Divorce Law

Understanding divorce law is essential for the outcome of your divorce. While divorce laws will vary by state, most courts recognize five basic grounds for divorce, which include adultery, abandonment, and abuse. Judges will often label divorces as no-fault or at-fault, which can impact child custody rulings and the way property and assets are divided. A local attorney who specializes in divorce and family law can assist you with the legal process.

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Aug 12, 2021

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Overview

  • Divorce laws vary among states, but a local divorce attorney understands how to apply your state’s laws to your specific case
  • Divorce is the legal process of ending a marriage and often involves dividing marital property as well as determining asset distribution and arrangements for child custody
  • Divorce and child custody fall under family law, a separate type of law from civil or ciminal law

A divorce is a legal process encompassing state laws, financial information, custody issues, and other factors. The method for ending a marriage today differs in both process and stigma from the past, but the marital issues of 1629 are not unlike the common issues found in marriages today.

The history of divorce laws in the U.S. includes such grounds for divorce as:

  • Adultery
  • Desertion
  • Bigamy
  • Impotence

No matter the reason or which party decides to end a marriage, divorce law is often complex and challenging. Varying issues involving personal property and child custody issues can develop that affect your best interest.

While some divorces may be very simple, if you have an allegation of fault or any other potential disagreement, navigating this process alone might overwhelm you. Contacting a local divorce lawyer as soon as possible is a proactive step toward protecting your future.

Understanding the legal process is easier with a divorce lawyer by your side. From the initial filing and separation to the final divorce decree, you are not alone. Enter your ZIP code above to connect with a local divorce lawyer in your city for free.

What is divorce?

Divorce, legally represented as a divorce decree, is a legal document that signifies the termination of your marriage. It is a formal order by the court granting a termination of a marriage and may address one or more of the following:

  • Alimony payments, sometimes referred to as spousal support or spousal maintenance
  • Division of debt, such as credit cards and taxes
  • Division of property
  • Child custody

Your divorce decree may vary and will include the topics negotiated between you, your former spouse, and your attorneys. A judge will typically issue the decree, and sign the divorce order along with the court clerk.

The decree, once signed, is filed in the vital records of the courthouse where the divorce was obtained. A copy is usually provided to you and your former spouse.

Be aware that it can be very difficult or costly to make changes to a divorce decree. Divorce decree modifications may only be possible a year or more after the initial decree is issued or if circumstances the decree depended on change substantially. Hire a personal divorce lawyer at the start of the process to review the document with you to catch any possible errors or omissions.

What is the difference between divorce decree vs. divorce petition?

Where a divorce decree brings an official end to the proceedings, a divorce petitition is served to a spouse to initiate the divorce process.  A divorce petition typically includes:

  • Reason for the divorce
  • Names of children
  • Date of separation
  • When and where you were married

State laws vary about how the petition reaches the recipient however, most laws prohibit the petitioner from delivering the document directly. Instead, an employee of a law firm, a paid process server may do the job, or – in some states – a sheriff’s deputy. Some states may allow the document sent by mail, too. Basically, service of process must comply with the same rules in the state as serving a defendant in a civil lawsuit. 

The respondent typically has a timeline of 20 days to respond. A response must acknowledge that you received the petition and are aware of the pending divorce. Failure to respond to the petition can have a negative outcome on your divorce proceedings. For example, a judge may award the spouse who filed the divorce due to inaction on the recipient’s part.

If you receive a divorce petition, ignoring it is not an option. It is important that you seek the assistance of a local divorce lawyer immediately. The same applies if you decide to file such a petition. Depending on your state’s laws, there are rules to ensure you do the process correctly. Hiring a local divorce attorney can help you with the process.

How long does the divorce process take?

The movies sometimes make light of flying somewhere for a quick divorce. However, while certain states were deemed “divorce states” before it was accepted nationwide, there is often nothing quick about the process.

How long the divorce process takes in your state depends upon:

  • The local divorce laws of that state you reside in as a couple
  • The relationship between you and your spouse
  • Whether child custody issues are a part of your divorce
  • The value of assets, including property, investments, etc.

In cases involving contested divorce, the process may seem to go on forever. Some states require a long separation as part of the process. Untangling years of matrimony takes time. Usually, the longer the matrimony, the longer the divorce process.

Communication with your divorce lawyer throughout the process is key. Stay informed in order to understand the process better and be prepared for what’s coming next.

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What does divorce law involve?

Divorce law protects the spouse filing the divorce petition. Regardless of whether one spouse objects to the divorce, as soon as a divorce petition is filed, both parties are automatically involved in the proceedings.

Married couples must prove their relationship is irretrievably broken in order to file for divorce. Although divorce laws by state will vary, most relationships will have to meet a version of these five reasons for at-fault divorce:

  1. Adultery
  2. Unreasonable behavior, including violence, physical and/or mental abuse, addiction or other destructive behaviors, and neglect
  3. Desertion of two years or more
  4. Separation of two years or more and both parties consent to divorce
  5. Separate of five years or more

The court has labels for the different format of divorces, and each will influence the court proceedings. The different types of divorce are:

It’s important to note that every state now permits no-fault divorces. In the past, the at-fault reasons listed above were the only reasons a divorce could be allowed, but that is no longer the case. Though fault can still be a factor, no state requires one party to be at fault for a divorce to proceed. 

State laws will impact how a judge rules in each type of divorce, but you can expect marital and separate property to be determined, property and assets to be divided, childy custody to be ordered.

Scroll down to learn more about the different types of divorce and how marital and separate property are defined and determined by the courts.

Contested and Uncontested Divorces

An uncontested divorce is when the two parties are amicable enough to make decisions without going to trial. However, in some cases, going to trial is unavoidable.

A contested divorce generally means that one partner is upset and uncooperative throughout the process. A contested divorce is especially stressful when children and custody issues are at stake.

There is no way to predict the outcome of your divorce. An amicable spouse may turn hostile during the proceedings. High emotions and stress can result in a lengthy divorce process.

Seeking the services of a local divorce lawyer as soon as possible for your contested divorce is crucial. Your lawyer will need time to review the details of your divorce and to possibly investigate your spouse.

In cases involving domestic abuse, a search of your spouse’s criminal record and a court order for a restraining order may be necessary. A lawyer will aggressively fight for you while also providing their services in a professional and caring manner.

Fault and No-Fault Divorces

In a no-fault divorce, no one assigns blame, and the divorce proceedings typically move forward without any disruption. However, a fault divorce implies there is some form of fault on the part of one of the parties, one that usually applies to the five grounds for divorce discussed above. If a spouse can prove fault, the stakes for the other spouse are much higher when it comes to dividing property and assets.

A no-fault divorce will not include any sort of punitive payments based on the party responsible for the dissolution of the marriage, but it does not necessarily preclude the possibility of spousal support, also known as alimony. The division of assets will be based on the agreement of the parties, the best interest of any children, and fairness based on the nature of the marriage.

The rules regarding the difference between fault and no-fault divorce are complicated and vary from state to state. Hiring a divorce lawyer to help you can protect you if your spouse accuses you of harm or deceit or if you must prove it against your spouse.

Marital and Separate Property

States that do consider separate property generally do so under scrutiny. One complex property issue is that of a family-owned business. Perhaps you and your spouse built a business from the ground up. The structure of the company and your involvement are worthy of consideration when it comes to assets.

Another form of marital property that often requires careful thought is that of inheritance. In most states, the inheritance one spouse receives is usually considered separate property. If you recently received an inheritance and are facing a divorce, protecting this important asset is imperative. Whether money, property, or both, the monetary value can help you build your new, post-divorce life.

Most divorces do not involve a sharing of inheritance if the inheritance is kept separate. However, when the funds become co-mingled with other marital money, the court may determine that the funds are now jointly owned and subject to division. A local divorce attorney can best determine if this is the case under your state’s laws.

Divorce and Child Custody Law

Issues involving child custody law and parenting plans are intricate details in any divorce, whether amicable or hostile. Custody issues can involve sole or joint custody with a financial support component, and judges will consider a child’s wishes as well as the parent’s ability to provide for the child when determining custody.

Factors that go into determining child custody during divorce include:

  • The relationship of each parent with their child/ren
  • The willingness of each parent to maintain a relationship with their child/ren
  • The location and residence of each parent
  • Most importantly, the best interest of the child

Child custody issues that resolve during the initial divorce may require changes later as children get older and relationships evolve. In addition, relocation to another city or state, delinquent child support payments, and other issues generally require court action. Obtaining the services of a local family law attorney can protect your child’s best interests.

How can a divorce lawyer help you?

Each divorce case is different, and the outcome depends upon a variety of specific details. A divorce lawyer works with clients to fight for the best possible results for the client and their children.

Hiring a divorce lawyer saves you from learning the ins and outs of divorce law and gives you a pair of eyes and hands to navigate the paperwork and other bureaucratic tasks involved in divorce proceedings. Filing your court documents promptly is crucial for your case. Do not miss an important court deadline by trying to manage your case alone. Instead, let a local divorce lawyer help you with the legal details of your separation and divorce.

Divorce lawyers keep clients informed of the process, provide updates, and answer your questions. In addition, many know of resources such as possible therapists and counselors for you and your children.

Your lawyer serves as a representative of you during this stressful time. If you are facing a divorce, finding an affordable divorce attorney in your state is easy.  Most local divorce and family law attorneys offer free case evaluations. Enter your ZIP code below to get in touch with a local divorce law firm right now.

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Frequently Asked Questions: Divorce Law

The following frequently asked questions can help you move forward with your divorce:

#1 – Do same-sex divorce laws differ by state?

Yes. Same-sex marriage and divorce laws continue to evolve and vary among states. A local divorce lawyer can help you learn more about how the laws in your state apply to divorce and child custody issues.

#2 – My ex wants to move out-of-state with our child – what are my options?

A divorce brings changes such as a new partner or spouse and possibly a new job. In addition, relocating with a child is a court issue due to the changes it brings to any parenting plan or custody order.

Your former spouse must demonstrate to the court why the move is necessary. Then, depending upon the child’s age and the state, a judge may interview a child to determine their thoughts and feelings about the situation.

Divorce brings many changes for everyone; for children, a move to a new school and neighborhood can compound their anxiety. However, hiring a local divorce lawyer to help you fight for your child’s best interests can prevent a wrong move at the wrong time.

#3 – What about my pre-nuptial agreement?

A pre-nuptial — or a post-nuptial — agreement are legal documents that generally protect assets. If you and your spouse signed such agreements, the court will sift through the details.

These types of agreements do not include or involve matters relating to children, like that of child custody or support. A lawyer knows the necessity for determining the validity and importance of your agreement. In many states, a pre-nuptial agreement may be partially or fully invalidated if the marriage exceeded a certain number of years. 

If you have assets you hope to protect with an agreement of this sort, it’s imperative to consult with an attorney in drafting the document and understanding the limitations it may have.

#4 – High Net Worth Divorces and Hidden Assets: What are red flags to watch for?

As part of a divorce, both parties must list all financial assets. In divorces involving high net worth, one spouse may attempt to hide assets. The red flags that may indicate such an attempt include:

  • Hesitancy to share information
  • Asset reports seem lower than you remember or expected
  • Sudden gifting of money to others once the divorce process begins

A spouse may gift money to someone with the plan to recover the money once the divorce is final. A local divorce lawyer can identify the best methods for holding the spouse accountable for reporting the information.

Too much is at stake to not pay attention to red flags. From hiring a forensic accountant to other legal methods, your lawyer can pursue the truth about your spouse’s assets and where they hid them.

#5 – What happens to pets in a divorce?

A pet is often considered a part of the family to those in the divorce. Legally, however, a pet is “property” that must go with one spouse or the other in most cases. Often, the court will award the pet to whoever brought it to the marriage. 

Some courts, however, are now venturing into shared custody agreements when it comes to pets. In some states, the “best interest of the pet” is even considered. The division of your pet is an important issue when the pet is an important part of your life. Discussing your concerns about the division of pets with your lawyer is a good way to learn your possible options.

#6 – Can I change my name?

Changing your name after a divorce is a fairly easy process. Some court orders may require the name change, while others may not. Your former spouse has no right to object to your desire to reinstate your maiden name.

If there is no court order for the change, requesting the change is typically easy. The process for doing so will depend upon your state. Providing proof of your previous name is generally one requirement and can include a passport or birth certificate.

#7 – What if my spouse lives in a different state?

If your spouse lives in a different state, it remains possible to obtain a divorce. However, it is more difficult if your divorce is contested due to different state laws and logistics.

State laws govern divorce law. Generally, the petitioner must file in the county court where they live, meaning that the laws of state where the filing party lives will typically govern. A divorce involving more than one state requires the expertise of a local divorce lawyer, however, especially if you are the defendant or respondent living far from the venue for your divorce.

#8 – What does divorce law say about late-life divorce?

Sometimes referred to as gray divorce, late-life divorces involve couples over the age of 50. While overall national divorce rates are decreasing, this particular segment of divorces has actually doubled. With the children grown and gone from the house, many couples find themselves contemplating a new chapter. Changes may include the desire to pursue a new career, travel, partner, or otherwise move on separately.

The longer the marriage, the more assets and property to divide. A late-life divorce can involve individual retirement accounts, 401ks, and other financial investments that have grown over the years. State law may require an even division of these assets based on the length of the relationship. Your local divorce lawyer can review all financial documents and determine the best approach to your divorce case.

#9 – What is divorce laws history?

Once forbidden or accepted as a last resort, divorce in the United States dates back to the colonial period. Women, in particular, faced serious challenges during a divorce due to no legal rights. In addition, their designation as a “non-entity” made it difficult to claim ownership of property and financial assets.

Then April 7, 1848 brought significant changes to married women and their right to property and finances — thanks to the New York Senate and Assembly. The Married Women’s Property Act of 1848 served as the stepping stone to changing divorce outcomes for many married women.

The expansion of these rights into other states occurred slowly.  Several states, such as Utah and Indiana, became hot spots for those seeking a divorce. Restaurants and other industries developed within these locations, providing services for “divorce tourists.”

It was not until 1887 that Congress adopted similar legislation at the federal level. Throughout history, the evolution of the divorce process demonstrates the long path to stronger rights for women regarding property, financial assets, and divorce overall.

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