Click
here for frequently asked divorce questions
An
overview of divorce in the United States
In
the United States divorce, like marriage, is the province of
the state governments, not the federal government. Divorce laws
vary from state to state, but no-fault divorce on the grounds
of "irreconcilable differences" is now available in
all states. However, in recent years many states, including
North Carolina and New York requires 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 a more informal
term used by individuals, it has now become a legal category
designating someone who is neither married nor divorced.
Divorce
in the U.S. is a matter of 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 North 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 judges petitions 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 some waiting period, typically a 1 to 2 year 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 a growing way of resolving divorce issues. It tends to be
less adversarial (particularly important for any children),
allows the parties greater control and privacy, saves money,
and generally achieves similar outcomes to the normal adversarial
process. Also, courts will often approve a mediated settlement
quickly.
Similar
in concept, but with more support than mediation, is Collaborative
Law, where both sides are represented by attorneys but commit
to negotiating a settlement without engaging in litigation.
Because of the additional support of attorneys and expert neutrals
(such as financial specialists and coaches), the success rate
of a collaborative divorce is very high. In the rare event that
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 will often have additional
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.
Collaborative divorce, because of its additional support for
parties, is better equipped to handle relationships with a history
of abuse.
Hostile
(litigated) divorces, in contrast, are expensive both financially
and emotionally, and can tend to poison any future relationship
the parents may have, which may be important for future co-parenting.
Fault grounds can be unpleasant enough when true, and may sometimes
be falsely alleged, as may anything else that an unethical spouse
can think of. In the 1990s, heated debate arose over accusations
of domestic violence and of child sexual abuse arising in the
course of hostile divorces. Some found a rapid increase in such
charges and in the percentage of them eventually that were found
baseless; others found there to be no such problems. It is unlikely
the truth will ever be fully known.
States
vary in their rules for division of assets in a divorce. Some
states are "community property" states, others 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.
Connecticut, for instance grants alimony in over 25% of cases.
Alimony is also 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 marriages that exceed
12 years.
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 to a year or even several in unique circumstances.
Finally,
some people are simply out to get around the financial hardship
of a divorce, and get a divorce from a jurisdiction that allows
fast uncontested divorces that offer little or no spousal support
to the defendant.
Divorces granted by other countries are generally recognized
by the United States as long as no person's rights were infringed
upon. The most notable in this situation is the notion of "due
process", which is required by the Constitution of the
United States and thus is not flexible. This means that the
spouse who is the defendant in the case must be notified of
the proceedings and be given a certain time frame to respond
to the allegations and state their case. This is only the case
in a contested divorce, as in an uncontested divorce both spouses
agree to the terms and sign off on the divorce; although in
almost any if not all of these jurisdiction only one spouse
is required to physically visit the country. While a contested
divorce where due process was not observed is likely to be ruled
invalid by a court in the United States if challenged, it is
not illegal, as matrimonial law is private law and not criminal
law, and is valid by default unless or until it is challenged
(usually in the state or country of residency of either spouse.)
Thus,
getting a contested divorce in another country is not likely
to achieve the goals of the spouse requesting it, and is possible
to even create a larger problem than before. An uncontested
divorce is likely to be upheld in a court of law however, regardless
of the general validity of contested divorces from these jurisdictions.
While a "quick" contested divorce is likely if challenged
to be declared invalid, it is, by case law, not considered bigamy
if you remarry as long as the obtainer believed the divorce
to be valid.
There
are 5 major jurisdictions people look towards for a divorce
in another state or country:
The
State of Nevada
Haiti
Mexico
The Dominican Republic
Guam
Haiti,
Mexico, and The Dominican Republic are fairly similar in this
regard. These countries people typically go to get an overnight/long
weekend divorce, or to get a quick and relatively painless contested
divorce (which are not valid unless due process has been observed.)
Quick
Divorce in the Dominican Republic is available to foreigners
or Dominican citizens residing abroad, when both spouses agree
to file this divorce before Dominican Courts. This procedure
is very simple and only requires the attendance of one of the
spouses during the hearing which takes usually less than half
an hour and you can leave Dominican Republic the same day in
the afternoon. It takes ten to fifteen days to obtain a divorce
decree.
The
parties should sign a settlement agreement revised by an attorney
in their jurisdiction in order to confirm it complies with spouses
local laws. This document should include spouses complete data,
a list of property, or statement of non-property, the statement
regarding minor children and support agreement, your desire
of divorcing before a Dominican Court and the authorization
of one of the spouses to the other to attend to hearing on her/his
behalf. The settlement agreement can be drafted by an attorney
in your jurisdiction. Both these documents settlement agreement
and power) must be signed by the parties before the Dominican
Consulate nearest to your jurisdiction. A detailed instruction
on legalization is to be provided to you when instructions to
proceed are received.
The
State of Nevada is commonly used for a few reasons. It only
requires a 6-week stay to meet the residency requirements, the
lowest in the United States. One easy way to demonstrate that
you have met this requirement is by having another resident
of Nevada simply sign an affidavit testifying to your residency
there. Nevada allows for "irreconcilable differences"
as a cause for divorce, the importance of which are mentioned
above. Also, it has an extensive and straightforward system
for marriage annulment, and attracts people who would prefer
an annulment (which declares the marriage wasn't valid in the
first place) than a divorce. One major reason this attracts
people is it allows for an easy bypassing of the mandatory 50/50
split in community property states, most notably the adjoining
State of California. Nevada, however, is also a community property
state and hence will follow similar rules in a divorce proceeding.
Guam
had (and still has some) very attractive reasons for obtaining
a divorce there. Guam is a territory of the United States. Because
Guam is a territory of the United States, its courts are United
States jurisdictional courts and the divorces it issues are
valid in all of the states in the US. Prior to January 1, 2006,
Guam allowed for an uncontested divorce without either spouse
visiting the territory at all. After being charged as a "divorce
mill", including by many in its own government, an agreement
was made with the lawyers and other lobbyists who did not want
to change the law to now require a 7-day stay in Guam (as opposed
to the much longer ones proposed) to obtain a divorce. Guam
allows for "irreconcilable differences" as a cause
for divorce, and Guam is much quicker to award a finalized divorce
than many US states, taking a few weeks at most. Before the
law was changed, it was a very attractive alternative for many
Americans, as it was also quite affordable. However, due to
its location in Southeast Asia, a trip there would be very expensive
and not a viable alternative for most Americans.
In
the case of disputed custody, almost all lawyers would strongly
advise you stay to the jurisdiction applicable to the dispute,
i.e. the country or state of you or your spouse's residence.
Even if not disputed, the spouse could later dispute it and
potentially invalidate another jurisdiction's ruling.
Frequently
asked divorce questions:
What is an "Uncontested"
divorce?
What is an Annulment of Marriage?
Do
I need a lawyer?
Where
can I find and download free online divorce forms?
What
does uncontested mean?
How
much will it cost to file for a divorce?
Can
I get legal advice from this site or employees of the court?
What
does "grounds for divorce" mean?
What
if I do not know where my spouse is living or how to contact
them?
What
can I do if my spouse is hurting or threatening me or my children?
What
happens with my health or life insurance benefits?
To
view divorce FAQ's specific to your state click
here:
What is an "Uncontested" divorce?
An
uncontested divorce is one in which the parties negotiate their
own settlement rather than going to trial and letting a judge
decide the issues for them. Many people find that an uncontested
divorce will benefit them for several reasons. The process seems
to be faster and less expensive. The parties maintain control
over their future by reaching their own decisions. The Court
does not impose a judgment on them after a trial. The parties
are also better able to maintain (or establish) a civil relationship
if they are not involved in protracted litigation with all of
the positioning and leverage that a trial may invoke. The reduced
hostility makes it easier for divorced parents to raise children
together.
What is an Annulment of Marriage?
An
Annulment is a way of terminating a marriage that is different
from divorce and separation. Annulment is the process of nullifying
of a marriage where the court declares that the marriage never
took place. In order to annul a marriage, the person seeking
the legal action must have sufficient grounds for annulment.
What follows is a list of a few of the requirements or grounds
for annulment which must be presented to the courts to terminate
a marriage in this way. Grounds for annulment typically involve
one party's lack of capacity for marriage or some type of fraud.
One ground for annulment is if one party had another living
husband or wife at the time of marriage. This is valid even
if the spouse knew about the other spouse prior to marriage.
In some cases a person may have been legally denied the right
to remarry, in which case this is sufficient grounds for annulment.
Do
I need a lawyer?
You
do not need to have a lawyer, but it is a good idea to retain
one if you and your spouse do not agree on the terms defined
in your Petition For Divorce or if your spouse has a lawyer.
If you are afraid for your safety or your children's safety,
or if you want help with your divorce even if you started
the divorce without a lawyer.
Every
divorce case is different, and specific laws vary from state
to state, but divorce cases generally follow one of two paths.
The parties may reach an agreement, submit that agreement to
the court for approval, and receive a divorce decree ending
their marriage and setting forth the terms they’ve agreed
upon. Or, if the parties can’t reach an agreement, the
case will be scheduled for a contested hearing, where a judge
will consider evidence like financial records, witness testimony,
and expert reports on issues like valuation of property and
custody arrangements.
Click
Here to learn more, schedule a consultation with a divorce
lawyer before you make any decisions.
Where
can I find and download free online divorce forms?
Register
with MyDivorceUSA.com
and get instant access to download free state specific
divorce forms and instructions. The do it yourself
divorce forms and instructions found in our library are court
approved and updated regularly.
What
does uncontested mean?
Uncontested
means your spouse has agreed with what you have asked for in
your Petition For Divorce, or your spouse is not fighting your
Petition For Divorce, or your spouse does not answer your Petition
For Divorce before your court date.
How
much will it cost to file for a divorce?
When
you bring your Original Petition For Divorce to the court clerks
office for filing, you should expect to pay between $250.00
to $300.00 depending on your state and your county. You will
also need to have several forms notarized. A notary public will
charge between $5.00 and $10.00 to notarize a document. When
children are involved, other additional court expenses may arise
if the court orders DNA tests or drug screens. These tests typically
cost $125.00 for drug screens and $500.00 for DNA tests. If
the court orders you or your spouse to submit to these tests,
in most cases they will require you to take them the same day
you appear for your initial hearing. Also, most often when children
are involved in the divorce, the court will appoint an attorney
for the children. This is done to have a neutral opinion on
the children's best interests. The typical fee for the Ad Litem
attorney is around $500.00. You are expected to pay this fee
and any other court ordered expenses promptly to avoid the possibility
of putting your case in jeopardy. The court may not allow you
to wait until you get paid. Some judges may want to test to
see if you have a support group with enough resources to act
on behalf of the children in an emergency type situation. This
will be the case even if you are able to get the judge to agree
to an "inability to pay affidavit." This affidavit
is only for paying the court cost for filing your petition and
not the judges special orders. You will be required to pay for
court ordered drug tests, DNA tests, parenting classes, Ad Litem
legal fees, etc. if ordered to do so.
Can
I get legal advice from this site or employees of the court?
NO.
Only lawyers can give you legal advice. No one at this site
or at court can tell you what to do about your case. This means
you cannot ask us, the judge, court clerks or other court staff
for advice about your case. If you do not use a lawyer, make
sure that you learn about your rights and follow the steps outlined
in your divorce instructions. Getting a divorce can be very
complicated. Even if you cannot afford to hire a lawyer, you
should try to speak with a lawyer in your area about what to
put in your Petition For Divorce. Some lawyers will give you
advice as you need it. This is called "unbundled services".
Other lawyers are only available if you retain their services.
Do
you need a divorce attorney? Legal Match can provide you with
free information on pre-screened attorneys in your area. They
can also set up a free anonymous consultation with an attorney
on your behalf.
What
does "grounds for divorce" mean?
Grounds
for divorce is the term used to describe the reason(s) you are
seeking a divorce. You can ask the court to grant you a divorce
based on adultery, cruelty, abandonment, your spouse has been
convicted of a felony offense and has been incarcerated. You
have been living apart, or your spouse has been committed to
a mental institution with little or no hope of recovery. These
reasons are not all inclusive. If you are uncertain as to what
grounds for divorce you wish to claim then you will want to
consult with a licensed attorney or your local legal aid office.
What
if I do not know where my spouse is living or how to contact
them?
You
do not need to know where your spouse is in order to get divorced.
However you will need to complete a few special forms which
will prove to the court that you have done everything within
reason to try and locate your spouse.
What
can I do if my spouse is hurting or threatening me, my children
or family?
Every state has laws designed to protect victims of family violence
whether they are getting a divorce or not. If you have already
filed for a divorce, the court may grant you emergency orders
to protect you and the children involved in your divorce. If
you have not started the divorce process, you can apply for
a protective order if you fear that you or your children are
in danger. Your local woman's shelter, county attorney's office,
district attorney's office or your local legal aid office can
assist you in applying for a protective order. To locate the
office nearest you and to obtain information on the various
services they can offer please contact the National Hotline
For Domestic Violence at 1-800-799-SAFE.
What
is a protective order?
It
is a court order which protects you from someone who has been
violent or has threatened to be violent. The court takes this
subject very seriously.
How
can a protective order help me?
A
protective order can order the person for whom you are seeking
protection from:
•
Not to hurt or threaten to hurt you, your children
or your family.
•
Not to contact you or go near you, your children,
other family members, your home, where you work, or your children's
schools.
•
Not to have a gun or a license to carry a gun.
•
The
police can arrest you or your spouse for violating protection
orders.
How
much will it cost to file for a protective order?
Usually
nothing. There is not usually a fee for filing the application
for protection.
How
do I ask for a protective order?
Fill
out the protective order application forms available from our
library. Take two (2) copies of them to the county courthouse
in which you or the other person resides. If you have already
filed for divorce or you have a custody case pending against
the other person, you should file these forms in the same county
where you live or the court where you have filed your divorce
or custody case.
What
happens with my health or life insurance benefits?
Health
or life
insurance coverage may become an issue for you or your children
during or after a divorce. If you are concerned about your health
or life insurance coverage or you want to see what it will cost
you for reasonable insurance coverage, you will want to look
into the options available by shopping
for insurance coverage. Internet insurance quote
engines provide you the ability to compare
multiple insurance rates from trusted insurance providers by
filling out one short form. This makes the process of finding
quality insurance much faster and at the same time providing
you with many policies and coverage options to choose from.
Most people can get a quality insurance plan for less than they
think. It is even possible to save money over the rate you would
have to pay for health or life insurance through your employer.
Health insurance for yourself or your children could cost as
little as $125.00 per month. Quality life insurance coverage
may cost even less.
You
can find out exactly what quality insurance coverage will cost
you by visiting DirectConnectInsurance.com
and requesting a free online quote.
Disclaimer:
Informational
Purposes Only...
This
web site is designed to give you general information. The information
on this web site is in no way intended to be legal advice. Legal
advice can only be obtained by a licensed attorney who has the
appropriate legal skills and knowledge related to your specific
circumstances.
Lawyer
Advertising:
From
time to time this web site may advertise the services of attorneys
in your state. The hiring of a lawyer is an important decision
and should not be based solely on the advertisements listed
on this or any other web site. The lawyers advertising on our
site have paid us for the listings we provide. Any listing on
this site does not constitute a recommendation of the attorney.
Before hiring an attorney you should investigate their reputation
and qualifications yourself. If you are in need of legal assistance,
you may want to contact your local lawyer referral service.
D. Moore - Houston, TX 
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