A ‘divorce’, sometimes referred to as ‘dissolution of marriage’, is a decree by a court that a prior valid marriage is dissolved and no longer exists. After a divorce, the party’s are no longer obligated to each other in any way, other than as is provided for in the divorce judgment and either party is free to remarry. A woman may resume her unmarried name or keep her married name as she desires. While parties may obtain a divorce without an attorney, where there are any financial issues, old debts or children born of the marriage, the parties should seek out competent legal advice. Many divorces are not contested, i.e., the parties are able to negotiate and settle such issues as property division, support and child custody among themselves. Most divorces are now “no-fault” divorces (see below.) A divorce that is valid in one state and conforms to that state’s legal and residency requirements is valid in all states.
Originally divorces were obtainable only if one of the parties to the marriage could prove ‘fault’ or wrongful conduct by the other party as grounds for divorce. Fault-based divorces require a showing of adultery, physical cruelty, mental cruelty, insanity and the like. In some states, fault may also be taken into consideration by the court in deciding property and spousal support issues, even if the divorce is granted on no-fault grounds.
Grounds for No-Fault Divorce
No-fault divorces are valid in almost all states. In a no-fault divorce, it is not necessary to allege or prove that either spouse has been guilty of misconduct. Generally, in order to obtain a no-fault divorce, either party must simply affirm that there are ‘irreconcilable differences’ between the parties, or that the marriage is ‘irretrievably broken’. The underlying rationale for no-fault divorce is that society recognizes that it is not advisable to force people who cannot get along together to remain married, especially in light of the potential adverse emotional impact on the parties and children that a continuation of the marriage may have.
Defenses to No-Fault Divorce
In a “fault” divorce, the responding spouse can resist the divorce by establishing that he/she was not in fact guilty of misconduct. In no-fault divorces, other than requesting the court to order counseling, there is no effective defense to the divorce. A marriage is a partnership; if either party feels that the marriage is irretrievably broken, the partnership is dissolved. Accordingly, the only issues to be resolved in a no-fault divorce are property, support and custody issues.
Most states require that a party petitioning (asking) for a divorce have resided in the forum state for a certain period of time. The residency requirement can vary from as little as a few weeks to as much as a year. Weekend divorces obtained in Mexico or out of the country are of questionable validity.
The law cannot force a husband and wife to live together; accordingly, they can separate and live apart without any judicial decree. Often, if the marriage relationship has become difficult for either or both parties, the couple may separate and live apart for a test period to determine whether they will separate permanently or divorce. The parties can enter into a “legal separation,” by signing an agreement setting forth each party’s support and custody rights during the separation. The agreement may provide that if either party later files for a divorce, the provisions in the separation agreement will become part of the final divorce decree (judgment).
After divorce, a woman may either resume use of her unmarried name or keep her married name, as she desires. If she decides to reassume her prior name, it is advisable to have the final divorce decree reflect the name restoration, or to have a separate order of name restoration. Consideration should be given to written documents such as awards, degrees, driver’s licenses and the like in deciding which name to use; new documents may have to be obtained and licensing bodies advised. The order restoring the former wife’s prior name will be required to prove the former wife’s identity to any entity that will be issuing new documents. The children of the parties will continue to use the father’s last name for school records, and this may be an additional consideration for retaining the married name.
PROCEDURAL ASPECTS OF A DIVORCE
Petitions for Divorce
In most states, the party who files for divorce is referred to as the ‘petitioner’; the party against whom the action is filed is usually called the ‘respondent’. In order to obtain a divorce, a complaint or petition (pleadings) must be filed in the proper court. Many states have a family or domestic court that exclusively hears divorce matters. The divorce papers must then be served upon the respondent spouse in the same way as a summons and complaint in any civil law suit. Where the parties have already entered into a separation or settlement agreement, a copy of the separation agreement will be attached to the pleadings. Very often, in a contested divorce, the initial complaint or petition will request temporary relief including support, temporary custody and exclusive use of the marital home. Where there are allegations of spousal abuse, the petition may also request restraining orders (see below) directing the abusive spouse not come near the petitioner’s residence or place of business.
Answers/Responses to a Divorce Petition
Upon receipt of the divorce petition or complaint, the respondent spouse is required to file an ‘answer’ or response within a specified time, usually several weeks, or a default can be entered against him/her. As was noted above, there are few defenses to the underlying request for a divorce; the answer may raise issues involving custody, support and property matters.
In many cases, most, if not all issues in a contested divorce are decided before final hearing through negotiation between the parties, or through a family mediator. If issues are resolved, a settlement agreement setting out the terms of settlement will be prepared and signed by the parties. The agreement, sometimes called a ‘marital settlement agreement’ will be presented to the judge and will ordinarily be made part of the final judgment of divorce.
Marital Settlement Agreements
Marital Settlement Agreements (Separation Agreements) can be entered into before a divorce action is filed or at any time during the pendency of a divorce proceeding. Most litigated divorces are settled before final hearing. The Marital Settlement Agreement should set forth the agreements of the parties on all litigated issues, including, at a minimum, the following:
- Child custody and support
- Child visitation
- Responsibility for debts incurred during the marriage
- Alimony or spousal support
- Division of property acquired during the marriage
- Use and occupancy and ultimate disposition of the marital home
- Determination of who will claim children as exemptions on tax returns
- Health Insurance
- Responsibility for attorney’s fees
Trial of a Contested Divorce
If pending issues are not resolved during the course of the divorce action, a trial will ultimately be held before a judge who will decide all contested matters. Since many divorces are “no-fault”, the issues that the court will be called upon to decide will usually involve issues of property division, alimony, child support, visitation and payment of debt incurred during course of the marriage. Each of these issues will be discussed more fully below.
CHILD CUSTODY, VISITATION and SUPPORT
Contested Custody Cases
Ideally, issues of child custody, support and visitation are resolved between spouses amicably; unfortunately, this is not always the case. If custody and child support issues are fully contested, the judge and not the parties, will be called upon to make the final decision. In a contested custody case, social workers, psychologists and other experts may be as witnesses to express opinions regarding who should have physical custody of the child(ren). This process is expensive and allows ‘strangers’ to make and participate in custody decisions. Children and family members may also be called upon to testify; this can often create alienation and hostility between the children, parents and other members of the family. The scars of a custody battle may be borne by the children throughout their lives and affect their future relationships.
‘Legal custody’ refers to a parent’s right and obligation to make decisions on behalf of his or her children after a divorce, including those decisions affecting health, education, religion and welfare.
‘Physical custody’ refers to the right to have the children live with a parent after the divorce. As a general rule, the parent who has been most involved with his/her children before the divorce will be awarded primary custody and will assume greater decision-making responsibilities then the non-custodial parent, especially regarding day-to-day decisions.
Joint custody, sometimes referred to as “shared custody” or “shared parenting”, refers to a situation where both parents participate equally in major decisions affecting the child. In recent years, a growing number of fathers have become intimately involved in the day-to-day care of their children. As a result, the courts are increasingly likely to make an award of shared parental responsibility or joint custody. Shared, or joint custody encourages both parents to be full participants in their children’s life after the divorce and fosters the natural development of the child’s love and affection for both parents. Nearly all states recognize joint custody as an option and some treat it as the preferred arrangement.
Primary Physical Custody
Primary physical custody, that is, where the child will live, is generally awarded to one or the other of the parents, even in a joint or shared custody arrangement. The courts favor awarding physical custody to one parent because it is generally felt that a child needs a stable environment, continuity of attendance in one school and a place that the child considers to be his home. Where primary physical custody is awarded to one parent, provision is usually made for extended visitation, as during the summer recess, with the non-custodial parent.
The parent with primary physical custody must allow free and open access to the child by the non-custodial parent upon proper notice, unless there is a good and valid basis to restrict such access.
Visitation and Child Support
The obligation to pay child support is not contingent on the non-custodial parent being allowed visitation. It should be clear therefore, that even if visitation is wrongfully denied, payment of child support must continue.
If the non-custodial parent has molested the child, is likely to kidnap the child, uses drugs, alcohol or engages in illicit activities in the presence of the child, visitation may be restricted or denied. The impact of either parent’s homosexuality varies from state to state. Some states assume that the relationship is harmful to the child’s development.
Pure Shared Custody (Split Custody)
Infrequently, the court may direct that the child spend 50% of the time living with each of the parents under a ‘pure’ shared custody (split custody) arrangement. Pure shared custody is generally only possible where the former spouses live in the same community. The parent with primary physical custody must allow free and open access to the child by the non-custodial parent upon proper notice, unless there is a good and valid basis to restrict such access. If the non-custodial parent has molested the child, is likely to kidnap the child, uses drugs, alcohol or engages in illicit activities in the presence of the child, visitation may be restricted or denied. The impact of either parent’s homosexuality varies from state to state. Some states assume that the relationship is harmful to the child’s development.
How Child Custody is Decided
The court will consider all relevant factors in determining child custody issues including the age and sex of the child, the child’s desires, the relationship between the child, parent and siblings, the child’s adjustment to home, school and the community and the mental and physical health of all parties involved. Ultimately, the court will apply “the best interests of the child” test to determine which party will be awarded primary physical custody.
The wishes of a child may be an important factor in deciding custody. The opinion of the child will be given greater consideration as the child gets older and becomes more mature. Often judges will speak to the child privately in chambers to determine the child’s preferences. The court may also appoint a mental health professional to talk to the child and report to the court.
Young Children/Tender Years Doctrine
In the past, courts have generally favored awarding primary physical custody, particularly of young children, to the mother. This has been referred to as the “tender years doctrine”. There has been a greater tendency in recent years by the courts of every state to consider the totality of circumstances and not make an award of child custody based upon the parent’s gender, especially in light of the current social reality that mothers are at work and away from the home as frequently as fathers.
Change of Custody
Child custody orders are by their very nature subject to judicial review; the court will revisit child custody issues if there has been a substantial change in the circumstances of either party. A party’s remarriage after divorce and the ability to provide a stable environment may be considered by the court to be a change of circumstance. If either parent makes derogatory remarks or otherwise disparages the other parent, the court may revisit custody and visitation issues. Courts uniformly object to any conduct that will inhibit the development of love and affection for either parent.
Violation of Child Custody Orders
It is a crime in every state for a non-custodial parent to kidnap or refuse to return a child to the custodial parent. In most cases, such action is a felony. The local police, FBI or a private investigator may be of assistance. The National Center for Missing and Exploited Children (800-843-5678) and various agencies of the state government may be contacted for additional resources.
Child Support is the fixed amount of money that one parent pays to the custodial parent to help cover the costs of raising their dependent child or children. Ordinarily, the non-custodial parent will pay child support to the custodial parent since the custodial parent has assumed the additional financial burden involved in raising the child.
Adopted children are treated in the same manner as biological children.
Stepparents are not obligated to pay child support.
Guidelines for Child Support
While the general criteria for determining child support is the child’s needs and the parent’s ability to pay, under a federal law, all states must have guidelines by which the courts will determine child support. Child support is generally determined by plugging income figures into a statutory formula and arriving at a recommended (guideline) amount per child. Some states consider the income of the non-custodial parent only, while others take the income of both parents into account.
Courts usually have the latitude to consider any special circumstances that may justify modifying guideline child support. Some relevant factors include the value of the non-custodial parent’s assets, whether the custodial parent earns substantially more than the non-custodial parent, special emotional, physical, educational or other needs of the children, the standard of living enjoyed by the children during the course of the marriage, whether or not the non-custodial parent is intentionally limiting his/her income, and the length of time the children will be living with the non-custodial parent.
Modifying Child Support
A substantial change of circumstances of the paying parent, such as the loss of a job, illness or disability, may support a petition (application) to reduce child support payments. Child support obligations are not automatically reduced by a change in circumstance; a petition should be filed without delay- support can only be reduced by court order. Likewise, disability, unusual expense or other substantial change of circumstances of the child or custodial parent may support an application to increase support payments.
Additional Elements of Child Support
In addition to formula-based child support, one or both parents may be required to pay for such additional expenses as tuition, health insurance and/or life insurance.
Gifts given to a child, even for necessaries, such as clothing, are ordinarily not credited against child support obligations.
Duration of Support
A parent’s child support obligation usually ends when the child reaches the age of majority, however, depending on state law and the terms of a Marital Settlement Agreement, the obligation can continue while the child is a full-time student at a recognized institution of higher learning or is disabled. The obligation to pay child support may end before the age of majority if the child becomes an emancipated minor, enters the military, takes a full-time permanent job, gets married or dies.
Deadbeat Dads and Moms
Congress has authorized the Internal Revenue Service to withhold paying income tax refunds to parents of children who are delinquent in payment of court-ordered support payments (deadbeat dads/moms). A parent can request the court to order a spouse to post a bond to secure the payment of child support or that direct deduction be made from salary checks to pay support.
Automatic Wage Withholding
All child support orders written after December 31, 1993 are required to include a provision for an automatic deduction of child support from the wages of the responsible parent, however, this automatic wage deduction can be waived if the party’s so agree.
Federal Assistance in Collecting Child Support
The failure to pay support timely has reached epidemic proportions and has been addressed by the federal government. Under the Federal Family Support Act, all states must have laws mandating that new and modified child support orders include a provision for automatic wage deductions. This way, if child support payments are not made timely, the defaulting parent’s employer will be required to deduct money from the parent’s paycheck. Federal law also requires that some or all of the following become part of state law to ensure that parents get child support payments:
- Placing liens on the delinquent parent’s property
- Utilizing state and federal tax refunds to discharge child support obligations
- Fining or jailing a defaulting spouse for contempt of court
- Attaching unemployment compensation benefits, veteran’s benefits or any other state and federal benefits that the defaulting parent may be receiving
- Garnishing the defaulting parents wages
Most states have a child support enforcement division. This department will also assist in collecting payments from former spouses who have left the state, with or without an attorney’s assistance.
As a rule, past due child support (arrearages) are not dischargeable in a bankruptcy proceeding. Future child support obligations are never dischargeable in bankruptcy.
The responsibility and obligation to pay child support arises not by virtue of the marital relationship, but rather by virtue of maternity or paternity of the child. The maternity of the child is never an issue; occasionally, the paternity is. Currently, genetic testing is available that will determine almost absolutely whether an individual is the father of the child. In an action to determine paternity, the court will ordinarily order such testing and such testing is usually conclusive.
Tax Treatment of Child Support
Child support payments are not deductible; conversely, they are not includable in the income of the custodial parent. IRS assumes that the custodial parent will claim the dependent child as an exemption. Nevertheless, as part of the divorce negotiations, the parties can agree to share the exemption or award it to the parent with the higher income. IRS form 8332 allows a custodial parent to transfer the exemption for the dependent child to the non-custodial parent.
All states have laws giving grandparents the right to spend time with their grandchildren. If the custodial parent denies visitation, grandparents can petition the court for an order permitting visitation and for determination that visitation with the grandparents is in the child’s best interest.
If the custodial or non-custodial parent believes that a spouse is abusing the parties’ children, they should contact the police, initiate a criminal proceeding, request the court to restrict, eliminate or order supervised visitation, have the child examined by physician, request a physical and mental examination of the suspected abuser, and take photographs of the child to document suspected abuse or molestation. A parent who is aware of a spouse’s child abuse and takes no action to protect the child, may be held to be criminally liable.
Alimony, sometimes referred to as spousal support or maintenance is money paid from one spouse to another to help support him/her after a divorce. As was suggested earlier, if a couple separates before their divorce is final, a spouse can request an award of temporary alimony, temporary child support and temporary attorney’s fees for assistance during the course of the legal proceeding.
Attitudes towards alimony have changed in recognition of today’s reality that more women are working outside the home. It can no longer be assumed that divorced women will receive alimony or spousal support. In most states, men as well as women can receive alimony. Entitlement to and the amount and duration of alimony is highly variable depending on the facts of the case.
Amount of Alimony
Divorced spouses have no legal obligation to support one another and accordingly most states do not have strict guidelines for determining the minimum amount of alimony or whether alimony should be paid at all. There are no clear federal or state standards, and there is no set formula for determining how much alimony, if any, must be paid in a particular case. The judge will look at all of the circumstances before making a decision.
The primary criteria used by the courts in determining the type, amount and duration of alimony awards are the parties’ relative needs and ability to pay. As spouses litigating a contested divorce rarely have the same access to financial resources, the court may award attorney’s fees to one of the party’s at the conclusion of the case.
Some of the factors the court will consider include the length of the marriage, whether one spouse earns significantly more income than the other, the age and health status of the parties, whether a party has significantly limited their ability to earn income due to a family decision that one or the other would be a ‘stay at home’ parent, whether one spouse has helped the other build a business for little or no compensation, educational background and employment history, whether one party will be the minor child(ren)’s primary care giver and whether that will limit the spouses ability to earn income, other resources which may be available to the party’s, such as, trusts, real estate or investments, and finally, each party’s need and ability to pay.
Types of Alimony
Alimony can come in several forms:
- Rehabilitative Alimony – rehabilitative alimony is the most common form of spousal support today. It is intended to provide an opportunity for a financially dependent or disadvantaged spouse to obtain job-training, education and enter into the work force in order to become self-sustaining. Rehabilitative alimony or support is usually awarded for a limited time reasonably calculated to allow the spouse to become gainfully employed- usually a period of months or several years.
- Permanent Alimony – permanent alimony or support is becoming increasingly rare. It is generally reserved for spouses who, because of advanced age or chronic illness, will never be able to maintain a reasonable standard of living without support. Although it is called ‘permanent’ alimony, this form of alimony can be modified or terminated if there has been a substantial change of circumstance by either party or if the recipient remarries. Alimony may also be terminated if the recipient decides to live with someone else on a permanent basis.
- Lump Sum Alimony – Some divorced spouses receive their alimony in a lump sum instead of taking it over a period of time in periodic payments. Lump sum alimony is a good option if it is unlikely that an ex-spouse will comply with agreements or court orders.
Interim Attorney Fees
Spouses litigating a contested divorce rarely have the same access to financial resources; the court has discretion to award attorneys fees to a party who lacks the resources to hire an attorney to represent him/her in a divorce proceeding- this is a way that the court will create a level playing field. The court may also award attorney’s fees to one of the party’s at the conclusion of the case as lump sum alimony.
Enforcement of Alimony Orders
If a former spouse defaults in alimony payments, an appropriate action for contempt and for a money judgment can be brought. A defaulting former spouse may be incarcerated for willful refusal and failure to pay alimony pursuant to court order. After a judgment for alimony arrearages is obtained, traditional methods of collection, including seizing vehicles or other personal and real property may be utilized. Often, the court will make an award of attorney’s fees to a prevailing party in a proceeding to collect alimony arrearages.
Alimony is generally not dischargeable in bankruptcy.
When a court awards payments resembling alimony or property settlement to one partner of an unmarried couple after break-up, such payments are popularly referred to as “palimony”. Members of unmarried couples are not legally entitled to such payments absent a written agreement. Such awards are rarely made and may be considered to be aberrations.
Lump sum alimony is not retroactively modifiable; once the property or asset has been transferred it is the exclusive property of the recipient. Alimony that is payable periodically, whether rehabilitative or permanent, is subject to modification upon the demonstration of a substantial change of circumstances of either former spouse.
An individual may be entitled to social security benefits based on the earnings record of a former spouse. In order to receive retirement benefits through a former spouse the marriage must have lasted at least 10 year and the applicant must be 62 years of age, be unmarried and not already be receiving benefits based on the employment record of another. The same criteria apply to survivor benefits (benefits through a deceased former spouse) except that benefits are available from age 60, or as early as age 50 if the applicant has a child under the age of 16.
DIVISION OF PROPERTY
In the event the parties cannot amicably decide how to divide their property and debts, they can submit their dispute to the court. State law determines how property is to be divided.
While laws vary from state to state, as a general rule, many states allow parties to keep their “non-marital” or “separate” property after a divorce. Non-marital property (sometimes referred to as ‘special equity property’) generally includes property that either spouse owned before the marriage, obtained through a gift or inheritance during the marriage or is otherwise unconnected to the marriage. After non-marital property is divided, the court will address property acquired during the course of the marriage. Property acquired during the course of the marriage with marital funds will ordinarily not be considered to be the separate property of either spouse even if the property is titled in only one name. A pension is also usually marital property even though it may have been generated through the income of only one spouse during the marriage.
Community Property States
In community property states, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin, all property acquired during the marriage as a result of the working efforts of either spouse belongs to both spouses equally. Community property is generally divided equally between the spouses upon divorce. Non-community property states apply a concept called “equitable distribution”.
Equitable distribution means that marital property is divided among the spouses in a manner that the court determines to be fair and equitable under all of the circumstances. . Under ‘equitable distribution’ principles, the courts will consider a variety of factors in determining how property will be divided. Many of the factors utilized by the court are the same ones used to determine whether alimony will be awarded at all. These include the relative value of each party’s assets, their earning capacity, age, which party’s efforts went into acquiring the property, whether one spouse impaired his/her earning capacity because of working as a homemaker, whether either party wasted money or assets during the marriage and the health of the parties.
Misconduct and Property Distribution
In some states, misconduct may be considered by the court in determining property division. Fault or misconduct includes adultery, abuse and wasting of marital assets. The court is more likely to consider misconduct when it is such that it impaired the ability of a spouse to earn income or caused physical or mental disability.
The Marital Home
Often, the marital home is the major asset of the parties to a marriage. Which party will receive the marital home is dependent on the singular facts of the case. The law generally favors awarding the home, temporarily or permanently, to the spouse who will have custody of the children. The court can award the home as lump sum alimony to the custodial parent utilizing principles of equitable distribution or it can award temporary but exclusive use and occupancy to the custodial parent during the time the children are minors. Where temporary use and occupancy is granted, once the children attain adulthood, the house may be sold and the proceeds divided equitably. In situations in which neither party can afford to maintain the home, the court is likely to order that the marital home be sold and the proceeds be divided equitably or be awarded to either spouse as lump sum alimony.
Under federal law, most employer-sponsored group health plans must offer divorced spouses of covered workers continued coverage at group rates for as long as three years.
Alimony payments may be deductible by the party making such payments and includable as income by the party receiving the payments subject to certain rules. In order to be deductible, the alimony arrangement must be contained in a divorce decree or set forth in a written document. Only payments evidenced by check or money order are deductible. Alimony is deductible only when the parties are living separate and apart. Alimony payments cannot be tied to child support or be dependent on the lives of children if they are to be deductible. If the payments are tied to the child support, IRS is will consider them to be child support not alimony. In order to deduct alimony payments, the payor must use IRS Form 1040 not Form 1040A. Alimony payments may not be “front loaded”, i.e., excess payments cannot be made during the first 2 years after alimony begins in order to get a larger deduction.
In recent years, particularly after the O.J. Simpson trial, state legislatures and courts have been focusing increasing attention to domestic violence. In many states, laws have also been enacted to protect people in dating relationships that have become abusive. Although domestic violence is a crime in all states, each state deals with the problem differently.
There are many forms of actions that may constitute domestic violence, including slapping, punching, coerced sexual acts, unwanted intercourse, insults, threats and psychological abuse. Likewise, creating a disturbance at a spouse’s place of work, harassing telephone calls, and surveillance may also be considered to be domestic violence.
In a crisis situation, the first action that should be taken is to call the local police department so that a report can be prepared. If it is obvious to the police officer that a spouse has been abused, the offending spouse may be immediately arrested. The local state attorney or district attorney may also be able to offer some help. Many hospitals, crisis intervention programs, and social services agencies have programs to help victims of domestic violence. Many such agencies can be found in the yellow pages under “domestic violence help” or “crisis intervention”. Studies have shown that arresting a person who commits an act of domestic violence reduces future incidents.
Many communities have shelters for battered woman where they and their children can remain until the crisis passes or until they are able to find a permanent place to live. Resources can be located by contacting The National Battered Women’s Hotline at (800) 799-7233.
An abused party’s state may have an anti-stalking law that can be utilized to bring criminal charges if a spouse follows, threatens, harasses or attempts to intimidate his/her spouse.
Temporary Restraining Orders
A very effective legal tool for stopping domestic violence is obtaining a temporary restraining order (TRO). A TRO is an order issuing from the court directing the abusing spouse to stay away from the victim, their premises and place of work. The local police will enforce the terms of a temporary restraining order if it is violated. The courts will not hesitate to incarcerate an individual who violates a temporary restraining order.
In many states, the county clerk’s office will assist an abused party in completing the forms necessary to obtain a TRO without the assistance of an attorney. Judges will hear motions for a TRO after hours; there is often an emergency judge available for just this situation.