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Family Law
The family is a social institution that is found in all societies. It can be the locus of
love and hate, tranquility and conflict, economic production and consumption,
socialization and social control, birth and death. Not surprisingly, society has a stake in
families and does not let families or family members do whatever they please. “Family
law—sometimes called the law of domestic relations—deals with all aspects of your legal
rights and obligations as they apply to the family unit” (Belli and Wilkinson 1987: 1).
In our culture, the family has traditionally been organized around a marital
relationship, but practices are changing and increasing numbers of Americans form
“family-like” units that do not involve marriage certificates. Our discussion begins with
a look at marriage and alternative arrangements to see how law regulates us in this very
basic area.
The Right to Marry
Despite being challenged by the need to deal with untraditional arrangements,
American law generally continues to endorse traditional views of the family as being
centered on a husband and wife. Each state has its own law on marriage but the U.S.
Constitution’s 14th amendment’s equal protection and due process clauses limit what the
states can do (Melone and Karnes 2003: 472). The U.S. Supreme Court has held that the
right to marry is a basic one that deserves equal protection. So, for example, Virginia’s
miscegenation statute that barred inter-racial marriages was struck down because it was
discriminatory. The right to marry has not been extended to same-sex marriages by the
U.S. Supreme Court, but the highest courts in several states have struck down bans
against same-sex marriages based on state constitutions. Two of those states (Alaska and
Hawaii) amended their constitutions to forbid same-sex marriages; a third state
(Vermont) enacted legislation that provided for civil unions but not marriage for gay
relationships (Melone and Karnes 2003: 479-480).
Although we may have a right to a heterosexual marriage, we can’t marry just anyone
The states can regulate who marries; Ventura (1996: 51) has reviewed the basic ways. To
be legally married in a marriage ceremony (either religious or civil), the couple must
obtain a license from the state in which the wedding will take place. A marriage license
will NOT be issued if:
 One or both parties are under 18 unless they have the permission of their
 One or both parties cannot meet health standards (usually proof of vaccinations or
proof that they have passed a recent physical examination and blood test results
showing neither of them have a venereal disease). Some states require testing for
HIV/AIDS but do not withhold a license if one or both of the partners test
 The parties are close relatives. “All states prohibit marriages between a parent
and child, grandparent and grandchild, great-grandparent and great-grand child,
brother and sister (including half-brothers and half-sisters), uncle and niece, and
aunt and nephew. Many states also ban marriages between first cousins, and
some bar marriages between a stepparent and stepchild, a father-in-law and
daughter-in-law, and a mother- in-law and son-in-law.” Belli and Wilkinson
1987: 2-3.
 If one or both of the parties are already married to someone else so another
marriage would be bigamy.
 If one or both of the parties cannot understand the importance of significance of
Once a license has been issued, the couple must have the formal wedding before the
license expires or the marriage is invalid. Some states have a waiting period so that
licensed couples cannot rush into the wedding too hastily. The wedding must be
performed by someone who the state recognizes has the authority to marry people. Belli
and Wilkinson 1987: 3. Presumably the goal is to have a valid marriage.
Even if a license has been issued and the proper ceremony has occurred, the marriage
may not be valid. “A void marriage can never be recognized as legal. A voidable
marriage, on the other hand, can be annulled within the time limit set by state law, but if
not so annulled, it becomes valid. … Marriages based on fraud or coercion are
voidable.” Belli and Wilkinson 1987: 9. A marriage between close relatives is void as is
a second marriage of someone who is already married (bigamy).
One other route to a legally recognized marriage exists in a minority of states—
common law marriage. Common law marriage occurs without a license and without a
formal wedding over which an authorized person officiates. Even in the small number of
states that recognize common law marriage, the requirements vary somewhat. Generally,
“a common law marriage may be established by cohabiting with the intent to be married
and holding oneself out to be married.” Melone and Karnes 2003: 481. If it is
recognized, it is as valid as one entered into via a licensed ceremony. The major
difference is that common law spouses may have to prove their marriage at some point
and will not have the official certificate of marriage to do so. Whether a common law
marriage existed may be important for variety of legal reasons ranging from tort claims
for loss of consortium or wrongful death to disputes over child paternity and custody to
insurance coverage to property settlements at the time of a break-up or at death.
Marriage vs. Cohabitation—Different Rights and Responsibilities
Marriage “gives both [spouses] legal obligations and rights that are defined,
recognized, regulated, and enforced by [the] state.” Ventura 1996: 52. Those rights and
obligations include:
 Providing support to and receiving support from one’s spouse
 Sharing in income earned and debts incurred (unless modified by a pre- or
antenuptial agreement)
 Possessing an interest in property acquired during the marriage (unless a pre- or
antenuptial agreement is in force)
 Being able to file joint tax returns
 Being able to hold title to property as tenants in the entirety
 Being able to visit one’s spouse who is in intensive care
 Having a share in your spouse’s estate at the time of his/her death
 Having access to various government or employee benefits (e.g., Social Security,
Worker’s Compensation, retirement funds; health insurance)
 Being able to sue a third party for injuries to one’s spouse (e.g., wrongful death,
loss of consortium—loss of comfort companionship, affection, solace, and sexual
 Presuming that the husband is the father of any child born during the marriage
When couples decide to cohabit, the partners do not automatically enjoy these rights nor
bear these legal responsibilities.
When relationships end, married people who divorce also have a clearer set of rights
and obligations than do cohabiting couples who split. Divorcing married people can:
 More easily seek monetary support, maintenance, or alimony
 More easily make a case for shared custody of minor children
 Have the court help determine the distribution of property
 More easily make the case for child support
 More easily obtain visitation rights to see minor children
Again, when cohabiters call it quits, their rights and responsibilities are much less clearly
People who cohabit (either by choice or because law will not recognize their
relationship) can take steps to structure their rights and obligations. “You and your
partner can … voluntarily give yourselves rights and responsibilities, including many of
the ones that automatically come with marriage, in a legally binding cohabitation
agreement. For example, your agreement can spell out how you share your living
expenses and any property that you may acquire as well as the terms of your “divorce” if
you split up.” Ventura 1996: 48. This agreement will have to comport with the
requirements of contract law to be enforceable so the help of attorney will probably be
needed to make sure it is legally binding. Ventura (1996: 49) identifies several ways in
which cohabiting couples can structure their relationships so they are more like those of
married people. Partners can make own property and bank accounts jointly. They can
name each other as beneficiaries on insurance policies, employee benefit plans, and
retirement accounts. They can put each other in their wills. They can give each other
durable power of attorney to make important decisions (finances, business, health) for the
other in the event of mental or physical disability.
People who wish to marry and want to alter the pattern of rights and obligations set
forth in law should consider a prenuptial, antenuptial, or premarital agreement. As the
label implies, the agreement must be executed before marriage. The ability to alter
marital rights and obligations through a contract before marriage is a relatively recent
development. In the 1980’s the National Conference of commissioners on Uniform State
Laws proposed the Uniform Premarital Agreement Act, which has been adopted in whole
or in part in about half the jurisdictions. Melone and Karnes 2003: 485. For the
agreement to be valid, both parties must fully disclose information and voluntarily agree
to terms. The terms cannot be “unconscionable” or too one-sided. Such agreements
should make sure that each partner can return to a reasonably comfortable standard of
living no worse than that enjoyed before the marriage. Any provision in the agreement
about children is not binding on a court that is asked to enforce it. A prenuptial
agreement should be in writing and attorneys should be consulted. “To reduce the
chances that a court will refuse to enforce a premarital agreement, each party should be
represented by his or her own lawyer.” (Belli and Wilkinson 1987: 7).
Altering a Marriage
Husbands and wives can alter a legal marriage in three ways. Each will be
1. Annulments
First, a spouse could seek an annulment. Annulments can be obtained on a number of
grounds including: consent to marry based on fraud (like false pretensions of pregnancy
or love or chastity or parenthood), concealment of pregnancy or venereal disease,
misrepresentation as to religion, being under age, lacking mental capacity, consent to
marry given under duress (shot-gun wedding?), and concealment of the intent not to
assume marital duties. Melone and Karnes 2003: 487.
2. Legal Separations
Second, a couple may enter into a separation agreement. A legal separation does not
relieve the spouses of all their marital rights and obligations but it can structure them so
the spouses can lead separate lives. Separated spouses do not have to pursue a divorce.
The separation agreement should be explicit and in writing so there is no doubt about
such things as financial arrangements, insurance coverage, caring for children, etc. Just
splitting without an agreement can be construed in some circumstances as abandonment,
which could complicate divorce proceedings in some jurisdictions. Ventura 1996: 54.
3. Divorce
Third, a couple may divorce. Divorce law can be complicated and it varies widely
across states. “When you file for divorce, you actually initiate a civil lawsuit against your
spouse. To settle it, you have to come to an agreement that addresses how you divide up
your marital property, whether either of you get spousal support (for how long and how
much), and if you have minor children from your marriage, how you deal with their
custody and support. Before your divorce is final and your agreement legally binding on
both of you, the court must approve it. Like most lawsuits, your divorce may never go to
trial. But if you, your spouse, and your attorneys are unable to negotiate all aspects of
your divorce agreement outside of court, a trial is scheduled and the judge decides thing
for you.” Ventura 1996: 55. The three major issues that have to be decided are the
division of the property, what kind of spousal support or alimony (if any) is in order, and
what to do with minor children. All of these can be emotional and are potentially deal
Divorce laws are either categorized as “no fault” or “fault-based.” Historically,
divorce was granted only upon the showing that one spouse was at fault. Now a minority
of states rely only a “fault-based” approach. “The theory behind fault-based divorce is
that one of the parties has not complied with marital obligations or duties and, as a result,
the injured party should be granted a divorce.” Melone and Karnes 2003: 488. The
spouse who files for divorce has to prove the grounds for the divorce (the fault). Those
grounds could include: adultery, desertion, mental cruelty, abuse, mental illness, criminal
conviction, substance use/abuse. The need to prove the grounds could lead to messy
divorces. Note that since fault is the key issue, it can be contested and defenses exist
against the charges (e.g., recrimination, condonation and reconciliation, collusion and
connivance). Melone and Karnes 2003: 490. This issues are beyond the scope of this
The majority of states now have no fault laws (often as alternative to their fault-based
law). No fault laws can work in one of two ways. In some states the parties have to live
apart for a specified period of time to demonstrate that the union is over. In more states,
the party who files merely ahs to show that there are irreconcilable differences or that the
relationship is irretrievably broken. “In a no-fault divorce, you don’t have to prove that
your spouse has committed some sin or physically abused you. You only need to show
that such disharmony has developed that the two of you are no longer able to olive
together, and the marriage is beyond repair.” Belli and Wilkinson 1987: 13. This does
not mean, however, that “fault” will not come into play. The spouse who has gambled
away a small fortune may see that reflected in the property settlement. The controlling
husband who would not let his wife pursue a career may have to pay more for spousal
support. The alcoholic mother may find her custody rights for minor children limited.
a. Property Settlement
Two different schemes have developed for dividing the property between
spouses. The majority of states are known as “separate property” jurisdictions; a few
states are “community property” jurisdictions.
“Separate property states use the concept of equitable distribution—that is,
what is
fair—to decide how a couple’s property and debt are divided up when they divorce.
‘What’s fair’ is determined on a case by case basis according to specific criteria your
state has established.” Ventura 1996: 57. The equitable distribution can either be made
from the property acquired during the marriage (the rule in many jurisdictions) or from
all the property owned by either spouse (or jointly) at the time of the divorce (the rule in
fewer jurisdictions). Melone and Karnes 2003: 491. The criteria used to determine
equitable distribution include:
 The economic circumstances of the parties at the time of the divorce (their
standard of living)
 Their sources of income
 The contributions of each to the assets (and debts) they accumulated while
 The length of the marriage
 The health and age of each
 Whether minor children are involved and if so how many and of what ages
and who will have primary custody
 Future economic needs and future earning power
“Fault” may come into play during property settlements in some states. “Marital
fault (behavior by one spouse leading to the breakup of the marriage) may be considered
in a minority of the states.” (Melone and Karnes 2003: 493). The thinking is that the
person whose behavior was not primarily responsible for the dissolution should not suffer
an economic loss. “The consideration of economic fault is more commonplace,
especially the dissipation of assets. Dissipation occurs when one spouse uses marital
assets for his or her sole benefit at a time when the marriage is in jeopardy, such as
clearing out bank accounts or selling assets or simply going on spending sprees.
Dissipation can also be found when on of the spouses fails to maintain property in his or
her care, allowing it to lose value.” Melone and Karnes 2003: 493).
“In community property states, marriage was (and is) viewed as a partnership.
spouses had a vested one-half interest in all property acquired and income earned during
the marriage. Property held before the marriage and property acquired by gift or
inheritance by one spouse was considered separate property.” Melone and Karnes 2003:
491. Anything a spouse owned prior to marriage is also separate property. “The judge
can divide only the community property; separate property remains the property of the
spouse who owns it. In dividing the community property and awarding alimony and
child support, the court can, however, consider the amount of separate property either
[spouse has].” Belli and Wilkinson 1987: 21.
b. Spousal Support (or Maintenance or Alimony)
“Alimony was once considered a continuation of the duty of spousal support after
ended.” Melone and Karnes 2003: 497. Historically, this generally meant that the
husband needed to support his former wife with enough to maintain her “throughout her
life so that she could live in the same style she enjoyed when she was married. That
obligation only ended if she remarried, or in some states, if she began living with another
man. Today, however, with more women working outside the home, it’s no longer a
given that a divorced woman receives alimony or spousal support from her husband; and
in most states, men as well as women can no receive it. In addition, the traditional ‘for
the rest of your life’ support is being replaced by temporary alimony that is provided long
enough to help a spouse get an education or build a post-divorce career so that he or she
can be financially independent.” Ventura 1996: 58.
c. Palimony
In some states something roughly analogous to property settlements and alimony has
for unmarried couples who are splitting. Palimony suits petition the court for a share of
the property that was acquired while the couple was cohabiting and/or for financial
support for one of the partners. Palimony suits are based on contract law so without a
written contract they are difficult to prove (although they can be implied from the actions
of the parties). See Belli and Wilkinson 1987: 51-52. When a formal marriage ends, a
property settlement and alimony will be based on the marital relationships and laws that
cover divorce rather than contracts (explicit or implied) unless of course the couple had
entered into a prenuptial agreement.
4. Children
Children can become issues both within and outside traditional marriages. Legal
issues regarding children can start as couples conceive (or try to). Obviously not
everyone gets pregnant at will—sometimes people get pregnant when they don’t want to
and other times they can’t get pregnant when they want to. “If you’re a woman, no one
can force you to have a baby, not even your husband, and you have the right to use
contraceptives to prevent getting pregnant.” Ventura 1996: 66. Women who become
pregnant have the right to choose whether or not to have an abortion, but “states may
place restrictions on abortions as long as they do not impose ‘an undue burden’ on
pregnant women.” Ventura 1996: 66.
Parenthood brings with it rights and responsibilities. “As a parent you have a
Constitutional right to make basic decisions about how your minor children are raised,
including where they are educated, how they are disciplined, where they live, the values
you impart to them, and so on. But you also have a legal obligation to provide for their
basic needs while they are minors or until they turn 18 or 21, depending on your state.
There are times when this obligation can last even after your child becomes a[sic] adult
(if your child is seriously disabled and unable to support him or ;herself, or if your child
would be on welfare without your support, for example). And there are times when your
parental obligations end early—if your child is legally married before 18 or becomes an
emancipated minor.” Ventura 1996: 67. The state can require school attendance for
certain ages (e.g., 5 or 6 through 16) or home schooling that meets various standards.
Parents’ rights over medical treatment are also restricted in some ways. Although
generally parents have the right to consent to treatment unless the child need emergency
care and the parent is not available, the child is pregnant or seeking treatment for a
sexually-transmitted disease or alcoholism, or the court intervenes to mandate a
lifesaving treatment for which the parent(s) refuse consent. (Ventura 1996: 68).
Similarly, the ability to discipline is regulated. “All states have parental child abuse
and neglect laws. Neglect is generally considered to be failure to provide a child with
adequate shelter, clothing, food, ‘reasonably necessary’ medical attention, and
supervision. … Abuse most commonly refers to situations where you, or another adult
responsible for your child, intentionally harm the child physically. Abuse can also
include sexual abuse and extreme verbal abuse….” Ventura 1996: 69. In addition, states
are increasingly willing to hold parents responsible for harm caused by their minor
children, especially when the parents have not provided adequate supervision. If you are
interested in “parental responsibility laws,” see Brank
Historically, the legal issue that came up most often about making babies had to do
with paternity. “A child born to a married couple is legitimate. One born out of wedlock
or from a void marriage (such as an incestuous one) is illegitimate.” Belli and Wilkinson
1987: 31. “The law presumes that a child is legitimate if the parents were married at or
near the time of conception or birth.” Belli and Wilkinson 1987: 32. In most
circumstances, males are not responsible for children that are not theirs biologically and
they can contest paternity. “Today, as long as parentage is established, illegitimate
children enjoy near equality with their legitimate siblings.” Melone and Karnes 2003:
503. That includes the right to have child support and to inherit under intestate
succession laws.
Now women and couples can also use science to help make babies and that has
blurred the biological basis of parenthood. “Artificial insemination increases the chance
of a woman getting pregnant because this technology bypasses the cervical barrier. It is
also used when a man is infertile. When a husband’s sperm is used, no real issues arise.
The wife and the husband are genetically related to the child in the same manner as a
child born naturally. If [donor sperm is used,]… the wife is genetically related, but the
husband is not. At least 30 states have enacted statutes that recognize the husband as the
legal father if he consents to his wife being artificially inseminated with donor sperm. At
least 15 states statutorily sever the parental rights of sperm donors who deliver their
sperm to a licensed physician…” Melone and Karnes 2003: 505.
When sperm donors are used outside of recognized marital relationships, the legal
issues “can be very murky.” Melone and Karnes 2003: 505. That is especially true when
the donor is known to the woman, which may suggest some kind of agreement was made
that could be contested. “If you work through a sperm bank, sperm bank donors usually
don’t have any parental legal rights or obligations.” Ventura 1996: 74.
Legal complications can also plague the use of female surrogates—either those who
are the biological egg donor or those who are carrying the fertilized egg (implanted after
in vitro fertilization) of the woman who wants the baby. “An airtight contract is
especially important if you work with a female surrogate. In the contract, you want the
surrogate to waive all of her rights to the child after it’s born; otherwise, she may have a
change of heart after the baby is born, and you may find yourself in court battling for the
baby. If the surrogate provided the egg, she is the baby’s biological mother and your
husband is the father; therefore, before you can adopt the baby and become its legal
parent, she must waive her parental rights. If you end up in a court battle with a
surrogate, she may get visitation rights, custody, and even child support, depending on
the nature of her role in bringing the baby into the world, whether or not there was a
surrogate contract, and exactly what the contract said.” Ventura 1996: 73. Public policy
opposes “baby selling” so contract language has to be very careful in some states to avoid
this pitfall (see Melone and Karnes 2003: 506).
Biological parenthood is an issue that can be raised in other contexts, especially
adoption. “Most states require that if [a woman decides] to put [her] child up for
adoption and [she knows] who the child’s father is, [she] must let the man know about
[her] plans.” Ventura 1996: 71. A biological father of a child born out of wedlock who
helps support the child and maintains contact “probably has the right to withhold his
approval” of an adoption. Ventura 1996: 71. He can also probably successfully petition
the court to raise the child instead of having the child adopted.
Three kinds of adoptions are possible. “Agency adoptions are arranged by public and
private agencies” … and “are legal in all states. … Agency adoptions typically provide
adoptive parents with more legal safeguards than private adoptions. Agencies are also
more apt to place restrictions on whom they will help adopt….” Ventura 1996: 71-72.
In private adoptions “a doctor, lawyer, or someone else in contact with the biological
parents of a childe arranges for the adoption. Private adoptions typically allow the
biological parents to play a greater role in deciding who will adopt their child than if they
worked trough an agency.” Ventura 1996: 72. Private adoptions can be arranged across
states and even across countries, but the legalities become more complicated because of
the laws of more than one jurisdiction are involved. Generally, “the laws of the country
where the child resides govern foreign adoptions.” Melone and Karnes 2003: 504.
Private adoptions “are commonly expensive and can involve many risks unassociated
with agency adoptions, such as the natural parents changing their minds, wanting to be
paid for the child, or later seeking contact with the child.” Melone and Karnes 2003: 504.
“Related adoptions take place when a child is adopted by relatives. The parents of
the child may have died or may be unable to care for their child due to illness, drug use,
or other problems. Adoptive relatives, like any adoptive parents, must go through a
process to make the adoption legal.” Ventura 1996: 72.
Ventura (1996: 70-71) reminds us that each state has its own set of criteria for legal
adoptions. They include:
 The consent of the biological parents must be obtained if they are married; states
vary about the need for the biological father’s consent if the couple is unmarried
but require that of the biological mother.
 If the adoptive child’s biological parents are “unfit,” their parental rights must be
terminated for the adoption to proceed.
 The financial arrangements must be reasonable; excessive fees paid to an
intermediary or to the biological parents may violate the public policy against
“selling babies.”
 The court must find that the adoption is in the “best interests” of the child.
 The adoption must be approved by a court.
A few states have extended the right to adopt to unmarried individuals (including gays
and lesbians) but a few states explicitly bar gays and lesbians from adopting.
Adoption also raises questions about confidentiality and the rights of the adopted
children to learn about their biological parents, especially when they become adults or for
information about their medical histories. “Traditionally, adoptions have always been
highly confidential so that the privacy of everyone involved is protected.” Ventura 1996:
72. In traditional adoptions, learning about birth parents can be more difficult and will
probably require working through a court. “In an open adoption, although the birth
mother gives up all her parental rights and responsibilities in regard to her child, she
retains the right to contact or visit her child.” Ventura 1996: 72. A few states “allow
adoptees access to their original birth certificates. Most states have some type of
provision allowing adoptees and birth parents to register their consent to meet.” Melone
and Karnes 2003: 504-505.
One of the biggest issues surrounding minor children involves custody and support.
“Unwed mothers are generally entitled to sole custody of their children. This is true even
if the unwed mother is a minor living at home with her parents. Unless the father wants
custody of the child, the mother usually doesn’t need to get a court order awarding her
custody. But if she is physically or emotionally unable to care for the child, the court
ordinarily must award custody to the biological father, unless doing so would be
detrimental to the child’s welfare.” Belli and Wilkinson 1987: 34. The biological father
usually can get a court order to secure visitation rights as long as he is sincere in his
desire to have relationship with the child and it is not detrimental to the child. Of course,
if paternity is established, the biological father would also be responsible for child
Custody and support of children take front stage when married people separate and/or
divorce. “Discussions about their care has [sic]to address two basic issues: Who will
have physical custody and who will have legal custody? If you have physical custody,
the children spend most of their time with you. If you have legal custody, you have the
right to make all final decisions about how your children are raised—their education,
religion, health care, and so on. … If you have physical custody of your kids, most
likely, you have legal custody too.” Ventura 1996: 59.
Ventura (1996: 59-60) notes that joint custody is increasingly popular. Joint custody
involves the sharing of the physical and/or the legal custody of children when parents can
cooperate in raising their children after a divorce. The assumption that divorced parent
can cooperate should be carefully examined before this kind of arrangement is adopted.
Joint custody agreements often provide for mediation in the event that an issue related to
the children cannot be resolved. Although joint custody allows both parents to remain
engaged in their children’s lives, it does have several disadvantages—including shuttling
the kids back and forth between to dwellings and the extra expense of having two
The child custody decision rests ultimately on the “best interest of the child” and
Melone and Karnes (2003: 498-500) discuss the factors that will be taken into account.
They include:
 The wishes of the parents about custody.
 The wishes of the child as to custodian (especially those of an older child).
 The interactions between the child and his parents, siblings, and others who may
affect the best interest of the child.
 The child’s adjustment to his living arrangements, school, and community.
 The mental and physical health of everyone concerned.
Historical thinking reflexively awarded custody to mothers because children of tender
years were thought to need mothers more than fathers or because mothers were
traditionally the primary caregivers. Now those reasons are only two of many factors
considered in making custody determinations. Fathers can argue these factors as well as
mothers and be successful.
“Since the 1970s, grandparents and other nonparents have gained legal standing to
seek visitation. All jurisdictions allow grandparents to seek visitation. Most require that
certain circumstances exist before a grandparent may seek visitation rights. The statutes
vary widely on the required circumstances, but the two most common are as follows: (12)
the parents are divorced, or (2) the grandparent’s child is dead. …[Judges have discretion
when] employing the best interest standard. Among the considerations are whether the
grandparent and child had an ongoing love relationship, whether it would be traumatic for
the child to lose contact with the grandparent, and the child’s wishes.” Melone and
Karnes 2003: 501-502.
“The amount of monthly child support the parent not having custody of the children
must pay is usually agreed to by the parties as part of the settlement agreement. The
settlement agreement should also spell out who pays for such things as medical and
dental expenses, college, and automobile or health insurance for the children. If the
parents can’t agree on how much should be paid for child support, the judge will order
that a certain amount be paid for each child. Two factors determine the amount of child
support: the needs of the children and the parent’s ability to pay. The ‘needs’ of the
children are defined as the necessities of life—food, clothing, and shelter. The amount of
child support, whether agreed to by the parties or ordered by a judge, can be modified as
the children’s needs or parent’s ability to pay change.” Belli and Wilkinson 1987: 30-31.
“In 1984, the federal Child Support Enforcement Amendments required all states to
adopt nonbinding child support guidelines. In 1988, Congress required the states to make
the guidelines a rebuttable presumption. As the states adopted guidelines for child
support under the federal mandate, three general types evolved. First, there are flat
percentage schemes. These guidelines typically assign a flat percentage of the
noncustodial parent’s net or gross income for each child. … Under the second type, the
income shares model, a support obligation is computed on the gross or net income of both
parents. A basic support obligation (after adjustments for self-0support) is added to
actual work-related expenditures for child care and extraordinary medical expenses. The
total support obligation is then allocated to the parents based on their share of the total
income. … The Delaware Melson formula is the third type of guideline. It adds another
ste;p to the income shared model. Once the total support obligation is computed, children
are allowed to share in any additional income of the parents. The policy goal is to permit
the child or children to enjoy the parents’ standard of living.” Melone and Karnes 2003:
Ventura (1997: 62-63) reminds us of several other aspects of child support
obligations. They include:
 Child support is not usually counted as taxable income.
 The person who makes child care payments cannot claim the payments as tax
 The ability to claim a child as a deduction depends on where the child lives for
more than half of the year and whether the other parent completes an IRS form
regarding who can deduct the child.
 Child support continues until the age of 18 unless the agreement says otherwise.
 One cannot escape child support obligations by dying—parents should make
provisions in their wills or through life insurance to support their minor children.
 Filing for bankruptcy does not relieve someone of the obligation of child support
(although changes in ability to pay can be grounds for changing the level of
“Federal law also requires that all states use proven methods of collection to ensure
that parents [who have custody] get the support they are due [from those who owe child
support]. These proven actions include the following:
 Placing liens on the delinquent parent’s real or personal property…
 Taking any state or federal tax refunds that the non-paying spouse is entitled to.
 Fining or jailing a former spouse for contempt of court.
 Tapping into any unemployment compensation payments, veteran’s benefits, or
other state and federal benefits that the delinquent parent may be receiving.
 Garnishing the delinquent parent’s wages.” Ventura 1996: 63.
Recent efforts to crack down on “dead-beat” dads (and moms) who owe child support
stem from the fact that so many parents are shirking their legal obligations. But stricter
enforcement may not be enough to solve the larger problem. Unfortunately, many of the
parents who are raising children alone do not have child support agreements or orders.
Belli, Melvin and Allen P. Wilkinson. 1987. Everybody’s Guide to the Law. New York:
Harper & Row.
Melone, Albert P. and Allan Karnes. 2003. The American Legal System: Foundations,
Processes, and Norms. Los Angeles: Roxbury.
Ventura, John. 1996. Law for Dummies. New York: Hungry Minds.