Getting Started With Your Divorce

If you’re thinking of ending your marriage, it would be wise to first familiarize yourself with the basic concepts of divorce. Continue reading to learn more.

Residency Requirements for Divorce

First things first—you need to make sure you meet your state’s residency requirements before you file your petition (formal written request) for divorce. If you don’t, you won’t be able to start the divorce process. Each state sets its own laws regarding residency.

The main factor in residency requirement laws is the period of time you’ve lived within the state where you plan to get divorced. Some states will let you file for divorce without a waiting period, if you currently live in the state. Others may require you to be a resident for anywhere up to a year before you can proceed with a divorce.

Grounds for Divorce

Divorce “grounds” are the legal reasons on which you’re basing your request that the court end your marriage. Grounds fall into two categories: fault-based and no-fault.

Fault-based grounds are those that require you to prove that your spouse did something wrong, which caused the divorce. Some typical grounds in this category are adultery, extreme cruelty (physical or mental), and desertion. Today, there aren’t many benefits to filing for a fault-based divorce. However, if your state views fault as a factor in determining alimony or division of marital property, it’s something to consider.

No-fault divorce is primarily based on “irreconcilable differences” or the “irretrievable breakdown of the marriage.” In short, these basically mean that you and your spouse can’t get along anymore, and there’s no reasonable prospect that you'll reconcile.

No-fault has become the avenue of choice in most divorces. There are various reasons for this. Because you don’t have to prove your spouse did something wrong, there’s typically less anxiety and tension during the divorce process. This is a big benefit, especially if there are children involved. Also, when you don’t have to fight about fault, the divorce may move more quickly. And, less arguing almost always translates into lower legal fees.

Child Custody and Parenting Time (Visitation)

Custody is frequently a hotbed issue in a divorce. But it’s important to note that custody isn’t the all-or-nothing proposition many people think it is. In deciding custody and parenting time issues, the law requires judges to think in terms of “the best interests of the child.” To the degree possible, that usually means having both parents actively involved in the child’s life.

In light of this, “joint legal custody” is often the ideal outcome of a custody case. In this scenario, both parents have a say in the most important decisions in a child’s life, such as education, religious upbringing, and non-emergency medical treatment. “Sole legal custody” means only one parent is the decision-maker, but that’s much more the exception than the rule today.

Joint legal custody doesn’t necessarily translate into “joint physical custody,” where a child lives with each parent anywhere from a few days a week to literally six months a year. For any number of reasons, joint physical custody may not be feasible or advisable. In that case, a court will award physical custody to one parent (“sole physical custody”), but normally provide the other parent with a parenting time schedule.

A typical parenting schedule will have a parent spending time with the child one or two evenings a week, and every other weekend, perhaps with extended time during the summer. But judges will look at parenting time on a case-by-case basis, and try to tailor a plan that best suits both parents’ schedules.

Divorce and Child Support

Both parents are responsible for financially supporting their children. All states utilize child support guidelines to calculate how much money a parent must contribute. The amount of support owed is primarily based on a parent’s income, as well as the amount of time the parent will be spending with the child. Child support will usually also encompass other elements, such as a child’s medical needs (like health insurance and medical bills not covered by insurance).

Alimony in a Divorce

The laws regarding alimony, which is also known as “spousal support” or “maintenance,” have evolved over the years. The current trend is away from lifetime or permanent alimony, which is now typically reserved only for long-term marriages—generally considered to be anywhere from 10 to 20 or more years, depending on your state.

In the current divorce environment, you’re more apt to see a court award alimony for a limited duration. For example, one type of limited spousal support is called “rehabilitative” alimony. Judges will award this for a period of time they believe will allow a spouse to viably enter the workforce, or perhaps learn certain skills that will make the spouse more employable. The object is to have the spouse become self-sufficient.

Another type of short-term spousal support is “reimbursement” alimony, often awarded in short marriages where one spouse contributed to the other’s pursuit of a college or graduate school degree. The theory is that contributing spouses deserve to be repaid for the effort and costs they expended in furthering the other spouse’s education.

Some common factors a court considers when awarding alimony are:

  • a spouse’s actual need, and the other spouse’s ability to pay
  • the length of the marriage
  • each spouse’s age and health (both physical and emotional)
  • each spouse’s earning capacity and level of education
  • parental responsibilities for the children
  • the division of marital property between the spouses, and
  • income available to either spouse through investment of that spouse’s assets.

Distribution of Property in a Divorce

In most divorces, couples will have to divide property and debts. The general rules is that family courts will divide a couple's marital property—meaning property they acquired during the marriage. This would include assets such as real estate, bank accounts, and so forth. How a court goes about doing this depends on whether you live in an “equitable distribution” state or a “community property” state.

Most states follow the principle of equitable distribution. This means that the court will divide the marital property between you and your spouse based on the facts of your case. Whatever the judge feels is fair in your particular set of circumstances will determine how the judge distributes the property—it’s not guaranteed that each spouse will get an equal amount.

In a community property state, the court will divide all marital assets on a 50-50 basis, unless there is some reason to deviate from this standard rule.

In both equitable distribution states and community property states, you usually get to keep any property that you own separately. Separate property generally includes any assets you owned before the marriage and some types of property you may have acquired during the marriage, such as gifts and inheritances. If something is confirmed as "separate property," it will remain exclusively yours and won't be divided between you and your spouse during the divorce.

But note that if you commingled separate property with joint (or community) property during the marriage, in all likelihood that separate property will lose its protected status, and will be subject to division during the divorce. To try and avoid this result, keep your separate property in an individual account and/or keep all records of transactions involving your separate assets.

Divorce can be a very complex subject, so consider consulting with a local divorce lawyer before proceeding.

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