Like marriage, divorce in the United States is the province of the state governments, not the federal government. Divorce laws vary from state to state. However, no-fault divorce on the grounds of "irreconcilable differences" is now available in all states. In recent years many states, including North Carolina and New York, require a one-year legal and physical separation prior to a formal divorce decree. This legal requirement has led to the creation of a separate, somewhat ambiguous category of relationships - "separated". Once an informal term used by individuals, it has now become a legal category designating someone who is neither married nor divorced.
Prior to the 1970s, divorcing spouses had to allege that the other spouse was guilty of a crime or sin like abandonment or adultery; when spouses simply could not get along, lawyers were forced to manufacture "uncontested" divorces. The no-fault divorce revolution began in 1969 in California; South Dakota was the last state to include no-fault divorce, in 1985. State law provides for child support where children are involved, and sometimes for alimony. The median length for a marriage in the US today is 11 years with 90% of all divorces being settled out of court.
Divorce law
Divorce in the U.S. is governed by state rather than federal law. In recent years, however, more 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 IRS established rules on the deductibility of alimony, and 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.
Prior to the latter decades of the 20th century, a spouse seeking divorce had to show a cause such as cruelty, incurable mental illness, or adultery. Even in such cases, a divorce was barred in cases such as the suing spouse's procurement or connivance (contributing to the fault, such as by arranging for adultery), condonation (forgiving the fault either explicitly or by continuing to cohabit after knowing of it), or recrimination (the suing spouse also being guilty). By the 1960s, however, the use of collusive or deceptive practices to bypass the fault system had become ubiquitous, and there was widespread agreement that something had to change. The no-fault divorce "revolution" began in 1969 in California, and was completed in 1985 (the last to fall was South Dakota and New York is the last holdout ). However, New York does impose a mandatory separation period before a divorce can be granted.
Typically, a county court’s family division 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 except New York 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, most states require mutual consent and/or a waiting period, from 6 months to 2 years of separation. Some 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 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 this writing.
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 are replaced by new counsel. The reasoning is that the collaborative lawyers' sole interest will be to settle the case; and lawyers who specialize in collaborative divorce may have training and skills to assist parties to settle.
Non-court based dispute resolution approaches such as this may reduce the trauma of divorce for all parties. 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. Permanent alimony becomes likelier in lengthy marriages.
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.
In recent years, a few high-profile court cases have involved children "divorcing" their parents, or being legally declared emancipated minors. Perhaps the best known are those of actor Macaulay Culkin and Olympic gymnast Dominique Moceanu. However, these are not properly "divorce" cases, and different laws apply.
Divorces obtained by US couples in a different country or jurisdiction
Due to the complex divorce procedures required in many places, especially including many states of the United States, some people seek divorces from other jurisdictions that have easier and quicker processes. Most of these places are commonly referred to negatively as "divorce mills."
There are four main reasons that people look to another jurisdiction for a divorce:
- New York does not have a no-fault divorce, such as "irreconcilable differences" as a legal cause for divorce, and fault is required (often with strict legal requirements) or a separation agreement in force for a year, such as New York State, thus requiring one year from the time the legal separation went into effect unless fault can be proven (possible in some cases just by affidavit however, but the other spouse must not contest the charges otherwise an often lengthy contested divorce is required.)
- Some jurisdictions have complex and long residency requirements as well as paperwork.
- Many jurisdictions take a long time to issue a finalized divorce, anywhere from 3 months
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