In most cases Divorce is granted on a "no-fault" basis. This means that a divorce will be granted if only one party wants the divorce, and without regard to who may be at fault in causing the marriage to end. A divorce will be granted if one party states that the marriage is "irretrievably broken."
Property and Debt
The rules governing property division vary from state to state, and it is therefore important to consult with a family law attorney in your state to determine what rules the court will use to divide the marital property and debts. Broadly speaking, states can be divided into community property states, and non-community property states.
Property and Debt Division in a Strict Community Property State
Currently, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin are community property states.
In a state that follows community property rules, in general, any property or income accumulated during a marriage is owned half by the husband and half by the wife. Any property which was accumulated before marriage, or during marriage by gift or inheritance, is generally the "separate property" of the spouse who accumulated the property, and the property is wholly owned by that spouse. Debts are also divided into "community debt" and "separate debt."
When parties divorce, California, Louisiana, and New Mexico divide property and debts strictly according to the item's separate or community category.
Property and Debt Division in an Equitable Division State
All community property states except California, Louisiana, and New Mexicio, and in all non-community property states, courts make an "equitable distribution" of all property or debts.
In these states, the court does not have to divide property and debt strictly according to the community or separate designation. Instead, the court's job is to make a "fair and equitable" distribution of property and debt.
Both married and unmarried parents may ask the court to make a child custody determination. The result of a child custody determination will be a residential schedule, which outlines how much time the child will spend with each parent.
Most states today apply a "best interests of the child standard" when determining the residential schedule for minor children after a divorce. This standard is used to determine how much time the children will spend at each person's home, and which parent will be declared the primary, or custodial, parent.
Child support obligations begin when a child is born. This means that even if one parent did not know a child at birth, that parent will still be obligated to pay child support for the child from the time the child is born until the child is at least 18 years of age. This rule means that when parents have never been married, and never lived together the court may order retroactive child support, going back to the date of the child's birth. However, when a court enters a child support order at the parties' divorce, or for non-married couples who lived together, child support will start from the date of the separation.
Child support is generally calculated using a mandatory guideline, adopted by the state. Thus, the amount of child support a person will pay is generally based on a set schedule, which uses the age of the child and the parents' incomes to determine the amount. This mandatory amount can generally only be deviated from in certain limited situations.
Modification of a Current Child Custody Order
Courts are usually reluctant to modify child custody orders. Generally, current child custody orders may be modified only upon a showing of a "substantial change in circumstances," or a showing that the change in custody will serve the best interests of the child. Several factors are involved in determining whether a substantial change in circumstances has occurred, and a family law attorney in your state can advise you as to the factors which courts in your state apply.
Modification of a Current Child Support Order
In general, state courts allow modification of child support orders when there has been a "substantial change in circumstances." What constitutes a substantial change in circumstances varies from state to state. In some states, a change in one or both parents' incomes will constitute a substantial change in circumstances. In other states, a change in the physical, mental, or emotional needs of a parent or child would qualify. Some states also impose limits on the number of times a child support order may be modified in a given time period. A consultation with a family law attorney in your state will help you determine what standards will be applied to your particular case.
What if We Aren't Married?
Common law marriage is still a valid form of marriage in only in a handful of jurisdictions (Alabama, Colorado, District of Columbia, Iowa, Kansas, Montana, Oklahoma, Rhode Island, South Carolina, Texas, and Utah). This means that in all other states, if you were not legally married, you are not married to your partner no matter how much time you were together.
Some states have adopted the "meretricious relationship" or "committed intimate relationship" doctrine, which may allow an unmarried person to gain ownership of some of the property accumulated during the relationship.
The status of same-sex relationships is currently in great flux throughout the Unites States. Currently, six jurisdictions have marriage equality, allowing same-sex couples to marry. Connecticut, District of Columbia, Iowa, Massachusetts, New Hampshire, and Vermont. However, the "Defense of Marriage Act," or DOMA, was enacted by federal statue in 1996, and bars any federal recognition of same-sex couples who are validly married under state law.
Seven jurisdictions provide for civil unions or domestic partnerships, which give same-sex couples the same rights as married couples: California, Connecticut, District of Columbia, Oregon, Nevada, New Jersey, and Washington. If you are in a same-sex relationship, issues which are clear-cut for opposite-sex couples may be unclear for you and your partner. Property division, child custody, and child support are just a few of the issues that you should speak with a family law attorney in your state about.
There are several different contracts that married persons and state registered domestic partners may choose to enter into. The most well known type of contract is a prenuptial agreement, which address issues such as property and debt distribution in the event of a future divorce.
Contracts may be very helpful for same-sex couples, or couples who chose not to marry. Through the use of contracts, you may be able to gain some of the rights that married couples have intact through statute.
Consult an Attorney
Family law issues are often highly emotional and stressful. The decisions a court makes on family law issues have the potential of affecting you and your children for the rest of your lives. The assistance of a family law attorney can be invaluable in helping you obtain the most advantageous solution possible to your family law issues.