In order to divorce your husband, you will need to establish grounds to dissolve the marriage. The person filing for divorce is the plaintiff or petitioner, and the person being sued for divorce is the defendant or respondent. Grounds for divorce vary from state to state, but these are the most common:
- Abandonment: Grounds for abandonment require that the defendant have left the domicile or marital home for a certain amount of time, such as a year in some states.
- Constructive Abandonment: Many states considers this grounds for divorce if a spouse refuses to have sexual relations for a specific period of time.
- Adultery: Some states allow adultery to be used as grounds for divorce if a spouse has sexual relations with someone who is not his or her legally married partner, and the other spouse can prove it. It is not grounds for divorce in every state; however, acts of adultery might still be considered by court during marital property distribution proceedings.
- Mental or Physical Cruelty: Abuse considered to be so severe that it is unsafe for a spouse to remain in the same residence as his or her married partner is grounds for divorce in many states.
- No-Fault Divorce: All states now have some form of no-fault divorce option. These divorces usually need to be uncontested and in some states it is necessary to live apart for a period of time, such as six months or a year, in order to obtain one. Divorcing couples using these grounds will state something like “irreconcilable differences” as a reason for the divorce.
One of the first legal questions to consider when initiating a divorce is where you should file. Each state has its own residency requirements regarding how long the state must be the couple’s primary residence before they can file for divorce in that state. There are vast differences in residency requirements from state to state.
For instance, in Nevada the residency requirement is only six weeks. Missouri, Montana, and Wyoming require 90 days to establish residence, while six months is the legal requirement in Pennsylvania, Wisconsin, Virginia and New Mexico. Some states, such as Rhode Island, Maryland, Massachusetts, and Connecticut, require a year or more.
Every divorce proceeding is different, but there are some common elements to the process that are generally consistent. Uncontested divorces, in which both spouses are in agreement regarding the divorce action, are likely to be shorter and less complicated than contested divorces.
- Notice of Intent: One of the first required forms in many states is a Notice of Intent. Often this form must be notarized and served on the defendant spouse according to the service rules of the state.
- Discovery: Both spouses will have to declare assets and disclose all sources of wealth, property, and income to determine distribution. Which sources of wealth belong to which spouse varies from state to state as well. In community property states, all of the marital property is considered equally held by both parties, regardless of which spouse financially procured the assets. Other states follow an equitable distribution standard, in which the court does consider which spouse earned or purchased the wealth and assets in question.
- Settlement: Settlements are often preferred by all parties participating in a divorce proceeding because they save time and money for all involved. Negotiations can be run by the attorneys representing the divorcing parties, and both parties will be legally bound to any agreement that is reached.
- Divorce Court: If settlement cannot be reached, both parties will appear in front of a judge who will examine the assets and form a judgment that both parties must follow. Judgments are not negotiable, which is why divorcing spouses are often urged to settle out of court.
- Appeals Process: Judgments are not negotiable, but dissatisfied parties can appeal if there is legal grounds for believing the judgment is invalid due to factors such as inadmissible evidence, factual errors, or relying on outdated or overruled case decisions in reaching a verdict.
Divorce can be a highly combative process in which emotions run high. It can be difficult to think rationally or consider long-term consequences. A divorce lawyer can represent your best interests during all phases of the divorce process.