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Separation, Annulment, and Divorce
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Family Law Resources -
Separation, Annulment, and Divorce
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What is child custody?Child custody is the right and duty to care for a minor child on a day-to-day basis and to make major decisions about the child. In sole custody arrangements, one parent takes care of the child most of the time and makes major decisions about the child. In joint custody arrangements, both parents share in making major decisions, and both parents also might spend substantial amounts of time with the child. How do courts decide custody?If the parents cannot agree on custody of their child, the court decides custody according to the best interest of the child. Determining the best interest of the child involves consideration of many factors, including the health and sex of the child, the primary caregiver prior to the divorce, parenting skills and willingness to care for the child, the emotional ties between child and parent, willingness to facilitate visitation by the other parent, and each parent's moral fitness. Do mothers automatically receive custody?No. Under the laws of almost all states, mothers and fathers have an equal right to custody. Courts are not supposed to assume that a child is automatically better off with the mother or the father. Of course, judges, like the rest of us, are products of their background and personal experience. Some judges may have a deep-seated belief that mothers can take care of children better than fathers and that fathers have little experience in parenting. Conversely, some judges may believe that fathers are automatically better at raising boys--particularly older boys. Judges with such biases may apply these views when they decide custody cases, although they are supposed to base decisions on the facts of each case and not on automatic presumptions. As a group, judges are fair and unbiased in their decisions, and the level of bias is less than it was in years past. Bias on the part of individual judges can be avoided if the parents are able to decide between themselves what the custody or parenting arrangements should be. In a contested custody case, both the father and mother have an equal burden of proving to the court that it is in the best interest of the child that the child be in his or her custody. There are a couple of states that have laws providing that if everything else is equal, the mother may be preferred; but even in those states, many fathers have been successful in obtaining custody. How have the laws changed in deciding custody disputes between mothers and fathers?The law has swung like a pendulum. From the early history of our country until the mid-1800s, fathers were favored for custody in the event of a divorce. Children were viewed as similar to property. If a husband and wife divorced, the man usually received the property--such as the farm or the family business. He also received custody of the children. Some courts viewed custody to the father as a natural extension of the father's duty to support and educate his children. By the mid-1800s, most states switched to a strong preference for the mother under the Tender Years Doctrine. In a contested custody case, a mother would receive custody unless there was something very wrong with her, such as she abused the child or suffered from mental illness or alcoholism. The parenting skills of the father were not relevant. This automatic preference for mothers continued until the 1970s. Then principles of equality and co-parenting took over. What is the most important factor in deciding custody?That will vary with the facts of each case. If one parent has a major problem with alcoholism or mental illness, has abused the child, or has committed domestic violence, that could be the deciding factor. If neither parent has engaged in unusually bad conduct, the most important factor often is which parent has been primarily responsible for taking care of the child on a day-to-day basis. Some states refer to this as the primary caretaker factor. If one parent can show that he or she took care of the child most of the time, that parent will usually be favored for custody. Use of this factor promotes continuity in the child's life and gives custody of the child to the more experienced parent who has shown the dedication to take care of the child's day-to-day needs. If both parents have actively cared for the child or if the child is older, the factor is less crucial, although it is still considered. Regardless of which parent has primary custody, children are usually best served when the child has continued, meaningful contact with both parents. May a child decide where he or she wants to live?The wishes of a child can be an important factor in deciding custody. The weight a court gives the child's wishes will depend on the child's age, maturity, and quality of reasons. Some judges do not even listen to the preferences of a young child (for example, a child less than eight years old) and instead assume the child is too young to express an informed preference. A court is more likely to follow the preferences of an older child, although the court will want to assess the quality of the child's reasons. If a child wants to be with a parent only because that parent offers more freedom and less discipline, a judge is not likely to honor the preference. A child whose reasons are vague or whose answers seem coached may not have his or her preferences followed. On the other hand, if a child expresses a good reason related to the child's best interest--such as genuinely feeling closer to one parent than the other--the court will probably follow the preference. Although most states treat a child's wishes as only one factor among many to be considered, a few states allow a child of twelve or fourteen the "absolute right" to choose the parent with whom the child will live, as long as the parent is fit. If a parent has a sexual relationship outside of marriage, how does that affect a court's decision on custody?In most states, affairs or nonmarital sexual relations are not a factor in deciding custody unless it can be shown that the relationship has harmed the child. A discreet affair during the marriage might not be a significant factor. Similarly, if, after the marriage is over, a parent lives with a person to whom he or she is not married, the live-in relationship by itself may not be a major factor in deciding custody, although the quality of the relationship between the child and the live-in partner can be an important factor in a custody dispute. If the parent's nonmarital sexual relationship or relationships have placed the child in embarrassing situations or caused significant, provable stress to the child, then the relationship(s) would be a negative factor. In a few states, courts are more inclined to assume that a parent's nonmarital sexual relationship is harmful to the child. The issue of a parent's sexual conduct can be one in which individual judges may have personal biases that influence their decisions. If a parent is homosexual, what impact does that have on custody?The impact varies dramatically from state to state. Courts in a few states seem more willing to assume harmful impact to a child from a parent's homosexual relationship than from a heterosexual relationship. Courts in other states treat homosexual and heterosexual relationships equally and will not consider the relationship to be a significant factor unless specific harm to the child is shown. If one parent is trying to undermine the child's relationship with the other parent, how does that affect custody?Most states favor an ongoing, healthy relationship between the child and both parents. If one parent is trying to undermine the child's relationship with the other parent, that is a negative factor. If other factors are close to equal, a court may grant custody to the parent who is more likely to encourage an open and positive relationship with the other parent, unless that other parent has been abusive or otherwise harmed the child. If one parent is religious and the other is not, may the court favor the more religious parent?Normally, no. Under the First Amendment to the U.S. Constitution, both parents have a right to practice (or not practice) religion as they see fit. A judge cannot make value judgments about whether a child is better off with or without religious training or about which religion is better. If a child has been brought up with particular religious beliefs, and religious activities are important to the child, a court might favor promoting continuity in the child's life, but the court should not favor religion per se. In some cases, a parent's unusual or nonmainstream religious activities may become an issue, especially if specific harm to the child is shown. Can custody decisions be changed?Yes. A court may always change child custody to meet the changing needs of the growing child and to respond to changes in the parents' lives. Because courts favor stability for the child and do not want to encourage contentious litigation, a parent seeking to change custody must show that the conditions have changed substantially, and usually unpredictably, since the last custody order. The parent must also show that changing the custody arrangement would be better for the child. Sometimes the parent must show that not changing custody would be harmful to the child. What legal remedies are available if a parent abducts a child?Abduction of a child by a parent is a crime under state laws and, under certain circumstances, may also be a federal offense. Local police, state police, and in some cases the FBI can help in locating missing children. Parents who abduct their children can also be forced to pay the expenses incurred by the other parent in trying to find and return the child. To recover such expenses, a parent would probably need the help of a private lawyer. If a parent with custody fears that the other parent will abduct the child, he or she should immediately consult a lawyer. American Bar Association Family Legal Guide
Copyright © 2004 American Bar Association |
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Family Law Resources -
Separation, Annulment, and Divorce
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What is alimony or maintenance?Alimony, maintenance, or spousal support is money paid from one spouse to another for day-to-day support of the spouse with fewer financial resources. Sometimes alimony also can be used to pay back a debt. When do courts award alimony?A court will order alimony on the basis of one spouse's need or entitlement and the other spouse's ability to pay. Although most alimony payments are made from men to women, it is possible that a well-off woman could be required to pay support to her economically dependent husband. Alimony is awarded less often now because there are more two-income couples and fewer marriages in which one person is financially dependent on the other. A person who pays support may deduct it from his or her income for tax purposes; the one who receives it must pay taxes on it (unless the parties agree otherwise). What is rehabilitative support?A common type of spousal support is rehabilitative support. It is intended to provide a chance for education or job training so that a spouse who was financially dependent or disadvantaged during marriage can become self-supporting. Rehabilitative support is designed to help make up for opportunities lost by a spouse who left a job (or did not pursue a career) in order to help the other spouse's career or to assume family duties. It may also be awarded to a spouse who worked outside the home during the marriage, but sacrificed his or her career development because of family priorities. Rehabilitative support is usually only awarded for a limited time, such as one to five years. What is permanent support?Courts award permanent spousal support to provide money for a spouse who cannot become economically independent or maintain a lifestyle that the court considers appropriate given the resources of the parties. A common reason for ordering permanent maintenance is that the recipient, because of advanced age or chronic illness, will never be able to maintain a reasonable standard of living without the support. Some courts will order permanent support be paid to a spouse who, although working, will never have earning power at a level near the earning power of the more prosperous spouse. When deciding the amount of permanent support, courts often use the same criteria as for dividing property. Although it is called permanent support, the level of support can change or cease if the ability of the payer or the needs of the recipient change significantly. Support generally ends if the recipient remarries, and it may end if the recipient lives with someone else. If one spouse supports the other through graduate or professional school, does the supporting spouse have a right to be compensated for increasing the earning capacity of the other spouse?Some courts offer compensation for putting a spouse through school. For example, one spouse may have supported the other through graduate or professional school. The supporting spouse may have expected that both would benefit from the educated spouse's enhanced earning capacity, but the marriage ended before any material benefits were earned. In some states, the professional license of a spouse or many forms of enhanced earnings may be treated as a valuable asset if acquired during the marriage. The supporting spouse does not need rehabilitation because that spouse has worked during the entire marriage, and there is no significant property to be distributed because marital resources went to the educational effort. In cases such as this, the courts may award compensation, usually as periodic payments, to the supporting spouse. The amount paid may be based upon the contributions of the supporting spouse to the educational expenses and general support of the spouse who leaves the marriage with an advanced degree. In some states, support also may be based upon a portion of the increased earnings of the educated spouse. The courts may change or end such payments if the expected increased earnings do not occur, but the payments are not ended by remarriage of the recipient. This type of payment sometimes is often called reimbursement alimony or alimony in gross. American Bar Association Family Legal Guide
Copyright © 2004 American Bar Association |
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Family Law Resources -
Separation, Annulment, and Divorce
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In divorce cases, how often do judges decide who gets what?Judges rule on major contested issues in only a relatively small number of cases. Instead, the parties--often with help from lawyers--reach an agreement between themselves that they present to a judge for approval. If the agreement is fair, approval is usually granted after a short hearing. How do judges decide disputed property issues?Laws vary from state to state. As a starting point, many states allow parties to keep their nonmarital or separate property. Nonmarital property includes property that a spouse brought into the marriage and kept in his or her own name during the marriage. It also includes inheritances received and kept separate during the marriage. It also may include gifts received by just one spouse during the marriage. Some states permit division of separate as well as marital property when parties divorce, but the origin of the property is considered when deciding who receives the property. After allocating separate property, the court divides marital or community property. What is marital or community property?Marital or community property is defined somewhat differently by different states, but it generally includes property and income acquired during the marriage. Wages earned during the marriage would be marital property. A home and furniture purchased during the marriage with marital earnings or property would usually be considered marital property. What if the property obtained during the marriage is in the name of one party only?That, too, will usually be considered marital property if it was paid for with marital funds, such as wages. For example, if a wife buys a car during the marriage and pays for it with her wages, the car is marital property, even though it is in her name only. A pension is also usually marital property, even though it may have been earned by the labor of only one spouse during the marriage. A pension can be a very significant piece of property. The pension and the family home are often the most valuable assets acquired by a couple during the marriage. If a pension was completely earned before the marriage, it probably would be considered nonmarital or separate property. Marital or community property can be divided by the court between the parties. How does a husband or wife keep nonmarital property separate and thus less likely to be lost in a divorce?The main way to keep nonmarital property separate is to keep it in one's own name and not mix it with marital property. For example, if a wife came into a marriage with a $20,000 money market account and wanted to keep it as nonmarital property, she should keep the account in her own name and not deposit any marital funds in the account. She should not, for instance, deposit her paychecks into the money market account, because the paychecks are marital funds and the deposit could turn the whole account into marital property. If a husband inherits some stock from his mother during the marriage and he wants to keep it as nonmarital property, he should open his own investment account and should not use the account for any investments that he and his wife own together. If a husband or wife decides to use some nonmarital funds for a common purpose, such as purchasing a home in joint tenancy, that money will normally become marital property. The courts of most states will view the nonmarital property as a gift to the marriage. The property distribution laws have many intricacies and variations between states; understanding them usually requires a lawyer's help. How do courts divide marital or community property?Again, the answer varies from state to state. A few states, such as California , take a rather simple approach. They believe property should be divided equally because they view marriage as a joint undertaking in which both spouses are presumed to contribute equally, though often in different ways, to the acquisition and preservation of property. All marital property will be divided fifty-fifty, unless the husband and wife had a premarital agreement stating otherwise. Even in California, there may be complications in the details, such as disputes between the husband and wife regarding the value of community property and deciding what constitutes an equal division. Most states, however, apply a concept called equitable distribution. What is equitable distribution?Equitable distribution means that a court divides marital property as it thinks is valid, just, and equitable. States applying principles of equitable distribution view marriage as a shared enterprise in which both spouses usually contribute significantly to the acquisition and preservation of property. The division of property could be 50-50, 60-40, 70-30, or even all for one spouse and nothing for the other (although that would be very unusual.) The percentage distribution need not be the same for all property, and the percentage entitlement may vary from one asset to another. Under equitable distribution, courts consider a variety of factors and need not weigh the factors equally. That gives more discretion to the judge and more consideration to the financial situation of both spouses after the divorce. However, it also makes the resolution of property issues less predictable. There are several factors that are considered by states applying principles of equitable distribution: Nonmarital Property If one spouse has much more nonmarital property than the other, that could be a basis for giving more marital property to the less wealthy spouse. Earning Power If one spouse has more earning power than the other, that could be a basis for giving more marital property to the spouse with less earning power. Who Earned the Property That can be a factor favoring the party who worked hard to acquire or maintain the property. Services as a Homemaker Courts recognize that keeping a home and raising children is work. In addition, those services often enable the spouse who is working outside the home to earn more money. Thus, services as a homemaker are a factor in favor of the homemaker. Some courts also apply a related concept of considering whether one spouse had impaired her or his earning capacity because of working as a homemaker. That factor would also favor the homemaker-spouse. Waste and Dissipation If a spouse wasted money during the marriage, it could count against him or her when it comes time to divide property. This factor is sometimes labeled economic fault, and may be considered even by courts that do not consider other kinds of fault. Fault Noneconomic fault, such as spousal abuse or marital infidelity, is considered in a few states, but most states do not consider it relevant to property division. Duration of marriage A longer marriage may be a factor in favor of a larger property award to the spouse with less wealth or earning power. Age and Health of Parties If one spouse has ill health or is significantly older than the other, that factor could favor a larger award to the sicker or older spouse. What if the parties have more debt than assets?In that uncomfortable but common situation, the court (or the parties by agreement) will divide whatever property they have and then allocate the responsibility of each party to pay off particular debts. American Bar Association Family Legal Guide
Copyright © 2004 American Bar Association |
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Family Law Resources -
Separation, Annulment, and Divorce
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What is a divorce?A divorce or dissolution of marriage is a decree by a court that a valid marriage no longer exists. It leaves both parties free to remarry. The court will award custody, divide property, and order spousal and child support. Are most divorces contested?No. Although divorces may be emotionally contentious, close to 95 percent of divorces do not end up in a contested trial. Usually, the parties negotiate and settle property division, spousal support, and child custody between themselves, often with the help of a lawyer. Sometimes parties reach an agreement by mediation, with a trained mediator who tries to help the husband and wife identify and accommodate common interests. The parties then present their negotiated or mediated agreement to a judge. Approval is virtually automatic if the agreement is fair. If parties are unable to agree about property, support, or child custody, they may ask the court to decide one or more of those matters. One spouse may sue the other for divorce, alleging certain faults or offenses by the defendant. But this has become far less common than it once was. Most divorces now are no-fault divorces. What is a no-fault divorce?A no-fault divorce is one in which neither person blames the other for the breakdown of the marriage. There are no accusations or need to prove "guilt" or cause of the breakdown. A common basis for a no-fault divorce is "irreconcilable differences" or "irretrievable marriage breakdown." As those terms imply, the marriage is considered to be over, but the court and the legal documents do not try to assign blame. Another common basis for no-fault divorce is the parties living separately for a certain period of time, such as for six months or a year, with the intent that the separation be permanent. Why does the law provide for no-fault divorces?No-fault divorces are considered a less abrasive and more realistic way to end a marriage. The laws of no-fault divorce recognize that human relationships are complex and that it is difficult to prove that a marriage broke down solely because of what one person did. However, some critics of no-fault divorces are concerned that an economically dependent spouse may not be adequately protected when it is comparatively easy for the other spouse to obtain a divorce. All states have some form of no-fault divorce, but many states also retain fault-based grounds as an alternative way of obtaining a divorce. Some spouses want the emotional release of proving fault by their mates. Courts are not a very good forum for such personal issues, and the accuser is usually less satisfied than he or she expected to be. What are the grounds for obtaining a divorce based on fault?States that allow fault-based divorce vary somewhat on the permissible grounds. Many states permit divorce for adultery, physical cruelty, mental cruelty, attempted murder, desertion, habitual drunkenness, use of addictive drugs, insanity, impotence, and infection of one's spouse with venereal disease. Will use of fault grounds affect other aspects of the divorce?That depends on the state. In a few states, fault may be taken into consideration in deciding property and spousal support, even if the divorce is granted on no-fault grounds. In some states, fault will be considered if it directly causes waste or dissipation of marital assets. In some states, a spouse who commits adultery may not be able to receive spousal support. In many states, the fault of a party in causing a breakdown of the marriage is not supposed to be a factor in dividing property or deciding spousal support. In custody cases, the marital fault of a party is not supposed to be considered unless that fault caused a harmful impact on the child. For example, a discreet extramarital affair would not normally be a major factor in deciding custody. But an affair or series of affairs that placed the child in stressful situations could be a factor in deciding custody. American Bar Association Family Legal Guide
Copyright © 2004 American Bar Association |
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Family Law Resources -
Separation, Annulment, and Divorce
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What is an annulment?An annulment is a court ruling that a marriage was never valid. The most common ground for annulment is fraud or misrepresentation. For example, one person may have not disclosed to the other a prior divorce, a criminal record, an infectious disease, or an inability to engage in sex or have children. Annulment may also be granted for bigamy, incest, or marriage to an underage person. How common are annulments?They are uncommon because divorces are easy to obtain and the bases for an annulment are narrower than the bases for a divorce. One party may prefer an annulment, however, in order to avoid some obligations that a court might impose in a divorce. Also, in a few states, spousal support that terminated because of the recipient's second marriage may be reinstated if the second marriage is annulled. American Bar Association Family Legal Guide
Copyright © 2004 American Bar Association |
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