Divorce Law

Divorce law is one of the two primary aspects of family law. Along with legal practice surrounding child custody and support, divorce law governs most legal matters concerned with the maintenance and dissolution of families. All states allow for no-fault divorce now. Divorces can become quite complicated if there are grounds for fault, spousal support, alimony, child custody, or child support to be considered.

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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: Feb 18, 2021

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Divorce is the permanent legal end of a marriage. During a divorce, either the parties themselves or a court decides how the couple’s property shall be divided. Additionally, any child-related issues, including support and visitation, are also decided. The end result is a public court document that officially ends the marriage and leaves both spouses to move on with their lives or remarry if desired.

The Divorce Process

The divorce process depends on two factors including the state and the type of marriage license the couple possesses. The process in all states begins the same way. First, one or both of the spouses decide to end the marriage and fill out divorce paperwork. The paperwork is filed with the court and a hearing date is set. If your marriage license is a standard marriage and you do not have any children, then the court simply goes through with a no-fault divorce. This process typically takes between 60 and 90 days from filing.

Certain circumstances can make the divorce process more complicated and longer. One common hurdle in modern divorce proceedings is couples who possess a covenant marriage license. Under this license, the couple can only file for divorce for certain specific reasons such as abuse and infidelity. Additionally, states require that the couple undergo marriage counseling in a final attempt to resolve the marriage. If any of this is not completed, the court will not sign off on the divorce.

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Child Custody and Child Support

If a couple had any children during the marriage, the divorce process is further lengthened unless the couple can agree amongst themselves what will be best for the children regarding child custody. Some state courts require that the parents undergo counseling, which provides information on parenting after a divorce.

Many state courts encourage parents to reach an agreement about what is best for the children and some even provide mediation services where the court provides the mediator, who helps the parents resolve their differences.

If any allegations of child abuse were brought up, then parents must often undergo a formal investigation by a social worker before custody is decided.

The court has the obligation to decide the custodial arrangement for children after the divorce. Whereas it once was commonplace to consistently give children to their mothers, courts have moved away from this system in the interest of granting fathers equal rights to parent their children. Modernly, most courts award joint custody, splitting custody down the middle. In situations where parents are living in different states or there are other circumstances, courts will consider granting one parent more time with the children than the other. It is rare that all custodial rights are granted to just one parent.

The other obligation of the court during the divorce is deciding whether child support payments are required. Child support is court-ordered payments made by the non-custodial parent to assist in meeting the needs of children. In determining the amount of child support, the court will require a complete audit of all income sources of both spouses. The court may also evaluate the primary custodial parent’s wage-earning ability as well as the overall amount required to care for the children.

Property Division During Divorce

While every state is different, the predominant rule is that all property, assets, and debt acquired during a marriage are divided equally between the couple. This means that every bank account, credit card, retirement account, vehicle, and the house is added together and the value of everything divided equally. It is then up to the couple to decide whether their assets will be sold and the money divided or if items can be divided equally without liquidation.

Generally, however, property acquired before the marriage will be considered separate property. This includes property purchased with earnings prior to the marriage. In addition, inheritances are separate property. As long as separate property is not mingled in bank accounts with earnings or other property that would be considered joint property, it will remain separate.

If one or both spouses were in the military and were married for 10 years or more, then the military pension and benefits must have both names placed on it and the amount paid adjusted for both people. This also holds true for social security benefits, even if one spouse was not working during the marriage.

Taxes After Divorce

Obtaining a divorce, especially with children involved, also impacts your yearly taxes. Instead of filing jointly, you’ll be required to file as a single individual. Additionally, only one parent can claim a child as a dependant for the tax credit. If the parents have two children, they typically each claim one child from year to year. If there is only one child or an odd amount, one parent will claim the extra on odd years and the other on even years. Other times, courts consider the effects of certain tax situations on the money that will be available to the family as a whole. If one parent makes significantly more than the other, strategically decreasing their tax burden to allow more money for care and support of the children is a common practice in family court.

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