Divorce Law and Child Custody

A divorce is a legal action that asks a court to declare the end of a marriage. Some divorce cases are relatively simple, with few or no issues or disputes relating to the division of assets, and without any child custody issues.

A divorce case becomes more complex when children are involved, as the size of the marital estate increases and assets become more complex, or when it is necessary to divide retirement benefits and savings.


"No Fault" Divorce Law

All states have enacted no fault divorce laws pursuant to which a married couple can obtain a divorce without establishing that the other party did something wrong. A minority of states disfavor no fault divorce, imposing conditions such as long periods of separation before a no fault divorce can be granted.

Most couples prefer a no-fault divorce over a fault-based theory. In most cases, a no-fault approach will acrimony between the divorcing parties. Also, a no-fault divorce is usually less costly to obtain than a divorce in which one or both parties is trying to prove that the other is at-fault for the break-up of the marriage.

Under typical state law, a trial court is permitted to grant a no fault 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.

Jurisdictional Requirements

In order to file for divorce, the parties must meet the residency requirements of the jurisdiction where the divorce is filed. Residency requirements vary significantly from state to state, particularly in relation to how long a party to a divorce case must live in a state and county before a divorce case may be filed in their county of residence.

Once minimum residency requirements are met, a divorce may normally be filed in the state and county where either or both of the spouses reside.

Divorce from an Out-of-State Spouse

When filing a divorce action against a spouse who resides in another state, a local court will normally be able to grant a valid divorce. However, if the parties did not reside in the state in which the divorce was filed during the period of time leading up to the divorce, the court 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 but, if the other spouse will not consent and the court finds that it lacks jurisdiction over custody, child support, or certain marital assets, it may be necessary to litigate those issues in another state.

Jurisdiction Issues in Divorce

If you are concerned that your spouse may plan to file a divorce case in another state or in an inconvenient county within your state, you should consult with an attorney about whether it would be appropriate for you to try to file a divorce in your own state and county.

In many cases, the divorce will be decided in the state and county in which the first complaint for divorce is first filed. If the other spouse files first in a court that has jurisdiction over the divorce case, the spouse who resides in another state or county may experience significant difficulty and expense that would be avoided if the case were being litigated in their local court.

Waiting Periods for Divorce

Under normal circumstances, most states impose a cooling off period before they will grant a divorce. The waiting period is usually longer when the divorce case involves child custody issues, even if the parties agree about custody.

While it is usually possible for a trial court to find circumstances that justify waiving the waiting period, in most cases the full waiting period will be observed. The practical effect of a waiting period may not be significant because, even with a six month waiting period, it will often take that much time or more for a divorce and custody case to work its way through the courts.

When Fault Matters in Divorce

In states that have retained fault-based divorce along with the option of a no-fault divorce, it may be possible to complete a divorce more quickly on a fault-based theory.

For example, requirements that the parties separate before being eligible to file for a no-fault divorce do not apply to fault-based divorce actions. At the same time, there is a possibility that pursuing a fault-based divorce case will result in litigation that is both costly and that could take as much time to resolve as it would take to separate and pursue a no-fault divorce.

Fault and Division of Marital Assets

Some states will consider fault issues when dividing the marital assets, or when assessing spousal support (alimony). Under most fault circumstances, a typical trial court will not dramatically change the division of assets, perhaps adjusting the division of assets by only five or at most ten percent.

With most marital estates, the spouse alleging fault will need to consider whether a five or ten percent difference in the property division justifies the expense, conflict and delay 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.

Although the five or ten percent adjustment in the division of marital assets due to fault is most typical, in extreme cases courts have been known to award larger amounts, and on at least one occasion a court awarded 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.

Fault and Child Custody

Child custody litigation may also involve 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.

However, most courts will give little or no weight to interpersonal matters between the spouses when evaluating child custody, unless the children were inappropriately made aware of the issues or they otherwise affect the children's best interest.

One fault-based factor to which a court will usually give significant weight is domestic violence, most notably when an act or acts of violence occur in the presence of the children.

Spousal Support (Alimony)

An award of spousal support is ordinarily made within the context of the division of the parties' property and assets. Under appropriate circumstances, a trial court may:

  • Provide for temporary spousal support while a divorce case is pending, or
  • May order at the conclusion of a case that spousal support to be paid retroactive to the date the complaint for divorce was filed.

A spousal support award may take into consideration the total value of the marital estate, and whether either or both of the spouses will have to liquidate assets awarded in the divorce in order to maintain a reasonable lifestyle. If 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 a lump sum ("in gross"). 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.

Child Custody in Divorce

Child custody can easily be the most contentious issue in a divorce case, and can be very expensive to litigate. Even when parents agree about custody, they are likely to experience:

  • A longer waiting period before their divorce can be finalized,
  • A requirement that they participate in an educational program for divorcing parents, and
  • Requirements that their divorce judgment must cover a wide range of child custody, visitation and support issues that are not needed in a divorce case that does not involve children.

Although courts will generally follow the agreement of parents when issuing a custody judgment, many states require the courts to hear evidence and make findings that the agreed resolution is in the best interest of the parties' children.

Custody Disputes

When parents cannot agree about custody they must litigate their case, perhaps initially before a referee, and try to convince the court that the custody arrangement that they propose is in the best interest of the children.

The litigation process may involve:

  • A custody evaluation of the parties, the children and their proposed post-divorce households by an investigator, guardian ad litem appointed by the court to protect the children's interests, or psychological evaluator.
  • The parties may have to go through a court-ordered mediation process, or may participate in a private mediation process at their own expense.
  • It may be necessary to interview and depose witnesses.

As a result, custody litigation can easily turn into a prolonged, costly process for the parents.

Best Interest of the Children

The purpose of custody litigation is supposed to be to determine the best home environment for the children, whether that be solely or primarily with one parent, or a joint arrangement involving both parents.

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.

Bankruptcy and Divorce

If the parties are in the process of a bankruptcy when they file for divorce, the divorce process can significantly complicate their bankruptcy case. Parties involved in a Chapter 7 bankruptcy should consider waiting until they receive an order of discharge before filing for divorce. Parties who are involved in a Chapter 13 bankruptcy and repayment plan should discuss their situation with their bankruptcy lawyer before filing for divorce.

If there is a possibility that one or both spouses will file for bankruptcy after the divorce is filed, the other spouse's divorce 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.

Choosing a Divorce Lawyer

Divorce and child custody cases are often difficult and emotionally taxing for all parties involved. In most cases 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. When you are involved in a divorce case or custody litigation, 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.

There are two types of divorce lawyer you should watch out for:

  • Some lawyers will file a child custody action in an effort to coerce the other partner into giving up more property, even though that partner does not actually want to dispute custody; and
  • Some lawyers will bring frequent motions and manufacture conflicts, for the sole purpose of justifying a larger bill.

Be cautious of law 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.

Copyright © 2005 Aaron Larson, All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you use a quotation, excerpt or paraphrase of this article, except as otherwise authorized in writing 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.

This article was last reviewed or amended on May 7, 2018.