Divorce & Child Custody:

No Fault Divorce

"No fault" divorce describes any divorce where the spouse suing for divorce does not have to prove that the other spouse did something wrong. All states allow divorces regardless of who is "at fault."

To get a no fault divorce, one spouse must simply state a reason recognized by the state. In most states, it's enough to declare that the couple cannot get along (this reason goes by such names as "incompatibility," "irreconcilable differences," or "irremediable breakdown of the marriage").

In nearly a dozen states, however, the couple must live apart for a period of months or even years in order to obtain a no fault divorce.

Fault Divorce

A fault divorce may be granted when the proper grounds for divorce are present and at least one spouse files for it.

The traditional fault grounds are:

• Cruelty (inflicting unnecessary emotional or physical pain) -- this is the most frequently used ground for divorce
• adultery
• Desertion for a specified length of time
• Confinement in prison for a set number of years
• Physical inability to engage in sexual intercourse, if it was not disclosed before marriage.

There are several reasons to choose this type of divorce. Some people don't want to wait out the period of separation required by their state's law for a no fault divorce. And in some states, a spouse who proves the other's fault may receive a greater share of the marital property or more alimony.

Child Custody

Nearly all courts use a standard that gives the "best interests of the child" the uppermost precedence when deciding custody issues. What the best interests of a child are in a given situation depends on many factors, including:

• The child's age, sex, and mental and physical health
• The parent's mental and physical health
• The parent's lifestyle and other social factors, including whether the child is exposed to second-hand smoke and whether there is any history of child abuse
• The emotional bond between parent and child, as well as the parent's ability to give the child guidance
• The parent's ability to provide the child with food, shelter, clothing, and medical care
• The child's established living pattern (school, home, community, religious institution)
• The quality of the child's education in the current situation
• The impact on the child of changing the status quo 
• The child's preference, if the child is above a certain age, this is usually around age 12
• The ability and willingness of the parent to foster healthy communication and contact between the child and the other parent.

Assuming that none of these issues visibly favors one parent over the other, most courts tend to focus on which parent is apt to offer the children a stable environment. With younger children, this may mean awarding custody to the parent who has been the child's primary caregiver. With older children, this may mean giving custody to the parent who is best able to foster continuity in education, neighborhood life, religious institutions, and peer relationships.

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