Divorce in The United States - Divorce Law

Divorce Law

Divorce in the U.S. is governed by state rather than federal law.

Since the 1980s, federal legislation has been enacted affecting the rights and responsibilities of divorcing spouses. For example, federal welfare reform mandated the creation of child support guidelines in all 50 states in the 1980s. ERISA includes provisions for the division of qualified retirement accounts between divorcing spouses. The IRS established rules on the deductibility of alimony, and federal bankruptcy laws prohibit discharging in bankruptcy of alimony and child support obligations. COBRA allows a divorced spouse to obtain and maintain health insurance. The laws of the state(s) of residence at the time of divorce govern, not those of the location where the couple was married. All states recognize divorces granted by any other state. All states impose a minimum time of residence, Nevada currently being the shortest at 6 weeks.

Prior to the latter decades of the 20th century, a spouse seeking divorce in most states had to show a "fault" such as abandonment, cruelty, incurable mental illness, or adultery. Even in such cases, a divorce was barred in cases such as the suing spouse's procurement or connivance (contributing to the fault, such as by arranging for adultery), condonation (forgiving the fault either explicitly or by continuing to cohabit after knowing of it), or recrimination (the suing spouse also being guilty). By the 1960s, however, the use of collusive or deceptive practices to bypass the fault system had become a widespread concern, if not actually a widespread practice, and there was widespread agreement that something had to change. The no-fault divorce "revolution" began in Oklahoma in 1953, but gained national impetus in 1969 in California, and was nearly completed in 1985 in South Dakota. In August 2010, New York's governor, David Paterson, signed a bill removing mutual-consent requirements for "no-fault" divorce into law. One form or another of no-fault divorce has long been legal in all 50 U.S. states, and the District of Columbia.

Typically, a county court hears requests for dissolution of marriages. The National Association of Women Lawyers was instrumental in convincing the American Bar Association to help create a Family Law section in many state courts, and pushed strongly for no-fault divorce law around 1960 (cf. Uniform Divorce Bill). In some states fault grounds remain, but all states now provide other grounds as well, variously termed irreconcilable differences, irremediable breakdown, loss of affection, or similar. For such grounds no fault need be proven and little defense is possible. However, some states require mutual consent and/or a waiting period, from 6 months to 2 years of separation. Some have argued that the lack of means to contest a no-fault divorce makes a marriage contract the easiest of all contracts to dissolve, and in very recent years some have begun to favor moderate divorce reforms such as requiring mutual consent for no-fault divorce. However, no such laws have been passed as of 2007.

Fault grounds, when available, are sometimes still sought. This may be done where it reduces the waiting period otherwise required, or possibly in hopes of affecting decisions related to a divorce, such as child custody, child support, alimony, and so on. States vary in the admissibility of such evidence for those decisions. In any case, a no-fault divorce can be arranged far more easily, although the terms of the divorce can be and often are contested with respect to child-related matters and finances. Ultimately most cases are settled by the parties before trial.

Mediation is an alternative way of resolving divorce issues. It might be less adversarial (particularly important for any children), allow the parties greater control and privacy, save money, and generally achieve similar outcomes to the normal adversarial process. Also, courts will often approve a mediated settlement quickly.

Similar in concept is Collaborative law, where both sides are represented by attorneys but commit to negotiating a settlement without engaging in litigation. The additional support of attorneys and expert neutrals (such as financial specialists and coaches) may contribute to the success rate of a collaborative divorce. If the collaborative divorce process ends without the parties reaching a settlement, the collaborative lawyers become disqualified, and must be replaced by new counsel. The collaborative lawyers and clients can focus all their energies on trying to settle the case, without all the distractions, dangers and pressures of contested divorce litigation. Lawyers who specialize in collaborative divorce have training and skills to help parties resolve their issues.

Non-court based dispute resolution approaches such as this may reduce the trauma of divorce for all parties. Some believe that mediation may not be appropriate for all relationships, especially those that included physical or emotional abuse, or an imbalance of power and knowledge about the parties' finances, for example. Most divorce lawyers encourage settlement even when alternative dispute resolution mechanisms are not employed.

States vary in their rules for division of assets in a divorce. Some states are "community property" states, but most are "equitable distribution" states, and others have elements of both. Most "community property" states start with the presumption that community assets will be divided equally, whereas "equitable distribution" states presume fairness may dictate more or less than half of the assets will be awarded to one spouse or the other. Attempt is made to assure the welfare of any minor children generally through their dependency. Thus, the spouse given custody (or the spouse with the greater share of residence time in the case of joint custody), may receive assets to compensate their greater child-care expenses. Commonly, assets acquired before marriage are considered individual, and assets acquired after, marital. Depending on the state, an equitable or equal division of assets is then sought.

Alimony, also known as 'maintenance' or 'spousal support' is still being granted in many cases, especially in longer term marriages. Alimony is more likely in cases where a spouse has remedial needs that must be met in order for the spouse to become fully employable, for example that one spouse gave up career opportunities or development in order to devote themselves to the family. Permanent alimony becomes likelier in lengthy marriages.

A decree of divorce will generally not be granted until all questions regarding child care and custody, division of property and assets, and ongoing financial support are resolved. Since the mid 1990s, a few states have enacted covenant marriage laws, which allow couples to voluntarily make a divorce more difficult for themselves to obtain than in the typical no-fault divorce action. For example, couples who choose to undertake a covenant marriage may be required to undergo counseling before a divorce can be granted, or to submit their conflicts to mediation. In states lacking such provisions, some couples sign contracts undertaking the same obligations.

In recent years, a few high-profile court cases have involved children "divorcing" their parents, or being legally declared emancipated minors. Perhaps the best known are those of actor Macaulay Culkin and Olympic gymnast Dominique Moceanu. However, these are not properly "divorce" cases, and different laws apply.