Running head: LOVE DOES NOT ALWAYS LAST 1

Love Does Not Always Last: A Legal Analysis of Divorce

Mary P. Sager
Legal Studies Academy
First Colonial High School
LOVE DOES NOT ALWAYS LAST 2

Abstract
In this paper, the author will discuss the three main aspects of divorce: child custody, child
support, and visitation. In reviewing these aspects, the author will explain how the best interests
of the child affects each aspect and how the impact of the divorce on the child is taken into
account. The various determinations, laws, and enforcement policies of each aspect will be
discussed. All parts of the paper will be viewed under the pretense that child custody, child
support, and visitation fail to make a divorce easier on the couple and child or children involved
due to the vague language and lack of concern over the impact on the child.
Keywords: Divorce, child support, visitation, child custody, best interests, determination,
enforcement, clean hands, impact, effects
LOVE DOES NOT ALWAYS LAST 3

Love Does Not Always Last: A Legal Analysis of Divorce

Every year thousands of people get married, if not more. At the same time, thousands of
people are getting divorced. Approximately 50 percent of marriages end in a divorce or
separation (Divorce Facts and Statistics, n.d.). These divorces can go one of two ways: (1)
everyone cooperates and leaves with what they want, or (2) no one cooperates, there are months
of court hearings, hundreds of dollars wasted, and in the end, everyone is fed up, tired, and
without what they originally wanted. In many cases, children are involved in the divorce. If there
are children involved, then the parents must file petitions for any and all of the following topics:
child custody, child support, and visitation rights (J. Rasberry, Personal communication,
November 22, 2016). Child custody refers to which parent the child will be placed in the care of
(Doskow, n.d.). The parent can also be called the main caregiver or custodial parent. Child
custody is the very first topic that must be considered, as it affects the child most directly and
needs to be settled as quickly as possible. Child support is the money that the non-custodial
parent owes to the custodial parent to help support the child (Child Support, n.d.). Sometimes
child support is a relatively small topic for parents, and sometimes it is the most important
decision, as it can determine the future health and housing status of the child. Visitation is the
time that the non-custodial parent is allotted to spend with the child. Visitation can only be
determined after child custody has been determined. Some parents see no problem with their
former spouse seeing their child, while others view it as a heinous act that will horribly impact
the child. All three factors are equally important in a divorce settlement and all revolve around a
common topic: the best interests of the child (J. Rasberry, Personal communication, November
22, 2016). Making sure that the child is kept safe is the primary concern of the courts. The only
problem with the best interests of the child is that each judge interprets them differently and there
is no set definition for best interests. This happens to be a common theme in family law:
unclear laws, lack of strict definitions, and multiple interpretations by judges. Child custody,
child support, and visitation, the three main aspects of divorce, fail to effectively make the
divorce easier on the couple and children involved because of the vague language and lack of
reference to the impact on the child.
Divorce

History

The history of divorce dates as far back as the 1500s in England. King Henry VIII was in
power and wanted his marriage to Catherine of Aragon annulled (Foreman, 2014). Today, getting
an annulment or divorce is not such a big deal because of how common it is, but in 16th century
England, which was under Catholic rule, marriage was seen as a holy union between two people
that could not and should not be broken. Henry ended up making himself the head of the church
and got the annulment that he wanted (Foreman, 2014). The Catholic Church did not approve of
this, and the two went back and forth for years over the issue of annulments and divorces. 300
years later, the Matrimonial Causes Act was created, allowing everyone the ability to get a
divorce (A Brief History of Divorce, 2009). Allowing everyone the ability to get a divorce was
a drastic change as normally only the wealthy could get divorced because of how much it costs.
LOVE DOES NOT ALWAYS LAST 4

The only problem with the Matrimonial Causes Act was in regards to women. A woman could
file for divorce only if she was accusing him of adultery, but she also had to find other faults
with her husband that could lead to a divorce, such as rape (A Brief History of Divorce, 2009).
It was not until the early- to mid-1900s that women could file for divorce without having to
prove several different elements of unfaithfulness. The Divorce Reform Act of 1969 had maybe
the largest impact on divorce since the 16th century. Couples that had simply separated and no
fault was able to be placed on either party had finally become viable grounds for divorce (A
Brief History of Divorce, 2009). Divorce has come a long way since the 16th century. People
went from not being able to divorce to only wealthy men being able to divorce to everyone being
able to divorce.
Impact on Children
Divorce has previously been thought to have severely affected children, both in the short-
term and in the long-term. It has been found that a parents divorce will be witnessed by at least
half the children in the United States (Divorce Facts and Statistics, n.d.). Recent, more
accurate studies have found that although divorce is a highly stressful event in a childs life,
long-term psychological difficulties are not present in the majority of children from divorced
families (Rappaport, 2013). There are still short-term effects, but there are few incidences of
long-term effects. The main reason that children have difficulties post-divorce is believed to be
because of the cognitive dissonance theory, which states that for some people there is a powerful
motive that tries to reduce thoughts, beliefs, and attitudes that are not consistent with their pre-
established cognition (McLeod, 2014; Rappaport, 2013). Besides the cognitive dissonance
theory, there are several other important factors that can affect the child post-divorce. According
to Rappaport, there are five main factors: (1) the level of conflict between the parents, the
childs exposure to the conflict, and the childs perception of the parents resolution; (2) the
parents mental health; (3) the involvement of the non-main caregiver; (4) the financial impact,
and; (5) the childs perception or appraisal of external events (2013).
Parental conflict. When parents fight and argue and continue to place their child in the
middle of the conflicts, their child is obviously going to be at risk for having more difficulties
than the average child experiencing a divorce (Rappaport, 2013). The only aspect that would
counteract the child being at a higher risk would be the resolution of the conflict. If the child is
able to see that the parents are able to resolve their conflicts, then the child will do much better
(Rappaport, 2013). Seeing their parents resolve conflicts would also help to teach the child
conflict-resolution skills, a necessary and invaluable life skill. On the other side of the spectrum
are children who witness their parents fight and cannot resolve what they were fighting about.
These parents have a tendency to be less empathetic, more rejective, less affectionate, and have a
higher rate of parental depression (Rappaport, 2013). Parents with those issues tend to have
weaker relationships with their children, causing them to feel many different painful emotions.
Children who experience this would obviously be at risk for greater and larger amounts of
problems than the average child.
Parents mental health. A parents mental health is often closely related to the parental
conflicts and the financial issues relating to divorce. Within the first two years of a divorce, the
parenting skills begin to deteriorate because of all the stress (Rappaport, 2013). When parenting
deteriorates, the amount of attention that the child receives either worsens or deteriorates as well.
LOVE DOES NOT ALWAYS LAST 5

One way to counteract this is for parents to practice effective parenting or to generally have an
authoritative manner when parenting (Rappaport, 2013). Authoritative parenting occurs when a
parent expects highly of their children and is willing to also guide them and help them reach
those expectations (Cherry, 2016). Being an authoritative parent will help to reduce the impact of
the divorce on the child by allowing them to discuss the divorce and sort through any issues that
the child may be experiencing, while at the same time remaining a parent and fulfilling the duties
of a parent (Rappaport, 2013). On the negative side of parenting, if the relationship between the
parent and child is compromised or negative changes occur, the child will be at a greater
disposition to have greater difficulties internalizing and externalizing problems (Rappaport,
2013). Children under the age of twelve rely so heavily on their parents that if something were to
happen to that relationship, there would be very little good that would come of it. The issues
revolving around the mental health of the parents is one of the main factors that impacts a child
both directly and indirectly post-divorce (Rappaport, 2013).
Father involvement. One of the most heavily researched topics regarding divorce and its
impact on children is the involvement of the father (Rappaport, 2013). Many times, the mother
gets custody of the child, while the father is given visitation rights. Sometimes in these instances,
the father figure is known to leave his family and fail to play a significant role, or any role for
that matter, in the life of their child. It has been shown that children are more likely to do better
post-divorce while the father is actively engaged with them in a positive manner. The best way to
be engaged in a childs life entails providing authoritative parenting and spending sufficient time
with the child (Rappaport, 2013). When asked, children stated that the most negative impact of
their parents divorce was the loss of contact with the non-custodial parent (Rappaport, 2013).
The answer that the children gave just goes further to show that the relationship between the
father and the child is one of great importance.
Childs perception and appraisal. When discussing the impact of anything on a child,
one must also take into account how the child perceives the event or object. Children can
respond to changes in their life in any number of ways, contributing to their own functioning
(Rappaport, 2013). The various responses come from the varying level of skills that each child
has. If a child were to have wonderful coping skills and control over their temper, they would
have less difficulty post-divorce (Rappaport, 2013). All children will differ in how they perceive
the divorce, making it one of the most difficult aspects to study and measure. Some children will
handle it well and understand that the marriage just was not working out and that they had
nothing to do with it, while others will not handle it as well and might even try to blame
themselves for the divorce. When a child does this, it puts them at risk for larger adjustment
problems (Rappaport, 2013). Going back to the parents mental health, the type of parenting
might have an effect on how the child perceives the divorce. If the parent has an authoritative
parenting style and talks with their child about what is happening, the child might have an easier
time adjusting and understanding that they were not the cause of the divorce. The only problem
is that regardless of the support that the child receives from the parents and anyone else, the
childs own perception will impact their functioning more so than the support (Rappaport, 2013).
LOVE DOES NOT ALWAYS LAST 6

Child Custody

When a couple gets divorced and there are children involved, the very first issue that
must be taken care of is who gets custody of the child or children. Custody of the child or
children can either be classified as joint or sole. Joint custody, the most common form of custody,
occurs when both parents can make legal, medical, religious, and educational decisions regarding
the child, and sole custody occurs when only one parent can do so (Doskow, n.d.). Often times a
judge will award joint custody if he or she feels that both parents are competent enough to make
decisions on behalf of the child. When a judge awards sole custody to one parent, it is usually
because the child only lives primarily with one of their parents, yet sole custody can also be
awarded based on frequent disagreements between the parents (Doskow, n.d.). When it comes to
child custody, one of the main focuses is the best interests of the child, an extremely vague term.
20-124.2 of the Code of Virginia (n.d.) states that:
In determining custody, the court shall give primary consideration to the best interests of
the child. The court shall assure minor children of frequent and continuing contact with
both parents, when appropriate, and encourage parents to share in the responsibilities of
rearing their children. As between the parents, there shall be no presumption or inference
of law in favor of either. The court shall give due regard to the primacy of the parent-
child relationship but may upon a showing by clear and convincing evidence that the best
interest of the child would be served thereby award custody or visitation to any other
person with a legitimate interest. The court may award joint custody or sole custody.
Although the code states what the court will do in determining which parent gets custody of the
child, it still does not define or explain what the best interests of the child are. This could
potentially be detrimental as several different judges could review the case and come up with
several different answers as to whether joint or sole custody should be awarded. If the best
interests of the child were looked at through the impact of the divorce on the child, then different
judges might not come up with varying opinions.
Child Support
Child support is one of the most important characteristics of divorce. It can be considered
as the defining characteristic of family obligation and ties between the parent and child (Oldham
& Melli, 2000). The purpose of child support is, as it seems, to support the child. In the best
interests of the child, it is necessary that the income flow remains the same as it was before the
divorce. Courts want to ensure that as little as possible is changed for the child during a divorce,
including how much money is paid towards the child and how much money is available for the
child.
The amount of child support that is actually coming into the home of the custodial parent
and child can actually have a large impact on the child. One-fifth, or 21.5 percent, of custodial
mothers live in poverty with their children of all ages, making the percentage almost twice as
high as the overall poverty rate (Rappaport, 2013). Living in poverty drives many parents to
extremes just to keep food on the table and clothes on the backs of their children. They will often
work more hours, get a second or third job, or just find more ways to get more money to help
their family. This burden puts so much strain on the custodial parent that they often are not
LOVE DOES NOT ALWAYS LAST 7

paying enough attention to their children, leading to a more negative impact on them (Rappaport,
2013).
Determination
When determining the amount of child support that should be paid by the non-custodial
parent, the court looks at a series of tables where the gross income of the father is compared to
the gross income of the mother (J. Rasberry, Personal Communication, November 22, 2016).
Although the gross income is one of the major considerations when determining child support, it
is not the only consideration. The other major consideration would be the best interests of the
child. As stated earlier, child support is to help ensure that the child is affected financially as little
as possible. Child support can be ordered to help cover medical costs, education, extracurricular
activities, groceries, clothing, or any other necessities that the child might need. The courts want
to make sure that the child is still able to do all the things that they would have been able to do
had their parents stayed together.
Enforcement
Enforcing the payment of child support can be done in several different ways and can
vary by state. The most basic way is to get into contact with the non-custodial parent and inquire
as to why they are not paying. This can be done through the Federal Parent Locator Service,
which helps states to find the non-custodial parent and take additional action if necessary (Child
Support, n.d.). If there is a change in circumstances, then the parents can go back to court to
have the support orders re-examined and modified. In Virginia, after 90 days of no payment and
no contact, the Department of Motor Vehicles can suspend or refuse to renew the parents license
(Code of Virginia - Title 20, n.d.). The courts can also go to the employer and have their wages
garnished, or they can have the parent arrested and sent to jail. In Alaska after only 30 days the
very first action that is taken is wage garnishments (Alaska Statutes 2015, n.d.). Based on the
short time span, it is clear that they want to ensure that the children are being supported, at least
financially.
Legislation
In October of 2016, Obama released a statement regarding his views and plans regarding
child support laws. Because the child support system is a major driver of mass incarceration, he
plans to reform child support laws by reducing the amount of debt that a prisoner must pay after
they are released (Kenney, 2016). Many parents are in jail because they neglect to pay their child
support, an understandable disciplinary action. The only problem with this punishment is that the
parents who are in jail are not making any money while they are there, thus increasing the
amount of child support they owe and the amount of debt they have, thus causing them to go
back to jail because they cannot pay for the child support (Kenney, 2016). At first glance,
Obamas plan seems like a wonderful solution to the treacherous cycle of jail time, but when
given a better look, one can see that Obamas plan is absolutely horrible. Obama claims that he
wants to get more men working and being a part of their children's lives (Obama Wants
Reform, n.d.). The problem is that once the parents find out that their debt is not increasing
while they are in jail, then they will have no reason to get out of jail because once they get out,
they have to start paying again. Reducing the debt that the parents owe when they get out is just a
way of telling the parent that they really do not need to pay their child support anyways.
LOVE DOES NOT ALWAYS LAST 8

In 2013, a bill was brought to Congress that unfortunately died shortly after its
introduction. The bill was titled Child Support Enforcement Effectiveness Act (Rockefeller,
2013). If passed, this bill could have done great things for child enforcement agencies. The bill
did not ask for much, just that the members evaluate the effectiveness of current child support
enforcement programs and collection practices and report back on ways to make the program
better (Rockefeller, 2013). The bill even took into account the impact that the divorce has on a
child and how necessary the interaction between non-custodial parents and their children is.
Fostering engagement between the non-custodial parent and the child through the consideration
of parental time and visitation with the child in determining child support was one of the main
topics of the bill (Rockefeller, 2013). Another aspect of the bill tied in closely with a study done
by Georgia State University. The study asked custodial mothers and non-custodial fathers if
implementing a support program for the non-custodial parent to assist them in obtaining skills
and getting a job would be better than the current enforcement policies regarding child support
(Bloomer, Sipe, & Ruedt, 2002). Rockefellers bill would have created practices for connecting
parents to support programs and created practices for employment support, job training, and job
placement (Rockefeller, 2013). So much could have been accomplished if the bill had been
passed. Unfortunately, however, it died in Congress and was never able to see the light of day
(Rockefeller, 2013).
Visitation Rights
Visitation rights refer to the time that the non-custodial parent is allotted to spend with
their child or children. In many cases the non-custodial parent is the father, as the mother is the
nurturing figure and judges leave the children in her custody so long as there are not any
concerns. Ayelet Blecher-Prigat, a professor at the Shaarei Mishpat Law School in Israel who
wrote an article for the Duke Journal of Gender Law & Policy, found that most times parental
visitation is seen as a right that falls into a cluster of other parental rights when it really should
not be (2009). Although visitation does fall under the category of parental rights in a divorce, it
truly is its own separate issue based on all of the complications that come along with it, such as
abusive parents, parents who do not want the other parent to see the child because they are not
paying child support, the fine line between visitation and kidnapping, and just the overall
consideration of the impact on the child. The impact on the child is a frequent concern of most
parents as the non-custodial parents involvement, especially that of the father, is one of great
importance (Rappaport, 2012).
Determination
As with child custody and child support, a judge will want to consider the best interests
of the child. A prime example of the best interests of the child being considered in a visitation
case would be the case of Patricia Pacheco v. Nestor Marulanda. Mr. Marulanda had tried to
argue that the court suspending his visitation would adversely affect the best interests of his
child, yet the court found that was not the case as the visitation was not suspended, only
modified, he had a drinking problem, and he had not obeyed the previous court orders regarding
his visitation with his daughter (Flaherty, 2015). The case shows that the judge really was
looking out for the best interests of the child, as his drinking problems and previous behavior
could have been harmful to her.
LOVE DOES NOT ALWAYS LAST 9

The problem with the best interests of the child though is, once again, that it is vaguely
defined. Besides looking out for the safety of the child, it is still unclear as to what the childs
best interests are. Code of Virginia 20-124.3 includes that a court should consider such other
factors as the court deems necessary and proper to the determination of visitation rights (Code
of Virginia - Title 20, n.d.). This causes a huge problem as any judge can interpret this
differently. If former spouses were to go to court time and time again to get the visitation of their
child or children changed because they thought it was inadequate, there is the possibility that
each judge would have a different opinion and that the visitation may never be adequate. The
best action that can be taken is for a better standard to be put in place for determining what the
best interests are in regards to the visitation of the child or children.
Clean Hands
The Clean Hands doctrine is a rule that states that a person who goes to court seeking
amendments cannot do so if they have legal problems that have not been properly taken care of
(Clean Hand Doctrine, n.d.). This doctrine is applied to divorces when a noncustodial parent
comes to the court asking for an amendment to their visitation rights because they are having
issues with the custodial parent, yet they have built up a considerable debt by not paying their
child support. This brings up a considerable issue because although one parent wants to fix a
perceived problem, they cannot fix said problem because they are not paying their child support.
If there really was a problem, the problem will not get fixed because child support is not being
paid. It creates this vicious cycle of unfixed problems.
Conclusion
After reviewing the major aspects of divorce and its effect on a child, it can be

concluded that divorce is a major legal topic that needs much consideration. Although immense

amounts of consideration are needed, immense amounts of clarity are also needed. With the best

interests of the child being a major consideration in a judges opinion on child custody, child

support, and visitation, its definition needs to be clearer if the judge really wants to look after the

child. Making laws clearer and really taking into consideration the impact on the child will assist

judges in making divorces easier on the former spouses and the children involved.
LOVE DOES NOT ALWAYS LAST 10

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Flaherty, F. X. (2015). Patricia Pacheco v. Nestor Marulanda. Rhode Island Supreme Court
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 LOVE DOES NOT ALWAYS LAST 12

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16 = 100 12 = 88 8 = 76 4 = 64

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