In colonial times, and even after independence, divorce law in the United States varied widely across the states, with southern states generally more inclined toward the English aversion to absolute divorce than their northern counterparts. By the late nineteenth century, every state had moved to a fault-based divorce regime, which authorized absolute divorce, but only for an innocent spouse who could prove that the other spouse had engaged in serious marital misconduct. Such misconduct typically included adultery, cruelty, or abandonment. Without proof of such wrongdoing, divorce was unavailable, no matter that the spouses disliked or even hated each other.
By 1969, dissatisfaction with state restrictions on divorce had led California to enact a statute allowing divorce without a showing of fault. The act went into effect under the signature of then Governor Ronald Reagan. Shortly thereafter, in 1970, the National Conference of Commissioners on Uniform State Laws boldly approved a Uniform Marriage and Divorce Act (UMDA), which authorized divorce upon a showing that a marriage was “irretrievably broken” without regard to marital fault. The states quickly followed suit. By 1985, every state had amended or replaced its divorce statute to allow divorce without a showing of fault.
English common law provided for no civil divorce, and the Church of England only allowed separation without remarriage. Nineteenth-century feminists first interpreted legal divorce as a means of escape for women trapped in marriages to cruel husbands. It was a question of overturning autocratic policies that forced women to stay in marriages regardless of their suffering. Ever since, liberalization of divorce laws and procedures has been regarded as giving women choices in situations of domestic difficulty. But this support also has been tempered by the realization that divorce may hurt women. Before women had access to education and jobs, keeping a marriage intact meant economic survival. Despite improvements in employment opportunities, women continue to suffer a loss of economic and social status in divorce, relative to men.
When divorce first became legal, it was a marked departure from the widespread agreement that marriage should be for life and that divorce was immoral. The debate was grounded in a religious context, and lawmakers found justification in the Bible for their growing realization that there were some evils, such as adultery, even worse than divorce. Feminists were ready to submit that physical abuse was another such evil. Thus, early divorce laws were based on the concept of fault; a divorce, undesirable though it was, could be granted if one spouse could prove that the other had committed a transgression so serious that the very purpose of the marriage had been destroyed. In the United States, every state except South Carolina adopted fault-based divorce laws; all included adultery as grounds. Most states soon added cruelty and desertion; it was assumed that husbands would be more likely to sue for adultery, and wives for physical cruelty and desertion.
Still, the demand for divorce usually has been greater than the capacity of the legal system to handle it. When divorce demands started to increase after the Civil War, debate over divorce laws spread. Liberals who saw divorce rates as symptomatic of a social problem collided with conservatives who were appalled at divorce mills in the western states and demanded a crackdown on couples trying to evade their moral responsibilities. Nevertheless, well into the twentieth century most legislatures declined to act, leaving the courts to deal with the mounting pressure for divorce. Fault-based divorce laws were bent as couples concocted evidence, lied, and conspired to gain their freedom.
When liberalization of divorce laws finally began in the 1960s, it was not the product of an organized campaign for easy divorce. Instead, many lawyers quietly reported that the outmoded laws had made shambles of courts’ and judges’ pretensions to being fair, impartial, and objective. They recognized that the concept of marriage as a partnership of equals was becoming more accepted in society. They reasoned that marriages didn’t end because one spouse was guilty of fault and the other was innocent. Marriages failed for complex reasons, and both spouses were responsible. According to these lawyers, divorce was not a problematic consequence of immoral behavior but, rather, the remedy for a failed relationship. They suggested that the responsibility of the courts should be first, to determine that marriages had in fact broken down, and second, to end them fairly.
These ideas constituted a theory of divorce based on marital breakdown. In 1969, California became the first state to abolish its old fault-based statute and allow divorce for “breakdown.” The UMDA, developed by the NCCUSL, offered a model statute that prompted legislators to examine traditional divorce laws. Today couples can get nofault divorces throughout the United States (New York, after decades of debate, became the last not to rely solely on fault-based divorce). Along with breakdown, no-fault grounds include incompatibility, irreconcilable differences, and separation. With separation, divorce usually is granted after the couple has lived apart (or, technically, not had sexual intercourse) for a specified period, usually one or two years. Concerns about a rising divorce rate, and its consequences, led some conservatives in the 1990s to advocate covenant marriages, marriage contracts in which both parties to agree a far narrower set of circumstances under which the union might be dissolved including, for example, abuse or adultery. Louisiana adopted the first such law in 1997. Although only Arizona and Arkansas followed suit, the idea still sometimes finds its way back onto state legislative agendas.
An experienced North Salt Lake Utah divorce lawyer can get you the alimony that you rightfully deserve. Fighting a divorce lawsuit in North Salt Lake Utah without the assistance of an experienced North Salt Lake Utah divorce lawyer is a one way ticket to disaster.
If a couple can reach an agreement about alimony and property with each other and their attorneys, the courts usually will accept it. When the parties cannot agree, however, a judge must decide. In fault-based divorce, when unity and separate-but-equal theories of marriage prevailed, the first concern was to provide financial support for the dependent, “innocent,” wife. Alimony was seen as the continuation of the husband’s financial responsibility after the marriage ended. It was paid by a man to a woman for the rest of her life, or until she remarried and thus became the responsibility of a different breadwinner.
All statutes are now gender-neutral and probably will remain so, since the Supreme Court has ruled that allocations of alimony responsibility by sex violate the Equal Protection Clause of the Fourteenth Amendment (Orr v. Orr 1979). Despite the language, almost all alimony claims are made by women against men (the percentage of awards made to men remains in single digits). State statutes provide authority for judges to pursue two main approaches. There is the “needs/means” model to determine if the potential recipient is deserving of permanent alimony. Claimants can appeal to a set of guidelines found in nearly all states’ statutes. These include the length of the marriage, the earning power and assets of the spouses, the age of the spouses, and their respective work statuses. Other judges may opt for the “clean break” approach, which tries to end any financial commitments of divorced couples as soon as possible. One way to settle things is to order lump sum alimony in the form of a one-time financial settlement. The emerging consensus that both women and men can and should become self-supporting after divorce has led to an increase in temporary alimony sometimes called rehabilitative maintenance. The purpose of temporary alimony is to support the dependent spouse only for as long as it takes for her/him to become self-supporting.
The trend toward no-fault divorce and the concept of shared partnership have changed the definitions and applications of alimony laws, but, so far, there is little agreement on their purpose and rationale. About half the states expressly forbid courts to take fault or misconduct of spouses into account in making alimony arrangements, while the other half make it relevant. New terms, such as spousal maintenance and spousal support, appear. The ALI proposes the idea of “compensatory payments.” It recommends that the needs/means approach be dropped in favor of making the financial loss resulting from marriage dissolution equitable between the spouses.
Patterns of property division between husbands and wives have depended on the marital-property regime. Under coverture, the property remained with the husband. With separate-property reforms, divorce involved the unscrambling of titles, determining who paid for what. This still left most of the property in the hands of the husband in a typical divorce. An appreciation of the value of homemaking, as well as the idea of marriage as a shared partnership, has contributed to a new concept of equal distribution of marital assets in divorce in separate-property states. This concept has little meaning during marriage but, at divorce, it entitles both spouses to an equal claim to the assets of the family. The UMDA, for example, calls for courts to divide marital property without regard to fault and to consider economic contributions of both spouses as well as that of a spouse as homemaker. Such provisions thus attribute some economic value to homemaking.
A few states have reached an equitable property distribution policy either by enacting new divorce statutes modeled after the UMDA or by amending their existing statutes. Other states rely on court rulings to guide their judges. Nearly all states require that property divisions be equitable, or just, and order their judges to consider the contributions of the homemaker to property acquisition and maintenance. Half the states consider work done by one spouse to further the education of the other to be one such contribution. With respect to fault, a majority of the states consider misconduct to be a factor in distributing property.
Legal concepts of parental rights and responsibilities in traditional husband-wife relationships regarding the children of their marriage have paralleled closely the theories of marital gender roles. Under unity, fathers had all rights to the children, along with everything else. Children began work at an early age and were valued for their economic contribution to the family. The father controlled them, provided for their support according to his resources and preferences, and had title to their earnings. In the nineteenth century, the idea of separate spheres changed the wife’s role from chattel to full-time mother with responsibility for her children’s care and education while the father supported them. This change coincided with declines in child labor; children became an economic liability. Finally, the concept of marriage as a shared partnership envisions the father and the mother equally involved in parenting and, thus, equally responsible for the support of their children.
Today, laws regulating parental duties in an ongoing marriage tend to be gender-neutral, placing rights and responsibilities on both parents equally. Nevertheless, by custom children are most often given the name of the father, not that of the mother; indeed, for the purposes of data collection, some states count every child born to parents with different last names as illegitimate. Still, when the question of name is reviewed, most states recognize that naming the child is the choice of the parents. With respect to support, many states have gender-neutral statutes, placing more responsibility on the primary earner or breadwinner; this person is likely to be the father. Parents retain equal rights to custody and control of their children, consistent with shared-partnership concepts, although implementation of this ideal is challenging. It is also a principle not always applied to nontraditional relationships. As with other aspects of family law, the parental-responsibility statutes have few direct effects on activities in families that are intact. Most of the law affects parental responsibilities and rights only when relationships end.
Physical and Legal Custody
Legal custody refers to parents’ rights to make decisions about the child’s life—such things as education, religious upbringing, health care, and play activities. Physical custody involves the primary residence of the child. Policy and practice in determining both types of custody in divorce closely parallel the changing societal views of gender roles in the family. Until the 1970s, child custody referred to both legal and physical aspects. Under common-law unity, divorce was rare, but separation did occur; in either case, the father had first claim to the children. With the growing attention to motherhood and the mother’s educating the children, two principles about custody took hold. The first related to the welfare of children: states amended their statutes to award custody in the best interests of the child. Most of these statutes were gender-neutral. But, in the courts, many judges followed the second principle. They concluded that the child of tender years belonged with the mother: “special, even mysterious bonds existed between mother and young child which, all other things being equal, made her the preferred parental custodian”. These two principles resulted in placing nearly all children of divorce in the custody of their mothers.
The concepts of equality and shared partnership in marriage have since eroded the tender years principle. Nearly all states have statutes declaring that either parent may be awarded custody and establish gender-neutral guidelines to courts. Such guidelines include—largely in keeping with the UMDA of 1970—the fitness of parents; which parent was the primary caretaker during the marriage, has the greater ability to provide a stable home, and will cooperate best with the other parent; the children’s wishes; and evidence of domestic violence and abuse. The idea of equal sharing in marriage also has stimulated most states’ lawmakers to encourage joint legal custody and even joint physical custody for children in a divorce.
The search for a proper standard in determining custody goes on and remains both controversial and complicated, particularly in the growing number of custodial-parent relocation cases. The answer varies depending on the way the problem is defined. Child development experts focusing on the child’s point of view argue that stability and continuous care are best. This may lead to a preference for the parent who was the primary caregiver during the marriage. Primary caregiver laws are gender-neutral versions of the tender years principle. Other people argue for both parents’ rights to a relationship with the child and that, as far as custody is concerned, mothers and fathers are interchangeable.
The state of Utah has gender-neutral statutes regarding child support corresponding to their gender-neutral custody laws. But, since mothers tend to have custody, most courts order the fathers to make support payments. and the effects of nonsupport on welfare expenditures have brought state and federal welfare administrators into the picture in an active way.
Legislatures have increased courts’ authority to garnish the wages and property of delinquent parents, and many counties now have offices to enforce support orders. Thus, mothers don’t have to go to court each time that check doesn’t arrive. These agencies often collect directly from fathers, thereby eliminating the need for contact between parents over the money. The Uniform Reciprocal Enforcement of Support Act (URESA), enacted in every state, at least in principle, has cut off one avenue of escape: moving to another state. States pledge to enforce one another’s support orders. Also, state lottery winners sometimes find their winnings reduced to make up for back child support payments.
The federal government’s role in child support issues has increased since the establishment of the Office of Child Support in the 1970s. The Parent Locator Service can trace absent parents through social security numbers. Income tax refunds can be withheld. Joining the armed forces to avoid support is no longer an avenue of escape either, because federal wages can be garnished. In 1992, Congress passed the Child Support Recovery Act, making it a federal crime for parents who are able to pay to avoid child support due their children living in another state. A 1998 amendment—the Deadbeat Parents Punishment Act—extended its reach and increased available penalties, which now include fines and jail time. The act also authorizes funds to help states enforce their own criminal laws relating to support.
These policies have arisen because Congress has paid special attention to the relationship between child support and welfare budgets. Aid to Families with Dependent Children (AFDC) defined state aid to the poor as assistance to needy children; as costs of welfare rose, public authorities looked to delinquent fathers as a cause and a remedy. With the end of welfare entitlements due to the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) in 1996 CCWI won special provisions to compel states to require financial support from both parents. Although directed at welfare recipients primarily, more effective mechanisms—including the Child Support Recovery Act—for the collection of child support can help all parents.
Common-law traditions reflected the religious conviction that fornication and cohabitation were immoral and thus illegal. Those who practiced such behavior were fortunate to stay out of jail, let alone have grounds to assert marital-style property rights. The law usually had some sympathy, however, for a woman who had been “seduced and abandoned” or promised marriage by a man who stole her chastity and her possessions. It was not until the 1970s, when states began to repeal criminal sexuality statutes, that women appealed to contract or community-property principles to assert their rights to support or property from former live-in boyfriends. Usually the women based their claims on an oral or written contract, asserting that their homemaking duties gave them an interest in the property, the way that homemaking may give married women an interest in marital property.
Who gets custody?
There are minor children in roughly half of all divorces. Who gets custody? Typically, both parents are fit; both have a constitutionally protected interest in rearing their children; but both have also chosen to live separate lives. Neither has a superior constitutional claim; and courts simply have to apply the state standard for handling custody disputes. Along with fights about money, custody disputes are at the heart of many contested divorces.
From the colonial period through the middle of the nineteenth century, fathers had “an almost unlimited right to the custody of their minor legitimate children.” This reflected the general thrust of family law, which was essentially patriarchal. In case of divorce—a rare event—a father had the right to custody of the children; he could also, at least in theory, designate a guardian for the children, other than their mother, when he died. The first women’s movement, in the mid-nineteenth century, demanded equal rights to custody and guardianship of children. Society, and gender relations, changed dramatically in the nineteenth century; and the law of parental rights began to reflect those changes. Judges began to adopt and apply a “tender years” doctrine to custody disputes, which presumptively placed children under age seven with their mothers. Older children were often placed with the parent of the same sex. The “separate spheres” ideology held that men and women had very different roles in society. Women were in charge of home and hearth; men were breadwinners and involved in public life. Children thus needed to be nurtured by the parent whose role they were destined to replicate.
This shift to a “best interests of the child” standard gave great power to judges, who had virtually no limits on their discretion. By the opening of the twentieth century, every state followed some version of this test, but still with a strong maternal preference, at least for younger children. In the twentieth century, particularly in the second half, custody law and practice would undergo certain changes. Judges would have a bit less discretion, formal standards would be unisex; and shared parenting after divorce would become more popular.
The “best interests” standard has often seemed hopelessly vague. A 1966 Iowa case, Painter v. Bannister, often strikes people as a case where the standard went seriously awry. Harold Painter’s wife and daughter were killed in a car accident. He left his son Mark temporarily with the wife’s parents, the Bannisters, until he could get back on his feet. Harold remarried and tried to reclaim Mark; but the Bannisters refused to let go of Mark. An all-out custody war began; both sides tried to prove they could best serve Mark’s interests. The Bannisters were good folks from Iowa, capable, in the court’s view, of offering Mark a “stable, dependable, conventional, middle-class, middle-west” life. Harold, who was something of a free spirit, could offer him a “more exciting and challenging home,” and an “opportunity to develop his individual talents.” But the home would be “romantic, impractical and unstable.” Harold lived in an unpainted house (unpainted by choice), with a yard full of “uncut weeds and wild oats.” Harold took a “Bohemian approach” to life, the court noted, and has “read a lot of Zen Buddhism.”
A child psychologist, who spent twenty-five hours “acquiring information” about the case, claimed that Mr. Bannister had become a “father figure” to Mark, and that Mark was happy and well-adjusted. The court in Painter was careful to make clear that it believed both Harold and the Bannisters were “fit” to raise Mark. But they chose the Bannisters, even though normally a fit parent has a virtually absolute right to keep his child. Harold wrote a book entitled Mark, I Love You, and Mark eventually chose to return to his father.
Painter would come out differently today; the Supreme Court has strengthened the constitutional rights of parents, particularly when fit parents are pitted against non-parents. But the case illustrates some disturbing features of open-ended custody decisions—heavy reliance on psychological experts, loose propositions about what is most beneficial for children—and too much discretion in judges; the values of the Iowa judges obviously influenced how they defined the “best interests” of the child. Painter and other cases like it frightened legislators and policymakers into reining in the “best interests” standard by adopting rules rather than standards—simpler, more mechanical devices that ideally would be applied consistently from case to case, instead of the empty formula of “best interests.”
Beginning in the 1970s, custody statutes began to enumerate factors to guide a “best interests” determination, or to adopt presumptions that would all but dictate the outcome in certain types of cases. Typical factors range from parental age and health to earning capacity, ability to nurture, and living arrangements. Children of a certain age might get to voice an opinion, too. This does not eliminate judicial discretion, but it narrows the inquiry at least somewhat. At the same time, the maternal preference—formally recognized in some states, but informally lurking virtually everywhere—gave way to a gender-neutral standard in the 1970s. The ban on sex discrimination in the 1970s made it difficult, if not impossible, for states to defend sex-based classifications. The maternal preference was held to be unconstitutional, in favoring women and penalizing men who might be equally good parents. As the Utah Supreme Court wrote in a 1986 opinion, the “tender years doctrine was perhaps useful in a society in which fathers traditionally worked outside the home and mothers did not,” but it was now “unnecessary and perpetuates outdated stereotypes.” As one New York court observed, not all “mothering” need be done by a mother.
Now a days, the maternal preference was gradually replaced by a “primary caretaker” preference, which emphasized the functional aspects of parenting. Who made the children’s meals? Who bought their clothes? Who changed their diapers? Who planned birthday parties and play dates? Who took them to the doctor and got up with them in the middle of the night? Who remembered to give them the full course of antibiotics even after the infection was gone? That person—the primary caretaker— was best suited to have custody after divorce. Or at least it was a factor that weighed heavily in favor of the primary caretaker. This standard draws on the notion of competence—presumably the person who performed these often tedious and repetitive tasks would tend to do them better in the future—and continuity of care, a polestar of modern custody law. This idea also applies to modification of custody: in most jurisdictions, a court cannot revisit the “best interests” of the child once a custody order is in place unless the circumstances have changed substantially, and sometimes only after a specified period of time has elapsed.
Stereotypes about gender and parenting may be “outdated”; but the truth is, still, that most primary caretakers are mothers. That holds true even if they work outside the home.
In a number of cases in the 1990s, fathers argued that mothers who worked full-time and relied on daycare or a nanny should be denied custody. A mother in a Michigan case lost custody because she put her baby in daycare in order to attend college classes, even though the child’s father intended to rely primarily on his parents for childcare rather than to provide it himself. But most cases, especially more recent ones, have refused to treat working mothers as inherently unqualified, just as they have ceased treating all fathers as less qualified to raise children. A side story during the media firestorm surrounding the trial of O. J. Simpson for a brutal double murder was about the custody problems of Marcia Clark, the lead prosecutor. Her ex-husband sued for a change in custody, arguing that her “grueling workload was harming” their two young sons, leaving them “starved for affection.” In the end, Clark’s husband dropped his petition; but some women have suffered because of career ambitions. Women who work long hours can lose custody if a court feels this means their children would be better served by a different custodial arrangement. Sharon Prost, a lawyer for Senator Orrin Hatch, lost custody to her ex-husband because of her work schedule and professional commitments.
Custody fights can be bitter, with both sides bringing up their heavy artillery. The Academy Award-winning film Kramer vs. Kramer  depicted this on the big screen. Despite all the rules and the standards, the discretion of the judge is still crucial. To be sure, the judge will give some weight to psychiatrists, psychologists, and social workers; there is sometimes a desperate effort to enlist “science” in these cases, in the vain hope of finding a clear answer to a question which essentially lies beyond the power of science to answer—which parent is most fit? We hear about the Millon Clinical Multi Axial Inventory, used to ferret out “personality disorders”; the Bricklin Perceptual Scales, designed “specifically for custody evaluations,” and consisting of questions for the child, including “picture-drawing,” and asking the child to complete a “story about how the family resolves disputes”; and the Ackerman-Schoendorf Scales for Parent Evaluation of Custody. All of these have been criticized; all are probably at best weak guides to the solution of this often insoluble problem. Some courts have gone so far as to recognize “parental alienation syndrome,” a controversial and dubiously scientific label for a common problem—one divorced parent’s poisoning the children’s minds against the other.
Parental Behavior and Custody Disputes
An obvious question in assessing the relative fitness of parents is whether their lifestyle and conduct should be taken into account; sexual behavior, sexual orientation, and unpopular religious beliefs can be hot button issues in custody disputes, but the law over time has moved away from allowing them to control outcomes without proof of an effect on the children. Jacqueline Jarrett’s children were removed from her custody because she was living with a man to whom she was not married. Cohabitation was still a crime in Illinois at the time, and the state’s highest court saw no problem preferring the children’s other parent, who was not demonstrating lax morality and showing open disrespect for the state’s law. At no point in the case, however, did the court ask whether the children were being harmed, or even potentially harmed, by their mother’s actions.
Jarrett was not alone in losing a custody battle because of sexual behavior. Although the sexual revolution was in full swing by the 1970s, custody law was relatively conservative; it clung to the view that certain types of parental behavior were per se disqualifying. But the tide did eventually shift toward the modern “nexus” standard. Parental behavior of any type is relevant to custody determinations only if there is a proven nexus between it and the children’s well-being. A dissenting judge in Jarrett had argued for this standard, urging the court “to leave to the theologians the question of the morality of the living arrangement,” and focus instead on the record showing that the children were “healthy, well adjusted, and well cared for.”
These same issues were raised in cases when one ex-spouse took up with a partner of the same sex, after an earlier heterosexual marriage. Should a parent’s homosexual relationship be grounds for denying custody or visitation rights? Courts at first viewed this kind of parental sexual behavior as per se disqualifying. Sodomy was still illegal in a number of states until the Supreme Court’s 2003 decision in Lawrence v. Texas. Widespread social disapproval of homosexuality clearly played a role in custody cases. In a 1985 case, the Virginia Supreme Court held that the “father’s continuous exposure of the child to his immoral and illicit relationship with another man renders him an unfit and improper custodian as a matter of law.” But in later cases, views of parenting by gays and lesbians generally became more tolerant. A parent’s sexual orientation was no longer a per se disqualifier. Instead, the focus was on the potential impact on a child’s well-being. Courts thus looked for a nexus between a parent’s behavior or lifestyle and the child’s emotional, mental, and physical health. New trends in divorce law emphasized the freedom of men and women who divorce—freedom to start new lives, which might include relocating, pursuing new economic opportunities, and often a renewed search for romance. Courts in a few states are still dragging their feet, harboring at least a lingering suspicion that custody or visitation by a homosexual parent does not serve the best interests of the child. In 1998, the North Carolina Supreme Court affirmed a trial court decision removing children from the custody of their father because he was engaged in a homosexual relationship that “will likely create emotional difficulties for the two minor children.” But the strong trend is away from such views.
Custody awards traditionally were of only one type: one parent was awarded sole custody, and the other was perhaps awarded “visitation.” Sole custody basically meant decision-making power over all aspects of the child’s life, and physical responsibility for all aspects of a child’s care. But this arrangement often meant that relationships with the other parent were apt to deteriorate or disappear. One study of national data found that, after divorce, “nearly half of all children have not seen their nonresident fathers in the past year,” and many “have never set foot inside the houses of their nonresident fathers.” Children too are discontented; “more than half say that they do not get all the affection they need, and nearly as many say they are only fairly close or not close at all to their father.” Many non-resident fathers tend to “behave more like pals than parents.” The study concluded that in most families “marital disruption effectively destroys the ongoing relationship” between children and the non-custodial parent.
The joint custody movement was one response to these negative effects of sole custody. California pioneered this new arrangement in the late 1970s. With joint custody, parents can share “physical” or “residential” custody so that children go back and forth from house to house (or, in some cases, the parents go back and forth between the custodial house and another residence). Or they may just share “legal” custody, that is, both parents have a say in important decisions about education, religious training, and medical care.
In a few early cases, courts wondered if they had authority to order such a nonconventional arrangement, but most concluded that they did. In 1978, only three state custody statutes expressly provided for joint custody as an option; by 1989, thirty four states did. Joint custody became so popular in the 1980s that several states enacted presumptions in favor of it. Parents, in other words, if they wanted to avoid joint custody, had to prove that it was not the best arrangement for them or their children. But states have gotten over this infatuation with joint custody; they decided in the end that no single arrangement could be presumed best in all cases.
Joint custody is in many ways harder to establish and maintain than the traditional arrangement. Parents must have the capacity to make decisions together—even though, after all, they have recently gotten a divorce. They must be able to afford two of everything—beds, clothes, toys, musical instruments, bikes— so that children do not feel they are living out of a suitcase. They must live close enough to each other so that the back-and-forth travel is manageable for children and parents. And the children themselves must be secure and stable enough to handle all the moving around. On the other hand, fathers with joint custodial rights are more likely to pay child support. Children clearly benefit in most cases through stronger ties with both parents. But divorcing families are not all alike; and legislatures eventually decided to give back to the judges some of their discretion in deciding where the children’s best interest lies. Courts may consider what the parents want, what they can do, what the children want (if they are old enough to have a say), the money situation, geographical issues, what will and what will not disrupt the children’s education and social lives, and so on.
Joint legal custody is less difficult; but there is still plenty of potential for trouble. If one parent thinks the child needs a private school, and the other prefers a public school, who decides? Disagreements often led to the divorce in the first place, so it is hardly surprising that they continue afterwards. Some courts give the final say to the parent with physical custody; but the Michigan court, in Lombardo v. Lombardo (1993), gave judges the authority to resolve disagreements. Neither solution is perfect; each can lead to litigation; each can also undermine shared decision-making authority.
Today, joint custody remains popular as an initial order, although studies suggest there is often some “drift” back over time to a more traditional arrangement. Robert Mnookin and Eleanor Maccoby found, in nearly half the cases in a study of cases from 1984 and 1985, that joint custody arrangements reverted to sole custody by the mother within three years. Some feminists have criticized joint custody as favoring “the interests of non-caretaking fathers over caretaking mothers.” The American Law Institute has proposed a kind of compromise between sole custody and joint custody. The goal is to allocate custodial responsibility in proportion to the way it was carried out prior to the custody proceeding. Thus, a father who spent time with his children mostly on the weekends should have parenting time on weekends, while a more involved father should have time with them perhaps every day.
Parental Obligations: The Duty of Support
Parents have obligations with respect to their children. The increasingly formal nature of these obligations is among the more significant developments in modern family law. The growing number of children who do not live with both parents—over 30 percent in the last decade, up from only 8 percent in 1960—makes child support law very important. Current law binds fathers to children (legitimate or not). Also, the influence of the federal government has grown; and legislatures have been more active in rule-making than before.
A formal obligation to support children, in modern law, is a reversal of common-law notions. Under common law, “the parent’s duty to support was a mere moral obligation creating no civil liability.” But divorce codes expressly gave judges the authority to order support for children following dissolution. And every state, by 1931, had both a civil law requiring support for children and a criminal law to penalize non-support. On the criminal side, “family desertion” acts required men to support both spouses and children, including, in eighteen states, illegitimate children. In California, a father who, “without lawful excuse” did not provide food, clothing, shelter, and medical attention, for children (whether or not legitimate) was guilty of a misdemeanor. In some states, mothers had equal obligations of support; in others, no mention was made of any obligation; or it was secondary to the father’s. In California, the mother’s duty arose only if the father was dead or incapacitated. Iowa law imposed criminal liability on mothers and fathers for non-support of a “legitimate or legally adopted child”; it applied the same rules to any parent having “custody of a bastard,” but imposed a special set of rules on non-custodial unwed fathers.
Today, the general obligation of parents to support their children is at least loosely enforced through the abuse and neglect system. On the civil side, parents must support their children, with some variation on whether mothers are equally liable, and whether illegitimate children are equally entitled to benefit. Intact families, where children are raised by married parents, have always been by and large insulated from state intervention. These parents have the same obligations as unmarried or divorced parents; but the state does not look very closely into their level of support; and it does not intervene unless the parents are so neglectful that removal of the children from the home might be justified.
Child support can be awarded in paternity suits, which we discuss elsewhere, and in abuse and neglect proceedings, but for the most part the law developed out of divorce actions. For divorced couples, the duty of support changes. The duties of the custodial parent consist of day-to-day provisions for the child; this duty is enforced through abuse and neglect laws. For the non-custodial parent, the duty is enforced through a formal child support order.
Formal child support awards are not new; but they were not routinely imposed until the 1970s. And even then, awards were made too infrequently and in amounts too low to provide much protection for the children who were supposed to benefit from them. And there were “great inequities” in awards; the same courts and judges issued wildly varying awards. It was a system of unbridled judicial discretion. By statute, states authorized courts to impose child support obligations on noncustodial parents, but gave only general guidelines on amounts (for example, “just and reasonable”); and did not make awards mandatory. Judges tended to sympathize with non-custodial fathers, who often had no meaningful role in raising their children after divorce and yet were obligated to support them. A separate but important problem was the lack of sufficient enforcement mechanisms. Many fathers simply did not pay; this left many children of divorce in poverty.
Child support, like most family law issues, had traditionally been left to the states; but Congress took an interest in the subject because it was tied to welfare programs, which the federal government subsidized. Many divorced moms and children depended on welfare, sometimes because fathers were not paying. The Aid to Families with Dependent Children program (AFDC 1935), which was eventually replaced by the Temporary Assistance to Needy Families (TANF 1996), was supposed to provide assistance to needy children living with a single parent. Dramatic changes in household arrangements—a huge increase in divorce and in non-marital parenting—brought about a tremendous expansion in the size and cost of the program. These costs, rather than “social alarm over the plight of mothers raising children with insufficient support,” put child support enforcement into the spotlight.
In 1975, Congress created the Office of Child Support Enforcement as Part D of the Social Security Act (“the IV-D program”). This was the first time the federal government, and federal money, came to play a role in child support. In 1984, Congress took a bold step to reduce the dependency of children: it made state AFDC funding contingent on the adoption of methods to enforce child support. In 1988, Congress, by law, made support guidelines mandatory; deviations were permitted only in narrow circumstances. The federal law did not mandate any particular formula or guidelines; but the states, to keep their welfare subsidies, were required to ensure more adequate awards and greater consistency among them. The discretion of judges was limited. More money for children was supposed to end up in the hands of custodial parents. Consistency at least has by and large been achieved.
Children—this was the aim of the guidelines—were supposed to live as well as their parents lived. Property division and alimony are mainly left to couples to work out for themselves. But not child support. Judges have to stick to the guidelines, even if the couple agrees to a different amount. In a recent New York case, a separation agreement provided that the father could stop paying if his teenage son worked full time. The court refused to accept this arrangement. Parties “cannot contract away the duty of child support”; the contract had to yield to the “welfare of the children.” A child is emancipated, and no longer in need of child support, only when he is truly economically independent.
Under the stricter new approach, questions can be raised about “shirking”—are divorced parents under a duty to maximize their income, and thus maximize the amount of money they can use to support the children? Jane Chen was an anesthesiologist earning more than $400,000 a year. At the age of forty-three, she decided to “retire” and stay home with her three school-age children. She and her ex-husband, John Warner, also a well-paid physician, shared custody, alternating week by week. A court ordered Warner to pay $4,000 more per month in child support, to make up for Chen’s reduced income. He objected, however, arguing that she was “shirking” her duty to support her children. The Wisconsin Supreme Court disagreed; Chen’s decision was reasonable under the circumstances—and did not violate her obligation to support her children. However, most states do permit judges to calculate child support based on “earning capacity” rather than actual “income.” For example, a father who quits his job immediately before appearing at a child support hearing, in order to evade an award, might still owe child support based on what a court believes he could earn.
Many families still elect to have one parent stay home with young kids. Usually, this is the mother, even though women today have many job opportunities. She makes this choice because she trusts her husband to provide for the family as a whole. But trust is often lacking after a divorce; and conflicts can arise when one parent’s work or lack of work affects the other parent’s duty to pay child support. Because both mother and father have a legal duty to support their children, the court is thus invited to scrutinize, and perhaps override, a decision that most parents assume should be private. Courts retain jurisdiction over child support and custody awards until the children reach at least age eighteen. Parents can be judicially overruled throughout that time, on many important life decisions—whether, where, and how much to work; whether to relocate; and even whether to become involved with another adult.
No law and no judge would say anything about a married woman who chose to stay home with the kids. Nor even about an extremely rich husband who made his kids live like paupers; or a middle-class family that decided not to pay college tuition for the kids. An intact family has the luxury of making almost any decision about work, income, and expenditures that it sees fit—so long as this does not constitute “neglect.” But divorcing families do not have this autonomy. In some states, courts have the discretion, for example, to compel a non-custodial parent to contribute to college tuition, even though no such order would be issued against a married parent. The Supreme Court of Iowa ruled, in one case, that the legislature could authorize judges to issue orders for tuition payments. Most married parents support their children through the college years; but even “well intentioned parents,” who do not have custody, “sometimes react by refusing to support them as they would if the family unit had been preserved.”
In the end, the court honored Jane Chen’s decision to stay home. Even in the strict world of child support laws, there is some sympathy for stay-at-home mothers. In some states, child support laws expressly exempt a “nurturing parent” with young children. In Louisiana, for example, earning power is not to be imputed to the primary caretaker of children under age five.
High-income families pose a challenge for child support guidelines. Does any child really need 25 percent of a professional basketball player’s income? States often cap the amount of income subject to guidelines, but give judges discretion to give more, if the children would benefit. High-earners likely to have huge income swings in their career—professional athletes, for example—are sometimes ordered to set up a trust for future support of their children. Child support guidelines in the states vary greatly as to the treatment of high-income families.
Child Support Enforcement
Congress not only aimed to mandate guidelines for child support, but also to facilitate enforcement of awards. Child support has thus become a hybrid federal-state area of law—an unusual feature for family law. Congress has used both the carrot and the stick. States get performance incentives to improve collection rates. Mothers get incentives if they cooperate in establishing paternity—the first step toward getting a child support award. States, in turn, pass tougher laws for parents. Modern technology and various registries help courts, welfare agencies, and custodial parents track down so-called deadbeat dads when they move or change jobs. Government agencies give custodial parents help in this search, in establishing paternity, and in getting and enforcing child support orders. Deadbeat parents can lose their driver’s licenses. Their wages can be garnished. In extreme cases, they can go to jail. A parent who has more than $10,000 in unpaid child support for a child in another state can be charged with a federal felony.
Lawmakers and candidates have responded to the cry for tough measures against deadbeat dads. Finding and getting money from “AWOL fathers” has been one of the most “successful— and bipartisan—social policy crusades of recent years.” The sheriff’s office in one New Jersey county conducted a raid after Mother’s Day in 1998, arresting 629 “deadbeats” (forty-one were women) and collecting more than $88,000 in back-owed support. Those who couldn’t pay up were “sent to jail until they came up with the money or agreed to a payment plan.” And in 2002, federal agents conducted a “nationwide sweep” of deadbeat dads; the Bush administration had resolved to make aggressive use of federal criminal law to get men who “repeatedly flouted state court orders.” The targeted dads were not “dead broke” at all— among them were professional football players, psychiatrists, and restaurant owners. As a group, these dads owed more than $5 million in unpaid child support; some individual debts were as high as $297,000.
Rich dads are one thing; poor dads are another. The federal effort has focused on reducing welfare spending. Most of the money collected from poorer dads goes to reimburse the government for public assistance given to the children. The family thus gets little or no benefit from these payments. Some efforts have been made in recent years to structure the laws in such a way as to promote ties between fathers and their children, and not just focus on repaying the government, and punishing wrong-doers.
Despite federal intervention, a surprising number of eligible parents have no child support awards; or receive no money from the other parent.
Legally, there is no connection between visitation rights and child support. But fathers with formal custody or visitation rights are, in fact, more likely to fulfill their financial obligations.
Remarriage and Alimony
In Utah alimony terminates on the remarriage of the receiving spouse. The remarriage-termination rule begins with the general principle that an alimony award, unlike a division of property, is modifiable. Often, judicial authority to modify alimony is specifically granted by statute. The Uniform Marriage and Divorce Act (UMDA), for example, allows modification “only upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable.” Ordinarily, the changed circumstances that trigger modification involve economics—a reduction in the payor’s resources, for example, or an improvement in the recipient’s financial status—that warrant a decrease in alimony. When an alimony recipient remarries, however, a different rule applies: alimony is not merely modified, but terminated, usually with no possibility of revival, and without regard to the financial impact of the recipient’s new marriage. Remarriage alone is thus the termination trigger, typically without regard to any other factors usually relevant to modification. Whether it appears in statutory or case law, this notion that alimony should terminate upon a recipient’s remarriage is a baseline of contemporary American law.
Statutory Termination Rules
The majority of states provide by statute that alimony terminates automatically upon a recipient’s remarriage. One court’s survey classified automatic termination statutes into three rough categories: (1) immediate termination on remarriage; (2) termination upon petition and proof of remarriage; and (3) termination unless an agreement or decree provide otherwise.
The rationale for alimony was once simple enough: upon marriage a husband undertook a lifetime obligation to support his wife. While he could obtain a legal separation, rarely could he fully sever marital ties. The husband’s duty of support thus continued throughout the wife’s life, and alimony was the tool for enforcing his obligation. An integral part of this vision was the system of coverture, under which a married woman’s identity merged into that of her husband. The very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband under whose wing, protection, and cover, she performs everything.
If these visions of limited divorce and lifetime support sound peculiar to contemporary ears, they do one thing quite well—they explain the remarriage-termination rule. However a husband’s support obligation managed to survive divorce, that obligation is surely cut off when a new man takes on the task of supporting her. Upon remarriage, a new man becomes the ex-wife’s protector and provider, taking her under his wing and finally releasing the first husband from responsibility for her. This vision is neat enough: a “husband has a lifetime obligation to keep his wife from need until the obligation is assumed by another.” To take this reasoning a step further, allowing a woman to be the beneficiary of two husbandly duties of support would amount to polygamy, or at least to prostitution. The implication of such reasoning is that while a wife requires a husband’s support, the law does not much care which husband supports her. One husband is enough, and any husband will do. The remarriage-termination rule thus seems historically grounded in an unsettling view of husbands as necessary, if fungible, providers.
If the appearance of absolute divorce undercut alimony’s rationale, fault-based divorce sometimes supplies a new one. Cast as the remedy of an innocent spouse against a guilty one, divorce under a fault-based regime depends upon proof of marital wrongdoing, such as adultery, cruelty, or abandonment. The no-fault reforms of the 1970s did not entirely eliminate fault from judicial decision making. Many states simply added a no-fault ground to their existing fault-based laws. Even among states that disallow fault as a ground for divorce, marital fault may affect the economic consequences of divorce.
Fault may indeed explain alimony—at least in some states and in some cases. An adulterous spouse, for example, might be required to pay alimony as damages for breach of the marriage contract. Of course such a fault-based rationale would require only guilty spouses to pay alimony to innocent spouses; that is, no innocent spouse would ever pay alimony and no guilty spouse would ever receive alimony. Because such a limitation does not describe the law of alimony, fault can at best provide a partial rationale.
If alimony is cast as a damage award against a guilty spouse, what explains the remarriage-termination rule? Drawing further on the contract analogy, alimony might be designed to give an injured wife the benefit of her bargain—that is, to put her in the position she would have been in had her husband shared his income with her, for life according to traditional views of marriage. Nothing in this analogy to contract, however, explains why alimony should terminate upon a wife’s remarriage. Certainly, in contract generally, a party’s good fortune subsequent to a damage award does not require her to forfeit her damages. Even when a wife’s remarriage amounts to good fortune, it is difficult to see why her improved financial footing should absolve a former husband of liability for the wrongdoing that triggered the alimony award. A contracting party who wins the lottery need not return a damage award. And of course not every remarriage is a winning lottery ticket. Yet the remarriage-termination rule cuts off alimony, good fortune or no. Central to the no-fault movement was a new vision of divorce as an opportunity for a fresh start and a clean break—a vision that leaves little room for alimony. As we have seen, general no-fault alimony statutes give courts discretion to award alimony on the basis of a spouse’s “need,” though “need” is not defined. Moreover, “need” alone provides no rationale for alimony, for it fails to explain why a former spouse should be responsible for a claimant’s need.
By far the most common explanation for the remarriage-termination rule is the conviction that to allow a woman to collect support from two men—her ex-husband and her current husband—would be positively unseemly. In a much-cited case from 1930, a Connecticut court explained that to continue alimony beyond a wife’s remarriage would offend public policy and good morals. It is so illogical and unreasonable that a court of equity should not tolerate it. Well has it been characterized as legally and socially unseemly.
While later courts have sometimes taken up the rhetoric of unseemliness, more often they have softened their prose, opting for the less disdainful and less colorful language of unreasonableness. “To permit a spouse to elicit the support of two spouses simultaneously,” said the Alaska Supreme Court in 1982, “would be unreasonable.” The Massachusetts Supreme Court agreed, explaining in 1995 that ordinarily it is “‘illogical and unreasonable’ that a spouse should receive support from a current spouse and a former spouse at the same time.” Also in 1995, the Kansas Supreme Court opined that it is “against public policy to allow a payee to hold a claim against his or her former spouse for maintenance and hold a claim against his or her current spouse for the marital duty of support.” Speaking in 1981, an Alabama court seemed more alarmed by the possibility of continuance of alimony beyond remarriage. “Such is unconscionable,” said the Court “it is very inequitable.”
What explains this judicial intuition that continuing alimony beyond a recipient’s remarriage would be unseemly, repugnant, unconscionable, or at least unreasonable? While dramatic adjectives signal a conclusion rather than an explanation, the sense of impropriety evident in judicial prose hints at a familiar theme: a virtuous woman cannot have two husbands at once, and since alimony evidences a husband’s support obligation, it must end when a woman takes a new husband. Under the historical model of alimony, a wife needs and deserves her husband’s protective cover only until a new man takes on the obligation to support her. No woman can or should have the support of two men at the same time, for this would amount to polygamy, or at least to prostitution, both of which are positively unseemly.
Another popular explanation for the remarriage-termination rule is that the wife who chooses to remarry has thereby elected to relinquish her alimony. As the Nebraska Supreme Court explained in 1968, an alimony recipient has a “privilege to abandon the provision made by the decree of the court for her support … and when she has done so, the law will require her to abide by her election.” “If the dependent spouse has entered into a new marital relationship,” said the Alaska Supreme Court, “we think that the remarriage should serve as an election between the support provided by the alimony award and the legal obligation of support embodied in the new marital relationship.” “The policy behind terminating sustenance alimony after remarriage is that the wife has elected to be supported by a new husband,” reasoned the Ohio Supreme Court.
The election rationale does not depend on whether a second spouse is actually able to provide support, as one court acknowledged in terminating alimony upon a recipient’s remarriage to a man whose income consisted of social security and minimal retirement benefits. The low income of the wife’s new husband, said the court, “in no way diminishes the choice she voluntarily made to share her living expenses with him.”
Closely tied to the election rationale is the proposition that upon remarriage the second husband substitutes for the first. A final termination rationale comes from courts concerned with the possibility of multiple divorces and multiple alimony awards.
Alimony is complex. Always seek the assistance of an experienced North Salt Lake, Utah divorce lawyer. Nowhere is this complexity more evident than in the search for a conceptual basis for alimony in contemporary marriage. Numerous commentators have proposed theories of alimony that aim to answer a simple question: Why should anyone be forced to share income with a former spouse? If divorce severs the tie between spouses, if each spouse is entitled to a clean break and a fresh start as no-fault laws teach, what is the rationale for alimony? Contemporary commentators have long struggled to explain alimony in an age of easy divorce and equality rhetoric, but there is still no consensus on the answer to these questions.
In extreme cases, the pragmatic justification for alimony is simple enough: alimony protects the state from the job of supporting a divorced spouse who without alimony would be thrust into poverty.
In many cases, most divorcing couples have minimal property. If marital roles have disparately affected the spouses’ individual earning capacity—a common scenario in the many homes in which one spouse serves as primary caregiver—divorce will set one partner free to enjoy most of the long-term benefits of marital teamwork while the other bears most of the costs. As the U.S. Supreme Court observed in 1888, “marriage as creating the most important relation in life, as having more to do with the morals and civilization of a people than any other institution,” is “something more than a mere contract.” Marriage, the Court concluded, “is, rather, a social relation, like that of parent and child, the obligations of which arise not from the consent of concurring minds, but are the creation of the law itself.”
This view of marriage as something more than a purely consensual relationship afforded the necessary basis for extensive state regulations. Such regulations prescribed the age, race, sex, and number of marital partners, the incidents of solemnization and licensing, and the rights and obligations of the parties. Even the parties’ ability to terminate their relationship was strictly regulated through laws that limited divorce to cases of serious marital fault. Little was left to party autonomy.
The availability of no-fault divorce has led some to assume that marriage has become an at-will relationship, which makes a contract metaphor inapt. Actually, no-fault tends to affirm marriage’s status as a contract rather than undercut it. Easy access to divorce demonstrates a deference to private ordering—a principle that lies at the core of the law of contract. Marriage may be a forever commitment—marriage licenses don’t designate a term other than life—but like contracts in general, it is not an inescapable commitment.
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