Divorce Laws

Some of the general laws and considerations the courts look at when getting a divorce.

Divorce Laws and Divorce Requirements

Every state, and in some cases counties within each state, have their own set of divorce laws and parameters that define the Divorce Process.  There are unique State Guideline for Divorce  that must be met to establish the requirements for residency requirements, determine the grounds for divorce, and other divorce factors that need to be established and satisfied in order to legally file for divorce.  Our Divorce Glossary may also prove helpful to better understand the verbage that makes up each state's unique Divorce Laws.

 

 

Residency Requirements:
In order to legally file for divorce, one must first meet your state's residency requirements. Residency requirements vary by state and in some cases by county. Typically, the person filing the divorce papers is required to be a resident of both the state and county in which they are filing for a minimum of three months generally, but this can vary between states, counties, and/or province. There are also considerations based specifically on those who may be in the military. Generally, residency requirements for members of the military are based on mailing address as opposed to where he or she may be stationed. Some states may have a waiting period after the initial filing is served that must be met before the divorce is finalized.

Grounds:
Just as states have different residency requirements that must be met before filing for divorce, the grounds on which you file for divorce may vary as well. Be sure you know what your specific location's requirements are before attempting to file for divorce, as these will determine what requirement must be met to start the divorce process. States typically have two grounds on which to file for divorce, these are referred to as "Fault" or "No-Fault divorce" though terminology may differ from state to state.

The most frequently cited (and sometimes only valid) ground for dissolving a marriage is:

  • Irreconcilable differences which have caused the irremediable breakdown of the marriage.

However, there are a number of other grounds for ending a marriage, but those often require far more evidence and effort for the court to grant the divorce. Naturally, these reasons are used less frequently than the grounds of irreconcilable differences. If using one of the following grounds to file for divorce, you should consult a divorce lawyer or attorney.  Nevertheless, some of the most common of these areas, when they are used, are:

  • Fraud
  • The petitioner's age at the time of the marriage
  • A prior existing marriage
  • Force
  • Incurable insanity

Be aware that, if citing one of these grounds is your reason to file for divorce, you will need to provide proof of the allegations for the courts to rule in your favor. In these circumstances, a divorce lawyer or divorce attorney should be consulted.

Child Custody:
Generally, neither the mother or father of a child under 18 receive higher priority when determining who will take custody of the child. Custody can be determined in a variety of ways based on different circumstances, ranging from individual custody to joint custody, but ultimately, the decision is usually based upon what is going to be in the best interests of the child.

There is a lot to consider when trying to determine just what exactly is in the child's best interest, though. Some of these which the court feels significant are:

  • Health, safety and the welfare of the child
  • Nature and amount of contact with both parents
  • Ability to provide for the child (not limited to fincancial support)

The income of each parent is appraised when determining the amount needed for child support, but credit in some circumstances may be issued as well. Usually, this amount is taken from the parent's wages. Some states, such as Colorado, have detailed formulas and conditions with regards to how this amount is determined and who is going to pay. Please see our page about Child Support and Custody for additional information.

Property Distribution:
Property distribution can happen in a variety of ways. Most often, the states will try to divide property and assets as evenly as possible between the spouses, with property owned prior to the marriage going back to the owner in most cases. However, there are some exceptions, and sometimes circumstances can greatly impact how this distribution is performed. In some cases, things like inheritances or gifted money is divided among both spouses, regardless of who was the intended recipient, but some states do consider this in the division of property. Property is most often addressed through an equitable distribution policy, but some states use community property distribution.

Spousal Support:
Spousal support policy, like all areas of divorce, is determined based upon the parameters set forth by the individual states. Depending on this conditions, spousal support can be dependent on the employability of the spouse, whether or not the other spouse is in a new relationship, whether the spouse is able to maintain the same standard of living on their own as when they were married, and a whole variety of other reasons. Sometimes, states will consider the reason for the divorce with regards to whether or not spousal support will be provided. For instance, some states will not award spousal support if a spouse who committed adultery which resulted in pregnancy, or if that new relationship falls within a certain timefram.

Venue:
Usually, divorce papers can be issued in the county that either the person seeking the divorce resides, or where the recipient of the forms resides for three months prior to the beginning of the process. This, yet again, is dependent upon the states and how they specifically deal with divorce.

Mediation:
Generally speaking, either the recipient of the divorce forms or the person seeking the divorce can ask for mediation in solving their issues if a divorce is already underway. In some cases, sometimes this is a required step before even proceeding with a divorce. Before starting the process, the individuals divorcing may opt to inform their respective mediators ahead of time so that they can go into the process uncontested. Additionally, mediation is usually the most inexpensive and quick way of handling the divorce, and both parties usually walk away with more that they would have if they had taken the divorce in front of a judge.

Consult the State Divorce Page at the bottom of this page for specific divorce laws that specific to the state in which you live for more information.

divorce laws and divorce requirements