Different states have different laws, regulations and timelines for when to, how to, and who can file for divorce. If you are looking for legal advice about a specific divorce, it is important you get this from a lawyer who is licensed to practice divorce law in the jurisdiction the divorce is taking place.
While each state has divorce laws specific to itself, many state divorce laws are similar to others.
Divorce is typically defined as the legal dissolution of a marriage by a court or other competent body. Essentially, when a judge orders a divorce, they restore the different parties to the state of being unmarried persons.
Divorce can affect property rights, custody rights, income allocation, rights to retirement benefits, asset rights and ownership of businesses, to name some of the more common aspects of a marriage that are affected by divorce.
Most states require that at least one of the spouses filing divorce have been a resident of that state for a certain amount of time before a judge will grant a divorce, as well as a resident of the county where they are filing for the divorce.
Some states that have residency requirements for divorce will make exceptions to these rules in the case of legal separation, nullity proceedings, or same-sex marriages.
If you have questions about your state’s residency requirements for divorce, you should be sure to ask a lawyer or other legal professional who is licensed to give legal advice in your state.
Most states have a waiting period where a certain amount of time needs to pass after the divorce petition and summons have been served on the non-filing spouse. In divorce proceedings, the non-filing spouse is referred to as the respondent.
No Fault Divorce Compared to Fault Divorce
Only some states allow for people to file for divorce on the grounds of fault. In states that allow for this, a fault divorce may be granted when the required grounds are present, and at least one spouse asks for a divorce based on fault.
While the laws of each state are not exactly the same, traditional grounds to file for a fault divorce include:
- Cruelty (inflicting unnecessary emotional or physical pain)
- Physical inability to engage in sexual intercourse (if this was known about but not disclosed before marriage)
- Prison confinement (if a spouse is in prison for a set number of years)
A no fault divorce is a divorce where the spouse asking for a divorce does not have to prove that the other spouse did anything wrong. For a couple to get a no fault divorce, they can simply ask for a divorce because of a reason that is recognized by the state that they are asking for the divorce in. In most states, a couple can claim simply, that they do not get along well enough to stay married. This is often expressed in terms as being incompatible, having irreconcilable differences and/or that there has been an irremediable breakdown of the marriage.
Many states require a divorcing couple to live apart for a period of months or years before they will be granted a no fault divorce.
While fault and no fault laws differ from state to state where fault divorces are allowed, typically, it takes less time to get a fault divorce because most states do not require the period of separation before being granted a divorce. As well, sometimes a spouse who proves the other spouse is at fault, may be entitled to more alimony or a greater share of the marital property.
When both spouses are found to be at fault in a divorce proceeding, the court will grant a divorce to the spouse who is least at fault under a doctrine called “comparative rectitude.”