When it comes to the US legal process, few things cause as many headaches as divorce proceedings.
People worry, for instance, that the divorce will take too long to certify, or that assets won’t be fairly distributed.
There’s less need to worry, though, if you understand some basic things about the divorce process.
Below, we’ll take an overview of some concepts you should understand in order to ensure your divorce goes as smoothly as possible.
Grounds for Divorce: Fault vs. No-Fault
First, a person filing for divorce can either claim fault or no-fault on the part of their spouse.
Divorces were historically much more difficult to get because the person filing would have to prove their spouse had done something wrong – for instance, they’d have to prove that they had committed adultery, had emotionally or physically abused them, or had deserted them for a period of time.
In other words, they had to prove the spouse was at fault.
Fortunately, today all states allow for “no-fault” divorces (the “covenant marriages “offered in Arizona, Arkansas, and Louisiana do sort of bypass this).
In a no-fault divorce, you can simply claim “irreconcilable differences” as the reason for the divorce, for example.
So, why might you file a fault divorce?
If you can prove fault, you might be able to bypass certain state requirements (more on that below).
Additionally, you get could receive more of your shared property and more alimony, if applicable.
State Laws Matter
Just as it’s the states that issue marriage licenses, it’s the states that consider and certify divorce filings.
Each of the 50 states (along with Washington, D.C.) have different requirements.
Say, for example, that you moved from Massachusetts to Missouri one month ago. Since Missouri requires you to be a resident for at least 90 days before filing for divorce, you’ll have to wait two months to do so.
If you’re filing for divorce in Montana, you’ll first have to live physically separate from your spouse for at least 180 days.
Again, some of these requirements can be overridden if you are able to prove fault.
Equitable Distribution vs. Community Property
When it comes to the division of assets, most states use “equitable distribution.”
Equitable distribution does not mean that jointly-owned property is divided 50-50. The judge determines how it is split up. For instance, a spouse who gets custody of children may receive more.
You can avoid the equitable distribution process by coming to an agreement about how property will be divided on your own.
In 9 states (Louisiana, Arizona, Texas, New Mexico, Washington, Wisconsin, California, Idaho, and Nevada), “community property” laws apply.
With community property, assets are grouped into joint property (property acquired during the marriage) and individual property (assets acquired by each person before the marriage). The individual property goes to the respective individual, and joint property (aka community property) is typically divided 50-50.
Pre-nuptial arrangements can allow you to avoid community property laws, so they’re especially important to get in these 9 states.
Other Things to Know
Pre-nuptial agreements, or agreeing to how assets will be split later on, can really save you a lot of worry so we recommend getting them.
You should also discuss alimony, and try to come to an agreement about child custody.
For a bit more in-depth information, check out this helpful resource.
Wrapping Up
Overall, divorce doesn’t have to be that complicated. Research your individual state laws to get an idea of how things are going to go and how you can avoid certain issues you may want to.