Part 1, Module 1: Introduction to Alimony and Child Support
Module 1: Introduction to Alimony and Child Support
Introduction: The Ending of a Marriage
A marriage, at its most basic, is a contract between the two individuals who comprise the married couple, and therefore is subject to various contract laws. While married, the couple are in a contractual relationship with each other and with the world at large. But then there sometimes comes a time when the couple spilt up, and the marriage no longer exists as a legal entity. At this point, the marriage contract may be terminated, which legally terminates the marriage. That termination is called a divorce or a dissolution. During a divorce, the two individuals who comprise the marriage are referred to by the legal term “parties” to the divorce.
Beyond contract law, there are also numerous non-contract laws that are specifically written for marriage, divorce, children and parental responsibility. These other laws are complex in both their history and their current applications. The entirety of the law that involves what happens when couples formally end a relationship, whether they were married or not, is called “domestic relations law” or “family law.” Domestic relations law can also include aspects of juvenile, taxation and other distinct areas of laws that may apply to an individual case.
Despite their best intentions couples may have when they get married, about half of married couples eventually divorce. To break it down a little more: 41 percent of first marriages in the U.S. end in divorce, while 60 percent of second marriages and 73 percent of third marriages end the same way. In any given year in the U.S., there are about two million marriages and, therefore, nearly a million divorces.
Many of these marriages produce children, obviously. These children are subject to domestic relations laws if they are still unemancipated minors at the time of the divorce. But it isn’t just children produced by marriages that are affected by these laws. Nearly half of first births in the United States are to unmarried women. Children of unmarried couples are also subject to domestic relations and juvenile laws.
That is a lot of work for domestic relations attorneys.
When a marriage legally ends, a variety of domestic relations laws come into play to determine the disposition of the marital property, the custody and support of any children, and, in some cases, the continuing financial support of one party by the other. But even if the couple did not get married, domestic relations laws can still apply-- especially if there are children, shared property, or a long-term relationship.
Breaking up is hard to do. It can be difficult to get people going through these traumatic experiences to concentrate on the legal issues. The only thing that an attorney can do in these instances is guide clients through the thicket of divorce, juvenile, support, taxation and the other laws at issue. Attorneys can’t “cure” the situation. They can just work to apply the law.
This course will concentrate on two major areas of domestic relations law: child support determination and enforcement, and spousal support (sometimes called alimony). This concentration necessarily includes issues of taxation. Other aspects of domestic relations law that we will also touch on as needed include child custody; property division; the establishment of paternity of a child; the establishment or termination of parental rights; adoption; and emancipation of minors.
The general purpose of domestic relations law is to come to an equitable solution to the couple’s financial and property issues during and after they legally split, and to try to ensure that any children of the relationship can be provided with something like the life they would have had if their parents had stayed together. This last part is very difficult, if not impossible, in many cases. Sometimes, parents can compromise and agree on the best ways to handle the children, family assets and income. When they can’t agree, courts and laws step in and provide their own solutions. Learning how the courts do that, what laws they apply, and how the courts apply those laws is the purpose of this course.
Let’s start by defining the two types of support most relevant to domestic relations law: child support and spousal support.
Child support is money that is paid from a non-custodial parent to a custodial parent for the welfare of a child or children of those parents. These payments are usually under the supervision of a support enforcement agency. There are endless permutations to this basic definition, which we will go over in module 2.
Spousal support, or alimony, is money paid from one ex-spouse to the other ex-spouse to put (or keep) the recipient spouse at a certain level of income or lifestyle. Spousal support can be either temporary or permanent. In some cases, the couple need not have been formally married, in which case spousal support payments are colloquially known as “palimony.” We will expand on this topic in module 3.
One of the first questions to ask when approaching issues involved in domestic relations law is: what laws apply to this case? This question of “choice of law” is usually simple in the case of domestic relations. Domestic relations rules are usually matters of state law. Thus, the state in which the couple and/or the children live will supply the applicable laws. Things become more complex when the parties live in different states. In such case, according to the Restatement of Conflicts of Law, the applicable law should be that of the state with the “most significant relationship” to the issue.
The more fundamental question is which state has jurisdiction over the domestic relations case, or, what court or courts, agency or agencies, will have the power to hold hearings and make decisions in the case?
Almost all domestic relations cases are heard in a state court, and not in federal court. This is because of the “reserve clause” of the Tenth Amendment, which states that any areas of law not specifically delegated to the federal government are reserved to the states. Since there is nothing in the Constitution about domestic relations laws, that jurisdiction is reserved for the states.
The US Supreme Court has further held that federal courts cannot hear many types of domestic relations cases. This principle, called the “domestic relations exception to federal jurisdiction,” was first set out in the 1858 United States Supreme Court case, Barber v. Barber, which held that federal courts could not hear divorce or alimony cases and that these domestic relations cases were to be heard only in state court. That principle has been limited by numerous cases to cover only the “core” domestic relations issues, including divorce, custody and spousal and child support. That was reflected in a more recent Supreme Court decision, Ankenbrandt v. Richards. That case involved a federal lawsuit brought by a mother on behalf of her daughters against the father, alleging sexual and physical abuse. The federal court had jurisdiction based on diversity of citizenship, but the defendant argued that the federal courts may not exercise jurisdiction because of the domestic relations exception. The Supreme Court, though, allow the lawsuit to go forward, explaining that the domestic relations exception applies only to cases involving the issuance of a divorce, alimony, or child custody decree. It does not prevent federal courts from hearing civil lawsuits even if there are elements of domestic relations law involved.
Although domestic relations laws typically reserved to the states, there are federal laws that sometimes touch on domestic relations issues, including the Internal Revenue Code, which sets tax policy for payment of alimony and child support and provides many marriage benefits. Moreover, it must be noted that where applicable federal law contradicts state law, the federal law controls due to the Supremacy Clause of the Constitution.
The “Full Faith and Credit” clause of Article IV, Section I of the United States Constitution requires that states give “full faith and credit” to the acting judgments of other states. This means that states must respect and even enforce the rulings of courts in other states. To cite one example that has little to do with domestic relations law, one state’s driver’s license allows the holder of that license to drive in any state. There are, though, notable exceptions to this principle such as drinking age laws and age of consent laws.
The full faith and credit principle applies to domestic relations law in many ways, including that:
-- A marriage in one state must be recognized by all other states.
--A divorce in one state must be recognized and all other states.
-- A custody and support order in one state is must be recognized as valid and enforceable in all states. States have enacted the Uniform Reciprocal Enforcement of Support Act to foster interstate cooperation in the collection and enforcement of spousal and child support orders.
Taxation is replete with challenges in divorce and custody negotiations for even the most seasoned domestic relations attorneys. There are tax implications in divorces that involve nearly every aspect of domestic relations law, including property division, child support, alimony, child custody, tax filing status, and more. In addition, every once in a great while the taxation aspect of a divorce case ends up in U.S. Tax Court. This usually occurs when one party is trying to misapply alimony as a property settlement, or vice versa. We will cover this in detail in a later module.
While there was, at one time, something called a “common law marriage,” (still recognized in some states) there is no such thing as a “common law divorce.” To be legally effective, a divorce must be certified by a court of law (except in some very rare and limited situations).
In most cases, obtaining a final order of divorce will require filing a petition for divorce with a court, which will usually be followed with at least one pretrial hearing, which may be followed by a trial. The divorce is finalized by a final order of divorce signed by the judge assigned to the case. That court decision may settle many domestic relations issues, such as dissolving the marriage, determining custody, child support, visitation, property division, who can claim the children as dependents on their income tax returns and many other issues. These orders are then enforceable in many ways.
While the case is pending, temporary, enforceable orders of custody, child support, visitation and spousal support may be in effect. These orders are usually generated by a magistrate at a pretrial hearing. These temporary orders are enforceable in the same ways that final orders are enforceable. The temporary orders are then replaced by the final order once it is signed by the judge.
When children are involved, the court which issues the final order will maintain “continuing jurisdiction” over the case until the children reach the age of majority or are otherwise emancipated. This means that custody, visitation and child support are subject to review by the court (or appropriate agency) at any time that circumstances change for the parents or children. This is how child support amounts, for instance, can change over time based on the changing income levels of the parents.
The Roles of State and Local Courts
Every state has special courts or divisions that have jurisdiction over divorces. Those courts go by different names in different states. A few examples:
--In Alabama, a divorce is filed in a county circuit court.
--In Ohio, it is filed in the domestic relations division of the common pleas (county) court.
--In California, a divorce is filed in the county Superior Court. California is also one of the few states that allow paralegals to represent clients in uncontested divorce cases.
--In Pennsylvania, it is filed with the county prothonotary (clerk of courts) and heard by the county common pleas court.
--In New York, divorces are called “matrimonial actions” and are heard in the “Supreme” court (which, in New York, means the county trial courts).
-- A Massachusetts divorce action is filed in probate court. After the final hearing, the court only issues a temporary order (called a nisi), which is then followed by a final divorce order, usually 90 days later.
--In West Virginia, circuit courts and family courts have jurisdiction over divorces.
-- In Kentucky, all divorces are called dissolutions and are filed in circuit court.
--In Mississippi, divorces are filed in chancery via a Complaint in Chancery.
If the couple has children and is not married, then other courts may come into play. The most common court for enforcing child support orders for unmarried parents is the juvenile court, although some states use domestic relations courts. Some states even have had joint jurisdiction between domestic relations and juvenile courts for unmarried couples. If the parties agree on everything, some states will allow the child support agency to handle it, until there is a dispute that lands in front of a judge.
In addition to state laws and procedures, local divorce courts are allowed to create their own procedural rules. While this usually doesn’t affect the eventual outcome of a case, it may affect the issuance and timing of orders.
In some cases, this power of local courts may affect whether alimony is awarded, as judges are given great leeway in interpreting the law. One judge’s determinations of whether a party deserves alimony under that state’s law may differ from another judge’s interpretation of that same law, even if the offices of those two judges are right next to each other.
Enforcement of Domestic Relations Court Orders
A court order is useless if it is not enforced. Court orders are enforceable via the police powers of the state. Final domestic relations orders are enforced by a variety of state and local agencies. Child support orders are generally enforced by a state or county-based agency that is usually called something like a “child support enforcement agency.”
According to the federal Office of Child Support Enforcement, “State and local child support agencies implement policies to establish fatherhood, set realistic orders, collect payments, and reduce child support debt. State and local child support programs also develop innovative strategies to improve the well-being of children.” These agencies are “tied together” nationwide under state laws that form a network of child support and visitation statutes. We will get into how these agencies function later in this course, and how these orders are enforced in real life situations.
In the next module, we will look at the first of the major types of payments we will discuss: child support payments.
 United States Census Bureau statistics.
 National Center for Health Statistics (2014 stats).
 See https://scholarship.law.campbell.edu/cgi/viewcontent.cgi?article=1151&context=clr (page 147)
 Barber v. Barber, 62 US 582 (1858).
 Ankenbrandt v. Richards, 504 US 689 (1992).
 Various states are split about whether a police department should be enforcing visitation rights, but that is a topic for a different module.