Book Opener

On divorce, property is distributed differently depending uponwhether a state is community or non-community property state. In noncommunitystates, assets and earnings gained during marriage are dividedequitably; that is, as the court deems fair. For example, the higherwage earner might take two-thirds of the assets and the lower wageearner may receive only one-third. In community property states, eachspouse is said to own a one-half interest in property acquired during themarriage. Property owned before marriage or received as a gift remainsseparate property unless it is commingled with community property ortreated as such.Custody and Support of ChildrenWhen marriages fail, the custody and support of the couple’schildren is a major concern of society. Many states have passed laws toprotect children in such circumstances.Custody of ChildrenThe parents of children born within a marriage are considered to bejoint guardians of their offspring. If they break up, each parent has anequal right to custody of the children, and state law governs most custodymatters. Most states divide custody into two parts: legal custody andphysical custody. Legal custody is the parent’s right to make majordecisions about the child’s health, education, and welfare. Physical custodydeals with the daily living arrangements of the child.Sole custody gives all parental rights, duties, and powers to one parent.Joint custody divides the rights, duties, and powers between theparents. Under sole custody, the children live with the custodial parent, andvisitation rights are given to thenoncustodial parent. Under jointcustody, the children live with eachparent at different times.In awarding custody, the courtattempts to determine what is in thebest interests of the child. Parentsare allowed to compete for custodyon an equal footing, but the decisionis based on the child’s needs.Some states favor awarding custodyto the primary caretaker in the marriage.The primary caretaker is theparent who spent the most time caringfor the child. Many states alsogive great weight to the child’swishes in determining custody.Married couples aremore likely to staytogether than couplesthat only cohabitate.According to agovernment study in2002, the probabilityof a first marriageending in separation ordivorce after 10 yearsis 33 percent, comparedto 62 percent forcohabitations.CHILD CUSTODYWhen parents break up,each parent has an equalright to his or her child’scustody. What does thecourt attempt to determinewhen awarding custody?Chapter 32: Divorce and Its Legal Consequences 703