Divorce & Separation

Divorce/Dissolution of Marriage

Divorce in America is governed by the laws of the individual state in which it occurs. Divorce, also known as “dissolution of marriage,” is a legal process in which a judge or other authority legally terminates a marriage, restoring them to the status of being single and permitting them to marry other individuals. Divorce proceedings also include matters of spousal support, child custody, child support, distribution of property and division of debt. Divorce laws vary from state to state. While divorcing spouses once were required to show a reason for the dissolution of the marriage by assigning fault to one of the parties (like adultery, sterility, abandonment, insanity, or imprisonment), every state now allows for “no fault” divorces (usually on the basis of “irreconcilable differences”). Nevertheless, many states still allow their courts to take into account the behavior of the parties when dividing property and debts, evaluating child custody issues, and determining child and spousal support. Similarly, some states require a period of separation prior to divorce (some also require therapy), and this has led to the creation of another category of relationship called “separation.”

Property Settlement

For purposes of distributing assets after a divorce, courts divide property under one of two basic schemes: community property or equitable distribution. In community property states, both the husband and wife equally own all money earned by either one of them, regardless of which spouse acquired it, from the beginning of the marriage until the date of separation. Similarly, all property acquired during the marriage with community money is deemed to be owned equally by both spouses. Community property is generally divided equally between the spouses, and each spouse keeps keeps his or her individually owned property (usually premarital assets).

Equitable Distribution

With equitable distribution, on the other hand, assets and earnings accumulated during marriage are divided fairly, but not necessarily equally. The court may consider such factors as the respective spouses’ substantial contribution to the accumulation of the property, the market and emotional value of the assets, tax and other economic consequences of the distribution, the parties’ needs, and any other factor relevant to fairness and equity. Alimony payments, child support obligations, and all other property will be considered as part of the equitable distribution.

Court Determination

The terms of a divorce are usually determined by a court, though they may take into account antenuptial agreements (also called “prenuptial agreements”) or postnuptial agreements. Courts may also allow the parties to agree privately to terms for the divorce, subject to the court’s final approval. Such agreements are often reached after mediation or other forms of alternative dispute resolution. If the spouses are able to agree to the terms of the final divorce prior to filing, it is often called an “uncontested divorce.” Uncontested divorces are usually much less expensive, much more amicable, and much quicker than disputed divorce cases.

Regarding Children

In cases involving children, states have a significant public interest in ensuring that the children are adequately provided for, and that they are in the custody of a parent or guardian who will provide a stable and supportive home environment. All states now require parents to file a parenting plan or to decide on custody and visitation, either by reaching a written agreement or in a court hearing, when they legally separate or divorce.

State Governance

Divorce law deals with the legal proceeding governed by state law that terminates a marriage relationship, requiring a petition, or complaint for divorce or dissolution by one of the parties. Once a divorce is final, parties to a divorce are free to remarry. Grounds for divorce vary by state statutes. Some states still require a minimal showing of fault, but no-fault divorce is now the rule, with some states allowing divorce based on fault and no-fault grounds. Only state courts have jurisdiction over divorces, so the petitioning or complaining party can only file in the state in which he/she is and has been a resident for a period of time. In most states the period from original filing for divorce, serving the petition on the other party and final judgment, or decree, takes several months to allow for a chance of reconciliation.

Fault Divorce

A fault divorce is one in which one party blames the other for the failure of the marriage by citing marital misconduct or other statutory cause for judicial termination. Fault divorces are most common where abuse is a factor. Abandonment, desertion, inability to engage in sexual intercourse, insanity, and imprisonment are other causes for fault divorces. In many states, the waiting period is shorter for fault divorces. In states that do allow fault divorces, the spouse who proves the other’s fault might receive a larger share of the marital property or more alimony.

No Fault Divorce

No fault divorce is where neither spouse is required to prove fault or marital misconduct on the part of the other and one party must simply state a reason for the divorce that is recognized by the state, such as incompatibility, irreconcilable differences, or irretrievably broken. In some states, a couple must first live apart for several months before they can obtain a no-fault divorce. No Fault divorces are the most common type of divorce.

Uncontested Divorce

An uncontested divorce is a proceeding in which a person sued for divorce does not fight it and instead reaches an agreement with the spouse during the proceedings. In these cases, the terms of the divorce are agreed upon by both parties. Uncontested divorces are generally much more amicable and economical than other types of divorce.

Other Issues

The possible issues needed to be addressed in divorces include: division of property and payment of debts, child custody and support, maintenance (spousal support), child visitation and attorney’s fees.

For purposes of distributing assets after a divorce, courts divide property under one of two basic schemes: community property or equitable distribution. In community property states both the husband and wife equally own all money earned by either one of them from the beginning of the marriage until the date of separation. In addition, all property acquired during the marriage with community money is deemed to be owned equally by both the wife and husband, regardless of who purchased it. Community property is generally divided equally between the spouses, while each spouse keeps his or her separate property. With equitable distribution, assets and earnings accumulated during marriage are divided fairly, but not necessarily equally.