DIVORCE LAW SUMMARY
Divorce in the U.S. is governed by state rather than federal law. Since the 1980s, federal legislation has been enacted affecting the rights and responsibilities of divorcing spouses. For example, federal welfare reform mandated the creation of child support guidelines in all 50 states in the 1980s. ERISA includes provisions for the division of qualified retirement accounts between divorcing spouses. The IRSestablished rules on ignoring alimony as a source of taxable income. Federal bankruptcy laws prohibit discharging in bankruptcy of alimony and child support obligations. COBRA allows a divorced spouse to obtain and maintain health insurance. The laws of the state(s) of residence at the time of divorce govern, not those of the location where the couple was married. All states recognize divorces granted by any other state. All states impose a minimum time of residence, Nevada currently being the shortest at 6 weeks.
Since August 2010 (when New York Governor David Patterson signed no-fault into law), only three states (Mississippi, South Dakota and Tennessee) require mutual consent (in Tennessee it is needed only in certain circumstances) for a no-fault divorce to be granted.
Typically, a county court hears requests for dissolution of marriages. The National Association of Women Lawyers was instrumental in convincing the American Bar Association to help create a Family Law section in many state courts, and pushed strongly for no-fault divorce law around 1960 (cf. Uniform Divorce Bill). In some states fault grounds remain, but all states now provide other grounds as well, variously termed irreconcilable differences, irremediable breakdown, loss of affection, or similar. For such grounds no fault need be proven and little defense is possible. However, some states require mutual consent and/or a waiting period, from 6 months to 2 years of separation. Some[who?] have argued that the lack of means to contest a no-fault divorce makes a marriage contract the easiest of all contracts to dissolve, and in very recent years[when?] some have begun to favor moderate divorce reforms such as requiring mutual consent for no-fault divorce. However, no such laws have been passed as of 2007.
Fault grounds, when available, are sometimes still sought. This may be done where it reduces the waiting period otherwise required, or possibly in hopes of affecting decisions related to a divorce, such as child custody, child support, alimony, and so on. States vary in the admissibility of such evidence for those decisions. In any case, a no-fault divorce can be arranged far more easily, although the terms of the divorce can be and often are contested with respect to child-related matters and finances. Ultimately most cases are settled by the parties before trial.
Mediation is an alternative way of resolving divorce issues. It might be less adversarial (particularly important for any children), allow the parties greater control and privacy, save money, and generally achieve similar outcomes to the normal adversarial process. Also, courts will often approve a mediated settlement quickly.
Similar in concept is collaborative law, where both sides are represented by attorneys but commit to negotiating a settlement without engaging in litigation. The additional support of attorneys and expert neutrals (such as financial specialists and coaches) may contribute to the success rate of a collaborative divorce. If the collaborative divorce process ends without the parties reaching a settlement, the collaborative lawyers become disqualified, and must be replaced by new counsel. The collaborative lawyers and clients can focus all their energies on trying to settle the case, without all the distractions, dangers and pressures of contested divorce litigation. Further, when parties reach a resolution together, they are more likely to adhere to that agreement, limiting future conflicts. Lawyers who specialize in collaborative divorce have training and skills to help parties resolve their issues.
Non-court based dispute resolution approaches such as this may reduce the trauma of divorce for all parties. Developing an agreed outcome through dialogue and cooperation preserves relationships with former spouses, and allows people to transition into their new lives in a manner consistent with their values. In cases where children are involved, this increases the likelihood of better co-parenting. However, some believe that mediation may not be appropriate for all relationships, especially those that included physical or emotional abuse, or an imbalance of power and knowledge about the parties' finances, for example. Most divorce lawyers encourage settlement even when alternative dispute resolution mechanisms are not employed.
States vary in their rules for division of assets in a divorce. Some states are "community property" states, but most are "equitable distribution" states, and others have elements of both. Most "community property" states start with the presumption that community assets will be divided equally, whereas "equitable distribution" states presume fairness may dictate more or less than half of the assets will be awarded to one spouse or the other. Attempt is made to assure the welfare of any minor children generally through their dependency. Thus, the spouse given custody (or the spouse with the greater share of residence time in the case of joint custody), may receive assets to compensate their greater child-care expenses. Commonly, assets acquired before marriage are considered individual, and assets acquired after, marital. Depending on the state, an equitable or equal division of assets is then sought.
Alimony, also known as 'maintenance' or 'spousal support' is still being granted in many cases, especially in longer term marriages. Alimony is more likely in cases where a spouse has remedial needs that must be met in order for the spouse to become fully employable, for example that one spouse gave up career opportunities or development in order to devote themselves to the family.
A decree of divorce will generally not be granted until all questions regarding child care and custody, division of property and assets, and ongoing financial support are resolved. Since the mid-1990s, a few states have enacted covenant marriage laws, which allow couples to voluntarily make a divorce more difficult for themselves to obtain than in the typical no-fault divorce action. For example, couples who choose to undertake a covenant marriage may be required to undergo counseling before a divorce can be granted, or to submit their conflicts to mediation. In states lacking such provisions, some couples sign contracts undertaking the same obligations.
Though divorce laws vary between jurisdiction, there are two basic approaches to divorce: fault based and no-fault based. However, even in some jurisdictions that do not require a party to claim fault of their partner, a court may still take into account the behavior of the parties when dividing property, debts, evaluating custody, and support.
Laws vary as to the waiting period before a divorce is effective. Also, residency requirements vary.
Under a no-fault divorce system the dissolution of a marriage does not require an allegation or proof of fault of either party. Since August 2010 (when New York Governor David Patterson signed no-fault into law), only three states (Mississippi, South Dakota and Tennessee) require mutual consent (in Tennessee it is needed only in certain circumstances) for a no-fault divorce to be granted. Grounds for divorce include incompatibility, irreconcilable differences, and irremediable breakdown of the marriage.
Fault divorces used to be the only way to break a marriage, and people who had differences, but did not qualify as "at fault", only had the option to separate (and were prevented from legally remarrying).
In August 2010 "no-fault" divorce became law in the state of New York, making it one of the final US States to do so.
However, there are ways (defenses) to prevent a fault divorce:
A defense is expensive, and not usually practical as eventually most divorces are granted.
Comparative rectitude is a doctrine used to determine which spouse is more at fault when both spouses are guilty of breaches.
A summary (or simple) divorce, available in some jurisdictions, is used when spouses meet certain eligibility requirements, or can agree on key issues beforehand.
- Short marriage (under 5 years)
- No children (or, in some states, they have resolved custody and set child support payments)
- Minimal or no real property (no mortgage)
- Marital property is under a threshold (around $41,000 not including vehicles)
- Each spouse's personal property is under a threshold (typically the same as marital property)
- Owe less than $6,000 for debts since date of marriage
- Neither individual receives spousal support
- Have a signed agreement which divides property (including cars) and all debts.
It is estimated that upwards of 95% of divorces in the US are "uncontested," because the two parties are able to come to an agreement (either with or without lawyers/mediators/collaborative counsel) about the property, children and support issues. When the parties can agree and present the court with a fair and equitable agreement, approval of the divorce is almost guaranteed. If the two parties cannot come to an agreement, they may ask the court to decide how to split property, deal with the custody of their children.
Collaborative divorce is becoming a popular method for divorcing couples to come to agreement on divorce issues. In a collaborative divorce, the parties negotiate an agreed resolution with the assistance of attorneys who are trained in the collaborative divorce process and in mediation, and often with the assistance of a neutral financial specialist and/or divorce coach(es). The parties are empowered to make their own decisions based on their own needs and interests, but with complete information and full professional support. Once the collaborative divorce starts, the lawyers are disqualified from representing the parties in a contested legal proceeding, should the collaborative law process end prematurely. Most attorneys who practice collaborative divorce claim that it can be substantially less expensive than other divorce methods (regular divorce or mediation). However, should the parties not reach any agreements, any documents or information exchanged during the collaborative process cannot later be used in further legal proceedings, as the collaborative process is confidential proceedings. Furthermore, there are no set enforceable time lines for completion of a divorce using collaborative divorce.
Divorce mediation is an alternative to traditional divorce litigation. In a divorce mediation session, a mediator facilitates the discussion between the husband and wife by assisting with communication and providing information and suggestions to help resolve differences. At the end of the mediation process, the separating parties have typically developed a tailored divorce agreement that can be submitted to the court. Parties to mediation do not need to retain attorneys. However if the parties choose to retain attorneys their attorneys may be included in the mediation session. The mediator can provide both parties with information but will not offer advice to either. Divorce mediators may be attorneys, mental health professionals, or financial experts who have experience in divorce cases. Divorce mediation can be significantly less expensive than litigation. The adherence rate to mediated agreements is much higher than that of adherence to court orders.
Civil courts gradually assumed greater involvement in the issues arising from the breakdown of marriage on the basis that a marriage was a civil contract. However, the grounds and precedents of the ecclesiastic courts were adopted by civil courts. As the civil courts assumed the power to dissolve marriages, courts still strictly construed the circumstances under which they would grant a divorce, and now considered divorce to be contrary to public policy. Because divorce was considered to be against the public interest, civil courts refused to grant a divorce if evidence revealed any hint of complicity between the husband and wife to divorce, or if they attempted to manufacture grounds for a divorce. Divorce was granted only because one party to the marriage had violated a sacred vow to the "innocent spouse." If both husband and wife were guilty, "neither would be allowed to escape the bonds of marriage." Eventually, the idea that a marriage could be dissolved in cases in which one of the parties violated the sacred vow gradually allowed expansion of the grounds upon which divorce could be granted from those grounds which existed at the time of the marriage to grounds which occurred after the marriage, but which exemplified violation of that vow, such as abandonment, adultery, or "extreme cruelty."