Sometimes marriages do not succeed. Despite the efforts of husband and wife, and perhaps the
help of counselors and clergy, there is nothing to do but end the relationship. And, as the state
was involved in creating the marriage, so too it becomes involved in dissolving it.
Separation and Separate Maintenance
Q. What is a legal separation?
A. A “legal separation” means that the husband and wife are living separately, and they have
formalized the arrangement by a court order or a written agreement between themselves. The
order or agreement usually will state that the parties are living separately, and it will specify what
support, if any, one spouse will pay the other. If the husband and wife have minor children, the
agreement or court order usually specifies arrangements regarding custody or visitation.
A legal separation is not the same as a divorce. A separation recognizes the possibility
that the couple might reunite. In any case, its terms can be modified by the parties or the court
when the couple divorce. Most importantly, persons who are legally separated may not
remarry. They must wait until a divorce is final before marrying again.
Q. Does a person have to be legally separated before obtaining a divorce?
A. No. In most states a couple can proceed straight to a divorce without first seeking a legal
separation. While waiting for the divorce, the couple might live separately (without a formal
agreement) or, in some states, they could even live together pending the final divorce.
Q. Is there an advantage to a legal separation?
A. That depends on the needs of the parties. A legal separation offers a structure for the parties
while they are waiting for a divorce (or while they are considering a divorce). If one spouse is
paying support for the other spouse or for the children, the spouse receiving the support may
want the terms put in writing. Similarly, one or both parties may want a fixed schedule of who
will be with the children at what times. If these terms are part of a written agreement or court
order, the parties know what to count on, and a party can go to court to seek enforcement if the
other does not abide by the agreement or order.
Q. Are there any tax advantages to a legal separation?
A. Yes, potentially. If one spouse is paying support for the other, the payer can deduct that
money from his or her income for tax purposes. The payment will then be considered taxable
income to the recipient. If the payer is in a higher tax bracket than the recipient, this will reduce
the couple”s combined tax liability. In any case, it will reduce the payer”s taxes and raise the
recipient”s. To obtain such a deduction, the parties must be legally separated by written
agreement or court order. The deduction is not available for those who have an informal
Q. Why would a spouse who is receiving support agree to this arrangement if it results
in more taxes for her or him and a tax advantage to the other spouse?
A. The tax advantage to the payer may encourage paying support in the first place and it may
result in a greater amount of support. Some couples and their lawyers may calculate a tentative
amount of support that would be paid without any tax benefit to the payer. Then they calculate
the tax benefit of creating a deduction for the payer and income for the recipient. They split the
tax savings by increasing the level of support. The increased support usually exceeds the added
taxes the recipient will pay, and the payer will have less money out-of-pocket for the year
because of the tax savings.
Q. Are there psychological advantages of a legal separation?
A. For some people, yes. Some men and women may want to separate but are not sure they
want to go through a divorce. The separation might be a “trial separation”–relieving some
immediate pressures while the husband and wife sort out what they want to do with their lives.
And a formal legal separation may provide some structure, security, and financial advantages
during the period of separation.
Q. What is an annulment?
A. An annulment is a court ruling that a supposed 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, an inability to
engage in sex or have children. Annulment may also be granted for bigamy, incest, or marriage
to an underage person.
Q. How common are annulments?
A. 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.
Q. What is a divorce?
A. A divorce–referred to in some states as a “dissolution of marriage”–is a decree by a court
that a valid marriage no longer exists. It leaves both parties free to remarry. It usually provides
for division of property and makes arrangements for child custody and support.
Q. May a couple get a divorce without lawyers?
A. Most states permit do-it-yourself divorces. But the complexities of property division and
taxes may make it advisable for both parties to have expert legal and financial advice.
Q. Are most divorces contested?
A. No. Although divorces may be emotionally contentious, most divorces (probably more than
95 percent) do not end up in a contested trial. Usually the parties negotiate and settle such
things as property division, spousal support, and child custody between themselves, probably
with attorneys” help. Sometimes parties reach an agreement by mediation, with a trained
mediator who tries to help 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, and 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.
Q. What is a no-fault divorce?
A. It is a divorce in which neither person blames the other for breakdown of the marriage.
There are no accusations, no need to prove “guilt.” A common basis for a no-fault divorce is
“irreconcilable difference” or “irretrievable 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 separate and apart for a given
period of time, such as for six months or a year, with the intent that the separation be
Q. Why does the law provide for no-fault divorces?
A. No-fault divorces are considered a more humane and realistic way to end a marriage.
Husbands and wives who are divorcing usually are suffering enough without adding more fuel to
the emotional fires by trying to prove who did what to whom. 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 most 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.
Q. What are grounds for obtaining a divorce based on fault?
A. States that allow fault-based divorce vary somewhat on the allowable grounds. Many states
permit divorce for adultery, physical cruelty, mental cruelty, attempted murder, desertion,
habitual drunkenness, use of addictive drugs, insanity, impotency, and infection of one”s spouse
with venereal disease. Spouses in the mood for revenge probably could come up with a multicount
Q. Will use of fault grounds affect other aspects of the divorce?
A. That depends on the state. In some states, fault may be taken into consideration in deciding
property and spousal support, even if the divorce is granted on no-fault grounds. For example,
in some states fault will be considered if it directly causes waste or dissipation of marital assets.
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 other states, however, a spouse
who commits adultery may not be able to receive spousal support. In custody cases, the marital
fault of a party usually is not supposed to be considered unless that fault caused a harmful impact
on the child. For example, a discrete extramarital affair normally would not 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.
Q. May a woman resume her unmarried name when she divorces?
A. Yes, that is her option. She may resume her unmarried name or keep her married name. If
she is changing her name, she should notify government agencies and private companies that
have records of her name. Examples of places to notify: Internal Revenue Service, Social
Security Administration, Passport Agency (within U.S. State Department), Post Office, state tax
agencies, driver”s license bureau, voter registration bureau, professional licensing agencies,
professional societies, unions, mortgage company, landlord, banks, charge card companies,
telephone company, other utilities, magazines, newspapers, dentists, and schools and colleges
that the woman attended or that her children attend. It can be useful to have the divorce decree
state that the wife will resume her unmarried name, but generally it is not necessary to do so in
order for a woman to make a valid name change.
Q. In divorce cases, how often do judges decide who gets what?
A. Judges rule on major contested issues in only a relatively small number of cases. As noted
earlier, probably more than 95 percent of divorce cases are not decided by the court. Instead,
the parties—often with help from attorneys—have reached an agreement between themselves
which they present a judge for approval. If the agreement is fair, approval usually is granted after
a short hearing.
Nonetheless, the rules of law that a judge would use to decide a contested case influence
the settlements that the parties reach. If it is predictable that a matter would be decided in a
certain way, it is seldom worth taking the issue to trial. In many cases, the cost of pursuing a
disputed property issue at trial will exceed the possible monetary gain of a victory in court.
Q. How do judges decide disputed property issues?
A. 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
Q. What is marital or community property?
A. 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 usually
would be marital property.
Q. What if the property obtained during the marriage is in the name of one party only?
A. That too usually will be 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 also is 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 often are
the most valuable assets acquired by a couple during the marriage. (If a pension was completely
earned before the marriage, it probably would be nonmarital property.) Marital or community
property can be divided by the court between the parties.
Q. How does a husband or wife keep nonmarital property separate and thus less likely
to be lost in a divorce?
A. 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.
Another example: 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 normally will become marital property. The
nonmarital property will be viewed by the courts of most states 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.
Q. How do courts divide marital or community property?
A. 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.
(Premarital agreements were discussed earlier in this chapter.) Most states, however, apply a
concept called “equitable distribution.”
Q. What is “equitable distribution”?
A. That means a court divides marital property as it thinks is fair. States applying principles of
equitable distribution also 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 fifty-fifty, sixty-forty, seventy-thirty, or even all for one spouse and nothing for the other
(although that would be very unusual). Under equitable distribution, courts consider a variety of
factors and need not weigh the factors equally. That permits more flexibility and more attention
to the financial situation of both spouses after the divorce. However, it also makes the resolution
of property issues less predictable. Here are some examples of factors that are considered by
states applying principles of equitable distribution.
(1) 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
(2) 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.
(3) Who earned the property. That can be a factor favoring the party who worked hard to
acquire or maintain the property.
(4) Services as a homemaker. Courts recognize that keeping a home and raising children are
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
also would favor the homemaker-spouse.
(5) Waste and dissipation. If a spouse wasted money during the marriage, that 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.
(6) Fault. Non-economic fault, such as spousal abuse or marital infidelity, is considered in some
states, but many states do not consider it relevant to property division.
(7) 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.
(8) 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.
Q. Who is likely to get the house?
A. That depends on the facts of each case. If the parties have children and can afford to keep
the house, even though they will be living separately, the law usually favors giving the house to
the spouse who will have custody of the children most of the time. If the parties cannot afford to
keep the house, it may be sold and the proceeds divided (or perhaps given to one party).
In some cases, there is a middle-ground approach: The spouse who has primary custody
of the children will have a right to live in the house for a certain number of years. At the end of
that time, that spouse will buy out the other spouse”s interest or sell the house and divide the
Q. What if the parties have a negative net worth–owing more money than they have?
A. 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
Q. What is alimony or maintenance?
A. Alimony or maintenance–sometimes also referred to as “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. For example, if one spouse paid to put
the other spouse through college or graduate school, alimony might be used to pay back the
spouse who provided financial support for the education.
Q. When do courts award alimony?
A. At one time, courts commonly ordered husbands to pay alimony to their former wives until
the ex-wives married again or died. Today, alimony is ordered by a court 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. Maintenance 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
Q. What is rehabilitative support?
A. 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 maintenance 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 also may 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 awarded for
only a limited time, such as one to five years.
Q. What is permanent support?
A. Courts award permanent spousal support to provide money for a spouse who cannot
become economically independent. The most 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. When deciding the amount of
permanent support, courts often use the same criteria as for dividing property.
Although it is called permanent support, the support can change or cease if the ability of the
payer or the needs of the recipient change significantly. It ends if the recipient remarries, and it
may end if the recipient lives with someone else.
Q. 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?
A. Some courts offer compensation when neither property distribution nor traditional spousal
support is appropriate. 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.
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, or it 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.”
Q. Does the law help newly divorced spouses who must now get their own health
A. Yes. A federal law passed in the 1980s requires most employer-sponsored group health
plans to offer divorced spouses of covered workers continued coverage at group rates for as
long as three years. The divorced spouse of a worker must pay for the coverage, but the
coverage is available.
Q. What is child custody?
A. Child custody is the right and duty to care for a 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. Joint custody will be described in more detail later in this section.
Q. How do courts decide custody?
A. 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
Q. Do mothers automatically receive custody?
A. 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. 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 few states (mostly in the South) that have laws providing that if everything else is equal, the
mother may be preferred; but in those states, many fathers have been casino online portugal successful in obtaining
custody, even if the mother is a fit parent.
Q. How have the laws changed in deciding custody disputes between mothers and
A. 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
By the mid-1800s, most states switched to a strong preference for the mother–
sometimes referred to as the “Tender Years Doctrine.” Under the Tender Years Doctrine, the
mother received custody as long as she was minimally fit. In other words, 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 1960s or
1980s, depending on the state. Then principles of equality took over, at least in the law books of
almost all states.
Q. Are judges prejudiced in favor of mothers or fathers in deciding custody cases?
A. Although judges are supposed to be neutral in custody disputes between mothers and fathers,
many observers believe some judges are biased. Some judges, based on their background or
personal experience, 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 automatically are 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 less biased in deciding custody cases today than in times past, although some bias still
Q. What is the most important factor in deciding custody?
A. That will vary with the facts of each case. If one parent in a custody dispute has a major
problem with alcoholism or mental illness or has abused the child, 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 usually will be favored for custody,
particularly if the child is young (under approximately eight years old). 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.
Q. May a child decide where he or she wants to live?
A. 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 child under the age of seven 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 the parent who 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 also 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 one parent than the other–the court probably will follow the
preference. Although most states treat a child”s wishes as only one factor to be considered, two
states (Georgia and West Virginia) declare that a child of fourteen has an “absolute right” to
chose the parent with whom the child will live, as long as the parent is fit.
Q. How does a judge find out about the child”s preferences?
A. Often judges will talk to the child in private–in the judge”s chambers rather than in open
court. In some cases, the judge may appoint a mental health professional, such as a psychiatrist,
psychologist, or social worker, to talk to the child and report to the court.
Q. If a parent has a sexual relationship outside of marriage, how does that impact on a
court”s decision on custody?
A. That depends on the law of the state and the facts of the case. In most states, affairs ornonmarital sexual relations are not supposed to be a factor in deciding custody unless it can be shown that the relationship has harmed the child. If, for example, one parent has had a discreet
affair during the marriage, that normally would not be a significant factor in deciding custody.
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 normally is not a major factor in deciding custody. In the
case of live-in relationships, 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 non-marital sexual relationship or relationships have placed the child in
embarrassing situations or caused significant stress to the child, then the relationship would be a
negative factor against the parent involved in the relationship. In a few states, courts are more
inclined to automatically assume that a parent”s nonmarital sexual relationship is harmful to the
child. As with the issue of a preference for mothers in custody cases, the issue of a parent”s
sexual conduct can be one in which individual judges may have personal biases that influence
Q. If a parent is homosexual, what impact does that have on custody?
A. The impact varies dramatically from state to state. Courts in some states seem more willing to
assume harmful impact to a child from a parent”s homosexual relationship than from a
heterosexual relationship. On the other hand, some 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. A homosexual parent (or a heterosexual parent) seeking custody will
have a stronger case if he or she presents evidence that the child does not witness sexual contact
between the partners and that the child likes the parent”s partner.
Q. If one parent is trying to undermine the child”s relationship with the other parent,
how does that affect custody?
A. Most states declare a specific policy favoring 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 against the parent who is trying to hurt the relationship. If other
factors are close to equal, a court may grant custody to the parent who is more likely to
encourage an open and good relationship with the other parent.
Q. If one parent is religious and the other is not, may the court favor the more religious
A. Normally, no. Under the First Amendment to the United States Constitution, both parents
have a right to practice religion or not practice religion as they see fit. A judge is not supposed to
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
non-mainstream religious activities may become an issue, but, normally, a court should not
consider a parent”s unusual religious practices in deciding custody or visitation unless specific
harm to the child is shown.
Q. Can custody decisions be changed?
A. Yes. A court may always change child custody arrangements to meet the changing needs of
the growing child and to respond to changes in the parents” lives. A parent seeking to change
custody through the court usually must show that the conditions have changed substantially since
the last custody order. The parent also must 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.
Q. If a parent does not receive custody, how much visitation is he or she likely to
A. That will vary with the desires of the parents and the inclinations of a judge. A common
amount of visitation, however, is: every other weekend (Friday evening through Sunday); a
weeknight (for dinner); half of the child”s and winter and spring breaks; alternate major holidays;
and several weeks in the summer. If parents live far apart and regular weekend visitation is not
feasible, it is common to allocate more summer vacation and school holidays to the noncustodial
parent. For parents who do not like the term “visitation” or “custody,” it is possible to draft a
custody and visitation order that leaves out those terms and just describes the times at which the
child will be with each parent.
Q. Under what circumstances may the custodial parent deny the other parent
A. The parent with custody must have a good reason to deny the other parent visitation. For
example, if the noncustodial parent has molested the child, is likely to kipnap the child, or is likely
to use illegal drugs or excessive amounts of alcohol while caring for the child, a court probably
will deny visitation or restrict visitation. If visitation is restricted, visitation might be allowed only
under supervision, such as at a social service agency or in the company of a responsible relative.
Q. What is joint custody?
A. Joint custody–sometimes referred to as “shared custody” or “shared parenting”–has two
parts: joint legal custody and joint physical custody. A joint custody order can have one or both
Q. What is joint legal custody?
A. Joint legal custody refers to both parents sharing in major decisions affecting the child. The
custody order may describe the issues on which the parents must share decisions. The most
common issues are school, health care, and religious training (although both parents have a right
to expose the child to his or her religious beliefs). Other issues on which the parents may make
joint decisions include: extracurricular activities, summer camp, age for dating or driving, and
methods of discipline. Many joint custody orders specify procedures parents should follow in the
event they cannot agree on an issue. The most common procedure is for the parents to consult a
mediator. Mediation will be discussed later in this chapter.
Q. What is joint physical custody?
A. Joint physical custody refers to the time the child spends with each parent. The amount of
time is flexible. The length of time could be relatively moderate, such as every other weekend
with one parent; or the amount of time could be equally divided between the parents. Parents
who opt for equal time-sharing have come up with many alternatives such as: alternate two-day
periods; equal division of the week; alternate weeks; alternate months; alternate four-month
periods; and alternate six month periods. If the child is attending school and spends a substantial
amount of time with both parents, it usually is best for the child if the parents live relatively close
to each other. Some parents, on an interim basis, have kept the child in a single home and the
parents rotate staying in the home with the child.
Q. Are courts required to order joint custody if a parent asks for it?
A. No. In most states, joint custody is an option–just as sole custody is an option. Courts may
order joint custody or sole custody according to what the judge thinks is in the best interest of
the child. In some states (ten in 1999), legislatures have declared a general preference for joint
custody. That usually means the courts are supposed to order joint custody if a parent asks for
it, unless there is a good reason for not ordering joint custody. The most common reason for not
ordering joint custody is the parents” inability to cooperate. Courts are concerned that a child will
be caught in the middle of a tug-of-war if joint custody is ordered for parents who do not
cooperate with each other. Parents who do not cooperate also will have trouble with sole
custody and visitation, but the frequency of conflicts may be somewhat less since they will need
to confer less often on major decisions and the logistics of a joint physical custody arrangement.
Q. What are the pros and cons of joint physical custody?
A. Supporters of joint physical custody stress that it is in the best interest of children to protect
and improve their relationship with both parents. They believe shared custody is the only way to
make sure that the children do not “lose” a parent because of the divorce. Critics fear that
shared-time parenting is unworkable and worry about instability and potential conflict for the
child. The success of joint physical custody may depend on the child. Some researchers have
said that children who are relatively relaxed and laid back will do better with joint physical
custody than children who are tense and become easily upset by changes in routine. Because
joint physical custody usually requires keeping two homes for the child, joint physical custody
often costs more than sole custody.
Parents probably should avoid locking in any parenting plan forever. Rather, they should plan to
review the custody arrangement as the children grow and the children”s needs change.
Q. How do courts set child support?
A. Under federal law, all states must have guidelines by which courts determine child support.
The guidelines were established because variations in the amounts of support set in similar
circumstances were considered to be too wide and because child support, in many cases, was
considered to be too low. The guidelines are formulas that consider the income of the parties, the
number of children, and perhaps some other factors. The formulas are based on studies of how
much families ordinarily spend for child raising. The formulas try to approximate the proportion
of parental income that would have been spent for support of the child if the family had not been
divided by divorce. Courts plug numbers into the formula and come up with an amount of
support that should be paid for the child or children. The parties can argue that because of
special circumstances, a court should order more or less support than the guideline amount.
Q. When working with guideline formulas, how are the parents” incomes determined?
A. States use the parents= net income or gross income. Gross income is the parents= income from
all (or almost all) sources, including wages, investments, and other sources). Net income is equal
to gross income minus federal and state income taxes, Social Security tax, Medicare tax, health
insurance, and perhaps union dues.
For self-employed persons, the determination of income may be complex. Courts will
allow deductions of reasonable business expenses before determining net income. But courts
may disallow unusually high business expenses and depreciation that reduce income artificially
without hurting the parent”s cash flow. Thus, certain expenses that are deductible for tax
purposes may not be deductible from income for the purpose of setting child support.
Q. How much child support should a noncustodial parent expect to pay?
A. That question is difficult to answer precisely because guidelines vary between states and
because courts may depart from the guidelines. But some examples can be given.
Q. What is an example of a guideline for child support based on the income of only the
A. Here is the “percentage of obligor”s income” guideline which was in effect in Illinois in the year
Number of Percent of supporting
children partys net income
6 or more 50%
Under this guideline, if a noncustodial parent (“supporting party”) had a net income of $40,000,
the annual level of child support would be $8,000 for one child; $10,000 for two children;
$12,800 for three children, etc.
Q. What”s an example of a support formula based on the incomes of both parents?
A. Support guidelines based on the incomes of both parents often are referred to as “income
shares models.” Under these guidelines, the court first adds the net income (or in some states, the
gross income) of both parents. Then the court consults a long table–or computer program–
which assesses the total obligation of support as a percentage of the combined incomes and the
number of children. Generally, the percentage drops as the combined incomes rise, on the
assumption that financially well off parents need to spend a smaller portion of their incomes on
their children than parents who are less well-off. The court multiplies the combined incomes by
the percent figure and obtains a dollar amount that the child or children are considered to need
for support. Then the responsibility to pay that support is divided between the parents in
proportion to each parent”s incomes.
Here is an example using Colorado”s child support schedules. Assume a father and
mother have two children and a combined annual gross income of $60,000–$40,000 earned by
the father and $20,000 earned by the mother. The schedules put the guideline amount for
support at $11,508 per year ($959 per month). Since the father earns two-thirds of the parties”
combined income, he would pay two-thirds of the children”s support ($7,672 a year) and the
mother would pay one-third ($3,836). If one parent had primary custody of the children, the
other probably would make a cash payment to that parent. The parent with primary custody
probably would not make a cash payment as such, but would be assumed to be spending that
amount on the children. Alternatively, the parents might set up a checking account for the
children”s expenses and both would deposit their respective shares into the account.
Q. What are reasons for ordering more support than the guideline amount?
A. This will vary from state to state and will depend, in part, on what expenses the guidelines
include and do not include. But some common reasons for giving support above the base
guideline amount include: child-care expenses, high medical or dental expenses of the child that
are not covered by insurance, and voluntary unemployment or underemployment of the parent
who is supposed to pay support. Expenses for summer camps and private schools also might be
a basis for setting higher support levels, particularly if private schools or summer camps were
part of the family”s lifestyle during the marriage.
Q. What are reasons for setting support below the guideline amount?
A. Again, this can vary from state to state, but common reasons for setting support below the
guideline amounts include support obligations from earlier marriages and large debts to pay off
(particularly if the debts are related to family expenses). If the support guidelines are based on
the income of only the noncustodial parent and if the custodial parent has an unusually high
income, then the noncustodial parent can argue that the custodial parent”s income is a reason for
setting support below the guidelines. Also, if the guidelines do not have a cap or maximum level
of income to which they apply, the high income of the noncustodial parent is a basis for setting
support below the guidelines. For example, using the Illinois guidelines described earlier, if a
noncustodial parent has three children and an annual net income of $200,000, that parent can
argue that the children do not need the $64,000 per year that the guidelines call for.
Q. What is the effect on child support if the parents have joint custody of the children?
A. That depends on the nature of the joint custody arrangement. If the parents have joint legal
custody (by which they share in making major decisions regarding the child), that will have little
effect on child support. If the parents have only joint legal custody, one parent still has primary
custody of the child and handles payments of most of the child”s day-to-day expenses. The
custodial parent”s expenses for the child have not been reduced by the joint custody
arrangement. If the parents have joint physical custody and the child spends a substantial amount
of time with each of parent, support might be set at less than the guideline amount since both
parents are likely to handle day-to-day expenses for the child. (Parents, however, will need to
coordinate payments on major expenses such as camp, school, clothing, and insurance).
Q. Is child support paid while the child is with the noncustodial parent for summer
vacation or long breaks?
A. In most cases, yes. Courts figure that many major expenses for the benefit of the child–such
as rent, mortgage, utilities, clothes, and insurance–have to be paid whether the child is with the
custodial parent or not. So, usually, a full support payment is due, even if the child is with the
noncustodial parent. On the other hand, the parties themselves (or the court) are free to agree on
payments in different amounts during vacation periods when the child is with the noncustodial
parent. The lower amount for vacation periods with the noncustodial parent might reflect savings
to the custodial parent for food expenses or childcare.
Q. Do divorced parents have to pay for their child”s college expenses?
A. That depends on the state and the parties” agreement. Courts in some states will require
parents to pay for a child”s college expenses (assuming the parents can afford it and the child is a
good enough student to benefit from college). Courts in other states note that married parents
are not required to pay for their child”s college expenses, and, therefore, divorced parents are
not required to do so either. Regardless of the state”s law on compulsory payment of college
expenses, the mother and father can agree as part of their divorce settlement to pay for these
costs. Courts usually will enforce those agreements.
Q. How is child support enforced if a parent does not pay?
A. The state and federal governments have a variety of techniques for enforcing payments of
child support. The most common is a wage deduction, by which the employer sends a portion of
the parent”s wages to a state agency which then sends the money to the parent who has custody
of the child. A federal law requires that after 1994, all child support orders must provide for an
automatic wage deduction unless the parties have agreed otherwise or unless a court waives the
automatic order. The state also can intercept the federal and state tax refunds of persons who
have not paid support. Liens can be placed on property, such as real estate and automobiles. A
parent who has not paid support can be held in contempt of court, which may result in a fine or a
jail term. In addition, a parent who has not paid support can lose his or her driver=s license or
professional license. State”s attorneys or district attorneys may help with collection of child
support, though their efficiency varies from district to district.
Child support enforcement is a matter of increasing federal concern. Under the Child
Support Recovery Act of 1992, it is a federal crime to willfully fail to pay child support to a child
who resides in another state if the past-due amount has been unpaid for over one year or
exceeds $5,000. Punishments under the federal law can include fine and imprisonment.
A parent may not reduce child support payments without a court order: the unpaid
amounts will accumulate as a debt, even if a court later decides that there was a good reason for
Q. To what extent is child support not paid?
A. The Census Bureau reports that only about half of the parents entitled to receive child support
receive the full amount that is due. About one-quarter of parents to whom support is due receive
partial payments, and the other one-quarter receive nothing at all. The Census Bureau estimates
that each year, about $10 billion dollars in court-ordered child support is not paid. In addition to
that, there are several million mothers who have not obtained orders of child support for their
children. A high proportion of those women had children out of wedlock.
Q. What legal remedies are available if a child is abducted by a parent?
A. Abduction of a child by a parent is a crime under federal law and the laws of most states.
Local police, state police, and in some cases the FBI can help in locating missing children.
Parents who abduct their children also can 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 usually would
need the help of a private attorney.
Q. What are grandparents” rights to visitation?
Although all states have statutes allowing grandparents to seek visitation with their grandchildren,
in June 2000, the United States Supreme Court issued a ruling that will make it more difficult for
grandparents to obtain court-ordered visits with their grandchildren. In the case of Troxel v.
Granville, Justice Sandra Day O=Connor, writing for a divided Court, held: A[S]o long as a
parent adequately cares for his or her child (i.e., is fit), there will normally be no reason for the
State to inject itself into the private realm of the family to further question the ability of that parent
to make the best decisions concerning the rearing of that parent=s children.@ The scope of the
Supreme Court=s decision is uncertain. The Court certainly believed that parents should be given
more deference on decisions with whom the child will associate than was provided by the
Washington State law. The Court, however, left open the possibility that some grandparents
would be entitled to obtain court-ordered visitation. Such visitation might be allowed, for
example, if the grandparents can show that they had a particularly strong relationship with their
grandchildren, such as perhaps when the grandparents had raised the grandchildren for a number
of years before primary custody of the children returned to the parents.
Q. May courts award grandparents custody of their grandchildren?
A. Yes, but usually only if neither parent wants the children or if the parents are unfit. Courts
examine such factors as the grandparents” age, health, and ability to care for the children. Courts
will not deny grandparents custody because of their age, as long as they are healthy.
Some custody disputes between grandparents and parents arise when the grandparents
have been raising their grandchildren for a considerable length of time under an informal
arrangement. The grandparents may have become the “psychological parents” of the
grandchildren by the time the parent or parents seek to regain custody. In this circumstance,
courts in many states will allow the grandparents to retain custody, even if the parents are fit.
A STEPPARENT”S DUTIES AND RIGHTS
The responsibilities of a stepparent depend on state law. A stepparent usually is not liable for a
spouse”s children from another marriage, unless the stepparent has adopted the children. Until
then, the children”s biological parents are liable for their support. Some states, however, make
stepparents liable for the stepchildren”s support as long as the stepparent and stepchildren are
A stepparent who does not adopt a spouse”s children normally may not claim custody of them if
the marriage ends in divorce, although some states allow a stepparent to seek visitation and even
custody. Stepchildren usually do not share in the estate of a stepparent, unless the stepparent has
provided for the stepchildren in a will. However, unmarried stepchildren under eighteen may
receive supplemental retirement benefits or survivor”s benefits under Social Security.
Q. What is mediation?
A. Mediation is a process in which the parties to a divorce (or some other dispute) try to resolve
their disagreements outside of court with the help of a mediator. The mediator cannot force a
settlement, but tries to assist the parties to clarify their interests and work out their own solution.
In divorce actions, mediators often are involved in custody and visitation disputes. They also can
handle property disputes, support disputes, and other issues. If the parties resolve their
disagreements through mediation, the attorneys for one or both of the parties still may be
involved in finalizing and approving the agreement.
Q. Is mediation mandatory in divorce actions?
A. That depends on the rules of the local court. Many courts do require mediation of custody
and visitation disputes–the mother and father must talk with a court-appointed mediator to try to
resolve the problem before putting their case before a judge. The mediator cannot force a
resolution, but the parties can be told to try mediation before coming to court.
Q. What is the professional background of divorce mediators?
A. Most mediators are either mental health professionals or attorneys. Many mediators,
particularly those associated with court mediation services, have degrees in social work or
psychology. Private mediators (which the parties may choose to hire) often are attorneys,
although many are mental health professionals. Mediators who are mental health professionals
are not serving as therapists, and mediators who are attorneys are not serving as attorneys.
Instead, they are professionals who are trying to help two (or more) people work out their
Q. What are the advantages of mediation?
A. Mediation often is cheaper and quicker than taking a case before a judge. A good mediator
also can help the parties build their problem-solving skills, and that can help them to avoid later
disputes. Most people who settle their cases through mediation leave the process feeling better
than they would have felt if they had gone through a bitter court fight.
Q. What are the disadvantages of mediation?
A. Mediation can be a problem if one or both parties are withholding information. For example,
if the purpose of mediation is to settle financial issues and one party is hiding assets or income,
the other party might be better off with an attorney who can vigorously investigate the matter.
Mediators usually are good at exploring the parties” needs, goals, and possible solutions, but
mediators do not have the legal resources of an attorney to look for hidden information.
Another problem with mediation can arise if one party is very passive and likely to be
bulldozed by the other. In that situation, the mediated agreement might be lopsided in favor of
the stronger party. A good mediator, however, will see to it that a weaker party”s needs are
expressed and protected. Some mediators may refuse to proceed with mediation if it looks as
though one side will take improper advantage of the other.
Some professionals think that mediation is not appropriate if the case involves domestic
violence. One concern is that mediation will just give a forum in which the abuser can harm the
victim again. Another concern is that victims of physical abuse are not able to adequately express
and protect their own interests. However, other professionals believe that disputes in families
with a history of domestic violence still can be mediated, particularly if the abused party is not
significantly intimidated by the other party.
Finally, if mediation does not succeed, the parties may have wasted time and money on
mediation and still face the expenses of a trial.
What Happens When One Spouse Dies?
If the spouse left a will–which is almost always a good idea–his or her property should be
distributed according to his wishes. But if the will makes no provision for the surviving spouse, a
court may invalidate the will and assign at least some of the deceased person”s assets to the
If there is no will, the property will be distributed according to the laws of the state, with a
certain percentage to the surviving spouse, a certain percentage to surviving children, and
perhaps some for surviving parents, brothers, and sisters.