Divorce is a court procedure that dissolves the marriage between a husband and wife.  When a divorce is finalized, each person is then free to remarry if they choose.

Residency Requirements for Obtaining a Divorce

All states require the spouse filing for the divorce to be a resident of that state. The time requirements for establishing residency vary, but generally range from 6 months to a year.

Different Types of Divorces: “Fault” & “No Fault” States

Each state has their own procedure for divorce. The majority of states adopt the “no fault” approach to divorce, while some retain a “fault” divorce system:

  • “No Fault” Divorces – The key feature of a No Fault Divorce is that the spouse filing for divorce need not prove any wrongdoing or “fault” on behalf of either party to get a divorce. Some states require the couple to declare they no longer can get along. In other states, the couple is required to live apart for a specified period of time (months or years) before they can file for a “No Fault” Divorce.
  • “Fault” Divorces – The spouse that is filing for a divorce must cite a reason as to why the divorce should be granted. Although the “fault” rules or justifications vary from state, common cited reasons are:
    • Cruelty ( infliction of unnecessary or emotional pain)
    • Adultery
    • Desertion for a specific length of time
    • Confinement in prison for a set number of years
    • Physical inability to consummate the marriage

Property Division after a Divorce

In many cases, a couple filing for divorce is able to work out an agreement concerning the division of their property and debts on their own. In cases where such an agreement cannot be reached, a court must step in and apply state law to settle the dispute. State laws regarding the division of marital property are classified under two categories:

  • Community Property States – In Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin, all property of a married person is classified as either community property, owned equally by both spouses, or the separate property of one spouse. At divorce, community property is generally divided equally between the spouses, while each spouse keeps his or her separate property.
  • Equitable Distribution Property States – In all other states, assets and earnings accumulated during marriage are divided equitably. The court considers many factors and will look at the financial situation that each spouse will be after the divorce to determine what division is fair.  These factors may include, but are not limited to, the earning potential of each spouse and the duration of the marriage.

Exceptions to the Equitable Distribution of Property During Divorce

It is important to keep in mind that although assets and earnings accumulated during marriage are divided equally upon divorce, there are exceptions laid out in statutes.  Such exceptions include:

  • Misappropriation: Where one spouse acquires assets and/or earnings unjustly prior to the divorce, this spouse has wronged and will not receive the misappropriated asset and/or earning.
  • Debts: If either spouse had a debt, this debt is considered the obligation of that individual spouse.  The spouse to whom the debt does not belong will not be expected to pay half of the debt upon divorce.
  • Tort Liability: If either spouse has a civil lawsuit against them, and this suit in no way can benefit the couple as a community, then upon divorce the potential monetary obligation arising from this lawsuit will be the responsibility of the spouse that is sued.
  • Recovery from a Personal Injury Lawsuit: If either spouse is awarded a monetary amount based on a personal injury lawsuit, this amount remains with the injured spouse and will not be divided upon divorce.

Do I Need an Attorney Specializing in Divorce?

The Court process for obtaining a divorce can be very confusing, so it may be wise to consult with a divorce lawyer to help explain your rights and to protect your interests. A lawyer experienced in divorce will know how to navigate through the complicated legal process in an efficient manner, and be there when you have questions.