Divorce
What Are the Grounds for Divorce?
The Constitution does not grant citizens the right to dissolve a marriage contract. Allowing a divorce is up to individual states. All do, but the reasons and grounds for divorce vary by state.[1] Traditionally, divorce was at-fault, meaning grounds for dissolving the marriage must include misconduct by one partner:
- Adultery
- Cruelty
- Desertion for at least a minimum period of time
- A specific amount of time in prison
- Physical inability to be intimate
Cruelty refers to abuse and is the most commonly cited reason for divorce. The abuse may be emotional or physical.
Every state currently allows for a no-fault divorce. This means you do not have to prove misconduct by one spouse. You only need to show that the marriage is no longer viable or salvageable. The reason for this varies by state, but it is often enough to state irreconcilable differences.
What Laws Govern Divorce?
State laws govern the process of divorce and allow the dissolution of the legal contract of marriage. To get divorced, you must know and follow the state laws. State laws address things like:
- How long you must live in the state to file for divorce
- If you can file for and be granted a divorce for reasons of mutual incompatibility
- Judicial separations, a legal separation that allows spouses to remain married
- If living separate and apart for a certain amount of time is legal grounds for divorce
- If at-fault traditional divorce still exists or if all divorces are no-fault
- How property is divided in a divorce
State laws and court systems also govern alimony, child support, and child custody.
How is Property Divided in a Divorce?
Division of property can be a contentious issue in divorce. State law determines how property gets divided. There are two main systems for division of property:
- Equitable distribution. More states adhere to equitable distribution. This divides the property equitably, with more going to the spouse who earned more during the marriage.
- Community property. Fewer states use community property, but they include Texas and California, two of the most populous states. This means that most couples in the U.S. are subjected to community property. This system divides anything earned or acquired during the marriage evenly between the two spouses.
In some states, the court will consider economic misconduct when dividing property. Economic misconduct occurs when one spouse intentionally wastes assets to reduce the total property. State courts must also consider the division of debts. How this is done varies by state.
How is Alimony Determined?
Alimony is spousal support and is typically granted to a spouse who gave up earning an income in part or in full for the marriage. The spouse that stayed home to care for the children is usually given alimony. The spouses may agree on alimony, or the courts can decide on an amount.
The requirements for being eligible for alimony and the rules governing payments vary by state. Most states, for example, consider the custodial status of a parent when determining alimony. The parent with custody of the children is more likely to get alimony payments.
Many states also consider the actions of an at-fault spouse. They may award more alimony based on the other spouse’s misconduct in the marriage. All but three states consider the spouse’s standard of living receiving alimony when determining how much they should receive.
What is the Difference Between a Contested and Uncontested Divorce?
An uncontested divorce is ideal but not always possible. It’s affordable and fast and can even be accomplished without legal representation. Both partners must agree to the divorce and all the terms of property division and alimony. It’s more likely to work if the partners have no children.
To finalize an uncontested divorce, you only need to complete certain forms with the court system. You do not need to go to court or in front of a judge. A judge must approve the agreement, though. They may not approve it if it seems as if one spouse is getting an unfair deal.
In a contested divorce, the couple cannot agree on all elements. This is most likely the case after long marriages, when many assets are involved, and when the couple has children. Each party has a lawyer and goes through negotiations to determine an agreement. If negotiations or mediation fail, the decisions go to a judge.
What Are the Steps in a Divorce?
Divorce can be a lengthy legal process, even when spouses are mostly amicable and in agreement. Each party needs to get a divorce lawyer to represent their interests. The process may vary depending on state laws and individual situations, but in general, a divorce proceeds through these steps:
- Petition
The lawyer of the person starting the divorce files a petition or complaint with the court. They also notify the other spouse and issues a summons to which they must respond. - Temporary orders
Settling the terms of a divorce can take months or longer. In some situations, such as when a stay-at-home spouse depends on the other spouse’s financial support, a judge holds a hearing. They may then issue a temporary order that stands until final terms are reached. - Settlement
Often the lengthiest part of the process, the couple and their lawyers negotiate terms for alimony, property division, and child custody if applicable. A judge may order mediation with a neutral third party. In some states, this is a requirement. - Court approval
With an agreement in hand, the court must approve it for the divorce to be final. If approved, the judge gives the couple a divorce decree. - Trial
When a couple cannot agree on terms or if the judge does not approve their agreement, the divorce proceeds to a trial. It is in everyone’s interest to avoid this, as a trial is lengthy and costly. It also takes all decisions out of the couple’s hands. The judge decides on any unresolved issues.
Either party can appeal the judge’s decision, but it is unusual for a higher court to overturn it. The entire process of a contested divorce may be settled in a few months, but it can also take several years.
The greater the degree of cooperation between spouses, the quicker and cheaper a divorce will be. An amicable process is also best for any children involved. If you are considering a divorce, talk to an experienced divorce lawyer before doing anything.