Family Law Practice
Divorce: Community Property Information Center
Frequently Asked Questions About Divorce
Q: What is a legal divorce?
A: A divorce is a method of terminating a marriage contract between two individuals. From a legal standpoint, your divorce will give each person the legal right to marry someone else, it will legally divide the couple's assets and debts, and determine the care and custody of their children. Each state addresses these issues differently, but there are some relatively uniform standards. Each state does have some type of "no fault" divorce laws that can significantly simplify the divorce process.
Q: What is a no fault divorce?
A: Traditionally, divorce was granted on the basis of some marital misconduct such as adultery or physical abuse. In these cases the "guilty" spouse was punished by getting a smaller share of the couple's property or being denied custody of their children while the "innocent" spouse was rewarded for being faithful to the vows of marriage. In a no fault divorce, however, both parties agree that there is no "fault" involved in the grounds for divorce. A marriage can be terminated simply because the couple agrees that it is no longer salvageable.
Please note that states' laws differ on the issue of fault or no fault divorce. Among the 50 states, 15 provide no fault divorce as their residents' only choice; residents of other states may pursue fault based or no fault divorce.
Q: What is a fault-based divorce?
A: A "fault" divorce is one in which one party blames the other for the failure of the marriage by citing a legal wrong. Grounds for fault can include adultery, physical or mental cruelty, desertion, alcohol or drug abuse, insanity, impotence or infecting the other spouse with a venereal disease.
As noted above, please consider state guidelines regarding the types of divorce permitted in an individual state.
Q: What are the requirements for filing a petition for divorce?
A: The requirements for filing a petition for divorce vary for each state. There are residency and domicile requirements. That means one of the parties must have been a resident of the state for a specified period of time prior to the filing of the petition. Some states do not have a residency requirement.
Q: What is a legal separation?
A: A legal separation can involve a court order declaring that a couple is no longer living together, and that all the issues concerning the marriage have been resolved, such as issues related to children and distribution of property. It does not terminate the marriage or legal status of the couple as married. The spouses are not free to remarry.
Q: May the provisions in a divorce be changed afterwards?
A: They cannot be changed unless there is a provision in the separation agreement to do so, unless one of the parties commits fraud, or to correct mistakes in drafting. However, there is a provision in the law to amend spousal or child support based upon a change of circumstances.
Q: How is property divided in a divorce?
A: Courts divide property between spouses using two different concepts: Community Property and Equitable Distribution. The laws in each state vary as to the factors it uses to determine the final property division.
Keep in mind, equitable does not mean equal. The goal is to award each spouse a percentage of the total value of the assets.
Generally, states that use the Community Property system classify all the property as either community property or separate property. Community property is owned equally by the spouses and divided equally at divorce. Separate property is kept by the spouse who owns it.
The community property states are: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin.
States using the equitable distribution system consider all the assets and earnings accumulated during marriage to be marital property and divide them fairly at divorce.
Q: What is the difference between maintenance and alimony?
A: Some states refer to alimony as maintenance or spousal support. Each word refers to the same concept - one spouse providing funds to the other, but each state has different rules to determine how much support is paid. Alimony (or maintenance or spousal support) can be awarded for an indefinite or definite period of time. Generally, courts consider the standard of living of the parties that was established during marriage, the circumstances of the case and of the parties, whether the party who is getting the award lacks sufficient property and income to provide for his/her reasonable needs and whether the party paying the maintenance has sufficient property and income to provide for the other's reasonable needs. If you live in a fault-based state, some courts consider the fault of the parties when determining support.
Q: Do I need to hire an attorney?
A: It is not mandatory that you hire an attorney and you may represent yourself. However, you may be putting yourself at a serious disadvantage. Most divorces are not straightforward unless there are no marital assets, children or other joint issues. Given the complexity of the issues, it may be beneficial to employ the services of a professional who is knowledgeable with the law in your state and experienced in the field.
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