Divorce and Child Custody State Laws

Laws around divorce and custody matters can vary widely. When and how you may file for divorce can differ from one state to the next. Understanding your state's divorce laws and parental rights is important before going ahead.

 

Learn About Your Divorce and Child Custody State Laws

Contemplating a divorce is a major decision. It brings up many questions, especially if you have minor children. How is child support calculated in your state? How are visitation rights decided?

When considering a custody case, the family court will look at what is in the best interests of the child or children. They will want to disrupt the child's life as little as possible and preserve the child's relationship with each parent. In some states, if your child is of a certain age, they may consider the child's preference for where the child lives.

Types of Child Custody Arrangements

There are many types of child custody.

  • Temporary custody: A judge may enter temporary orders while the divorce proceedings are ongoing, which include details about custody of the child or children, parenting time, and child support. These are not the court's final orders and may change when the divorce is finalized. Temporary custody orders are also given when custody disputes occur at any time.
  • Sole physical custody: When the child lives with only one parent. The non-custodial parent may have visitation rights.
  • Sole legal custody: Only one parent has the major decision-making powers for the child. This includes the child's health care, upbringing, religion, and education.
  • Joint physical custody: Both parents have custody of the child, and the child lives with both parents. The child's time is split as equally as possible between the parents.
  • Joint legal custody: Both parents make major decisions about the child or children.

Courts prefer to grant both parents joint physical and legal custody when appropriate.

While one or both parents will often have legal and physical custody rights, it's not always the case. One parent may have sole legal custody while the other has physical custody of a child. The family court will look at what custody arrangement is in the child's best interests.

A custody agreement includes with whom the child will live and what decisions a parent may make on their own or if they must consult the other parent. This can consist of major issues about school, medical care, or how the child is raised.

Custody Evaluations and Guardians ad Litem

If the parents cannot agree on a parenting plan or there are custody disputes, a judge may appoint a guardian ad litem (GAL) for the children. Some states use the term best interests attorney (BIA) instead of guardian ad litem. The GAL's job is to protect the needs of the child and be their voice in court. A GAL may also be appointed when there are allegations of child abuse or domestic violence in the marriage.

The judge may order a custody evaluation in these situations. A mental health professional will look at the parents' homes and each parent's ability to care for the child or children. They will recommend a parenting agreement and who should have primary custody of the child.

Dividing Property in Divorce

In addition to custody issues, you have other important decisions to make. Dividing your marital property and assets can vary by which state you live in. Not all states follow community property rules, so you must know how your state will address property division.

Below are links to information about divorce and child custody laws in all 50 states and the District of Columbia. Click on your state for information about:

 

Divorce and Child Custody State Law Articles

You Don't Have To Do This on Your Own — Get a Lawyer's Help

Meeting with a lawyer experienced in family law can help you understand your options. Only an attorney can give you legal advice and help you protect your rights. Find a divorce attorney near you to help.

If you have experienced domestic violence in your marriage or feel unsafe in your home, don't hesitate to call an attorney. Navigating a divorce or separation becomes more difficult and dangerous. Know your rights before making custody decisions or finalizing a divorce.

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Can I Solve This on My Own or Do I Need an Attorney?

  • You may not need an attorney for a simple divorce with uncontested issues
  • Legal advice is critical to protect your interests in a contested divorce
  • Divorce lawyers can help secure fair custody/visitation, support, and property division

An attorney is a skilled advocate during negotiations and court proceedings. Many attorneys offer free consultations.

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Don't Forget About Estate Planning

Divorce is an ideal time to review your beneficiary designations on life insurance, bank accounts, and retirement accounts. You need to change your estate planning forms to reflect any new choices about your personal representative and beneficiaries. You can change your power of attorney if you named your ex-spouse as your agent. Also, change your health care directive to remove them from making your health care decisions.

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