There is no one factor that is invariably “the” most important factor in a custody case. The importance of a particular factor will vary with the facts of each case. If one parent in a custody dispute has a major problem with alcoholism or mental illness or has abused the child, that of course could be the deciding factor.
If neither parent has engaged in unusually bad conduct, the most important factor often is which parent has been primarily responsible for taking care of the child on a day-to-day basis. Some states refer to this as the primary caretaker factor. If one parent can show that he or she took care of the child most of the time, that parent usually will be favored for custody, particularly if the child is young (under approximately eight years old).
Under the current law of almost all states, mothers and fathers have an equal right to custody. Courts are not supposed to assume that a child is automatically better off with the mother or the father. In a contested custody case, both the father and mother have an equal burden of proving to the court that it is in the best interest of the child that the child be in his or her custody.
There are a few states (mostly in the South) that have laws providing that if everything else is equal, the mother may be preferred; but in those states, many fathers have been successful in obtaining custody, even if the mother is a fit parent.
In some states, courts say that mothers and fathers are to be considered equally, but the courts then go on to hold that it is permissible to consider the age or sex of the child when deciding custody. That usually translates to a preference for mothers if the child is young or female. But, again, it is possible for fathers in those states to gain custody, even when the mother is fit.
Child custody is the right and duty to care for a child on a day-to-day basis and to make major decisions about the child.
In sole custody arrangements, one parent takes care of the child most of the time and makes major decisions about the child. That parent usually is called the custodial parent. The other parent generally is referred to as the noncustodial parent. The noncustodial parent almost always has a right of visitation a right to be with the child, including for overnight visits and vacation periods.
In joint custody arrangements, both parents share in making major decisions, and both parents also might spend substantial amounts of time with the child.
Direct payment of a former spouse’s health insurance normally is not part of an alimony agreement or order, although the recipient certainly may wish to use some of the alimony payments to purchase health insurance if the recipient is not already covered.
When a couple divorces, the health insurance policy covering the family (if there was such a policy) no longer covers both spouses. The policy covers only the spouse who had insurance through work or through an individual policy. Children who were covered under a family policy generally are still covered under the policy after a divorce.
A federal law passed in the 1980s requires most employer sponsored group health plans to offer divorced spouses of covered workers continued coverage at group rates for as long as three years after the divorce. The divorced spouse of a worker must pay for the coverage, but the coverage is available.
The recipient of alimony may wish to seek an agreement or court order to guarantee support in the event of the payor’s death. The usual method of guaranteeing support is to require the payor to maintain an insurance policy on his or her own life with the recipient as beneficiary. The amount of the policy should be high enough to compensate for the loss of alimony payments.
In order to ensure that the insurance policy remains in effect, the recipient may seek to require the payor to provide periodic proof that the policy is still in force. This could be accomplished by having the payor provide an annual copy of the policy showing full payment of premiums for the coming year. The recipient also may seek to have a provision in the policy that would require the insurance company to notify the recipient in the event that payments are not made on time.
The factors considered by a court when deciding whether to order alimony based on need of the recipient are similar to the factors considered by a court when dividing property.
1. Income and Property of Each Party. The greater the income and property a divorced spouse has, the less likely it is that the spouse will need alimony. Conversely, the less income and property a spouse has, the more she or he will need alimony. Payment of alimony also depends on the ability of one spouse to pay. Alimony is most likely when there is a substantial difference in the property and income of one spouse versus the other. If the spouses’ levels of property and income are similar, alimony is less likely. In looking at the difference in property held by the spouses, courts consider the division of property in connection with the divorce. Some courts order a larger share of property to the less prosperous spouse in order to avoid or reduce the need for alimony to the less prosperous spouse.
2. Earning Capacity of Each Spouse. A related factor is the present and future earning capacity of each spouse. If one spouse’s earning capacity is much larger than the other spouse’s earning capacity, that is a significant factor in favor of payment of alimony. To the extent that the earning capacities of the spouses may come closer together by giving the spouse with lower earnings additional time to pursue training, the court may use that as a factor for granting rehabilitative maintenance.
Lump-sum alimony, or alimony in gross, refers to alimony that is a fixed payment which generally will be made regardless of circumstances that would be a basis for termination of other types of alimony. For example, lump-sum alimony, or alimony in gross, normally would be paid even if the recipient remarries. Depending on the wording of the agreement or order, payments also could be made to the estate of the recipient in the event the recipient dies.
This type of alimony usually is in lieu of a property settlement. Depending on how the alimony is structured, it could provide a tax advantage to the payor by being deductible to the payor and income to the recipient. Lump-sum alimony, or alimony in gross, could be used as a type of reimbursement alimony to ensure that one spouse is paid back for certain expenditures, even if the recipient remarries, cohabits with someone, or does not otherwise need the alimony for day-to-day support.
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Reimbursement alimony, as the name implies, is designed to reimburse one spouse for expenses incurred by the other. If, for example, one spouse helped put the other spouse through college or a training program and the couple divorces soon after the training program is complete, the spouse who supported the family during that period might be able to obtain reimbursement alimony as a payback for the resources spent.
A classic example is the nurse who marries a medical student and supports the family while the medical student finishes medical school (and perhaps a residency program). If the couple divorces soon after the medical student completed training, the nurse probably would be entitled to reimbursement alimony to compensate for the resources used during the training program. In this case, reimbursement alimony is not necessarily being given because the nurse needs funds for day-to-day support (since the nurse would seem to be self- supporting). Instead, the alimony is given as an equitable payback for supporting the spouse through medical school.
Permanent alimony continues indefinitely. The main bases for teasing payments of permanent alimony are the death of the payor, the death of the recipient, or the remarriage of the recipient. Cohabitation of the recipient with a member of the opposite sex also is a common basis for cessation of permanent alimony. Generally, the cohabitation needs to be of a permanent or near permanent nature, with the parties who are living together sharing living expenses. A few overnight visits usually do not constitute cohabitation for the purpose of stopping alimony payments.
Unless an agreement between the parties says otherwise, payments of permanent alimony can be adjusted upward or downward based on a change of circumstances. If the recipient gains employment at a well-paying job or receives a significant amount of money from an other source, that might be a basis for reducing alimony payments. If the recipient incurs unexpected medical expenses (that are not covered by insurance), that might be a basis for increasing alimony payments, if the spouse paying alimony has the ability to pay more.
Rehabilitative alimony refers to alimony that is given to a spouse so that the spouse may “rehabilitate” herself or himself in the sense of acquiring greater earning power or training in order to become self- supporting. Rehabilitative alimony also might be given to a parent who is staying home with young children until such time as it is considered appropriate for the parent to work outside the home.
There is no uniform time at which parents automatically are expected to work outside the home, but when the youngest child is in school full-time is a common time for the parent to resume work. (Of course, in many families, intact and divorced, the parents work outside the home when the children are preschoolers. And in some families, one parent stays home as long as the children live at home.)