An Introduction to Divorce: The Ins and Outs of Marriage Dissolutions

Practice Areas

 

It is important to understand what to expect from the divorce process before proceeding with the decision to file for divorce.

Basic Requirements

  • Residency: Divorce is handled at the local level. In most states and counties, there is a minimum residency requirement for the spouse filing for divorce. In many states, the filing spouse must have lived in the state for at least six months before filing for divorce, while three months is common at the county level.
  • Waiting period: Most states require a waiting period from the filing of divorce to its finalization. This period averages between six to 12 months. Once the waiting period is complete, the parties are permitted to remarry.
  • Legal grounds: Two grounds for divorce are recognized in most states, and include (1) irreconcilable differences, and (2) separation. “Irreconcilable differences” refers to when there are marriage difficulties that cannot be resolved, and the union has been permanently damaged.
  • Jurisdictional requirement: A divorce action must be filed with a court in the county where either spouse has lived for at least 3-6 months prior to filing for divorce.

Minimum Residency Requirements

Minimum residency requirements to file for divorce vary by state.

State

State Requirements for Residency

County Requirements for Residency

California

180 days

90 days

Georgia

180 days

No in-county minimum. File in the respondent’s county unless they do not live in-state. In that case, file in the petitioner’s county.

New Jersey

365 days

No in-county minimum.

New York

None, if both spouses reside in New York and the cause of the divorce occurred there.

365 days if only one spouse lives in New York, and:

  • The cause of the divorce happened there,
  • The couple was married in New York, or
  • The spouses lived in New York at some point while married.

730 days if:

  • Only one spouse lives in New York, and no above factors apply.
 

Virginia

180 days

 

Uncontested Divorce

There are four main sources of conflict during divorce. These include how to:

  • Divide assets (community and marital property).
  • Divide debts.
  • Handle child custody.
  • Develop child and/or spousal support arrangements.

During an uncontested divorce, the spouses agree on the terms of their separation without having to go to trial. These divorces are faster and less expensive than contested divorces.

If a couple is unable to come to an agreement on their own, their divorce is contested. These couples should try to save time and money with:

  • Arbitration: This form of alternative dispute resolution allows the parties to resolve their case outside of court.
  • Mediation: A neutral third party helps the couple discuss and work through the issues related to their separation.

The Divorce Process

When the spouses have been unable to work through their issues related to the separation, one spouse (the petitioner) serves a divorce petition on the other spouse (respondent) in the county where one of the spouses resides. The petition includes important information about the marriage, such as the names of the spouses and children, separate or community property owned, child custody, and spousal or child support.

The divorce petition must be served on the other spouse during the “service of process.” If both spouses agree to the divorce, the other spouse only needs to sign an acknowledgement that they received the service.

Once the service of process is completed, the state’s waiting period begins. This also sets automatic restraining orders and establishes the date of separation. At this time, spouses may not take children out of state, sell or borrow against property, or borrow or sell insurance held in the other spouse’s name.

If a response is filed, both parties agree to the divorce. This reduces the likelihood of a court hearing, which can be time-consuming and costly. If one is not filed within 30 days, the petitioner can request that a default is entered into the court. The respondent can also disagree the with information in the divorce petition in the response.

Both spouses must disclose details related to their liabilities, assets, income, and expenses. During an uncontested divorce, some limited additional paperwork is required. The divorce is final after the court enters the judgement, but the marriage is not dissolved until the state’s waiting period is complete.

During a contested divorce, there may be court hearings and a trial required to finalize the divorce.

Custody of Minor Children

Both parents get to consider the custody of their naturally born or adopted minor children under 18. Custody options include:

  • Physical custody refers to who the children live with:
    • Sole physical custody.
    • Joint physical custody.
  • Legal custody refers to the right and responsibility to make decisions related to a child’s health, education, and welfare:
    • Sole legal custody.
    • Joint legal custody.

Child SUpport

Child support is required in divorces that involve minor children. The amount of child support is determined by how much time a parent spends with their children, and their income.

A child support guideline amount is used by each state to determine how much a parent should pay. Parents may deviate from this amount if the following conditions are met:

  • Both parents acknowledge that they are aware of their rights under state law, and they have agreed on a child support amount,
  • Both parents agree that the child support amount is adequate, and in their children’s best interests, and
  • For spouses who receive welfare, the right to support has not been assigned to the county, and there is no pending public assistance application for either parent.

Judges may deviate from guideline amounts as well.

Child support orders usually include an order for the assignment of wages, which requires the payee’s employer to remove the support payments from the individual’s wages. Payments typically begin when the court signs the judgement order dissolving the marriage, even though the divorce is not finalized until after the waiting period. There are serious penalties for missing a child support payment, such as being sued for contempt of court or getting one’s driver’s license blocked.

Spousal SUpport

While most states do not require spousal support, judges may order it under certain circumstances. Spousal support may be considered if a spouse will face hardship without the financial support of the other spouse. It will most likely not be considered if both spouses are employed and self-sufficient, and the marriage lasted fewer than two or three years.

A common formula for calculating child support is:

  • 40% of the paying spouse’s net income (post-child support),
  • Less 50% of the supported spouse’s net income (if they are working).

The recipient spouse can waive spousal support in writing, if both spouses sign the agreement.

Community PRoperty

An important consideration for divorcing spouses is whether their assets are community or separate property. Community property is all that both spouses own together. In the state of California, this includes all money earned by either spouse, through the date of separation. Property acquired with community money is equally owned by both spouses.

Both spouses are equally liable for debts incurred during the marriage through the date of separation. These may include:

  • Credit card debt.
  • Home mortgages.
  • Car loan payments.

Spouses should close all joint credit cards and bank accounts as soon as a divorce is finalized. Removing one spouse’s name from the account is not sufficient.

Equitable distribution laws mean that property acquired during the marriage belongs to the spouse that earned it. When a divorce occurs, property is divided fairly and equitably between the spouses. When choosing how to divide the property, the court may consider each spouse’s relative earning contributions or potential, and the value of one spouse staying home to raise the children. Spouses may receive one-third to two-thirds of marital property.

The following states observe community property:

  • Alaska (by agreement).
  • Arizona.
  • California.
  • Idaho.
  • Louisiana.
  • Nevada.
  • New Mexico.
  • Texas
  • Washington.
  • Wisconsin.

Separate Property

Separate property is all that is owned separately by the spouses. It does not need to be divided upon divorce. It includes items owned before marriage, items received as gifts or inheritances during the marriage, and anything earned after separation. Separate property can also be determined in writing.

Separate debts can also belong to one spouse if incurred before marriage, such as educational loans.

The court may be involved in tracking property that is both separate and community, in terms of where the payments came from.

In some states, the date that both spouses decide to terminate the marriage marks the date of separation. In other states, it is when one spouse leaves the marital home. Courts look for physical evidence of the date the marriage ended. The date of separation marks the end of community property.

Marital Settlement Agreement

Marital settlement agreements lay out the divorce terms, including property and debt division, child custody and support, spousal support, and more. They also tend to spell out the relationship that will take place for the spouses after marriage.

Although marital settlement agreements are not required, they can offer some benefits, including:

  • Limiting uncertainty.
  • Reducing the likelihood that the spouses will have to go to court if the agreement is correctly written and covers all aspects of the divorce.
  • Speeding up the processing of the case if it does go to court.
  • Developing an agreement before the final judgement.

Going to Trial

The best way to resolve a divorce is when both parties work together with their attorneys to resolve any disagreements without going to court.

If the divorce case does go to trial, it will follow applicable state and local laws. While divorce trials vary by locality, they typically follow this order:

  • The petitioner submits evidence and calls witnesses. The respondent cross-examines the petitioner’s witnesses.
  • The respondent calls their own witnesses and brings its own exhibits.
  • Both sides make oral arguments to the judge. Sometimes, the judge will issue a ruling from the bench and send out a written order later.
  • The judge will consider all testimony, evidence, exhibits, and arguments. Then they apply relevant local divorce laws. The judge issues a written order to finalize the divorce.

Divorce trials are lengthy, expensive, and not advisable. It is generally wise to settle the divorce without going to court.

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