Divorce Law

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 What is Divorce Law?

Divorce is a legal procedure which dissolves a marriage between a husband and a wife. After a divorce is finalized, each party may remarry if they choose to do so.

Divorce laws are the laws which govern divorces. A divorce decree is a final ruling from a court which provides a judgment and order making the termination of the marriage official.

Every divorce decree will be different and will be based upon the unique facts and circumstances of the case. The general purpose of a divorce degree is to outline the rights and duties of each party in connection with the divorce as well as to provide instructions regarding child custody and division of property, if applicable.

A divorce decree is very important because the divorce process will not be complete until the decree is issued. Therefore, an individual’s status as either married or divorced will not be changed or finalized until the divorce decree is ordered.

Divorce proceedings which are not yet concluded may affect many different areas of the individuals’ lives, including:

  • Debt;
  • Property possession;
  • Taxes;
  • Employment benefits; and
  • Other legal rights.

A divorce decree usually addresses issues such as:

  • Division of property between the parties;
  • Spousal support or alimony;
  • Issues related to children, if applicable, including:
    • custody;
    • support; and
    • visitation; and
  • The financial obligations of each party, for example, if debts are to be paid by one or more of the parties.

In addition to these legal issues, a divorce decree will typically contain basic information regarding the case, including:

  • The names of the parties;
  • The effective date of the divorce decree; and
  • The case number.

This information can be helpful when an individual is attempting to locate the records of the divorce in the future. These records are typically kept by the local county records office.
A divorce record provides evidence that the individuals were married and that they have legally and officially terminated that marriage. A divorce record may also be referred to as a marriage dissolution certificate.

It is typically a copy of the divorce decree which was issued during the divorce proceedings. These documents are usually filed for safekeeping with the county recorder’s office where the divorce occurred.

A divorce record may be official, meaning it can be accessed from state records for a fee, or it may be indexed, which means it is accessible through various websites or organizations. A divorce record can usually be obtained at the county court where the divorce was filed.

If the record is not available there, it may be obtained at the local recorder’s office or on a website or with a private company.

Residency Requirements for Obtaining a Divorce

Every state requires the spouse who is filing for a divorce to be a resident of that state. The time requirements to establish residency may vary.

Generally, however, the residency requirement ranges from 6 months to 1 year. There are also other guidelines for divorce that individuals should follow, including:

  • Being cooperative: the process will go much smoother if the parties seek to cooperate with all the other parties and attorneys involved. In fact, a party may be penalized if they purposely seek to disrupt or delay the process;
  • Being honest: legal penalties can result for falsifying information during divorce;
  • Exercising full disclosure, especially with regards to property and assets; and
  • Being prepared: there are many deadlines and document requests going on during divorce. It will help if an individual can stay organized and on top of the requirements, especially during the initial stages.

In addition, divorce laws may vary by jurisdiction. Therefore, an individual may wish to review their local and state laws or consult with an attorney.

It is important to note that the cost of a divorce lawyer may vary depending upon the location of the divorce proceedings. For example, a lawyer will likely charge more in a large city than a lawyer in a small rural town.

Different Types of Divorces: “Fault” & “No Fault” States

Every state has its own procedures for divorces. Most states have adopted the no fault divorce system, while others have retained the fault divorce system.

With a no fault divorce, the spouse who is filing for the divorce is not required to prove any wrongdoing or fault on behalf of either party in order to obtain the divorce. There are some states which require the individuals to declare that they are no longer able to get along.

In other states, the individuals are required to live separately for a specific period of time prior to being able to file for a no fault divorce. This time frame may range from months to years.

With a fault divorce, the spouse who is filing for the divorce is required to cite a reason why the divorce should be granted. Although the fault justifications or rules can vary by state, common examples include:

  • Cruelty, or the infliction of emotional pain or unnecessary pain;
  • Adultery;
  • Desertion for a specific length of time;
  • Confinement in prison for a set number of years; or
  • Physical inability to consummate the marriage.

Property Division after a Divorce

It is common for the individuals filing for divorce to work out an agreement regarding the division of their property and their debts on their own. In cases where an agreement cannot be reached by the parties, the court must step in and apply the laws of the state to settle the dispute.

The state laws governing the division of marital property during a divorce are classified into two categories, including community property states and equitable distribution property states. Community property states include:

  • Arizona;
  • California;
  • Idaho;
  • Louisiana;
  • New Mexico;
  • Texas;
  • Washington; and
  • Wisconsin.

In these states, all of the property of married individuals is classified as either community property, which is owned equally by both spouses, or as separate property of one of the spouses. When a couple divorces, community property is typically divided equally between the spouses while each spouse keeps their own separate property.

In all of the other states, the assets and earnings which are accumulated during a marriage are divided equitably, called equitable distribution of property. The court will consider numerous factors and examine the financial situation each spouse will be in following the divorce to determine how to fairly divide the property.

The factors examined may include things such as the duration of the marriage and the earning potential of each spouse.

Exceptions to the Equitable Distribution of Property during Divorce

It is important to note that although the assets and earnings which are accumulated during a marriage are divided equally in a divorce, there are exceptions which are provided by statutes, including:

  • Misappropriation: This occurs when one spouse acquires assets and/or earnings unjustly prior to the divorce, this spouse has wronged and will not receive the misappropriated asset and/or earning;
  • Debts: If either of the parties has debt, this debt will be considered the obligation of that spouse. The other party will not be expected to pay half of that debt upon their divorce;
  • Tort liability: If there is a civil lawsuit against one party which cannot benefit the couple as a whole, then, upon their divorce the potential monetary obligation arising from the lawsuit will be the responsibility of the party who is sued; and
  • Recovery from a personal injury lawsuit: If either party is awarded a monetary amount as a result of a personal injury lawsuit, this amount remains with the injured party and will not be divided upon the divorce.

Do I Need an Attorney Specializing in Divorce?

The process of obtaining a divorce may be complex, challenging, and emotionally charged. Because of this, it may be helpful to consult with a divorce lawyer who can explain your rights and to protect your interests.

An experienced divorce lawyer will know how to navigate the complicated legal process in an efficient manner, and will be there in the event you have any questions or concerns.

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