Divorce Law and Child Custody
By Aaron Larson
- "No Fault" Divorce Law
- Jurisdictional Requirements
- Waiting Period
- When "Fault" Matters
- Spousal Support (Alimony)
- Bankruptcy and Divorce
Divorce and child custody cases are often difficult and emotionally taxing for all parties involved. It is important to have an attorney who is sensitive to your needs, and who can formulate a plan to protect your rights and assets. Usually both parties suffer financially as a result of divorce. Typically, the parent who does not end up with primary custody of the children will have a faster economic recovery from divorce.
There are two types of divorce lawyer you should watch out for. One will bring a child custody action, in an effort to coerce the other partner into giving up more property. The other will bring frequent motions, and manufacture conflicts, for the sole purpose of justifying a larger bill. Also beware of firms that claim to specialize in "father's rights" or "women's rights" - most such firms are relying upon that "specialization" as an advertising gimmick, and the open agenda of those firms may cause a court to view them with suspicion. The best family lawyers typically represent both men and women. Please pick your divorce lawyer carefully.
Please keep in mind that the purpose of custody litigation is supposed to be to determine the best home environment for the children. When parents engage in bitter, acrimonious, hostile litigation, they make the transition much more difficult for their children, and they also damage their ability to communicate once the litigation has ended.
Many states have enacted no fault divorce laws, pursuant to which residents can obtain a divorce without establishing that the other party did something wrong. Typically, the trial court is permitted to grant a divorce if it finds that the marriage relationship has broken down to the extent that the objects of matrimony have been destroyed and there is no reasonable likelihood that the marriage can be preserved. Depending upon state law, issues of "fault" may still be relevant to child custody and the division of property.
To file for divorce, the plaintiff must meet the residency requirements of the jurisdiction where the divorce is filed. Residency requirements vary significantly from state to state. When the other spouse resides in another state, a local court will typically be able to grant a valid divorce, but may be limited in its ability to divide property or determine custody and child support. It is possible for a spouse who lives in another state to consent to having all divorce-related issues decided by your local court.
If you are concerned that your spouse may be filing for divorce in another state or jurisdiction, you should consult with an attorney about whether it would be appropriate for you to try to file a divorce in your own state. In many circumstances, the divorce will be decided in the state where a complaint for divorce is first filed, which can result in significant difficulty and expense to a spouse who resides in another state.
Under normal circumstances, most states impose a "cooling off" period before they will grant a divorce. While it is usually possible for a trial court to find circumstances which justify waiving this period, in most cases the full waiting period will be observed.
Some states will consider "fault" issues when dividing the marital assets, or when assessing spousal support (alimony). Please note that under most "fault" circumstances, a typical trial court will not dramatically change the division of assets. With most marital estates, you will need to consider whether a five or ten percent difference in the property division justifies the expense and conflict associated with attempting to prove fault. There is often a better financial return in making sure that all assets are located, properly valued, and included in the marital estate, as opposed to trying to prove fault.
Please note that while the five or ten percent difference is most typical, in extreme cases courts have been known to award larger amounts, and on at least one occasion even the entire marital estate, to the wronged spouse. Your attorney can help you make the assessment of what is likely to happen in your case, and whether you would benefit from trying to make fault an issue.
Child custody litigation can also raise some of the issues associated with "fault" divorce, as parents try to prove themselves more fit, or the other parent less fit, to raise the children.
An award of spousal support is ordinarily made within the context of the division of the parties' property and assets. Under appropriate circumstances, a typical trial court may provide for temporary spousal support while a divorce case is pending, or may order support to be paid retroactive to the date the complaint for divorce was filed. A spousal support award may take into consideration the amount of marital estate, and whether one of the spouses will have to liquidate assets awarded in the divorce in order to maintain a reasonable lifestyle. Where one spouse has sufficient income to preserve his or her share of the property settlement and the other does not, spousal support may be appropriate.
Spousal support is usually awarded either in the form of periodic payments or "in gross" (in a lump sum). Periodic payments are usually described as "rehabilitative" (short-term payments to help the recipient spouse get back on his or her feet), or permanent (ordinarily lasting until death, remarriage, or further order of the court). Awards of periodic alimony are normally subject to subsequent modification by the court, whereas awards of alimony in gross ordinarily cannot be modified after judgment.
If there is a possibility that one or both spouses will file for bankruptcy after the divorce, an attorney must take particular care to structure the property division and support award so as to protect the client spouse from the effects of the other spouse's bankruptcy.
Copyright © 1998-2011 Aaron Larson. All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you believe you may lawfully use a quotation, excerpt or paraphrase of this article under the Fair Use exception to copyright law, except as otherwise authorized by the author of the article, you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.