| SEPARATION, ANNULMENT AND DIVORCE
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 separation.
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.
Annulment
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.
Divorce
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 permanent.
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
faultbased
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 multi-count complaint.
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.
Property
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 property.
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 the 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 spouse.
(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 proceeds.
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 particular debts.
Alimony/Maintenance
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 otherwise).
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
insurance?
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.
Custody
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 many factors.
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 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
fathers?
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 children.
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 exists.
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 or
nonmarital 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 their decisions.
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 parent?
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.
Visitation
Q. If a parent does not receive custody, how much visitation is he or
she likely to
receive?
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
visitation?
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.
Joint Custody
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 parts.
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
section.
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.
Child Support
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 noncustodial parent?
A. Here is the "percentage of obligor's income" guideline
which was in effect in Illinois in
the year 2000:
Number of Percent of supporting
children party`s net income
1 20%
2 25%
3 32%
4 40%
5 45%
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 the reduction.
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.
Grandparents and Stepparents
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: Á[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 living together.
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. |
Mediation
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 differences.
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.
Q. What Happens When One Spouse Dies?
A. 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 survivor.
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.
See the section, "Estate Planning."
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