Representing Men in Divorce

Representing men in divorce is tough work. There are still stereotypes about men in divorce. In any divorce case, traditionally the sympathies are with the woman and often men and fathers do not receive a fair/ level playing field. Such ‘anti-men’ thinking in courts and the general public may not be malicious or even conscious but it is hurtful. The majority of men are good fathers who want time with their children, supporting spouses who are generous in the support they want to pay and desiring of a fair outcome. Divorce lawyers for men always have to consider the court climate in getting the best outcome for their clients.

Custody for Men

Tender Years Doctrine

Historically, courts gave men custody of children in a divorce. It was thought that men would be better able to financially provide for children. In the 19th century, Catherine Norton, a prominent author, began a movement to help women get custody of their children. In 1839, England enacted the Custody of Infants Act gave judges discretion to award custody to mothers. Shortly thereafter, the law determined that children under age 7 were better with their mothers. In 1873, this presumption of custody to mothers ended to children under age 16.

The Tender Years Doctrine was soon adopted by common law in the United States. In the United States, it was presumed that children under age 4 should be with their mothers.

In the latter part of the 20th century, the courts and legislatures began to move away from the tender years doctrine in favor of a new standard. The new standard for determining custody is “best interests of the child”. In fact, some courts have found the tender years doctrine to be unconstitutional.

Best Interest of the Child 

Issues of child custody in most states are determined by the best interests of the child standard. The law does not favor one parent over the other. The best interest standard is a list of factors the court is supposed to consider in determining who is best suited to raise the child. Yet often, everything being equal, the primary custody of young children is awarded to the primary caregiver who is often the mother.

Family Dynamic Changes

In many cases, a father and mother have agreed that he will work and be the primary breadwinner and she will stay home with the children. Dad may have wanted to stay home but he had a greater earning potential. The tradeoff made sense for the family unit. Now that the parents are divorcing, dad may want to make new work choices to allow him to spend more time with his children.

This change in the family dynamic is often hard for mothers who have been the primary caregivers. The decision for a man to work less may seem disingenuous when support obligations are being calculated.

While most judges consider men equally capable of caring for children, it is incredibly important for fathers to know the local court dynamics. When representing men in divorce or custody, it is important to understand the goals of the client early on in the case.

Representing Men in Spousal Support and Child Support

Many men worry that they aren’t going to be able to live and provide support for their ex-spouse and children. Representing men often involves explaining the alimony and child support laws. In some states, alimony is calculated using a formula and it is quite easy to determine. In other states, support is calculated based on a list of factors and is in the discretion of the judge. You can use our free alimony calculator to estimate your support obligation. Remember, it is for educational purposes only and you should consult with an attorney.

Child support is calculated based on a set of guidelines that are implemented by the state where you live. Most states use the shared income model for calculating child support. If your combined income is above a certain threshold amount, you may fall off the guidelines. In high-income cases, child support is calculated based on the reasonable needs of the child.

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Angela McIlveen
Angela McIlveen is the CEO and Co-Founder of the McIlveen Family Law Firm. As a Partner Attorney at the McIlveen Law Firm, Angela McIlveen handles cases in family law including child custody and support, divorce, alimony, adoption, separation, domestic violence, and equitable distribution. Angela McIlveen is often called upon to teach CLE classes to other attorney and to speak at events.
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