Nolo's Essential Guide to Child Custody and Support

By Emily Doskow

Custody and Support: Get the Answers You Need

When you’re getting divorced, you can make a tough time easier for yourself and your children if you work with the other parent to agree on a custody plan and child support. If you can’t resolve these issues, you’ll have to head to court and ask a judge to decide for you.

Either way, Nolo’s Essential Guide to Child Custody & Support can help. You’ll learn how to:

• negotiate and use mediation to keep costs down and improve future dealings with your ex 

• find your state’s child support guidelines

• advocate for the custody arrangements you want

• enforce and change custody and support orders

• anticipate how your case will be handled by a judge  if you go to trial

• recognize the situations where you need a lawyer, and

• work with a lawyer.

You’ll also find information on subjects such as the factors judges consider when they rule on custody arrangements, and what happens when one parent wants to move away with the children.

• Language: English
• Publisher: NOLO
• Release date: Nov 28, 2023
• ISBN: 9781413331103

Emily Doskow

Emily Doskow is a practicing attorney and mediator who has worked with families in the Bay Area for more than 22 years. She specializes in family law, including adoption, parentage issues, domestic partnership formation and dissolution, and divorce. She is a graduate of Berkeley School of Law at the University of California. She is the author of Nolo's Essential Guide to Divorce and coauthor of A Legal Guide for Lesbian & Gay Couples.

Book preview

Introduction: Your Child Custody and Support Companion

If you’re considering divorce or have decided to go ahead and separate from your spouse, you’re no doubt worried about how this change will affect your children, and also about what the rules are for shared parenting and child support. It’s a lot to think about.

Fortunately, there’s help. This book will walk you through everything you need to know about child custody, shared parenting, and the rules about supporting your children. Once you’ve decided to move forward with a divorce, it’s hard to know what to do next—so we’ve provided a list of what you need to do right away, right after you make the decision, and some advice about what to do when the dust settles a bit and it’s time to assess your options. These tasks include figuring out what kind of process you expect—uncontested, mediation, collaborative, or an all-out fight—and making interim plans that will allow you some breathing room while you figure out what your long-term arrangements are going to be.

You’ll learn about what it’s like to take your divorce to court, and how to deal with custody and support orders if your circumstances change once the orders are in place—or if the other parent isn’t complying with the orders.

You might be working with a lawyer, or considering whether you should hire one. Especially when there’s a dispute about custody or parenting time, a lawyer can be a big help, and there’s more than one way to work with an attorney. You can have a lawyer take over your case and do all of the legal work for you, or you can ask for help with certain parts of the case and handle the rest yourself. Even if you’re representing yourself in your divorce or custody case, you can ask a lawyer for coaching or advice about strategy. This book can help you find the right attorney, no matter how you’re intending to use the lawyer’s help, and will be your companion as you and the attorney move your case forward.

Just like you are, this book is all about your kids—where they’re going to live, how they’re going to spend time with both parents (or be protected from a parent who’s abusive), and how you’re going to provide for them. Stay focused on their needs and on doing what’s best for them, and you’ll find your way through this challenging time.

CHAPTER

1

Basics of Divorce

The Big Issues: Child Custody and Support

Child Custody

Support

When You Separate

Trial Separation

Permanent Separation

Legal Separation

Annulment

The Court Process

Residency Requirements—Where Can You File for Divorce?

Waiting Periods

Must You Prove Your Spouse Is at Fault?

Family Court

Starting Your Divorce

Kinds of Divorces

Summary Divorce

Default Divorce

Uncontested Divorce

Mediated Divorce

Collaborative Divorce

Contested Divorce

Parentage Actions for Unmarried Couples

Divorce for Same-Sex Couples

Marriage Equality and Divorce

If you are considering divorce—or are already headed down that path—you have a lot on your mind. Probably the first thing you’re thinking about is how divorce will affect your kids. How and when will you spend time with them, what will change about your parenting life, and how will you deal with the finances of raising them when you and your spouse are no longer together? The stakes are high.

The single best way you can support your children’s well-being is to keep the divorce process as civilized as possible. As you go through your divorce, over and over you’ll be required to make a choice between escalating conflict or compromising. Each time you choose to create or continue a dispute with your spouse, you are making it more likely that you’ll end up in court in front of a judge, who will make decisions about your family instead of leaving those decisions to you and your spouse. Sometimes you don’t have a choice but to go to a judge, if your spouse won’t back down from an unreasonable position. But when you have a choice, which you generally will, try to take the compromise route. It will make your divorce less expensive, faster, and less painful for everyone.

Before jumping into the details of how custody works and how support is calculated, you need an understanding of the divorce process. This chapter explains how the process generally works and some of your options along the way.

Unmarried couples. If you and the other parent are unmarried, you won’t need to get a divorce, but you will need to establish your shared parental rights and get a court order related to parenting time and support payments. See Parentage Actions for Unmarried Couples, below.

The Big Issues: Child Custody and Support

You and the other parent will need to either work out the issues of custody and support or turn them over to a judge to decide. Working them out yourselves will yield huge benefits, both emotionally and financially.

Here’s a brief overview of the questions you’ll be looking at. As you review this information, don’t forget that all of the issues in your divorce can be resolved without going to court if you and your spouse can reach an agreement.

Child Custody

There are two kinds of custody: physical and legal. Physical custody is the right to have a child live with you. Legal custody is the right to make decisions about the child’s welfare and education. It’s common for divorced parents to share one or both kinds of custody. But parents can also devise their own arrangements—for example, one parent might have sole physical custody, with the other parent spending time with the children according to a parenting plan, while both parents share legal custody, making decisions together about things like where the kids go to school. It’s also possible for one parent to have both sole physical and sole legal custody.

One of the first things you and the other parent need to do is come up with a temporary agreement about how to share time with your kids while the divorce proceeds. (Chapter 4 has more about this.) Do it as quickly as you can, to ease your children’s insecurity. If you can’t agree to a temporary schedule, you’ll end up in court right away—an expensive and uncertain way to begin your divorce. Chapter 2 describes custody issues in detail.

Support

Chances are that one spouse will pay child support to the other. When the children spend more time with one parent than the other, or if one parent earns more money, the court will award child support to make sure that the kids are taken care of. Every state has its own guidelines for child support, and while you and the other parent can make agreements about child support that differ from the guidelines, if the difference results in support being less than your state’s guidelines, you will have to provide assurance that the kids will be adequately supported. Details about support are in Chapters 3 and 4.

Property and Alimony

Property. If you and your spouse can agree on how to divide your property, the court will simply approve your agreement. If you can’t agree, the court will divide things for you. How property is divided depends to some extent on whether you live in a community property state or an equitable distribution state, but the basic rules are as follows.

Your marital property is everything you and your spouse have acquired during your marriage, including money, real estate, investments, pension plans, and so on. Marital debts are obligations you took on together during your married life. You must divide both the property and the debts between you.

Assets or debts that either of you had before your marriage, or that you acquired after the permanent separation, are called separate property or debts. Generally, each of you will keep your separate property and be responsible for your separate debts, but in some states separate property can be divided at divorce.

Alimony. In some divorces, courts award spousal support, also called alimony or maintenance, to one spouse. The longer a couple has been married, the more likely it is that some support will be ordered, especially if one spouse gave up career plans to support the other or care for kids.

For more about property, debts, and alimony, see Nolo’s Essential Guide to Divorce, by Emily Doskow, and Divorce & Money, by Lina Guillen, both published by Nolo.

When You Separate

A separation is not a divorce—it’s just living apart from your spouse. You’re still legally married until you get a judgment of divorce from a court. However, a separation does affect your legal and financial responsibilities toward your spouse.

The law recognizes three kinds of separation.

Trial Separation

If your relationship is in trouble and you and your spouse aren’t sure you’re going to stay together, you might choose to live apart while you decide. A trial separation is any period of time that you’re living apart from your spouse without making a final decision about how you’re going to move forward.

This kind of separation doesn’t change anything in terms of property ownership or the obligation to care for your children (unless you decide otherwise; see below). For example, money you earn and things you buy are likely to still be considered jointly owned by you and your spouse, depending on your state’s rules about property ownership (in a community property state, everything is jointly owned; in other states, the rules vary). The same is true for debts either of you incur. You can make informal arrangements about caring for your children, or put together a written coparenting schedule and an agreement about support.

Even during a trial separation, it’s a good idea to write an informal agreement covering all of these issues. For example, you’ll need to decide:

how and when each of you will spend time with your kids

whether you will continue to share a joint bank account or credit cards

how you’ll budget your spending

which of you will stay in the family home

how expenses will be shared, and

whether you intend to continue to be bound by state laws on property and debt while you are separated—in other words, whether your state’s rules about ownership of marital and separate property will apply to you during the separation, or your separation marks the end of your sharing property and being responsible for each other’s debts.

Two sample separation agreements are shown below.

If you’re not able to reach temporary agreements about these things pretty quickly, then you might need to make a clear decision one way or the other about whether you’re staying together or splitting up, instead of using a trial separation as a time to consider your options.

Sample Separation Agreement (Continuing to Share Income)

This agreement is between Danica Donaldson and Mark Markham. We have agreed to live separately while we decide whether to divorce or to reconcile. As long as we live separately, these are our agreements:

Mark will move out of our family home at 5500 Normandy Street. Danica will continue to live there with our children. Mark’s paycheck will continue to be deposited into our joint checking account at Community One Bank. Danica will continue to deposit any money she earns from part-time work into the joint checking account. Danica will pay the mortgage and other household bills and personal expenses for her and the kids with those funds, and will transfer $3,500 per month into a separate account for Mark to use for his rent and expenses. If there is a shortfall in the joint account, Danica will transfer any additional amounts needed to meet our expenses from our joint savings account at Community One Bank, and will notify Mark of the date and amount of the transfer. Mark won’t access the joint savings account without talking to Danica first.

Both of us can access information about our joint accounts online, and we agree not to change any passwords on our joint accounts.

During our separation, we’ll still be subject to marital property law, and anything we earn or acquire and any debts we take on for the benefit of the family will be treated just as if we were still living together. If one of us files a petition for divorce in court, this paragraph will no longer apply.

Mark will come to the house every morning at 8:00 to take the children to school. Danica will pick them up from school or aftercare and bring them home every day. Mark will have parenting time with the children every other weekend from Friday after school until Monday drop-off at school, beginning the weekend after we sign this agreement. In addition, he will come over every Wednesday and the family will have dinner together.

Neither parent will pay any child support or alimony because we are still sharing our income and paying all expenses out of joint accounts.

Neither of us is waiving any rights to ask for a different parenting schedule or amount of child support should we decide to divorce. We agree to reconsider the terms of this agreement in three months.

Sample Separation Agreement (Separating Income)

This agreement is between Danica Donaldson and Mark Markham. We have agreed to live separately while we decide whether to divorce or to reconcile. As long as we live separately, these are our agreements:

Mark will move out of our family home at 5500 Normandy Street. Danica will continue to live there with our children. Both of us will open separate checking accounts and deposit our respective paychecks into those accounts. In addition, we will each take half of the funds in our joint savings account at Community One Bank to use for our own expenses, and then close the account. Mark will deposit $2,000 per month into our joint checking account at Community One Bank, and Danica will deposit $1,000 per month into the same account. Danica will pay the mortgage and other household bills with those funds. If there is a shortfall in the joint account, we will contribute additional money in the same two-thirds/one-third proportions to cover the shortfall.

Both of us can continue to access information about our joint accounts online, and we agree not to change any passwords on our joint accounts.

As of the date we sign this agreement, everything that each of us earns will belong entirely to that person, and any debt that either of us incurs will be the sole responsibility of that person. If we reconcile, we must agree in writing to resume sharing property according to marital law.

Mark will come to the house every morning at 8:00 to take the children to school. Danica will pick them up from school or aftercare and bring them home every day. Mark will have parenting time with the children every other weekend from Friday after school until Monday drop-off at school, beginning the weekend after we sign this agreement. In addition, he will come over every Wednesday and the family will have dinner together.

Neither parent will pay any child support or alimony as long as we are paying household expenses from the joint account.

Neither of us is waiving any rights to ask for a different parenting schedule or amount of child support should we decide to divorce. We agree to reconsider the terms of this agreement in three months.

Permanent Separation

A permanent separation is for people who live apart without intending to reconcile, but also without completing a legal divorce. In some states, it can also apply to people who continue to live together but who have clearly expressed their intention to end the marriage. A permanent separation means that you are no longer responsible for any debts that your spouse incurs. Similarly, you’re no longer entitled to any share of property or income that your spouse acquires or earns (with the exception of payments for work performed before separation, in some cases). If you are very resistant to the idea of a divorce, you can use a permanent separation (or a legal separation, discussed below) to keep your legal life separate from your spouse’s, without getting a divorce.

If you don’t go to court and get an order of legal separation, described below, you’ll have to write an agreement that covers your property division and child custody and support questions. You would separate all of your finances, and most likely one parent would pay child support to the other. If you’re not able to agree on how you want to structure your separation, then you’ll need to get an order of legal separation, or move forward with a divorce.

Legal Separation

In most (but not all) states, you can go to family court and get a judgment of legal separation that ends your legal responsibilities to each other, but isn’t a final judgment of divorce—you are still married when you are legally separated. Because it’s not a divorce, a legal separation doesn’t allow you to get married again. The court’s order granting the legal separation does include orders about property division, alimony, and child custody and support, just as a divorce would. Why not just get a divorce, then? The reasons include religious beliefs, a desire to keep the family together legally for the sake of children, the need for one spouse to keep the health insurance benefits that would be lost with a divorce, or simple aversion to divorcing despite the desire to live separate lives.

THE LAW IN REAL LIFE

A North Carolina mother filed a petition for child support and custody before separating from her husband. She intended to end the couple’s marriage, and argued that it would be in her children’s best interests if the court would make a decision on temporary and permanent child custody and support, as well as postseparation support.

The first court to hear the case—called the trial court—dismissed her request because there was no divorce action pending. But when she appealed, the appellate court held that physical separation wasn’t necessary to allow a court to make decisions about child custody and support, and that public policy supported allowing the court to make such a decision. However, the court refused to grant alimony, because the alimony laws required separation before an award of support could be made.

Annulment

There are two kinds of annulment: civil and religious.

A civil annulment ordered by a court not only ends a marriage but also creates a legal fiction that the marriage never existed. A person whose marriage is annulled by a court is legally single, not divorced. In most states, civil annulments are granted for one of these reasons:

Fraud or misrepresentation. One spouse lied about something that was important to the other in getting married, like the ability to have children.

No consummation of the marriage. One spouse is physically unable or unwilling to have sexual intercourse, and the other didn’t know it when they got married.

Incest, bigamy, or underage party. The spouses are related by blood, so that their marriage is illegal under the laws of the state where they married; or one of them is married to someone else; or one of them is under the age of consent and didn’t receive a parent’s approval.

Unsound mind. One spouse (or both) was impaired by alcohol or drugs or didn’t have the mental capacity to understand what was happening at the wedding.

Force. One of the parties was forced into getting married.

Although most annulments take place very soon after the wedding, some couples seek an annulment after many years. In that case, the court considers all of the issues it would deal with in a divorce, divides property, and makes decisions about support and custody. Children of a marriage that has been annulled are still lawful offspring of the marriage.

A religious annulment is an action that can be taken by a religious authority, such as a priest or rabbi. States do not grant or review religious annulments, and receiving one does not give the recipients the rights they receive after a civil annulment (such as the ability to marry someone else).

Religious annulments are usually sought by those who want to be remarried in a religious ceremony, commonly Roman Catholics who can’t remarry in the church without an annulment of a previous marriage. A civil annulment is still necessary in order for the second marriage to be legal, but in the eyes of the church, the civil annulment isn’t enough—a Catholic who wants to remarry in the church needs a religious annulment as well. After a religious annulment, the Catholic church still considers children of the marriage to be legitimate.

The Court Process

Although divorce procedures vary enormously between states and even between counties and courtrooms, they all share a general order of things that you can reasonably expect.

Residency Requirements—Where Can You File for Divorce?

You don’t have to get divorced in the state where you got married, but you do have to live in a state for a certain length of time before you can get divorced there. A few states have no specified requirement; some require only six weeks; some require a one-year residency; and many more use six months as the required period. You should be able to find your state’s residency requirements with a simple internet search, making sure whatever resource you find is up to date.

Increase Your Chances of Finding Trustworthy Information on the Internet

Statements found on the internet can be notoriously inaccurate, as you no doubt know. Yet it’s possible to find reliable information. Suppose you search for residency requirements for divorce in [your state]. How can you tell which answer is likely to be correct? Here are some suggestions:

Government-run websites, like those maintained by states or agencies, should have accurate information.

Established organizations in your question’s area, such as your county’s child support agency, are also good bets.

Articles on well-regarded websites, such as Nolo.com, can often be counted on.

Websites maintained by practicing lawyers in your stateshouldhave current, accurate information.

How do you know when you’ve gotten a reliable answer? When the same answer keeps appearing from multiple sources, chances are it’s correct.

Waiting Periods

Most states have a waiting period before your divorce can be finalized. The date the nonfiling spouse is served with the initial petition is the date that starts the waiting period running. For example, California, New Hampshire, and many other states have a six-month waiting period, so if you file papers and serve your spouse on May 1, you can get a final judgment entered on November 2. In other states, the period is much shorter, and in a few states, it’s as long as a year.

For anyone who has a disputed custody case, the waiting period won’t be an issue—your divorce will take longer to complete than any waiting period in the country. You’ll probably be busy with hearings and negotiations for more than a year. If your divorce is less contentious, you may get all of your paperwork finished before the waiting period ends; in that case, you generally can submit your paperwork to the court and either get a judgment that shows a later date for the divorce to be finalized, or wait until the time passes and the court sends you the final judgment. If you have some issues to work out but don’t expect a major battle, you can expect your divorce to take anywhere from six to 18 months. There’s no average amount of time to complete a divorce—some uncontested divorces can be done in a matter of a few months, while very contentious cases drag on for years and years. Again, if you want to know your state’s waiting period, simply enter the name of your state and the terms divorce and waiting period and you should get the answer.

Must You Prove Your Spouse Is at Fault?

In the old days, someone who wanted a divorce had to show that the other spouse was the cause of the divorce—in other words, that it was the other person’s fault. Even when both people wanted to divorce, they had to decide which of them would take the legal blame, and pick some basis to use for why they were divorcing. Adultery was the most popular choice, but abuse, abandonment, extreme cruelty (inflicting unnecessary emotional or physical suffering on the other spouse), and the physical inability to engage in sexual intercourse that wasn’t disclosed before marriage also made the list—even if none of these things had actually happened.

Now, couples can get a no-fault divorce in every state. In a no-fault divorce, instead of proving that one spouse is to blame, you merely tell the court that you and your spouse have irreconcilable differences or that your relationship has suffered an irremediable breakdown. In some states, in order to get a no-fault divorce you must have lived apart for a specified period of time.

In many places, no-fault is the only option, but in some states you can choose either fault or no-fault grounds for divorce. You probably won’t want to choose a fault divorce if your divorce is uncontested. You might, however, choose a fault divorce if you don’t want to wait out the separation period, or if you anticipate a major fight over property or support.

Even if you choose no-fault, some states’ courts will still consider fault when dividing property and determining custody and support. So a spouse in a no-fault case may accuse the other of misconduct and argue that it should affect support awards or who gets to have custody of the children.

Covenant Marriage and Divorce

If you entered into a covenant marriage in Arizona, Arkansas, or Louisiana, you must request a divorce on fault grounds—you may not use no-fault procedures. You’re required to get marital counseling before you can file for divorce, and the waiting period before your divorce is final may be longer than that for a noncovenant marriage. You’ll definitely need a lawyer’s help, especially if you and your spouse disagree about getting a divorce.

Family Court

In every divorce case, a judge has to sign a final judgment—that’s the piece of paper that says you’re officially divorced. So even if you and your spouse agree about everything, the court still has to be involved in getting your divorce completed.

In most states, divorce cases are handled by a special court, called family court, domestic relations court, or divorce court. This doesn’t mean that the court is in a different place from courts that handle other civil (noncriminal) matters (though in some places it is), but just that certain judges deal only with family-related cases such as divorce, child custody and support, and sometimes adoption.

Having a separate court for family cases means that the judges are knowledgeable and experienced. The court clerks and assistants tend to be knowledgeable as well, which will be especially important if you are representing yourself. Many family courts have self-help centers, where you can get some assistance with filling out your papers and making sure you get things filed and served properly. Many also have very useful websites, where you can find the forms you need as well as some instruction on how to proceed with your divorce. You should be able to find the relevant information on your county’s court website.

Starting Your Divorce

Your official court divorce begins when one spouse files a form called a petition or complaint. This form tells the court when you were married, when you separated, the names and birth dates of your children, the basics of your property and debts, and that you want a divorce. A filing fee of between $100 and $500 gets the divorce started; when the other spouse files a response or answer, that spouse will pay another filing fee, probably in the same amount. There’s more about filing and serving (delivering) papers in Chapter 6.

Kinds of Divorces

When it comes to divorce, you have a lot of choices to make. You will decide whether your divorce will be uncontested, contested, or default; and whether you’ll use mediation or collaboration, or go all the way to a trial.

No matter how you choose to make your way through it, divorce is expensive, emotionally challenging, and time-consuming. The most important variable is how well you and your spouse are able to put aside your anger and grief and cooperate on the big issues of money and children. The better you are at working together to make decisions for your changing family structure, the better it is for your financial bottom line—and for your chances of emerging from the divorce with a decent relationship with your ex and a parenting plan you can work with and that will work for your children.

However, some couples are simply not able to come to agreement, especially about parenting issues. This book will help you either way—whether you and your spouse can work out a settlement or must turn these decisions over to a judge.

Summary Divorce

In many states, an expedited divorce procedure, often called summary or simplified divorce, is available to couples who haven’t been married for very long (usually five years or less), don’t own much property, don’t have children, and don’t have significant joint debts. Both spouses need to agree to the divorce, and they must file court papers jointly. Summary divorces are easy to do yourself, without the help of a lawyer.

Default Divorce

A default divorce is a way to end your marriage when you don’t know where your spouse is (after making a serious effort to find out) or when your spouse won’t or can’t participate in the process. One spouse files divorce papers and then, when the other doesn’t respond within a certain period of time, asks the judge to grant the divorce. In some states, you can also agree, at the time you file for divorce, to submit to a default judgment, which usually has the advantage of avoiding a second filing fee.

Uncontested Divorce

An uncontested divorce is the best option from both financial and emotional perspectives. There’s no question that it’s best from your kids’ point of view, because it protects them from having to deal with parents who are in serious conflict. In an uncontested case, you