In every divorce, a couple with dependent children needs to address four topics:

• The Child Custody Plan (Who makes legal decisions for the kids and how the parents will share time with the kids after the divorce)
• Calculating Child Support (Financial contributions from one parent to the other on behalf of the kids)
• Eligibility for Spousal Support (Often called “alimony”)
• Property Division (Division of property and debts between the divorcing husband and wife.)

Child custody mediation through Family Court Services is typically free to the divorcing couple, whereas one or both spouses will have to pay a private mediator. If the husband and wife can’t agree on who is going to pay the private child custody mediator, the judge will have to decide for them. The decision between Family Court Services and a private child custody mediator should usually come down to how complex the child custody issues are, and our law office will help you make this decision.  Situations involving high conflict or possible emotional health issues (either on the part of the parents or the children) are usually best handled by private child custody mediators, who are not subject to the time constraints you’ll find at Family Court Services.  But if the child custody issues in the case are relatively simple or finances don’t permit the use of a private child custody mediator, we will help you focus the Family Court Services mediator on the most important issues facing you and your spouse.

Typically, children five years or older are included in the divorce mediation process.  A private mediator may elect to observe the interaction between parents and children even younger than five.

The child custody mediator, whether public or private, attempts to assist the couple in reaching agreements regarding their children. If the parents can’t reach agreement, however, the mediator will typically make recommendations to the court as to custodial arrangements and the court will most often accept these recommendations as the basis for a court-ordered parenting plan for the divorced couple.  Both the mediator and the court have the same goal:  To arrive at a parenting plan that is in the best interest of the children. The state legislature has declared that it is in the best interest of children to have “frequent and continuing contact with both parents” after their separation or divorce, except when contact would not be in the children’s best interest.  The parents always have the ability to halt the process and come to an agreement between themselves as to what’s best for their kids.

The parenting plan (either parent-agreed or divorce court-ordered) will specify the circumstances under which each parent gets to make legal decisions (about such matters as education and healthcare) for the children and the time that the kids will spend with each parent. If one of the kids expresses a strong preference for spending time with one parent over the other, the child custody mediator will listen, giving weight to the child’s preferences based on the child’s maturity. All child custody mediators are very good at detecting a child who has been coached in preparation for mediation and are typically very hard on a parent who programs or trains a child in order to “fix” the outcome of the child mediation process.

As a general rule, child custody mediators tend to recommend, and judges tend to order, that very young children (infants to pre-schoolers) spend the most of their time with their moms.  But as kids advance into their school years, the playing field levels for dads, who often end up with equal )or greater-than-equal) timeshares with their kids.  Court-ordered parenting plans are never “engraved in stone,” but instead are subject to change as long as a child remains under 18 years old, as a child’s needs and preferences change.

A situation that family law attorneys see a lot is when a parent reports that the child “doesn’t want to” visit the other parents.  “Do I have to force Junior to go ”with the other parent?, they ask.  Strangely enough, it's often the most quarrelsome couples who have kids like this!  The answer is that a parents need to make a good-faith effort to encourage a child to maintain a relationship with the other parent after a divorce.  The forcefulness of the persuasion she or she uses is dependent in large part on the age of the child.  Obviously, a parent is not required to physically force a 17-year old into the other parent’s car.  The answer might be different with a six-year old.  Often, co-parenting counseling for the children can ease some of these conflicts. 

When conflict between parents isn’t addressed but, instead, is allowed to get out of hand, psychologists talk about “alienation,” one of the saddest and most painful things that can happen to a child in a divorce.  Alienation occurs when one parent expresses so much anger and bitterness toward the other parent that a child, in order to make his mom or dad feel better, begins to “align” himself with the parent in pain and actively share in that parent’s hostility toward the other parent.  Sometimes, in the worst cases of alienation, the alienating parent will become convinced that the other parent is abusing the child in some way (perhaps sexually) and the aligned child will confirm the reports of abuse.  Often, divorce courts will reverse custody as a remedy in these cases, placing the child primarily with the non-alienating parent and reducing the other parent to visitation or even supervised visitation. 

One of the most hotly-contested issues that separated and divorced parents confront is the situation in which one parent seeks to move with the child to a new home in a distant location, typically for reasons concerning a career or a new relationship.  Of course, Mom and Dad each have the right to move anywhere they choose after a divorce.  The only issue is whether Junior moves too, or remains with the non-moving parent. 

Assume that Mom wants to take Junior with her when she moves away, and Dad is staying put.  Can Mom take Junior?  Assuming that Mom has a sincere and good-faith reason for the proposed move, for very young children the issue usually comes down to the nature of the child’s relationship with Dad.  Is Dad a full and equal participant in raising Junior, or does Junior mainly know him as someone who visits now and then?  Is Junior strongly bonded with both parents, or does he relate strongly only to Mom?  If Junior is school age, the significance of his academic and social connections in his present environment will also be part of the mix.  The judge will attempt to weigh what Junior will give up by moving away against what he will lose if Mom goes without him.  It’s kind of sad when you think about it.  Either way, Junior loses something that is important to him.  All we can do is help him cut his net emotional losses.  It’s no wonder that psychologists and counselors often get involved in making recommendations to the Court in move-away battles.

Calculating Child Support

Once a parenting plan has been established, the next step in the divorce process is typically the determination of child support. Child support is calculated according to a mathematical formula that is so complicated that not even judges really know how to apply it.  Everyone uses a computer program.  The formula calculates “guideline child support” based on three factors: the mother's monthly income, the father's monthly income, and the amount of time the child spends with each parent on a monthly basis (the “timeshare).  (The formula does not take into account the earnings of a parent’s new spouse, and this is where lots of disputes arise, as we will see below.).The idea behind child support is that, even when a child is in the physical custody of the lower-earning parent, he or she is entitled to share in the lifestyle of the higher-earning parent.

The fact that child support is set according to a computer formula suggests that setting child support is a clean and objective process.  Unfortunately, nothing could be further from the truth.  Every number entered into the computer can be and, often is, the subject of dispute between a couple in a divorce. For example:  How much time does Mom or Dad really spend with Junior?  Mom’s calendar says one thing but Dad’s says another.  Who gets “credit” for the time Junior spends in school?  Or say Mom is self-employed.  Do we really know what she earns, or does her accountant understate her earnings for tax purposes?  Maybe Dad has remarried.  His new bride is a Wal-Mart heiress, and he doesn’t work outside the home.  Should he be able to avoid paying child support in this way? What if Mom is trained as a concert violinist, and can’t find work in her field, but Starbucks is hiring.  Should Mom have to bite the bullet and retrain as a barista? And on and on.  We can help you wade through these issues.

One very common complaint of divorced parents who are ordered to pay child support is this: ” I send a check every month, but Mom doesn’t spend it on Junior.  Instead, she just flew off to Barbados, and I bet I can tell you how she can afford a trip like that!”  (Just as often, Moms tell the same story about Dad and his new wife.)  Dad will get nowhere with his tale of woe.  As long as Junior is well-cared for, the law isn’t interested in how Mom spends the child support she receives.  As a matter of fact, the cases explicitly recognize that the entire household in which Junior lives will necessarily benefit from the child support paid on Junior’s behalf.

The law requires divorced parents to share:

• Their expenses for “work-related childcare,” defined as childcare expense incurred for the purpose of allowing either parent to work or to seek work-related education or training; and
• The children’s healthcare expenses to the extent that they are not covered by insurance.

Child support, unlike spousal support, is neither includable in the income of the recipient nor deductible from the income of the payor for tax purposes.

Eligibility for Spousal Support

“Alimony” is support paid by husbands for the benefit of their divorced wives.  Today, the law refers to “spousal support,” which is support paid by either party in a divorce to the other. 

Like child support, spousal support depends on the respective monthly incomes of the parties.  It is generally paid by the spouse with the higher income to his or her former partner.  As a rule of thumb, marriages of ten years or less result in spousal support awards of not more than one-half the length of the marriage. Spousal support can continue much longer (even for life) in cases of longer marriages.  But the rule for all divorces is that the recipient of spousal support (the “supported spouse”) has an obligation to do what he or she can to become self-supporting.  Obviously, more will be expected of a newly-divorced 30-year old with a current work history than from a 65-year old who devoted his/her lifetime to supporting the divorced spouse’s career.

Temporary spousal support is available to a spouse beginning upon the couple’s separation and continuing until “entry of judgment of dissolution,” which for most people means “until the divorce is final.”  It is typically set according to a formula that varies only slightly from county to county that basically amounts to 40% of the high earner’s “net monthly income” (basically gross income less taxes, child support paid, health insurance payments, and mandatory retirement payments) minus 50% of the low earner’s net monthly income.  (All of the same problems we discussed related child support having to do with deciding what numbers to feed into the formula apply here as well.)

After entry of judgment, state law prohibits the use of a mathematical formula for setting spousal support.  Instead, in setting post-judgment (“permanent”) spousal support, the judge is required to apply each of a list of about 16 factors in arriving at a number.  In essence, these factors boil down to just two: “Who has the ability to pay?” and “Who has the need to be paid?” Typically, but not always, permanent spousal support ends up a little lower than the temporary spousal support set in the same divorce case.

Spousal support must be included in the income of the receiving spouse for tax purposes, and is deductible from the income of the payor.

Division of Property

In general, a married person’s separate property consists of the assets and debts acquired either prior to marriage, after the date of separation, or at anytime by means of gift or inheritance.  Community property is everything else that a couple owns or owes.

Upon divorce each spouse is entitled to walk away with:

• 100% of his or her separate property and debts; and
• One-half of the divorcing couple’s community property and debts.

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