Topic updated: February 2013

Divorce

Divorce: An Overview

A divorce formally dissolves a legal marriage. While married couples do not possess a constitutional or legal right to divorce, states permit divorces because to do so best serves public policy. To ensure that a particular divorce serves public policy interests, some states require a "cooling-off period," which prescribes a time period after legal separation that spouses must bear before they can initiate divorce proceedings.

Courts in the United States currently recognize two types of divorces: absolute divorce, known as "divorce a vinculo matrimonii" and limited divorce, known as "divorce a menso et thoro". To obtain an absolute divorce, courts require some type of evidentiary showing of misconduct or wrongdoing on one spouse's part. An absolute divorce is a judicial termination of a legal marriage. An absolute divorce results in the changing back of both parties' statuses to single. Limited divorces are typically referred to as separation decrees. Limited divorces result in termination of the right to cohabitate but the court refrains from officially dissolving the marriage and the parties' statuses remain unchanged. Some states permit conversion divorce. Conversion divorce transforms a legal separation into a legal divorce after both parties have been separated for a statutorily-prescribed period of time.

Many states have enacted no-fault divorce statutes. No fault divorce statutes do not require showing spousal misconduct and are a response to outdated divorce statutes that require proof of adultery or some other unsavory act in a court of law by the divorcing party. Nevertheless, even today, not all states have enacted no fault divorce statutes. Instead, the court must only find:

  1. that the relationship is no longer viable,
  2. that irreconcilable differences have caused an irremediable breakdown of the marriage,
  3. that discord or conflict of personalities have destroyed the legit ends of the marital relationship and prevents any reasonable possibility of reconciliation, or
  4. that the marriage is irretrievably broken.

Links provided by the Legal Information Institute of Cornell University.

See tables of divorce law provided by the Legal Information Institute of Cornell University.

Child Custody: An Overview

In cases of divorce, the court of jurisdiction for the divorce proceedings also determines child custody arrangements. Under the common statutory provision, if the spouses have children together while married, the parents have joint guardianship over that child and the parental rights are equal. Each parent has an equal right to the custody of the child when they separate.

When determining the home in which to place the child, the court strives to reach a decision in "the best interests of the child." A decision in "the best interests of the child" requires considering the wishes of the child's parents, the wishes of the child, and the child's relationship with each of the parents, siblings, other persons who may substantially impact the child's best interests, the child's comfort in his home, school, and community, and the mental and physical health of the involved individuals.

The parent with custody controls decisions pertaining to the child's education, religious upbringing, and health care. Courts have the option of choosing one of several types of custody. Temporary custody grants custody of the child to an individual during the divorce or separation proceeding. Exclusive custody endows one parent with all custody rights to the exclusion of the other parent. The non-custodial parent may receive supervision rights or in certain cases, supervised visitation rights. Joint custody grants the parents equal rights in making decisions regarding the child's upbringing. Courts award joint custody for cases in which both parents can properly perform their duties as parents. If one parent sues for exclusive custody, the suing parent must rebut a presumption that joint custody is in the child's best interests. A court can award the custody of a child to a third-party if the third-party has sought custody. The third-party is often a grandparent or other close relative. If a marriage results in multiple children, a court has the authority to separate the children and split the custody between parents in accord with the best interest of each particular child. Ordinarily, however, the best interests of a child will be to live with that child's siblings, in part for reasons of emotional support.

Visitation Rights

When a court awards exclusive child custody to one parent, the non-custodial parent maintains the right to see and visit the child, absent extraordinary circumstances. If the court's custody decree fails to mention visitation rights, the law implies the parent's right to visitation. Thus, an express prohibition on visitation must exist within the decree in order to deny parental visitation rights because visitation rights stem from the fact of parenthood. Even though this strong presumption in favor of visitation rights exists, courts may impose restrictions on visitation by noncustodial parents.

If a party convinces the court that visitation rights would be injurious to the child's best interests, then the court possesses the authority to deny visitation rights. This best interest of the child analysis, however, does not give dispositive weight to the child's stated desires because parents inherently possess the right to attempt to repair the parent-child relationship. Cases in which courts deny visitation rights often include noncustodial parents who had physically or emotionally abused the child in the past and noncustodial parents severely suffering from a mental illness that would emotionally devastate the child. Noncustodial parents who are incarcerated or who have a prison record are not categorically denied visitation rights.

If a parent refuses to obey the court's visitation or custody decree, the court can order the parent in indirect contempt of court.

Like other aspects of family law, the states control most law in the field of child custody.

See the links offered by the Legal Information Institute of Cornell University.

divorce couple

New Jersey Resources