Divorce Law - United States

United States

Divorce in the United States is a matter of state rather than federal law. In recent years, however, more federal legislation has been enacted affecting the rights and responsibilities of divorcing spouses. The laws of the state(s) of residence at the time of divorce govern; all states recognize divorces granted by any other state. All states impose a minimum time of residence. Typically, a county court’s family division judges petitions for dissolution of marriages.

Before the latter decades of the 20th century, a spouse seeking divorce had to show cause and even then might not be able to obtain a divorce. The legalization of no-fault divorce in the United States began in 1969 in California, and was completed in 2010, with New York being the last of the fifty states to legalize it. However, most states still require some waiting period before a divorce, typically a 1– to 2–year separation. 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, or alimony. 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.

Mediation is a growing way of resolving divorce issues. It tends to be less adversarial (particularly important for any children), more private, less expensive, and faster than traditional litigation. Similar in concept, but with more support than mediation, is collaborative divorce, where both sides are represented by attorneys but commit to negotiating a settlement without engaging in litigation. 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.

States vary in their rules for division of assets. Some states are "community property" states, others 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. Commonly, assets acquired before marriage are considered individual, and assets acquired after, marital. Attempt is made to assure the welfare of any minor children generally through their dependency. Alimony, also known as 'maintenance' or 'spousal support', is still being granted in many cases, especially in longer term 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.

Due to the complex divorce procedures required in many places, some people seek divorces from other jurisdictions that have easier and quicker processes. Most of these places are commonly referred to negatively as "divorce mills."