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Marriage and Child Support

The law of marriage, divorce and child support, called “domestic relations,” is a critical area of everyday law. Even if you were married outside of the United States, once you become a resident of a state (or the District of Columbia), these laws will apply to you, whether or not you are a citizen.

Each state has its own set of rules about what can constitute grounds for divorce. In New York, you need to be a resident for at least a year to commence a divorce action. Grounds include cruel and inhuman treatment, abandonment for more than one year, confinement of the other spouse in prison for three years or more, adultery, or living apart for more than a year under a legal separation agreement. Contrast New York with Nevada, where the residency requirement is only six weeks. Grounds in Nevada can be as simple as a claim of “incompatibility.” Connecticut allows divorce for “habitual intemperance,” Florida if a marriage is “irretrievably broken,” Wyoming for “irreconcilable differences.” Most states today allow “no fault” divorce, based on basic incompatibility, with no need to blame either party. In some states, an action for divorce can occur relatively quickly, while in others it takes considerable time.

The states also differ widely as to how property is divided following the dissolution of a marriage. The United States has nine “community property” states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. In these, the court considers most property acquired during a marriage to be jointly owned by the spouses, and tends to divide the property equally after a marriage ends. Courts nevertheless have considerable leeway over how they allocate marital property. Each of the other 41 states has a set of separate rules, traditions, and laws that determine how to divide martial property. In all states, courts consider factors such as length of marriage, comparative earning power of the spouses, and many other issues.

Laws and procedures regarding child custody and child support also differ state to state. In all American states, the interest of the child comes before the interest of either of the parents. The state will award custody to the parent it deems best able to care for the child, with some cases of joint custody. If the state decides neither parent is fit, it will itself take on the responsibility.

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