Unlike maternity, which is never in uncertain from a legal standpoint, paternity can become very much an issue in dispute, particularly by a man who finds himself on the cusp of unsought and unwelcome fatherhood. In all jurisdictions, courts hold men to a strict liability for a child that results from their union. A man cannot claim that he is but a contractor if he impregnates a woman at her request and then argue that he is without a responsibility to support the child. Despite the number of men who attempt to argue along this line, courts have consistently held that a man is responsible for the child.

Parents cannot agree to construct a family in a way that relieves one of them — the father — of child support obligation. Nor can the woman who becomes pregnant in this routine waive child support as an inducement for the man to cooperate. Courts have ruled that, outside of the jurisdiction’s statute on artificial insemination, a man cannot waive his parental rights (or the responsibility of child support), nor can a mother.

Moreover, a man cannot escape his responsibilities by claiming that his partner misrepresented her use of birth control or even her own fertility. Courts have universally held that a father’s allegation of the mother’s deception is completely irrelevant to issues of paternity and child support.

Usually biological paternity can be imposed by a court on a man who has no biological ties to the child when a man has presented himself to the world as the father of a child.

The question of paternity may give rise to a paternity suit, which is a legal action to determine whether a man is the father of a child born out of wedlock. The purpose of this action is to enforce support obligations.

Stepparenting happens when one person marries the custodial parent of a minor child and thereafter resides with that child.

Liberal divorce has paradoxically dramatically increased the number of stepfamilies because more than three-quarters of people who divorce eventually remarry and many acquired “ready made” families in the process. Most divorced people marry again and have additional children, natural or stepchildren, but most states do not consider stepchildren to be “‘children of a subsequent marriage’” in support guidelines.

Stepparenting and stepchildren and stepfamilies face many challenges that traditional families do not. In day-to-day living, stepparents find themselves in situations where they lack the authority (”You’re not my father”) to enforce rules, regimes and protocols necessary for the domestic tranquility.

The relationship between a stepparent and his or her stepchildren is not the same as the relationship between a parent and his or her children in that under common law a stepparent has no financial duty to support a stepchild during a marriage to that child’s natural parent. However, 20 states statutorily require a stepparent to support stepchildren, but no state requires a stepparent to support a stepchild when they no longer live as a family.

Stepparents frequently bond to the their stepchildren, and thus visitation may become a decision a family court faces. Stepparents may be awarded visitation rights based on the “best interest” standard that dominates child custody and welfare actions. Twenty-three of the 50 states statutorily authorize stepparent visitation. In ten of these stepparents are explicitly named as having the right to request visitation and in 13 other states stepparents are considered “interested third parties.” Five others permit stepparents to petition for visitation.

The rights of the natural parent and the wishes of a stepparent may come in conflict. Most legislatures and courts have ruled there is a strong presumption in favor of the natural parent in dispute over a child with a nonparent, including a stepparent. In these cases, even the expressed wishes of a child to remain with a stepparent are subordinate to the right of parent to his or her child. Parents have a constitutionally protected right to determine a child’s “companionship, care, custody and management.” Very often, however, a stepparent is given visitation rights when the custodial parent dies. Custody of the child reverts to the child’s other natural parent, but the stepparent may appeal for visitation rights. A stepparent, however, may be granted custody when the facts demonstrate that the child would “would not benefit from being the custody of the natural parent.”

Dissipation includes a variety of transgressions against the marriage — the wasting of marital assets through extravagant spending, high living, gambling, excessive borrowing or fraudulent conveyance to third parties.

Courts, which increasing view a marriage as an economic unit, look with disfavor on the dissipation of assets. Most consider it serious marital misconduct — more serious than, for example, marital infidelity.

Dissipation often happens when one spouse hides assets that might be shared with the other as part of the property settlement. Very often women are at a disadvantage because the husband manages the money. Sometimes these machinations become quite complicated and require a forensic accountant who can analyze financial records for evidence of secretion.

One common form of dissipation of assets is the expenditure of marital funds for a girlfriend or paramour.

Courts deal with dissipation after the fact via unequal distribution of the remaining marital assets in favor of the victim party. The most common way is to treat the dissipated assets as marital property and then distribute what is already gone as that party’s share of the marital pie. For instance, an alienated spouse who gambles away marital assets in the casinos may find the losses negatively credited to his or her share of the marital estate.

Sometimes assets improperly conveyed to friendly third parties may be ordered restored to the marital estate under the terms of Uniform Fraudulent Transfers Act (UFTA).

In dealing with dissipation, courts balance the competing goals of preventing dishonest or reckless expenditure of marital funds against reasonable use of marital funds for legitimate purposes.

Expenditures or loss associated with a valid marital purpose are more problematic. Valid marital purpose would be when one partner spends marital assets on routine living expenses, business expenses associated with a marital business, reasonable maintenance and payment of taxes on marital property.

Generally, a dissipated asset may be considered marital property if 1) the asset is lost; 2) the loss happened upon and after the breakdown of the marriage; 3) the guilty spouse controlled the asset at the time of the loss; and 4) the loss was not incidental to a valid marital purpose. Loss can take many forms. In one California case a number of years ago, an angry husband who heaved his wife’s jewelry in the Pacific Ocean learned the meaning of dissipation when the court charged the value against his share of the marital pie.

Personal property includes, but is not limited to, cash, savings accounts, checking accounts, stocks, bonds, jewelry, antiques, collectibles and pets. The personal property of individuals may be separate or marital and subject to distribution in a divorce. The term personal property does not include real estate or that which is affixed to it.

Personalty, a subset of personal property, is a person’s stuff, as the late George Carlin put it — the things people accumulate during a lifetime– chattels, including clothing and furnishings.

The spouses should divide all personalty. These goods, as economists call them, that people accumulate lose almost all value the moment they the leave the store. As a rule of thumb, almost anything bought in a mall, anything that is plugged in, uses batteries, anything for the house goes for yard sale prices when it is sold. These are the things “you do not need but cannot live without,” as one wag put it — the “unnecessary necessities,” as Mark Twain called them, that help drive America’s consumer economy.

Divorcing couples hurt and bleeding from the pain and suffering of a marital failure, sometimes foolishly battle for possession of nearly worthless items that somehow have a symbolic meaning. That warped Bob Dylan album bought during the happier times of the marriage — the one that has not been played in ten years because neither spouse owns a working stereo — takes on great symbolism because possession suggests vindication.

Couples should stand back and get a grip — and let go. Possession of these relics of a failed marriage vindicates no one, and paying a lawyer to fight for a useless record, or the fourth set of dishes that have been stored in a rental box since they displaced the third set, dissipates money both spouses need to start a new life.

Sometimes people marry and then drift apart, not only emotionally but also physically, and one spouse loses track of the other. This is not a problem until one or the other wants to marry again and therefore must divorce the first missing partner.

Courts do not allow a person to get a divorce without his or her spouse knowing it. The divorcing spouse must make a good faith effort to locate his or her missing partner. In most jurisdictions, a good faith effort means a constructive service of process, usually the publication of a newspaper advertisement that legally puts the missing spouse on notice that he or she is being sued for divorce. Generally, this advertisement must be published in a newspaper approved by the courts, and it must appear as many as four times over a period of four consecutive weeks.

But before the divorcing spouse can publish the notice of divorce, in most jurisdictions, he or she must demonstrate to the court that an exhaustive effort has been made to locate the missing party. This includes checking last known addresses, employers, family, friends, the military services, and, in some jurisdictions, making an Internet search.

When these efforts are fruitless, the divorce spouse may petition the court for permission to publish a notice in a newspaper, often one published in a location where the missing spouse is likely to see it. Some jurisdictions are very meticulous about service by publication. Wyoming, for example, specifies that the notice be published in a newspaper that has “a paid circulation of at least 500, and each page must be at least 10 inches by 12 and 1/2 inches.”

After the notice appears, the respondent has a certain number of days to file an answer. If he or she does not — and this is almost always the case — the court permit the divorce to move forward as default. Jurisdictions require proof of good faith efforts, along with proof of publication, before the divorce moves forward as a default action — one where the respondent failed to file an answer.

Very often by the time a divorce is over, the spouses end up hating not only the other party’s lawyer but his or her own. That’s because the divorce action itself in one very sharp blade in the emotional meat grinder of a marital collapse.

Divorce litigation, unlike other types of civil litigation, carries with it considerations that make selecting a lawyer very difficult, even as the consequences of selecting a bad lawyer are drastic. Unlike other types of litigation, divorce litigations allows for a concept of fundamental fairness in the distribution of a couple’s marital estate, and judges recognize that the letter of the law must be applied in the context of a human event of considerable pain and suffering for all involved.

Some people, reeling from the pain and suffering of a separation, hire attack dog lawyers whose cutthroat, no-holds-barred tactics have given them a reputation in a given community. These are the lawyers who believe in the attack, who badmouth the client’s spouse, and who promise victory even before the action has begun. When the client’s spouse also retains an attack dog lawyer, the odds increase dramatically that the case, which might have been settled through joint negotiation, will now end in a divorce trial, the worst possible outcome for a couple ending a marriage. There is no doubt that bad lawyering in divorce actions draws out the process even as it increases the cost because bad lawyering always mean unnecessary lawyering, not to mention the emotion wear and tear of all litigation.

Divorce books contain checklists of objective considerations in hiring a divorce lawyer. Generally, considering a family law specialist is a good first step. But a lawyer who takes the high road, one who is assertive without being aggressive, is a far better bet than a hired gun who will willingly turn the action into a bloodbath.

If a person hires a lawyer who, while mindful and attentive of his or her client’s interests, also works to try to bring the action to settlement outside of the courtroom, who treats his client and client’s spouse respectfully and who is mindful of the welfare of the children, the divorce can move forward with less cost and less anguish.

A vast majority of the men and women who divorce remarry within three years and as they walk down the aisle toward the altar these men and women brings with the wisdom of experience that gives them an advantage first-time couples do not have. These battle-scarred veterans, the conventional wisdom holds, have learned from their mistakes; they are “older and wiser.” This time, the promised land is in sight because she has found Mr. Right or he has found Mrs. Wonderful. So goes the conventional wisdom. Alas, the conventional wisdom is wrong: about 60 percent of all second marriages end on the rocks — a rate even higher than first marriages.

The odds are poorer for that second (or third) spin of the roulette wheel of romance for a number of reasons. Sometimes, divorced people, reeling from the pain and suffering of a failed first marriage, jump into a second, rebound marriage, and in a surprising number of cases, marry a person who is very much like the person just divorced. This puzzles their friends who see the similarities that escape the betrothed. When he asked why he always married small Mexican woman who looked (and acted) very much alike, the actor John Wayne said, “You pick your poison. I’ll pick mine.”

Hope springs eternal, but leaping into a second marriage without figuring out why first failed is like NASA firing a new rocket before finding out why the last one exploded. Instead of honest soul searching that includes an honest inventory of vices and virtues, people become convinced that the marital promised land includes a Mr. Right or Mrs. Wonderful who is everything (good) the first partner was not.

Second (and subsequent) marriages mean the unfinished business of first marriage (or previous) marriage — children. And partners drawn from a pool of people whose first marriage (or previous) marriage ended on the rocks. That means stepchildren and stepparenting. And second (and subsequent) marriages mean pinched finances. These can be overcome, of course, but climb is often steeper, and the plunge more often fatal.

Divorced parenting presents the former spouses with all manner of challenges that intact couples do not have to face. One of the most significant is that after a divorce, both former spouses must remember that in their dealings with each other, both of them are still equally the parents of their children.

Today, courts are very open to custody arrangements that cooperative parents negotiate, but if custody is disputed, very often the mother ends up as the custodial parent receiving child support and the father becomes the noncustodial parent paying it, and he visits his children under the terms and conditions of a schedule. This routine, though admittedly not perfect, permits both parents to be actively involved in the lives of their children.

However, what frequently happens is that the noncustodial father, even one who demonstrates good faith with prompt payment of child support, slowly drifts out the lives of his children. Moreover, the divorced father who remarries and has a second family with a new wife may move toward the vanishing point in the lives of his children from earlier marriage. When Dad drifts from the picture — for example, missing promised outings with his children or not showing up for school events — children frequently blame themselves.

Judges, social workers, family counselors, custody evaluators — all stress the need for both mother and father to be active parents of their children, who suffer terribly in the divorce of their parents and who frequently fantasize about their reunification.

Among the many reason to make a heroic effort to avoid a divorce war is that when the marriage is over, divorce parents must still work together to be good parents. By the same token, former spouses who continue the war after the peace treaty has been signed — that is, those who continue to fight with their former spouses about, for example, returning the children a few minutes late — make effective parenting very difficult.

Admittedly, divorce parenting is difficult. The noncustodial father is not physically present much of the time and thus he misses many of his children’s best moments because they happen spontaneously. And the custodial mother may become overburdened because she and she alone is with them all the time. However, this actually underscores the truth of divorced parenting: both parents are still equally the parents of their children.

That people love their dogs and cats more than they do their estranged spouses comes as no surprise to family law judges who have been asked to mediate in custody decisions about a family pet.

Despite the fact that the owners love their dog or cat more than they love their partners, courts, overwhelmed with the Solomonic task of making custody decisions for children, have backed off. Judges have said that dogs and cats are personal property, and that the applicable principles about dividing personal property should apply to the family dog or cat. However, if a judge decides that Rex the dog or Susie the cat is marital property — and this has happened — he or she may consider which spouse would care better for the pet and which one has a greater attachment to the animal.

This, however, is not a ‘best interest of the animal’ standard, and courts have shied away from awarding visitation rights, the way they do in child custody cases. As one appellate court observed, “Our courts are overwhelmed with the supervision of custody, visitation and support matters related to the protection of our children. We cannot undertake the same responsibility as to animals.”

However, when both spouses love the dog or cat, they have been known to work out shared custody arrangements that involve moving the animal back and forth between them.

A Texas appeal court hit on the truth of the love of animals. It said that
a contested puppy “is indeed a fortunate little dog with two humans to shower upon her attention and genuine love frequently not received by human children from their divorced parents.”

Common law marriages sometimes present problems when the couple wishes to divorce. A common law marriage is a legal marriage in which no formal ceremony took place and for which no license exists. The spouses create the marriage by making a present-tense declaration to marry, living together and presenting themselves to the world like any other married couple.

The problem with common law marriages is not making them but unmaking them, particular when one spouse denies that a marriage happened.

During the happier times of the common law marriage, recognition of the couple is not a problem, any more than recognition is a problem for a couple who were formally married. Recognition only becomes a question in the event of divorce or sometimes when the survivor of a common law marriage that ended in death seeks survivor’s benefits.

Only 10 of the 50 states still permit new common law marriages within their borders, and five other have grandfathered the practice. Couples who reside in these states must divorce to end a marriage. Most states recognize common law marriages contracted in an alien jurisdiction that was the parties’ residence at the time of the marriage. In other words, even states that no longer recognize new common law marriages will divorce couples who created them earlier in other jurisdictions. At least three states — Illinois, Minnesota and Arkansas — do not recognize the claims of common law marriages of their own residents in foreign jurisdictions.

Common law couples cannot simply walk away when they wish to divorce, but ending a common law marriage requires legal advice. There are technicalities that may create problems. For example, some states demand that their residents live in the common law state before the court considers whether a common law marriage actually arose. Moreover, recognition can create difficulties when residents of a non-common law state live in a common law marriage state without becoming residents because these people may assume, incorrectly, that they have a valid marriage when in fact they do not. They discover this only if they attempt to divorce. This problem can be very difficult, for example, for a woman who asserts a claim to a husband’s pension.