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Divorce: Community Property Information Center


Divorce - An Overview

Contemplating divorce is always difficult. Whether you are sure you want to end your marriage or are still considering your options, it helps to learn the basics of divorce law and process. Should you conclude that divorce is necessary, it is very important that you seek the assistance of an experienced family law attorney. Involving a knowledgeable family law attorney as soon as possible in the divorce process is one of the best ways to preserve your own long-term financial and emotional health.

Grounds for Divorce

A divorce is a method of terminating a marriage contract between two individuals. From a legal standpoint, a divorce will give each person the legal right to marry someone else, divide the couple's assets and debts and determine the future care and custody of their children. While each state has individual statutes that address these issues differently, the basic principles the states follow when considering requests for divorce are relatively uniform.

In a majority of the states there is at least one form of "no fault" divorce. No fault divorce is a marital termination proceeding where the divorce is granted without either party being required to show fault. In no fault states, either party may obtain a divorce, even if the other spouse does not consent to the divorce. (Please see the table at the end of the article to learn if your state allows no fault divorces.)

Other states require that you give a legal reason in order to get a divorce. These are called fault-based divorces. Each state will have a statute that specifically defines the different types of fault that must be proved in order to establish the requested marital termination.

In some states both fault and no fault divorce grounds are available. An experienced attorney can help you determine if you should pursue a fault based or no fault based divorce. Typically, a fault-based divorce is pursued when a couple cannot reach a satisfactory division of property, award of support, or child custody agreement and one party wants the court to consider the conduct of the other party when deciding the issue. Whatever the issue, the decision to pursue a fault-based divorce should be based on legal rather than emotional reasons.

Contested Divorce

Before a divorce may be granted, there are usually five basic issues that must be resolved. They are:

1) Alimony or spousal support;
2) Property division;
and, if there are children:
3) Custody;
4) Visitation; and
5) Child support.

If a divorcing couple agrees on all five of these issues in writing, they will be granted an uncontested divorce and avoid adversarial divorce litigation.

Conversely, if there is disagreement on any of the basic issues, a contested divorce exists. When a divorce is contested, the couple may proceed through all phases of litigation including trial before a family court judge. The couple may also voluntarily seek alternative dispute resolution methods like mediation or collaborative divorce or they may be ordered by the court to do so. It is important to consult with an attorney before deciding which method is right for your situation.

Divorce Litigation

The actual legal process for getting a divorce varies by state. However, most marital termination proceedings usually include some version of the following components:

  • Petition - The filing of some form of petition document formally initiates divorce proceedings.

  • Summons & Response - Formal notice to your spouse about your intent to pursue court action to obtain a legal divorce. The response is the other parties' acknowledgement the divorce procedure has begun.

  • Motions - A formal request to the court to order some type of action before the trial. For example, in situations involving domestic abuse it is not uncommon for a motion for a protective or restraining order to be filed.

  • Discovery - The phase of the proceeding where each side gathers information in support of their legal arguments. It is an important phase in contested actions, particularly if you believe your spouse is hiding assets. It includes depositions and interrogatories.

  • Hearings & Temporary Orders - In some instances there are questions or situations that need to be temporarily resolved before the final divorce agreement is reached or ordered by the court. For example, if the couple can't agree about where their children should live during the process they would ask the judge, during a hearing, to decide. Temporary orders generally remain in effect until the final decision is made at the end of the divorce process.

  • Trial - A critical court appearance before the judge where the case will be decided. The trial may include witnesses, friends, financial experts, psychologists, as well as other types of evidence including financial records.

  • Judgment - The final decision is a judgment. It is not a verdict in the sense the judge assigns blame to either party. It is simply a legal statement of the judge's rulings on all the issues in question during the trial, such as custody, visitation, support and property division.

Alternatives for Dispute Resolution

Mediation
Mediation is an alternative to litigation that can be less expensive and less stressful for divorcing couples and their children. In the mediation process, the couple works with a trained mediator to reach agreement on contested issues.

Arbitration
Arbitration is more like litigation than mediation. Instead of using a judge to decide the final outcome, the parties agree to use an arbitrator. Each spouse is represented by an attorney who will represent their best interests during negotiation.

Collaborative Divorce
Collaborative divorce is a relatively new divorce process that requires an up front commitment to resolving disputes by negotiation, compromise and agreement. If either attorney moves the case toward litigation, both will be disqualified from representing their clients in the litigation. If the parties can't reach agreement, both lawyers (and their law firms) must withdraw.

Alimony, Spousal Support & Maintenance

Alimony, also known as spousal support or maintenance, is financial support paid by one spouse to another. Each state determines alimony differently. You should consult with an attorney in your state to determine what factors will be considered when deciding if, how much, and to whom alimony will be paid in your case.

There are essentially three types of alimony: permanent, restitutional and rehabilitative. Permanent alimony is an allowance for support and maintenance (such as food, clothing, housing and other necessities) of a spouse. When a party requests permanent alimony, they must establish that they have a need for support and that their spouse has sufficient means and abilities to provide for part or all of the need. Restitutional and rehabilitative alimony are paid for a shorter period of time and most likely provides less than the standard of living during the marriage. Rehabilitative alimony is designed to provide the means necessary to enable a spouse to refresh or enhance job skills necessary to become self-sufficient by providing financial support while the spouse is obtaining necessary training.

The types of factors the courts consider vary from state to state, but may include the respective fault of the parties, the length of the marriage and each party's financial conditions after the property division.

Division of Property

Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin use the community property system to distribute marital assets between divorcing spouses. While each state has different rules regarding the implementation of its system, all the community property states base their division of marital property on a distinction between community and separate property. Community property is usually divided evenly between the spouses at the time of the divorce and separate property is assigned to the spouse that owns it.

Community property is everything that a husband and wife own together from the start of their marriage until the date they separate. In community property states, both husband and wife are deemed to own all the money either one of them earns as well as all property acquired during the course of the marriage, regardless of who purchased it. Similarly, any debt acquired during the course of the marriage will be deemed to be community debt without consideration of which spouse actually incurred it.

Separate property is anything the husband or wife owns separately. Spouses can indicate that something is separate property giving it up in writing. Individual spouses may also incur separate debt through a showing that the creditor was only looking to one spouse or their property for repayment. Otherwise, separate property is usually limited to:

  • Property owned before the marriage;
  • Gifts or inheritances received during the marriage and maintained as separate property; and/or
  • Post separation earnings.

There may be instances where couples mix separate and community property. When distinct separate property assets can be shown they will honored. Otherwise, the separate property will be deemed to have become community property subject to equal division. Because classification of property and its division can become one of the most contentious issues in a divorce, you need the advice and assistance of a family law attorney familiar with the family laws and procedures in your particular state.

Conclusion

Reaching the decision to end a marriage is enormously difficult. Once you do make the decision it is in your best interest to approach the divorce process from a rational, businesslike perspective, which is extraordinarily difficult given the emotional issues with which you must also cope. Working with an attorney who is experienced in family law will ease your stress and help you get through the process to begin your new life.

The following table summarizes the grounds for divorce and residency requirements in each state.

Grounds for Divorce and Residency Requirements

STATE No
Fault
Sole
Ground
No
Fault
Added to
Traditional
Incom-
patibility
Living
Separate
and
Apart
Alabama   X X 2 years
Alaska   X X  
Arizona X      
Arkansas   X   18 months
California X      
Colorado X      
Connecticut   X   18 months
Delaware X      
District of
Columbia
X     1 year
Florida X      
Georgia   X    
Hawaii X     2 years
Idaho   X    
Illinois   X   2 years
Indiana X      
Iowa X      
Kansas     X  
Kentucky X      
Louisiana   X   6 months
Maine   X    
Maryland   X   2 years
Massachusetts   X    
Michigan X      
Minnesota X      
Mississippi   X X2  
Missouri   X   1-2 years
Montana X   X 180 days
Nebraska X      
Nevada     X 1 year
New
Hampshire
  X   2 years
New Jersey   X   18 months
New Mexico   X X  
New York   X   1 year
North Carolina       1 year
North Dakota   X    
Ohio   X X 1 year
Oklahoma   X X  
Oregon X      
Pennsylvania   X   2 years
Rhode Island   X   3 years
South Carolina   X   1 year
South Dakota   X3    
Tennessee   X   2 years
Texas   X   3 years
Utah   X   3 years
Vermont   X   6 months
Virginia   X   1 year
Washington X      
West Virginia   X   1 year
Wisconsin X      
Wyoming X   X  

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