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The Divorce Encyclopedia
Factors


Term Definition Factors - elements in case law, court rules or statutes a court must consider before making a decision.
Application in Divorce In divorce actions, most states require a court to consider factors in determining alimony, child support and the distribution of marital or community property. Most jurisdictions require certain factors to be considered; these are called mandatory factors. In most jurisdictions, courts are also allowed to consider other elements; these are called discretionary factors. For example, in the equitable distribution of property, the length of a marriage is a mandatory factor, and judges may be more generous with a woman whose noneconomic contributions during a long marriage were chiefly homemaking and children rearing than a childless professional woman in a short marriage. On the hand, a professional woman ending a long marriage may in the court’s opinion be better positioned to resume a single life and thus less in need of alimony than a woman with small children ending a shorter marriage.

In general, mandatory factors include the length of the marriage; the age, health and occupation of the parties; lifestyle of the spouses during marriage; needs and liabilities; contributions to the marital estate; assets and liabilities; behavior during the marriage; and employability.

Courts also have latitude in the application of factors to the overarching mandate of the best interest of the child. For example, because courts try to keep children in the marital home, very often the home will be awarded to the custodial parent (usually the mother), even when this distribution may be somewhat unequal to the noncustodial parent (usually the father).

In many states the behavior of the parties during the marriage is a mandatory factor, and courts frown on economic misbehavior, such as dissipating or hiding assets.

How a court weighs and considers these factors, even the mandatory ones, is, to some degree, a matter of judicial discretion. Implicit in the idea of mandatory and discretionary factors is the recognition that one set formula cannot cover all particular situations that may arise in domestic relations.

See also Judicial Discretion; Mandatory Factors.

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