Like marriage, divorce in the United States is the province of the state governments, not the federal government. Divorce or “dissolution of marriage” is a legal process in which a judge or other authority dissolves the bonds of matrimony existing between two persons, thus restoring them to the status of being single and permitting them to marry other individuals. The legal process for divorce may also involve issues of spousal support, child custody, child support, distribution of property and division of debt, though these matters are usually only ancillary or consequential to the dissolution of the marriage.
Divorce laws vary from state to state. Although all states allow “no fault” divorce proceedings, in many states a court may still take into account the behavior of the parties when dividing property, debts, evaluating custody, and support. No-fault divorce on grounds such as “irreconcilable differences”, “irretrievable breakdown of the marriage,” “incompatibility” or a period of living apart is now available in all states, though some states require a period of legal and/or physical separation prior to a formal divorce decree.
In cases involving children, governments have a pressing interest in ensuring that disputes between parents do not spill over into the family courts. All states now require parents to file a parenting plan, or to decide on custody and visitation either by reaching a written agreement or in a court hearing, when they legally separate or divorce.
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).
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.
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.
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 $35,000 not including vehicles)
- Each spouse’s personal property is under a threshold (typically the same as marital property)
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. Mediation sessions can include the party’s attorneys or a neutral attorney or an attorney-mediator who can inform both parties of their legal rights, but does not provide advice to either, or can be conducted without attorneys. Divorce mediators may be attorneys 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.