INFORMATION ABOUT
DIVORCE/SUPPORT/CUSTODY

Divorce, Support and Custody are the most common and hotly contested parts of what is commonly known as "Domestic Relations" or "Family Law." While your friends and family may be a source of great comfort while you are going through a divorce, their advice and previous experiences are no substitute for competent legal representation. The facts of your case, just like your life, are unique. What has happened to someone else in a divorce may not happen to you.

We hope that the questions and answers presented here will assist you in familiarizing yourself with family law issues and terms. While the material below attempts to answer common questions in this area, State and local laws may significantly affect the material set forth below. Because all legal problems are unique, nothing provided here can be relied upon as a substitute for the advice of competent counsel. We strongly urge you to consult with an attorney licensed to practice in your state about any particular legal problem you may have.

EXACTLY WHAT IS A DIVORCE?

In most states, a divorce, besides dissolving the marital relationship between you and your spouse, affects marital property rights. The divorce should address issues of alimony, child custody and child support where appropriate. How long it takes to get all this accomplished will depend to a large extent upon the existing relationship between you and your spouse, the value of your marital assets, and the length of your marriage.

HOW CAN I START A DIVORCE ACTION AND IS IT NECESSARY TO HIRE AN ATTORNEY TO COMMENCE DIVORCE PROCEEDINGS?

In most states, a divorce is started by one spouse (the plaintiff) filing a divorce complaint against the other (the defendant). There is no actual requirement that one must retain an attorney to file a divorce. However, the amount of paperwork associated with filing a divorce is such that without a legal representative, one cannot easily comply with the statutes. Therefore, one might wish to contact the Family Court of the county in which one resides and inquire whether there is a local requirement that one have a lawyer. If not, telephone your local Bar Association and ask whether it has a form book for the various stages of a divorce, in order to determine what steps are necessary to proceed with a divorce action. The telephone numbers for these organizations can be found in the blue pages of your local telephone book.

WHAT IS THE DIFFERENCE BETWEEN FAULT AND NO-FAULT DIVORCE?

Some states continue to require that the plaintiff prove that the defendant has done something that entitles the plaintiff to a divorce. Examples of some types of conduct that would entitle a plaintiff to a divorce are adultery, desertion and cruel and barbarous treatment. This type of divorce is called a "fault" divorce, i.e., one spouse is at fault in causing the divorce. Most states currently have provisions for no-fault divorces. In those states the plaintiff does not have to prove that the defendant did something wrong, but simply that the defendant consents to the divorce or that the parties have been separated for the legally required amount of time.

WHEN DO I HAVE TO DECIDE ISSUES OF SUPPORT, CUSTODY AND MARITAL ASSETS?

Issues of spousal support, child support and child custody and the division of marital assets will arise if and when you and your spouse separate. It is beneficial if you and your spouse can come to a voluntary understanding about these issues before you separate. Note that in your state you may lose rights to marital assets if a claim is not made prior to the entry of a divorce decree. If you and your spouse can reach an agreement, a lawyer can draft a document which can then be enforced by the court. An agreement, if possible, is a less costly and less emotionally draining resolution to your differences. However, if an agreement is not possible, the following information may be helpful.

WHAT IS A PARENT'S FINANCIAL RESPONSIBILITY TO HIS OR HER CHILD?

All parents owe a financial responsibility toward their children. The non-custodial parent is, therefore, required to contribute an amount of money based on his or her financial resources. If you and your spouse cannot agree on an amount, the Family Court will determine the proper amount to be paid.

In deciding on the amount of support to award, the Court will consider the income (less mandatory deductions) of both parents, their expenses and the expenses of maintaining the children. In some states the judge, after considering all this evidence, makes an award he or she thinks appropriate under the circumstances. Other states have enacted support guidelines which the judge must follow in fashioning a child support award.

WHAT IS THE PERSONAL RESPONSIBILITY AND WORK OPPORTUNITY RECONCILIATION ACT OF 1996?

The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) is legislation that was signed into law on August 22, 1996. This legislation provides for a much strengthened Child Support Enforcement Program. It benefits children and families by locating noncustodial parents, establishing paternity when necessary, and establishing and enforcing child support orders.

WHAT EFFECT DOES THIS LEGISLATION HAVE ON EMPLOYERS?

One key provision of the PRWORA legislation of importance to employers is that all states have a program providing information about the newly hired. Employers will be required to report certain information on their newly hired employees to a designated state agency.

States will match new hire reports against child support records to locate parents, establish an order, or enforce an existing order.

WHAT IF THE NONCUSTODIAL PARENT LIVES IN ANOTHER STATE?

The Federal Office of Child Support Enforcement (OCSE) estimates that over 30% of child support cases involve parents who do not live in the same state as their children. Under PRWORA, the designated state agency will be required to transmit the new hire reports which they receive from employers to the Federal OCSE for entry into a National Directory of New Hires.

HOW LONG ARE SUPPORT PAYMENTS REQUIRED?

In many states a parent's obligation to support his or her children continues until the child's emancipation. This generally occurs at least by the child's eighteenth birthday or graduation from high school, whichever is later. In New Jersey, a parent may have a continuing obligation to support a child, provided that child continues with some form of post-high school education. The obligation for continuing support to an adult child is not absolute, but rather is a qualified obligation which depends upon whether or not the parent is financially able to assist the child.

WHAT IS MEANT BY THE TERM "EMANCIPATION"?

In general terms, an emancipation occurs when a minor child is released from the "subjection" of his or her parents. In layman terms, this means one is on his or her own afterwards, and must support oneself thereafter, at least until the emancipation terminates. Whether or not one is emancipated depends on the particular facts of your situation, including age, marital status, ability to support oneself, desire to live independently, etc. In Pennsylvania, emancipation is not necessarily a permanent state, and it may change with a change of surrounding conditions. In most states, emancipation is simply a matter of fact. That is, many states allow one to become emancipated simply by declaring oneself emancipated. Other states require a court order or decree. In addition, the age of majority differs between states - some declare minors automatically emancipated at age 18 and others at age 21.

WHEN DOES A CHILD SUPPORT ORDER EXPIRE?

Generally a child support order continues until a judge issues an order "terminating" or "vacating" the support obligation. A child turning 18 does not automatically terminate an existing child support order. The support order will only terminate when a Family Court judge grants a petition to terminate the support order.

IF MY EX-SPOUSE REMARRIES, IS HER NEW HUSBAND'S INCOME RELEVANT TO THE AMOUNT OF CHILD SUPPORT SHE SHOULD GET FROM ME?

Depending upon the jurisdiction in which the child support matter occurred, the law may require a review of the new spouse's income for the purpose of lowering expenses in the new joint household. In turn, the decreased expenses do make more of her money available to pay for her child's expenses. However, many states use support guidelines to determine child support. These guidelines generally use the spouse's income, not income less expenses, as a measure for child support.

WHAT HAPPENS IF MY SPOUSE LIVES IN ANOTHER STATE?

If the non-custodial parent is living in another state and you are not able to agree on what amount of support he or she will pay, you should first determine if your state continues to have jurisdiction of the support matter. If your state does not have jurisdiction over the matter, the reciprocal support laws permit you to file a support petition in your local Family Court. Once you have filed the petition, the entire record will be forwarded to the Family Court in the state where the non-custodial parent can be located. The responding court will then determine an appropriate order for support and make the necessary arrangements to have the money forwarded to your local court.

WHAT HAPPENS IF MY SPOUSE MOVES AFTER A SUPPORT ORDER HAS BEEN ENTERED?

Given the highly mobile nature of our society, it is not unusual for one parent to move to another state after a support order has been entered. Unfortunately when this happens, the non-custodial parent frequently stops making the required support payments. Reciprocal enforcement petitions and interstate wage attachment laws have done wonders to alleviate this problem.

WHO WILL GET CUSTODY OF THE CHILDREN?

One of the most difficult issues to be resolved when a couple decides to divorce is who will have custody of the children. Each parent has equal rights with respect to the custody of their children. The best way to resolve this problem is for you and your spouse to agree on who will have primary physical custody of the children and a schedule of when the non-custodial parent will have partial custody of the children. Such an agreement can be filed with the Family Court and become an enforceable court order.

If you cannot come to an agreement with your spouse, you may need to file a Custody Complaint or Petition to Confirm Custody. The court will schedule a hearing at a later date. The primary factor in determining custody rights is the "best interest" of the children.

DO I HAVE TO SUPPORT MY SPOUSE?

The laws in most states provide that a financially independent spouse has a duty to support his or her financially dependent spouse under certain circumstances. If you have always been the sole source of income for your family and your spouse has no marketable job skills or employment, you will likely be required to provide financial support for your spouse. On the other hand, if you and your spouse are employed in relatively equal positions, it is unlikely in most states that you will be required to pay spousal support. Because each situation is different and the laws in each state are different, it is impossible for us to to provide a complete answer to this question without knowing the facts of your case.

If you need advice in this area and live in either Pennsylvania or New Jersey, the two states in which our attorneys routinely practice, a DESSEN, MOSES & ROSSITTO attorney will be happy to discuss your situation with you. Just call one of our offices or send us an E-Mail message with your questions or comments.

LINKS TO OTHER INTERESTING INFO

Divorce & Family Law Related Links
DivorceNet
Feminist Resources on the Internet
The Freedom of Information Act
Freedom of Information Act (FOIA) Guide
Federal Office of Child Support Enforcement Home Page
Single Dad's Index