspects of the pre-dissolution roles of the adult parties, including the allocation of primary responsibility for the care of children during the relationship. By contrast, the ALI child support formula tends to adjust the relative economic inequality between the child's residential household and the nonresidential parent in light of, inter alia, the financial opportunity costs of raising the parties' children after dissolution. In both chapters, the adjustment is made only when the lower income parent is the parent who has taken or will take primary responsibility for care of the children. The purpose is to adjust for economic inequalities related to the performance of certain responsibilities, not to compensate for performance of the responsibilities themselves. There is no "double counting." The two chapters address different issues. Moreover, Chapter 5 compensatory payments, when payable and paid, are included in the payee's income for purposes of Chapter 3 child support. Discussion of the residential parent's interest in not being comparatively disadvantaged by the financial opportunity costs of child-rearing may seem gratuitous because achievement of one of Chapter 3's child welfare objectives would independently tend to reach the same result. In other words, assuring that the child's standard of living is not grossly inferior to that of either parent (see infra text at notes 41-42) will tend to soften the economic disadvantage that a residential parent might otherwise experience, compared to the nonresidential parent, on account of the financial opportunity costs of child-rearing. Nevertheless, it is worth pointing out that the effect of the ALI formula is to take into account this interest of the residential parent. Moreover, the conjunction of the independent interests of the child and residential parent may be understood to increase their combined valence in the balancing process.
37. For an account of early conflicting views at law and in equity, see Greenspan v. Slate, 97 A.2d 390 (N.J. 1953) (holding that a parent may be held liable to a creditor who furnished emergency medical necessaries to his minor child). See generally sources collected in ROBERT H. MNOOKIN & D. KELLY WEISBERG, CHILD, FAMILY AND STATE: PROBLEMS AND MATERIALS ON CHILDREN AND THE LAW 215-229 (3d ed. 1995).
38. Id.
39. In the case of the higher-income support obligor, this measure of child support effectively ensures that less money will be devoted to the child in the residential household than was devoted to the child in the two-parent family. See Tentative Draft No. 3, Appendix, § 3.05A, Comment g and, particularly, Illustrations 4-5. This is true despite the frequent representation to the contrary that the marginal expenditure measure of child support ensures continuity of expenditure on the child.
40. Under this measure of child support, the higher-income obligor effectively retains all the income that he formerly contributed to the support of the other parent in the pre-dissolution household. Thus, the obligor enjoys a higher standard of living than the residential household. Depending on the relative incomes of the parents, the higher-income obligor may also enjoy a higher standard of living after dissolution than during marriage, despite the lost economies of scale incident to dissolution.
41. By the same principle, appropriate additional child expenditure, such as for day care required by the residential parent's employment, should be equally shared by the two parents so that each household enjoys an equal standard of living.
42. For more ample discussion of the decision to limit the scope of the PRINCIPLES to the financial costs of family dissolution, see AMERICAN LAW INSTITUTE, PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION: ANALYSIS AND RECOMMENDATIONS, Proposed Final Draft, Part I, (Feb. 14, 1997), Chapter 5 (Compensatory Spousal Payments), § 5.02, Comment b at 262-263.
43. This is true even when each parent desires to occupy the role of residential parent, because each parent will nevertheless experience both costs and benefits in the performance of either role.
44. The PRINCIPLES do, however, take into account new child support obligations by allowing parents hardship deductions from income. See Tentative Draft No. 3, § 3.13(1)(c) and Comment.
45. Tentative Draft No. 3, § 3.03 (1), as revised.
46. Tentative Draft No. 3, § 3.03 (2).
47. This objective is not explicitly expressed in the interest identification and objectives section (§ 3.03) of Tentative Draft No. 3, but it is implicit in the operative provisions of Chapter 3 and will be made explicit, as an objective, in the final draft.
48. The lower-income residential parent's interest is to not be economically disadvantaged, as compared to the child's other parent (the support obligor), by the financial opportunity costs of child-rearing.
49. This is what the ALI formula does.
50. Additionally, the two parents are not equally situated with respect to lost opportunities for leisure because, holding equal the parents' hours of gainful employment, child care responsibilities leave the residential parent with fewer hours available for leisure.
51. This discussion assumes that child support is in some manner calculated as a percentage of obligor income, which is the case with all extant and proposed formulas, including the marginal expenditure and ALI formulas.
52. See David Betson et al., Trade-Offs Implicit in Child-Support Guidelines, 11 J. POL'Y ANALYSIS & MGMT. 1 (1992). See also Richard B. Freedman & Jane Waldfogel, Does Child Support Enforcement Affect Male Labor Supply?, in FATHERS UNDER FIRE: THE REVOLUTION IN CHILD SUPPORT ENFORCEMENT (Irwin Garfinkel et al., eds. 1998).
53. See David Betson et al., Trade-Offs Implicit in Child-Support Guidelines, 11 J. POL'Y ANALYSIS & MGMT. 1 (1992). See also Richard B. Freedman & Jane Waldfogel, Does Child Support Enforcement Affect Male Labor Supply?, in FATHERS UNDER FIRE: THE REVOLUTION IN CHILD SUPPORT ENFORCEMENT (Irwin Garfinkel et al., eds. 1998).
54. See infra note 113.
55. This is the case in a substantial minority of American states. See Appendix (Glossary) text accompanying notes 6-7. Although this approach has some serious shortcomings, one of its virtues is that it creates absolutely no work disincentive for the residential parent. Although the majority of marginal expenditure formula states (frequently called Income Shares) nominally take into account the income of both parents, they do so only for the purpose of selecting an appropriate marginal expenditure percentage to apply to obligor income. Effectively, they slavishly follow the principle of determining post-dissolution child support obligations according to marginal expenditure in a two-parent home. To do this, they cumulate the income of both parents for the purpose of selecting the marginal expenditure percentage to apply to obligor income, even though the parents now reside in separate households. For further explanation, see Appendix (Glossary) in text and notes at notes 4-8.
56. See Judith Cassetty et al., The ELS (Equal Living Standards) Model for Child Support Awards, in ESSENTIALS OF CHILD SUPPORT GUIDELINES DEVELOPMENT: ECONOMIC ISSUES AND POLICY CONSIDERATIONS 329, 336 (1986). The Equal Living Standards Model is more fully explained in the Glossary Appendix to this article.
57. Tentative Draft No. 3, § 3.03(6), (7), and (8). For discussion of popular understanding of parental support obligations, see note 14 supra.
58. See, e.g., MEASURING POVERTY: A NEW APPROACH 17, 24, 29, 102, 108, 165 (Constance F. Citro & Robert T. Michael eds. 1995); PATRICIA RUGGLES, DRAWING THE LINE: ALTERNATIVE POVERTY MEASURES AND THEIR IMPLICATIONS FOR PUBLIC POLICY 64-68 (1990).
59. See, e.g., MEASURING POVERTY: A NEW APPROACH 17, 24, 29, 102, 108, 165 (Constance F. Citro & Robert T. Michael eds. 1995); PATRICIA RUGGLES, DRAWING THE LINE: ALTERNATIVE POVERTY MEASURES AND THEIR IMPLICATIONS FOR PUBLIC POLICY 64-68 (1990).
60. Their derivation is described in note 18 of the Chapter 3 Glossary, reprinted as an Appendix to this article.
61. See generally DI NITTO, SOCIAL WELFARE: POLITICS AND PUBLIC POLICY, ch. 3 (4th ed. 1995); RUGGLES, supra note 53, at 2 ("the poverty line should probably be substantially higher than it is currently - close to $15,000 for a family of three in 1988, for example, rather than its official level of about $9,500").
62. See Appendix, Glossary tables in text accompanying notes 12-20.
63. The concepts of marginal child expenditure and the closely related ALI formula "base percentages" are discussed immediately below in the text. The marginal cost, or base, percentages (expressed as a percentage of family income) implied by the poverty threshold table for families of different size and composition are not consistent with independently derived estimates of the marginal cost of children. The threshold figures would seem to substantially underestimate the marginal cost of one child and two children, and to overestimate the marginal cost of three children. Moreover, the poverty threshold table exhibits significant irregularities. For example, the marginal cost of a third child is substantially larger, rather than smaller, than the marginal cost of the preceding child. This irregularity is apparent on cursory examination of the poverty threshold table. See Appendix (Glossary) table in text accompanying note 19, and observe the differences between the figures for three-person and four-person households. The numerous irregularities of the poverty thresholds are discussed in MEASURING POVERTY, supra note 53, at 165-166, and DRAWING THE LINE, supra note 53, at 65.
64. An important step in the construction of a child support formula is the translation of child expenditure as a percentage of family expenditure into child expenditure as a percentage of family or obligor income. Gross income is equal to the sum of taxes, expenditure, and savings. In the United States, which has extremely low savings rates, taxation accounts for most of the difference between gross income and expenditure. Chapter 3 skirts most of the translation issue by illustratively using net (after-tax) income as the basis for child support obligations. In lower and middle-income households, there is generally little difference between net income and expenditure. In other words, virtually all net income is consumed. In upper-income households, significant portions of income may be saved, rather than consumed. How savings should be treated for child support purposes is discussed in Tentative Draft No. 3, Appendix, § 3.05A, Comment f, and Reporter's Notes to Comment f. Ultimately, Chapter 3 effectively equates expenditure on children as a percentage of consumer expenditure with percentage of child expenditure as a percentage of net (after-tax) family, or obligor, income. This practice is followed by the more generous American marginal expenditure guidelines (id.), and is consistent with the percentages implied by the BLS tables, which show little difference between percentage of family expenditure devoted to children and percentage of family income devoted to children (Appendix, Glossary, note 12). The principle that income is greater than expenditure should perhaps be qualified with the caveat "in theory," because consumer expenditure data may be read to suggest that consumers spend more than they earn. Even if true, such overspending is properly disregarded by a child support formula. Legally imposed child support obligations should not require obligors to spend beyond their incomes, even if they regularly do so on a voluntary basis.
65. See table in Appendix (Glossary) text accompanying note 16.
66. For discussion of the translation of child expenditure as a percentage of total family expenditure into child expenditure as a percentage of family or obligor income, see supra note 58.
67. By legal principle, I mean a principle of justice, as contrasted with a principle of economics.
68. See Appendix, Glossary entry at notes 1-4.
69. See supra note 50.
70. See supra text and notes at 10-11.
71. See, for example, the preamble to the Arizona Child Support Guideline: The Arizona Child Support Guidelines follow the Income Shares Model. The model was developed by the Child Support Guidelines Project of the National Center for State Courts. The total child support amount approximates the amount that would have been spent on the child(ren) if the parents and child(ren) were living together. Each parent contributes his/her proportionate share of the total child support amount. ARIZ. REV. STAT. ANN. § 25-320, Appendix. The Income Shares Model was developed by the Institute for Court Management of the National Center for State Courts under the Child Support Guidelines Project of the Office of Child Support Enforcement of the U.S. Department of Health and Human Services. See Robert G. Williams, Development of Guidelines for Child Support Orders: Advisory Panel Recommendations and Final Report (U.S. Department of Health and Human Services, Office of Child Support Enforcement, 1987). The Income Shares Model is based on the concept that the child should receive the same proportion of parental income that he or she would have received if the parents lived together. Id. at II-67. This representation of the effect of the Income Shares Model has generally been accepted at face value by commentators, as well as state rulemakers. See, e.g., LAURA W. MORGAN, CHILD SUPPORT GUIDELINES: INTERPRETATION AND APPLICATION 1-17 (1996): The foundation of the Income Shares Model is the tenet that a child should receive the same proportion of parental income that would have been received by the child if the parents had not divorced. . . . Thus, the Income Shares Model calculates 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. In fact, the Income Shares model is capable of achieving continuity of expenditure only when the residential parent is the higher-income parent or the parents have equal incomes before payment of child support. See infra text and notes at notes 124-128.
72. See, for example, the preamble to the Arizona Child Support Guideline: The Arizona Child Support Guidelines follow the Income Shares Model. The model was developed by the Child Support Guidelines Project of the National Center for State Courts. The total child support amount approximates the amount that would have been spent on the child(ren) if the parents and child(ren) were living together. Each parent contributes his/her proportionate share of the total child support amount. ARIZ. REV. STAT. ANN. § 25-320, Appendix. The Income Shares Model was developed by the Institute for Court Management of the National Center for State Courts under the Child Support Guidelines Project of the Office of Child Support Enforcement of the U.S. Department of Health and Human Services. See Robert G. Williams, Development of Guidelines for Child Support Orders: Advisory Panel Recommendations and Final Report (U.S. Department of Health and Human Services, Office of Child Support Enforcement, 1987). The Income Shares Model is based on the concept that the child should receive the same proportion of parental income that he or she would have received if the parents lived together. Id. at II-67. This representation of the effect of the Income Shares Model has generally been accepted at face value by commentators, as well as state rulemakers. See, e.g., LAURA W. MORGAN, CHILD SUPPORT GUIDELINES: INTERPRETATION AND APPLICATION 1-17 (1996): The foundation of the Income Shares Model is the tenet that a child should receive the same proportion of parental income that would have been received by the child if the parents had not divorced. . . . Thus, the Income Shares Model calculates 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. In fact, the Income Shares model is capable of achieving continuity of expenditure only when the residential parent is the higher-income parent or the parents have equal incomes before payment of child support. See infra text and notes at notes 124-128.
73. See, e.g., THOMAS J. ESPENSHADE, INVESTING IN CHILDREN: NEW ESTIMATES OF PARENTAL EXPENDITURES (1984).
74. In applying data from two-parent families to establish child support obligations in one-parent families, the error, if any, tends to favor the support obligor. Studies of marginal child expenditure in one and two-parent families show slightly higher rates of child expenditure, adjusted for family composition, in one-parent families. Because there is only one adult, services provided by the second parent in two-parent families may have to be purchased in one-parent households. Consistent with this explanation, there may be no increase when there is only one child, but some small increase when there are two or three children. See generally Appendix (Glossary), note 5 and sources cited therein. However, data on two-parent households are much more plentiful than data on one-parent households and the marginal expenditure variance is sufficiently slight that it may properly be ignored. Nevertheless, it should be noted that the effect of using two-parent data for child support obligations is to slightly underestimate actual child expenditure in one-parent households and hence to slightly underestimate the proper amount of the child support obligation.
75. The estimates used here are estimates of marginal expenditure on children as a percentage of total household expenditure prepared by Professor David M. Betson in a 1990 study commissioned by the U.S. Department of Health and Human Services. That study, ALTERNATIVE ESTIMATES OF THE COST OF CHILDREN FROM THE 1980-86 CONSUMER EXPENDITURE SURVEY, Final Report to the U.S. Department of Health and Human Services (Dec. 1990), is described and discussed in note 5 of the Glossary, which follows this article as an Appendix. In summary, Professor Betson's estimates of the cost of raising children, expressed as a percentage of household expenditure, are: 25 percent, 35 percent, and 40 percent for one, two, and three children in a two-parent household and 40 percent, 55 percent, and 60 percent for one, two, and three children in a one-parent household. Id. at 57. For discussion of the translation of estimates of marginal expenditure on children as a percentage of total household expenditure into estimates of marginal expenditure on children as a percentage of family or obligor income, see supra note 58.
76. In this case the standard of living of all families members will decline by approximately 15%. See infra note 86.
77. The AMERICAN LAW INSTITUTE, PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION: ANALYSIS AND RECOMMENDATIONS, Preliminary Draft No. 4 (Sept. 9, 1993), § 3.05, Comment e. Professor Betson's estimates are printed in supra note 68.
78. For a full explanation of the use of the BLS Scale and the derivation of these base percentages, see Glossary, text accompanying notes 12-17. The percentages implied by the BLS Scale (before downward adjustment for the obligor's visitation expenditure) are: 22% for one child, 36% for two children, and 46% for three children. The percentage for one child is somewhat lower than Professor Betson's equivalent estimate (25%). The percentage for two children is almost the same as Professor Betson's equivalent estimate for two children (35%). There is greater variation on three children. The BLS progression shows economies of scale as family size grows from one to three children (22-12-10). (Compare the "irregularity" of the poverty threshold progression described supra in note 57.) Nevertheless, the marginal increase for a third child may appear excessive. The reason for the size of this increase is explained by RUGGLES, supra note 53, at 76: The BLS Scale, in contrast, is relatively close to other expert scales for smaller families. The very large jump in needs between three- and four-person families shown in the BLS scale is accounted for by the fact that larger families were assumed to have older children, on average, and needs were adjusted by age of child as well as by number of children.
79. See, e.g., ARIZ. REV. STAT. ANN. § 25-320, Appendix Adopted by the Arizona Supreme Court for Actions Filed After October 31, 1996 (Child Support Guidelines), Section 10 (Adjustment for Costs Associated with Visitation), and CAL. Fam. Code § 4055. By means of a series of errors, the Arizona guideline reduces an obligor's child support payment by more than 20% when the obligor exercises only 20% visitation. The result is described in an "Example" showing a 27% reduction for 73 days (20%) of annual visitation. The errors include: excessively wide swaths (20% to 35% visitation triggers the identical percentage reduction: 18.7%); failure to properly estimate visitation expenditure as a percentage of custodial expenditure (see infra note 78); and use of an improper reduction multiplicand to calculate the reduction (combined obligation of both parents, rather than that of the support obligor alone). The California guideline inappropriately equates visitation expenditure with residential household expenditure. See infra note 78. In Tentative Draft No. 3, visitation expenditure adjustment in the context of the ALI formula is discussed at § 3.05, Comment f. Visitation expenditure in the context of a marginal expenditure formula is treated in Tentative Draft No. 3, Appendix, § 3.05A, Comment k, and § 3.08A.
80. Id.
81. See discussion of supplement percentages in text at infra notes 79-82.
82. See Tentative Draft No. 3, § 3.05, Comment f and Reporter's Notes to Comment f, and Appendix, § 3.08.
83. See Tentative Draft No. 3, § 3.05, Comment f. The adjustment is also explained in the Glossary Appendix to this article in text accompanying notes 14-16.
84. N.J. Rules of Court, Ch. Div. Rule 5:6A, Appendix IX-A, 13 (Adjustments for Visitation Time).
85. The New Jersey Rules of Court, supra note 77, explain precisely how the New Jersey guideline is constructed. The noncustodial parent who spends less than 28% of time with the child receives a visitation adjustment based on the percentage of time spent with the child. In such case, the guideline assumes that "fixed costs" (such as housing costs) for the child are not incurred by the noncustodial parent but that "variable costs" are incurred. Variable costs include, for example, food, transportation, and some entertainment. The guideline estimates that variable costs represent 37% of total child expenditure (as compared to 100% incurred by the custodial parent for both fixed and variable costs). The guideline then multiplies .37 by the obligor's time-share. If, for example, the obligor exercises 20% visitation, the guidelines multiplies .20 by .37, for a 7.4% reduction of the marginal expenditure, or base, percentage obligation. In such case, the illustrative ALI formula would grant a 10% reduction of the base percentage. (Using the terminology of the New Jersey guideline, Chapter 3 roughly estimates "variable costs" at 50% of total child expenditure.) The New Jersey guideline also provides for simple and speedy upward adjustment of the child support obligation when predicted visitation goes unexercised.
86. See Glossary in text accompanying notes 15-20.
87. See infra text at notes 106-112
88. See supra text at notes 59-79.
89. The support obligor's interest in achieving basic adequacy is not factored in the reduction fraction. Instead, it is taken into account by other provisions that systematically reduce the preliminary assessment percentages when the amount of income otherwise payable as child support would leave the obligor with insufficient funds to achieve basic adequacy (§ 3.09) and that entirely exempt the obligor with income below poverty threshold from application of the child support formula and require only a nominal payment (§ 3.10(e)), as well as by a set of more specialized obligor hardship provisions (§ 3.13).
90. The derivation and function of reduction factors is explained in Tentative Draft No. 3, § 3.05, Comment c, and the Reporter's Notes to Comment c. An illustrative table of reduction factors is printed at the end of § 3.05.
91. This is carefully phrased to exclude additional child support payable to third party vendors for, for example, child care necessary for the residential parent's gainful employment, uninsured health care costs, and special tuition.
92. See supra note 83
93. Applying the BLS table, each household will experience approximately a 15% decline from the marital standard of living.
94. When the support obligor has insufficient income to pay the full preliminary assessment and retain sufficient funds to achieve basic adequacy, the preliminary assessment percentage is reduced accordingly. See Tentative Draft No.3, § 3.09.
95. The 2:1 ratio of the incomes of the nonresidential and residential parents at and after divorce is typical. See, e.g., MACCOBY & MNOOKIN, supra note 17. In their California sample, the ratio of father to mother earnings during marriage was 3 to 1. Id. at 59. At divorce, it was greater than 2 to 1 (mean annual earnings for mothers were $16,049 per year; for fathers, $34,923). Id. at 116. Their sample was "quite similar to the national sample with respect to the age of mothers, their race, their rate of employment, and the number of children." However, the mothers in the California sample had, on average, one year more of education and substantially higher earnings than the mothers in the national sample. Id. at 62.
96. Using the more plausible BLS measure to compare relative standards of living, the residential household will achieve standard of living equality with the support obligor only when the residential parent's income just reaches but does not exceed the income exemption. Once the residential parent's income exceeds the exemption, that parent's excess serves to reduce the obligor's preliminary assessment via the reduction mechanism. But when the residential parent has income in an amount very close to $1,000, there will be relative equality between the two households. At $1,000 of residential parent income and $1,600 of obligor income, application of the ALI formula will yield a 14% decline in standard of living for the support obligor and a 15% decline in standard of living for the residential household. At all other residential parent income levels, greater standard of living disparity will exist between the lower-income residential household and the higher-income obligor. If the rulemaker is dissatisfied with this result in this adequacy-baseline case because it fails, in one narrow set of circumstances, to give sufficient deference to the higher-income parent, the residential parent's income exemption may be reduced to, for example, some figure between $800 and $1,000 in all cases, or in low-income obligor cases. This is the sort of detail that may properly be varied by the rulemaker.
97. According to the BLS table, the obligor experiences a 6% decline in standard of living, while the child experiences a 20% decline. From this perspective, the higher-income obligor's interest in disproportionately enjoying the fruits of his labor has been accorded some respect. Yet in terms of poverty threshold, the two households are more similarly situated.
98. In terms of poverty threshold, an inappropriate measure at this income level, after payment of child support, the income of the residential household is 343% of poverty threshold and the income of the nonresidential is 413% of poverty threshold.
99. In terms of poverty threshold, an inappropriate measure at this income level, after payment of child support, the income of the residential household is 311% of poverty threshold and the income of the nonresidential is 456% of poverty threshold.
100. The preliminary assessment is $1,360 ($4,000 times .34). The reduction fraction is $2,000/($2,000 + $4,000), or 1/3. The tentative reduction is $453, which is multiplied by the reduction factor of .96 (see supra note 83), for a final reduction of $435, and a net support obligation of $925.
101. The preliminary assessment for one child is $680 ($2,000 times .34). The reduction fraction is $2,000/($2,000 + $2,000), or 1/2. The tentative reduction is $340 ($680 times 1/2). The tentative reduction is multiplied by the reduction factor of 1.233, for a final reduction of $419, which is subtracted from the preliminary assessment for a net support obligation of $261 ($680-$419).
102. The obligor's preliminary assessment is $680 ($2,000 times .34). It is reduced by 3/5 ($3,000/($3,000 + $2,000)), for a tentative reduction of $408. The reduction factor is 1.233. So the final reduction is $503, for a net obligation of $177.
103. The practice of cumulating parent incomes to determine the marginal percentage applicable to obligor income may result in relatively slight percentage variation as total family income rises or falls. For further discussion of this aspect of the Income Shares formulas, see supra note 50 and Appendix (Glossary) text at notes 4-8.
104. When the parents have equal incomes, the results are the same under a marginal expenditure and the ALT formula, so long as both use the same marginal expenditure, or base, percentages.
105. The PRINCIPLES are agnostic on the question of dual residence; but they are concerned that the parents' preferences and negotiations not be driven by the design of the child support formula.
106. The dual-residence (joint-custody) provision is § 3.14, Tentative Draft No. 3. The Comment to § 3.14 compares application of an ordinary marginal expenditure formula with that of the ALI formula. For more discussion of the problems of calculating dual-residence child support in the context of a marginal expenditure formula, see Tentative Draft No. 3, Appendix, § 3.14A.
107. See, e.g., N.M. STAT. ANN. § 40-4-11.1(H). The reader may wonder why child care expenditure is not already included in the base, or marginal expenditure, measure of child support. The Consumer Expenditure Survey, on which marginal expenditure estimates for two-parent families are based, shows little expenditure for child care and is considered to provide poor data on child care
108. See, e.g., CAL. FAM. CODE §§ 4061 & 4062.
109. A prior draft of Chapter 3 responded to this inefficiency with a meliorative provision. See Tentative Draft No. 3, Appendix, § 3.06A.
110. With $1,100 of income, the residential household will attain only 122 percent of poverty threshold.
111. The residential household will attain 167 percent of poverty threshold.
112. See Tentative Draft No. 3, § 3.05, Comment h and, particularly, Illustration 11.
113. Assume, for example, that each parent earns $3,000 monthly and the obligation is for one child. The obligor's preliminary assessment is $1,020, but because the parents are equal earners the formula will reduce the obligation to the base percentage (20 percent), or $600. Thus the obligor may be required to contribute up to $420 for the cost of child care necessary to enable the residential parent to work. Effectively, the obligor will make full proportional contribution (50% as an equal earner) so long as monthly child care expenditure does not exceed $840. Anything more will be borne by the residential parent alone. For further discussion and illustration, see Tentative Draft No. 3, § 3.05, Comment j.
114. Chapter 3 covers the usual ground with respect to income imputation to both parents. Chapter 3 provides that income should not be imputed to an unemployed or underemployed parent when the parent's unemployment or underemployment is attributable to: "a parent's pursuit of education or training in order to improve educational skills so long as the pursuit is not unreasonable in light of the circumstances and the parent's responsibility for dependents; or a parent's change of occupation so long as the child support award based on the parent's employment in the new occupation does not unreasonably reduce the child's standard of living taking into account the child's total economic circumstances." The imputation provisions are found at Tentative Draft No. 3, § 3.12(5). These provisions are intended to allow parents maximum opportunity to develop vocational skills and exercise vocational choice, subject only to the child's interest in not suffering undue hardship.
115. See supra note 50.
116. See Tentative Draft No. 3, § 3.06(4) and Comments d and e.
117. See Tentative Draft No. 3, § 3.06.
118. See Tentative Draft No. 3, § 3.06. Again, a residential parent to whom income is imputed under this provision is deemed to have income no greater than that of the support obligor. See supra text at notes 107-111. There is no corresponding imputation of spouse or partner income to the obligor. The purpose of § 3.06 is not generally to take into account the income of the parties' spouses or partners, but merely to eliminate part of all of the supplement percentage of the nonresidential parent's child support obligation when the presumed conditions on which it is granted are absent.
119. See generally ANDREA H. BELLER & JOHN W. GRAHAM, SMALL CHANGE, THE ECONOMICS OF CHILD SUPPORT 203-10, 215, 225, 250 (1993). The issues are discussed in Tentative Draft No. 3, § 3.05, Comment k.
120. People work for reasons other than economic gain. Some workers, particularly professional workers, have shown themselves remarkably insensitive to the disincentive of income taxation at confiscatory rates. Nevertheless, married women and parents responsible for the care of young children may be more sensitive to work disincentive than other portions of the population. Michael J. Boskin, Taxation and the Role of Government in the Economy, in FEDERAL TAX REFORM 15 (M. Boskin ed. 1978). Most consideration of the potential work disincentive of child support obligations is based on the effect of income taxation which, for most workers in the United States, is immediately felt through income withholding. By contrast, with child support there is often a substantial lag between increased income and any corresponding change in child support obligations. Although Chapter 3 endorses more rapid response (Tentative Draft No. 3, § 3.21), adjustment is currently either slow or nonexistent. Potential disincentive is diminished accordingly.
121. Residential parents with a very young child or more than one child have more difficulty sustaining employment than other residential parents, and the greater the number of children, the lower the labor force participation rate. See sources cited in Tentative Draft No. 3, Appendix, § 3.05A, Comment 1.
122. See Appendix, Glossary text at notes 8-9.
123. See Tentative Draft No. 3, § 3.05, Comment h and, particularly, Illustration 11.
124. This is because the ratio between the base percentage and the supplement percentage is considerably lower for one child (20:14) than it is for two (32:10) or for three (41:7).
125. There are a number of ways of thinking about the "tax" disincentive. If the incomes of the parents rise at the same rate, or if the income of the obligor rises at a higher rate than the income of the residential parent, which is likely to be true in most cases, the residential parent may not experience any decline in child support on account of that parent's increased earnings. It is true that child support might be even higher if residential earnings were lower, but the residential parent effectively experiences only a slower increase, as opposed to a decline. Palpable disincentive requires holding the income of the obligor constant and increasing the income of the residential parent. When, for example, there is one child, the residential parent who increases her earnings from $1,000 to $2,000 monthly, while the obligor has constant income of $2,000, will experience a 28% tax rate on the second thousand dollars of earnings (as the obligor's child support payment declines from $680 to $400). If the increase in earnings is gradual, the residential parent may experience it as a 28% rate on the second thousand dollars of earnings. On the other hand, if the residential parent was earning $2,000 at family dissolution, it may be experienced as a 14% rate on the residential parent's entire earnings. (If the residential parent earns only $1,000, the support obligor pays $680 child support for one child; if both parents earn $2,000, the obligor pays $400 under the ALI illustrative formula.) Repeating the example for two children, if the residential parent earns only $1,000, the support obligor earning $2,000 pays $840 child support for two children. If both parents earn $2,000, the support obligor pays $640. Thus the "tax" is alternatively 20% on the residential parent's second thousand dollars of earnings, or 10% on the residential parent's entire earnings. See Tentative Draft No. 3, § 3.05, Reporter's Notes to Comment g, Illustration 5.
126. Tentative Draft No. 3, § 3.10 (2)(c).
127. Section 3.09 provides that "[t]he child support formula should grant systematic relief to the support obligor whose income, after payment of child support, is insufficient to sustain a minimum decent standard of living." Tentative Draft No. 3.
128. Tentative Draft No. 3, § 3.12 (3) and Comment i.
129. Id.
130. Tentative Draft No. 3, § 3.13.
131. See supra note 65.
132. See, for example, the preamble to the New Jersey Income Shares (marginal expenditure) guideline: While it is acknowledged that the expenditures of two-household divorced, separated, or non-formed families are different from intact-family households, it is very important that the children of this State not be forced to live in poverty because of family disruption and that they be afforded the same opportunities available to children in intact families with parents of similar financial means as their own parents. NEW JERSEY RULES OF PRACTICE Appendix IX-A (1).
133. The second is false because the marginal measure alone promises nothing about the child's standard of living. What primarily determines the child's standard of living is the base to which the marginal measure is added, that is, the amount of residential parent income to which the child support payment is added. See Tentative Draft No. 3, Appendix, § 3.05A, Comment g, The rhetoric and reality of basing a child support formula largely or solely on estimates of marginal child expenditure. The first is false because of lost economies of scale. Even if the parents have equal incomes before the payment of child support, after payment of a marginal measure of child support, both households will suffer substantial, albeit equal, decline in their standards of living.
134. See supra note 65.
135. This point is explained and extensively illustrated in Tentative Draft No. 3, Appendix, § 3.05A, Comment g. It is more briefly explained and illustrated in the Glossary Appendix to this article, in the text accompanying note 7 and in note 7. See also IRA MARK ELLMAN, PAUL M. KURTZ & ELIZABETH S. SCOTT, FAMILY LAW: CASES, TEXT, PROBLEMS 531 (Illustration 2) (3d ed. 1998).