UNIT 5: Family Law
Chapter 34
Separation, Divorce, and Custody
This chapter covers procedures for ending a
valid marriage through separation or divorce,
as well as the many legal issues raised by
divorce, including child custody, alimony &
child support, & property division
 If parents remarry or find a new life partner,
new relationships are created for stepparents
& children
 All of these changes involve the law
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Marriage Problems
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Married couples may encounter difficulties as a
result of numerous social, economic, & personal
factors
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Conflicts w/in-laws or relatives
Job & career pressures
Adultery
Conflicts about children
Sexual problems
Breakdowns in communication
Alcohol/drug abuse
Money problems
Loss of shared goals or interests
When couples are unable to resolve problems
on their own, they may seek help from outside
sources, such as friends, family, or clergy
 Major differences may require the couple to
seek the help of a marriage counselor,
psychologist, or social worker
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 A marriage counselor can help them explore the
reasons for their problems &, ideally, work out a
solution
Separation and Divorce
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Some couples are unable to resolve their
differences & choose to either separate or
divorce
 When a couple separates, they remain married but
live apart; short or long time; still legally married
 A divorce is a court order that legally ends a valid
marriage; once a divorce is final, each partner may
legally remarry
In fact, state laws play a great role as to how
& under what grounds a couple can obtain a
divorce
 Although divorce legally ends a marriage, the
two parties might still be responsible to each
other financially, especially if children are
involved
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Separation
 Due to the many financial, legal, & emotional
hardships that come with a divorce, most states
require that couples seeking this option enter a
period of separation
 During this time, both spouses have time to
consider the consequences of ending the marriage
& to get their affairs in order so that they can go on
w/their separate lives
 Also helpful to couples that have kids
Some couples won’t consider divorce for
religious or other reasons
 Sometimes the couple needs time apart to
consider the future
 A separation rather than a divorce may be the
best option
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A separation agreement is a written document
that sets out the couple’s agreed-upon terms for
child custody & visitation, child & spousal
support, division of property, etc.
 Often the result of mediation
 Can say anything both parties want it to say
 Does not have to be approved by the court although
can be (can only be altered by court or if both couples
agree)
 If signed by both, it is a legally enforceable contract; if
not followed, 1 party can take the other to court
 Usually forms the basis for the final divorce decree
(court order)
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Divorce
 > 1 million couples are divorced each year in U.S.
 About ½ of all marriages end in divorce
 The process by which a couple legally ends their
marriage & divides their property
○ Legal relationship is not ended
○ May be continuing financial obligations, & if there are
children, continuing rights & responsibilities that the
parents must share
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Ending a marriage can be expensive
 Legal fees (or Pro se (do-it-yourself kits); classes;
Internet), alimony, child support payments, cost of
maintaining 2 households
 Emotional cost on family, friends, work
 Long-term effect on life & kid’s lives
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Because of the difficulties that arise, mediation is
often recommended or required – the presence
of a neutral 3rd party to assist couples in
identifying, confronting, & solving problems
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2nd or 3rd marriages present additional
difficulties
 Each partner may bring in problems left over from a
previous marriage
 There may be alimony, child support payments,
debts to resolve
 Children & parents from previous marriages often
form a “blended family”
 Children gain stepparents/siblings; spouses
acquire stepchildren
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At 1 time, most states allowed divorce only if 1
spouse could show that the other spouse had done
something wrong or was at fault
Typical grounds:
 Adultery – sexual intercourse bet. a married person &
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someone other than his/her spouse
Desertion – leaving one’s spouse w/no intention of returning
Mental cruelty – acts of emotional abuse against one’s
spouse
Physical cruelty – acts of violence or physical abuse against
one’s spouse
Insanity – mental illness
Proving that 1 spouse was at fault was difficult
 Divorce used to cause great embarrassment
 A finding that 1 spouse was at fault would
prevent him/her from receiving any support
after the marriage ended
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Most states now have a no-fault divorce system
 A spouse doesn’t have to prove that the other spouse
did something wrong
 Instead, the husband or wife has to show only that there
are irreconcilable differences
○ This means that the marriage has completely broken down
& is beyond repair
 Many states also allow divorce when a couple can show
that they voluntarily lived apart for a certain period of
time, whether or not it was a formal period of separation
 Some people say it is too easy to get a divorce now 
high divorce rates; thus, some states have lengthened
the time it takes to get a no-fault divorce
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In 1997, Louisiana passed a law enabling
couples who are planning to marry to choose a
covenant marriage instead of obtaining a regular
license to marry
 Couples choosing a covenant marriage agree in
advance (in writing) to make no-fault divorce more
difficult to obtain
Under traditional marriage laws, a couple must
separate for 6 months before getting a no-fault
divorce
 To end a covenant marriage by no-fault divorce,
the couple must separate & live apart for 2 years
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Covenant marriages try to encourage lifelong
commitments by both partners, thereby aiming
to reduce the divorce rate, by limiting access
to relatively easy divorces
 Couples who are already married also have
the option to convert their existing marriage to
a covenant marriage
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Child Custody
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Once a divorce is final, parents must decide
who will have legal responsibility for the
children—this is called custody
 The parent who gains custody becomes the
primary provider & guardian, while the other
parent, the noncustodial parent, is granted
visitation rights & may be responsible for some
financial support
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In 2000, > 25% of minor children in the U.S.
were living w/single parents—many of these
situations were the result of divorce
Custody decisions are important because the
parent w/custody decides most aspects of the
child’s life, such as where the child will live &
go to school
 Custody may be temporary or permanently
awarded to 1 parent
 It is rarely changed
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In some cases divorced parents can both
remain primary guardians of their children by
obtaining joint custody
 Both parents have full responsibility for the child’s
supervision; both have an equal say in important
issues, such as schooling & religion; child may live
part-time w/each parent; most courts are unwilling
to approve a joint custody request unless the
parents can demonstrate an ability to work well
together
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Tender Years Doctrine - Traditionally the
courts presumed that young children were
better off w/their mothers
 Today, most courts have laws that require courts to
treat men & women equally in custody disputes
 In reality, some judges still favor the mother,
especially if the child is young
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If a couple is unable to agree on a custody
decision, the court awards custody based on the
best interests of the children
 Courts look at factors such as:
○ Youth’s actions in the home, school, & community
○ Emotional & economic stability of the parents
○ Which parent has stronger bonds w/the child
○ Which parent has been the primary care giver
○ Courts also consider the child’s desires – especially as
they get older (12)
○ Courts also can assign a social services agency to study
the parents & child(ren)
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Kinship Care - Increases in substance abuse,
divorce, incarceration, & other family &
community crises have resulted in many
grandparents & other relatives raising children
whose parents can’t
 In 2000, > 2.4 million grandparents reported that
they had primary responsibility for meeting their
grandchildren’s daily needs
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Many states have passed laws that allow
grandparents to petition for visitation rights if
the child’s parents will not voluntarily grant
visitation to them
 Challenges to these laws brought by parents have
been upheld in many states
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In Troxel v. Granville (2000), the U.S. Supreme Court
struck down a WA state law that allowed visitation by
any person who could show that such visitation would
be in the best interests of the child
 The Supreme Court was concerned that such a broad
granting of visitation rights to 3rd parties—even to family
members, including grandparents—would undermine a
parent’s fundamental interest in the care, custody, & control
of his/her children
 The Court was concerned that this statute didn’t give proper
deference to a parent’s wishes, but instead placed a burden
on the parent to prove that a 3rd party’s wishes to see his/her
child would not be in the child’s best interest
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Some custody disputes are so bitter, that 1 parent
takes the children from the other parent & hides
them
 This may involve moving to another state; or they may
move constantly to avoid being found
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The Federal Parental Kidnapping Act of 1980
prevents parents who abduct their children from
getting new custody orders in a different state
 It also provides resources to help custodial parents
locate their missing children
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The Uniform Child Custody Jurisdiction &
Enforcement Act (UCCJEA) has now been
passed in all 50 states
 A custody decree entered in 1 state is valid in all
states
 A parent w/o custody can’t remove his/her kids
from their home state & attempt to obtain a
different custody order in another state
 Most states have statutes that make parental
kidnapping—taking or hiding a child from a parent
who has custody—a crime
Alimony, Property Division, and
Child Support
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The distribution of money & possessions is a
highly debated topic during a divorce—who
gets the car and the house?
 This type of decision is called property division
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The final divorce decree will also involve an
agreement about support to one of the
spouses—alimony—as well as child support
Stepparents
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When a divorced person marries a person
with children, he or she becomes a stepparent
 Stepparents are not considered parents unless
they have permission from the biological parents &
legally adopt the child or children