American Association of Matrimonial Lawyers

There has been an established belief that almost half of marriages in the United States end in divorce. Although this rang true in the past decades, divorce cases surprisingly decreased at the turn of the millennium.

According to a recent Time Magazine article, U.S. divorce rates dropped to 39% in 2018 and continue to decrease as younger individuals are now armed with more information and are doing things differently than other generations.

However, even with fewer divorce actions filed, the numbers vary depending on various socioeconomic and cultural factors, with some states and demographics seeing a higher percentage rate than others. Statistics show Oklahoma, Kentucky, and Alabama have the highest divorce rates in the country, while Massachusetts, New Jersey, and Maryland have the lowest uncoupling percentages and highest median income levels.

Another good example is the baby boomer generation, whose divorce rates are increasing. As per the American Association of Matrimonial Lawyers, roughly 61% of lawyers have noticed an uptick in divorce filings involving baby boomers. Known as grey divorces, these involve parties married for more than a decade and, thus, are more intricate cases. Long-term marriages often involve joint marital assets and children. This includes agreeing on children’s custody, support, and marital property distribution before a divorce can be settled and finalized.

Understanding critical principles

With the susceptible and complex nature of grey divorce actions, understanding the critical family law principles will help individuals navigate these treacherous situations more confidently. This is especially important since the extent of what most people know about divorce law is what they find on the internet or what they see on television. But courtroom dramas are not real life and are often far from what happens. By understanding the critical family law principles, you can cover every divorce aspect thoroughly and ensure no new problems will arise.

Like separation rates, divorce bills in the United States are governed by individual state laws, which vary extensively from one state to another. Regardless of these differences, general principles apply throughout the country. These fundamental principles include the following:

Residency requirements

Most states implement residency requirements that must be met before a divorce can be filed. It involves the requirement that at least you or your spouse lived there for a minimum time set by law. Minimum in-state residency is usually within three to six months, but requirements differ depending on the state and the circumstances. Washington, South Dakota, and Alaska have no minimum residency requirement, allowing individuals to file for divorce in those states immediately upon moving.

This is the opposite in Nevada and Idaho, where the spouse seeking the divorce must live in the state for six weeks before filing. However, the minimum residency requirement can be reduced depending on the state – especially if both spouses live in-state, if the cause of the divorce happened in that state, and if the couple was married there. For example, the minimum residency requirement in New York varies from zero to two years, depending on which circumstances apply.

The spouse’s presence within a state is essential when evaluating divorce residence, with some locations referring to this presence as residency and others as domicile. If your state’s divorce laws require the spouse’s domicile to be in a specified state, they must have a fixed and permanent home where they intend to stay. But if your state’s divorce laws require a spouse to be a resident in the state, then they must only be present during a specified time required by the law.

Cases that include individuals with different domiciles (a state or country that is a person’s permanent home) are more rigorous with their state law requirements because the lawyer must first establish the state as the spouse’s true home. This includes considering factors such as voter registration, where the individual family lives, possession of a valid driver’s license, and the location of a registered vehicle. While the courts can still grant the divorce if the other spouse does not have a presence in the state, residual issues such as child custody and property division might be out of their hands. As you can see, different domicile ranges make for very interesting cases and, in some situations, can lead to further considerations for the individuals involved as well as the decisions of the lawyer.

Grounds for divorce

Reasons for divorce are many and often varied, but they must boil down to what the court considers adequate legal grounds. Individuals seeking divorce must prove the irretrievable breakdown of their marriages, and it must fall into legally-defined categories. Some of the generally accepted grounds to file for divorce include adultery, bigamy, desertion, mental incapacity at the time of marriage, impotence at the time of marriage, criminal conviction, physical or mental abuse, mental illness, drug or alcohol addiction, and marriage between close relatives.

Individuals filing for at-fault divorce must provide proof of misconduct during the court proceedings. For instance, if you are divorcing on adultery grounds, you’ll need more than a gut feeling your spouse is sleeping around. This includes presenting direct evidence in eyewitness testimony, the guilty party admitting to the adultery, or photographic evidence of chat logs of their conversations about their affair and of the couple being affectionate. It is, however, worth noting that a court will likely dismiss evidence if it is collected outside the legal manner, such as entrapping a spouse into admitting an affair, hacking into their email or phone, and acquiring proof via threat.

Complexity in the case

While pursuing a fault divorce is possible, most individuals choose not to – even if the grounds exist – because of the added complexity of presenting evidence of fault. This is where no-fault divorces come into the picture. Recent data shows that 17 states in the U.S. list “no-fault” divorce as the only divorce option. The other 33 allow couples to choose either “fault” or “no-fault” divorce options. With no-fault divorces, couples can file for divorce without blame or fault. Because spouses do not need to prove marital misconduct to the court, no-fault divorces are a quicker, cheaper, and more straightforward option for couples filing for divorce.

It is also more private since couples are not required to provide intimate and personal marriage details to the court. Although every state recognizes no-fault divorce grounds, you must still file based on legal grounds. In no-fault cases, these grounds can include irreconcilable differences, irretrievable breakdown, and incompatibility. Moreover, some states require spouses to live separately before the court can grant them a no-fault divorce.

While no-fault divorces are available and familiar, there are instances when this option is unavailable, especially in states recognizing covenant marriages. In covenant marriages, the couple vows to remain married for life and conforms to unique divorce and separation standards. Couples entering these marriages cannot file a no-fault divorce. Still, they can end their marriage only for particular wrongdoing such as abandonment, felony convictions, living separately for a period, abuse, and adultery.

To contest, or not to contest

No-fault divorces are further classified into contested and uncontested. When a couple files a contested no-fault divorce, they end their partnership based on the above-mentioned grounds but do not agree on some aspects and components associated with the divorce proceedings. For instance, the couple might disagree on child custody agreements, spousal support, division of debt, child support, and property division.

When a couple is on different pages on these or other issues that must be resolved before the separation is finalized, the divorce is contested. The couples can ask the court to decide on issues they cannot agree on. The court examines the evidence and decides on the contested matters. With contested no-fault divorces being more stressful, time-consuming, and expensive than uncontested ones, hiring a lawyer is essential for effortless negotiations and mediation.

Meanwhile, uncontested, no-fault divorces are the simplest because a couple agrees on a divorce settlement without the courts making decisions. However, this does not mean they must forego hiring a lawyer. While uncontested no-fault divorces are less dramatic and complex than contested ones, couples must still understand all the information to avoid paying more or receiving less for things such as alimony and child support.

They can also be helpful if you have shared property, business, or children, as lawyers can help couples reach the fairest outcome and agreement possible. An experienced attorney can also help you submit the correct forms to the court and meet state-specific requirements such as the service process, a waiting period, and submission of any extra required information like a parenting plan.

By working with a lawyer, you can ensure your no-fault divorce proceeds smoothly and quickly, and your rights are protected throughout the process. This is especially essential, considering different U.S. states have different conditions related to divorce. Doing so ensures you protect yourself, your assets, and especially your children during this tumultuous situation.

Division of property and debt

Getting married is like establishing a community wherein you and your spouse are 50% shareholders. Any assets or debts the couple acquires by either or both of their efforts during marriage are divided fairly. Regardless of whether you forego trial by creating a property agreement document, it would help if you learned the fundamental legal property division rules. When negotiating with your spouse, these rules can come in handy because they will help judges conclude the case.

Although property division rules in divorce are grounded in different state regulations, fundamental principles are similar across the country. In most states, only your marital properties are split in divorce, while you and your partner will each keep the assets acquired before the marriage. Marital properties include finances and other assets that either spouse acquired or earned during the marriage. Unless couples inked a written document such as a prenuptial agreement to keep the properties separate, the courts will divide marital properties to either spouse fairly.

However, there are stark differences in how states characterize marital and separate property. For example, some states do not apply state regulations on property acquired after separation. This means that once a couple separates, each party’s assets are their separate property, even if they are legally married. The stark difference between marital and separate property can sometimes blur, especially when couples mix separate and marital funds in a bank account or use financial resources from a joint account to pay the mortgage on a property that a spouse owned before marriage.

Equitable division

Most states implement equitable division in divorce proceedings wherein the couple’s marital assets and debts will be distributed between spouses in a manner that the judge believes is fair under the situation’s circumstances. However, this does not necessarily mean the assets will be divided equally.

While the decision of what is fair in your case will be up to the courts, state laws provide guidelines that judges with a Juris Doctorate must adhere to. This type of degree can be obtained by enrolling in a JD program online from a leading institution such as Cleveland State University. This ensures equitable debt and property division, considering factors such as the couple’s arrears and liabilities, economic circumstances, age, health, tax consequences, and whether one party contributed to the other’s academics or left the work industry to care for children.

Once the court has considered these factors, the judge will allocate each spouse a fraction of the total value of all the couple’s assets, distribute them accordingly, and assign debts. For example, a spouse may keep properties they had before marriage, those they gained after separation, or those they were given and inherited during marriage.

Child custody and support

Child custody and support following divorce are governed by the state rather than the federal government. While the 50 states and the District of Columbia have specific guidelines, their laws are similar in most respects. Custody following the parents’ divorce is decided according to the child’s best interests. This means mothers and fathers must be treated equally, and neither parent has an automatic option for custody based on their gender.

If you and your spouse agree on these issues, you can create a settlement agreement that will become the conditions of your divorce judgment. Several child custody types are joint physical custody and sole physical custody. Joint physical custody requires parents to share time with their children. It does not need to be a 50-50 split, but if parents cannot agree, the courts may impose scheduling arrangements such as alternating holidays, weeks, and months at each parent’s house.

Both parents can remain integral in their children’s lives through joint physical custody. This is the opposite of a sole physical custody arrangement wherein the children will permanently stay with the custodial parent while the non-custodial parent has regularly scheduled visitation rights. This might seem complex, but it can be advantageous and less stressful for children since they are staying in one location.

The custodial and non-custodial parent must follow an arranged visitation schedule in these circumstances. This also means the non-custodial parent cannot take their children away from the custodial parent without prior consent. Similarly, the custodial parent cannot refuse a scheduled visit from the non-custodial parent unless there is imminent harm to the child.

Supporting a child

Child support is also a hot-button issue in a divorce. It is entirely possible for both parents to feel disadvantaged no matter the arrangement. So, the courts will establish specific considerations to keep the children’s best interests in mind. Either way, the amount of child support ordered in a specific case is identified by a complex mathematical formula that considers each parent’s income, physical custody, or responsibility for the children.

Depending on the circumstances, child support is always modifiable, especially when one parent may lose their job, become disabled, receive an inheritance, or has a substantial salary increase. Divorced parents must return to court to modify their child support arrangement in these circumstances. It is also worth noting that child support will take precedence over spousal support. When one parent cannot unilaterally modify the agreed-upon agreement, the court can determine whether to reduce child and spousal support.

Child support is only terminated once children turn 18 and are no longer full-time high school students or are legally emancipated. If support covers more than one child, the parent must continue to pay the total amount until their youngest child reaches 18 years old or the court says otherwise. In specific circumstances, child support’s responsibility can extend to a minor child’s grandparents. Should one parent decide to re-marry, a step-parent is not required to pay support for their children. Child support payments are also not taxable to the recipient or deductible to the one paying the support.

The foundation and goal of the child custody and support principle is to divide the costs linked with raising a child or children between parents. This way, the state can ensure children are supported financially no matter the outcome of their parent’s divorce. Furthermore, child custody and support give children the same standard of living they would have experienced had their parents stayed together.

Understanding the key law principles in divorce

Knowing the laws and procedures associated with the divorce process is essential for anyone considering or dealing with a divorce in the United States. Understanding these fundamental principles enables each party to navigate custody and child support issues effectively while acting civilly in these situations.