A divorce is a legal procedure which dissolves a marriage between a husband and wife. After a divorce is finalized, each party is free to remarry if they choose to do so.
Every state requires the spouse that is filing for the divorce to be a resident of that state. The time requirement in each state for establishing residency varies, but it typically ranges from 6 months to 1 year.
In addition, every state has their own procedure for divorce. Most states use the no fault approach to a divorce. Some states, however, retain the fault divorce system.
In a no fault divorce, the spouse that is filing for divorce does not need to prove any wrongdoing or fault on behalf of either party in order to obtain a divorce. In some states, the couple is required to declare they can no longer get along. In other states, the couple may be required to reside separately for a specified period of time, months or years, prior to being permitted to file a no fault divorce.
In states that use a fault divorce system, the spouse that is filing for the divorce must provide a reason as to why the divorce should be granted.
Although the reasons permitted for fault justifications vary from state to state, common examples include:
- Cruelty, or the infliction of unnecessary or emotional pain;
- Desertion for a specified length of time;
- Confinement to prison for a specific number of years; and
- The physical inability to consummate the marriage.
In many divorce cases, the couple who is filing for divorce is able to come to an agreement concerning the division or property and debts on their own. In cases where such an agreement cannot be reached, the court must step in and apply the laws of the state to settle the dispute.
There are two categories of state laws regarding the division of marital property, community property states and equitable distribution property states. In community property states, all property of married individuals is classified as:
- Community property;
- Property owned equally by both spouses; or
- The separate property of one spouse.
In a community property divorce, the property is typically divided equally between the spouses and each spouse retains their separate property. Community property states include:
- New Mexico;
- Washington; and
In equitable distribution property states, any assets and earnings accumulated during the marriage are divided equally between the spouses. The court considers numerous factors including the financial situation that each spouse will be in after the divorce proceedings are finalized in order to determine a fair division of property. Other factors include, but are not limited to, the earning potential of each spouse and the duration of the marriage.
What is a Divorce Decree?
A divorce decree is a court’s final ruling and order that officially terminates a marriage. Every divorce decree is different. However, the general purpose of a divorce decree is to outline the rights and duties of each party to the divorce.
A divorce decree is very important, mostly because the divorce is not finalized until one is issued. In other words, the spouses’ status as married or divorced will not be finalized until the divorce decree is ordered.
Unfinalized divorce proceedings have effects on many different areas of life, including:
- Property possession;
- Employment benefits; and
- Other legal rights.
What Does a Divorce Decree Usually Contain?
Divorce decrees often address numerous issues. These may include:
- Division of property between the parties;
- Spousal support or alimony;
- Child custody, support, and visitation, if applicable; and
- The various financial obligations of each party, for example, if there is debt to be paid by one or more parties.
In addition to these issues, a divorce decree will typically contain basic information regarding the case such as the names of the parties, the effective date of the divorce decree, and the case number. This information assists in locating the divorce decree in the future. These decrees are typically kept by the local county records office.
What is a Prenuptial Agreement?
A prenuptial agreement, or a premarital agreement, is an agreement a couple enters into prior to marriage. This contract outlines the financial and property rights of each spouse in the event the marriage is dissolved.
Although the concept of a prenuptial agreement may seem unromantic because it is essentially planning for a divorce prior to marriage. However, with more than half of the marriages in the United States ending in divorce, it may be wise to at least consider a prenuptial agreement.
Prenuptial agreements are commonly used by individuals entering into second or third marriages. In these cases, the parties often have significant assets they wish to protect in the event of a divorce.
What is Spousal Support?
Spousal support, or alimony, is provided as financial assistance so that a spouse may live independently after a marriage ends. It is provided to ensure that an earning spouse does not take advantage of a non-earning spouse and that the non-earning spouse will be compensated for the non-financial contributions to the marriage.
Spousal support is intended to provide support for the receiving spouse in order to achieve their professional or education goals and to be self-sufficient. A court will examine several factors when awarding spousal support. Spousal support is commonly awarded in order to allow adequate time for the recipient to establish themselves financially.
What are Spousal Support Provisions?
Spousal support provisions are clauses contained in prenuptial agreements which set the amount of spousal support a spouse will receive if they divorce. In certain states, spousal support provisions are not allowed in prenuptial agreements.
In those states, even if there is a prenuptial agreement, the spouse cannot waive or decline to pay spousal support after a divorce. However, in some states, spousal support provisions are permitted in prenuptial agreements which may provide that if a divorce occurs, the potential receiving spouse waives their right to any spousal support by signing the prenuptial agreement.
Are Spousal Support Provisions in Prenuptial Agreements Enforceable?
The laws that regulate prenuptial agreements vary from state to state. There are several states in which spousal support provisions are generally enforceable if those agreements are made voluntarily and are impartial. These states include:
- New Jersey;
- Texas; and
A spousal support provision is agreed to voluntarily if both parties entered into the agreement voluntarily and both parties had time to review the terms of the agreement prior to signing. If a party with sufficient information waives their right to spousal support in writing, they may not succeed in receiving spousal support.
A spousal support provision is impartial if the prenuptial agreement does not unfairly advantage one party or the other. It is also impartial if each party was fully informed of the other party’s property and financial obligations.
When are Spousal Support Provisions in Prenuptial Agreements Not Enforceable?
In some states that permit a waiver of spousal support in prenuptial agreements, courts have held that a waiver of spousal support or alimony will only be enforced if the condition is fair. In other words, if the agreement is not extremely unfair to one spouse while favoring the other spouse.
The court typically determines whether a spousal support provision included in a prenuptial agreement is fair. The court will examine factors such as the spouse enforcing the provisions assets, income, and financial stability.
The court will also examine the income and financial ability of the spouse that is waiving their right to support. If the spouse that is waiving the support would be at an extreme disadvantage and the divorce would cause them hardship, the provision regarding spousal support would not be enforced.
Do I Need a Lawyer?
It is extremely important to have the assistance of a family lawyer for any spousal support provisions. Provisions in prenuptial agreements may be complex and difficult to understand.
In addition, the rules regarding these provisions vary by state. Your attorney can review your situation, advise you of your rights, and protect your interests during a divorce.