International Divorce Legal Advice

Divorce in the United States

Post2014.09.23 16:16 Read1162

Divorce in the United States, also known as 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.  

Although such matters are usually ancillary or consequential to the dissolution of the marriage, divorce may also involve issues of spousal support, child custody, child support, distribution of property and division of debt. 

Divorce in the U.S. is governed by state rather than federal law. 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 to file for a divorce. 

All states allow no-fault divorce on grounds such as irreconcilable differences, irremediable breakdown, and loss of affection. Some states mandate a separation period before no-fault divorce. Mississippi, South Dakota and Tennessee are the only states that require mutual consent for no-fault divorce. The rest of the states permit unilateral no-fault divorce. 

A summary (or simple) divorce, available in some jurisdictions, is used when spouses meet certain eligibility requirements, or can agree on key issues beforehand.  


Grounds for divorce
Though divorce laws vary between jurisdiction, there are two basic approaches to divorce: fault-based and no-fault. 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. A court may still take into account the behavior of the parties when dividing property, debts, evaluating custody, and support. States vary in the admissibility of such evidence for those decisions.
 

No-fault divorce
Under a no-fault divorce system the dissolution of a marriage does not require an allegation or proof of fault of either party. 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. No-fault grounds for divorce include incompatibility, irreconcilable differences, and irremediable breakdown of the marriage.
 

At-fault divorce
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).
 


Jurisdiction
In the United States, the Federal Government does not have the authority to issue a divorce. The state has the only authority over issuing accepting a marriage, and issuing a divorce. This creates the question of which state can one get divorced in. All states have rules for jurisdiction, which is typically a time frame the person filing the divorce has lived in the state. Most states require the person filing for a divorce to be a physical resident of the state for six months. Some states require twelve months and some states, like Nevada, only require six weeks. Without proper jurisdiction a state cannot issue a divorce.
 


Property division and spousal support
States vary in their rules for division of assets in a divorce. The major difference is between states that use a community property system and states that do not. In community property states, community property belongs to the spouses equally. The following states use community property regimes: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Alaskan law gives couples the option to create community property by written agreement.
 

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. 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. 

In some states, educational degrees earned during the marriage may be considered marital property. In such states, a resolution of the divorce will often entail payment from the educated spouse to the other spouse a share of their expected future earnings that are due to a degree they earned during the marriage, and may require the expertise of labor economists or other statistical and financial experts. 

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. 


Child support and custody
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.
 

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.
 

 

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