The most common alternative to divorce is separation.
Separation occurs when a couple chooses to live apart without getting divorced. There are several types of separation:
•Permanent separation – in a permanent separation, the couple has already made a decision not to get back together. They are actively choosing to live apart. Therefore, any material gains and losses are the individual’s rather than the couple’s responsibility but marital assets until a final hearing.
There are two types of divorce: fault and no fault. In the past, the spouse filing for divorce had to show evidence of wrongdoing on the part of his or her partner. Today most states no longer require it. There may still be divorce cases, however, when showing that one partner is at fault may be worthwhile. The following is a description of each type of divorce.
In some cases, one partner can be shown to be at fault in a divorce. This is most common when abuse is an issue. One spouse may also be found at fault if it can be shown that he or she is guilty of adultery or abandonment. In addition, a fault divorce may be given if one partner is unable to engage in sexual intercourse or if he or she is in prison. In some cases, the divorcing spouse may want to file a fault divorce, because he or she may be awarded a greater share of the couple’s assets. Fault divorces also tend to be processed more quickly as there is no separation period like the one required for a no fault divorce.
A no-fault divorce is much less complicated than a fault divorce. In a no fault divorce there is no need for evidence or proof of wrongdoing. Instead, any legally recognized reason for divorce is acceptable. Generally, “irreconcilable differences,” or the mere inability to get along, is considered a valid reason for no fault divorce. This means that the other spouse cannot prevent his or her partner from filing for divorce. By challenging the decision, he or she only lends merit to the fact that the couple does not see eye to eye.
Child custody refers to the custody of children in the event of a divorce. Custody battles can be hard on the children, so it is important that custody be resolved as quickly as possible.
There are four main forms of child custody: legal custody, physical custody, joint custody, and sole custody:
•Legal custody – a form of child custody that grants one parent the right to make decisions regarding the child’s upbringing. This includes where the child goes to school and what their religion will be. •Physical custody – a form of child custody that grants one parent the right to live with the child. •Joint custody – a form of child custody that awards joint legal custody, joint physical custody, or both to each parent. When parents are awarded joint legal custody they must agree about decisions regarding the child’s upbringing. When parents are awarded joint physical custody, the child will spend equal time living with the mother and the father. When parents are awarded both joint legal custody and joint physical custody, both scenarios above apply. •Sole custody – a form of child custody that grants one parent both legal custody and physical custody of the child.
In instances where neither parent is able to care for the children, another party such as a grandparent or other relative may be given custody,
Visitation refers to the rights of a parent who does not have physical custody of their children to visit them at specified times. There are three main types of visitation: reasonable visitation, fixed visitation, and supervised visitation.
- Reasonable visitation refers to a court order that grants visitation at reasonable times and places. In this instance, the times and places are left to the parents to determine. However, because the parent with physical custody is not legally obligated to agree to a schedule, this arrangement usually gives them more control over visitation rights, such as the times, places, and duration of visits.
- Fixed visitation refers to a court order that specifically orders the times, duration, and places of visitation. This arrangement works best for parents who are extremely hostile toward each other.
- Supervised visitation is usually granted in cases where the parent without custody has a history of violence toward the child or their former spouse. In this instance, an adult supervisor must be present during each visitation.
Parents have an obligation under the law to provide support for their children. When parents divorce, each parent still retains that duty. Child support is a form of payment that must be made by the parent who does not have custody of the children after a divorce. If one parent has sole custody of the children, then that qualifies as supporting the child. The other parent, who does not have custody, must make monetary payments to contribute to the care of the children. In cases of joint custody, child support payments are based on the parents’ relative incomes and the amount of time the children spend with each of them.
The amount of child support varies considerably both from state to state and from case to case. Some of the factors considered when deciding how much the supporting parent will pay include:
• How much the parent with custody makes, has, and needs
•How much the parent without custody can afford to pay •The children’s educational, health, and other needs •What the children’s standard of living was before the divorce
The law takes child support payments seriously. If a parent fails to pay court-ordered child support, several different enforcement acts can be used to compel him or her to pay. In cases where the owing parent refuses to pay, he or she may face time in jail.
Child support must be paid until one of the following conditions is met:
•The child reaches the age of 18 •The child is legally emancipated •The child goes on active military duty
In cases where one parent is awarded sole custody of the children, the other parent is required to pay child support. In cases of joint custody, one of the parents may be required to pay child support to the other, depending on their relative incomes and expenses and how much time the children spend with each parent.
Not all cases of child support are clear-cut, however. Paternity issues often arise in child support cases. The following provides an overview of who must pay child support: •The biological father of a child born out of wedlock •A man married to the mother when the child is conceived •A man who marries the mother after the child’s birth and agrees to support the child •A man who takes in a child, which he rears as his son or daughter
Fathers with custody have a right to be paid child support by the mother as well. Stepparents are not required to pay child support.
Alimony is defined as a payment from one spouse to the other pending separation or after divorce. Alimony is also referred to as “maintenance” in some states. In the majority of cases, alimony is paid to the wife from the husband, although the wife may be required to pay alimony if the husband is the homemaker and primary caretaker of the children.
There are several types of alimony, including::
•Permanent alimony – a type of alimony awarded after divorce. Permanent alimony consists of regular payments that may change in amount or end if the receiving party remarries. •Temporary alimony – a type of alimony awarded pending a divorce or separation. Temporary alimony consists of payments that include enough money to afford the lawsuit and money to take care of needs until permanent alimony can be established. •Lump sum alimony – also known as alimony in gross. Some states allow lump sum alimony payments that permit spouses to pay their alimony all at once.
It is very important to keep track of alimony payments in the event that there is a disagreement between the two parties. The spouse receiving alimony may make a claim in court that the spouse paying alimony has not been doing so, and the payer may be sued for back support. In addition, the IRS may challenge alimony payments that were made or received, and the payer may lose the alimony tax deduction.
In order to avoid these situations, the spouse paying alimony should:
•Keep a list of all payments with the date, check number, and address to which the alimony payment was sent. •Keep the original checks in a safe place, such as a safe deposit box. •Keep a receipt signed by the recipient if alimony was paid in cash.
The spouse receiving alimony should:
•Keep a list of all payments received with the date, amount received, check number, account number of the check, and name of the bank the check is drawn from. •Keep a photocopy of each check or money order. •Keep a copy of the receipts if alimony was paid in cash.