A divorce — referred to in some states as a dissolution of marriage — is a decree by a court that a valid marriage no longer exists. A divorce leaves both parties free to remarry. It usually provides for division of property and makes arrangements for child custody and support.
Although divorces may be emotionally contentious, most divorces (probably more than 95 percent) do not end up in a contested trial. Usually the parties negotiate and settle such things as division of property, spousal support, and child custody between themselves, often with an attorney’s help. Sometimes parties reach an agreement by mediation, with a trained mediator who tries to help husband and wife identify and accommodate common interests. The parties then present their negotiated or mediated agreement to a judge. Approval is virtually automatic if the agreement appears to meet a minimal standard of fairness.
If parties are unable to agree about property, support, and child custody, they may ask the court to decide one or more of those issues.
A threshold requirement for obtaining a divorce in most states is residency or domicile of one or both parties who are to be divorced. "Residency" refers to the state in which a person lives; "domicile" refers to the state that the person regards as "home." Usually the state of a person’s residency and domicile are the same, but sometimes they can be different. For example, a couple may reside four months each year in the state of their "summer home", but regard another state where they spend the rest of the year as their true home (and that state would be the state of their domicile).
Residency (or domicile) requirements vary. A few states have no residency requirement. That means a person can arrive in a state and seek a divorce on the same day. Residency requirements of other states range from six weeks to one year; six months is the most common time period. In states with a residency requirement, a party must have lived in the state for the specified period before a divorce can be granted.
The party seeking a divorce must state a ground for divorce in the papers filed with the court. The grounds may be based on no-fault or fault, depending on the state. All states now offer no-fault divorces; approximately thirty-two states also offer fault-based grounds as an additional option.
A no-fault divorce is a divorce in which neither the wife nor husband blames the other for breakdown of the marriage. There are no accusations necessary to obtain a divorce–no need to prove "guilt" or "fault". Common bases for a no-fault divorce are "irreconcilable differences," "irretrievable breakdown," or "incompatibility." As those terms imply, the marriage is considered to be over, but the court and the legal documents do not try to assign blame.
Another common basis for a no-fault divorce is that the parties have lived separately for a certain period of time, such as for six months or a year, with the intent that the separation be permanent.
Over the last thirty-five years, "no-fault" has replaced "fault" as the dominant basis for obtaining a divorce. No-fault divorces are considered a more humane and realistic way to end a marriage. Husbands and wives who are divorcing usually are suffering enough without adding more fuel to the emotional fires by trying to prove who-did-what-to-whom. The laws of no-fault divorce recognize that human relationships are complex and that it is difficult to prove that a marriage broke down solely because of what one person did.
Some critics of no-fault divorces are concerned that an economically dependent spouse may not be adequately protected when it is so easy for the other spouse to obtain a divorce. The critics argue that no-fault divorces result in lower awards of property and support to economically dependent spouses than fault-based divorces. Proof of cause-and-effect on this issue is far from certain.
In the approximately thirty-two states that allow divorces based on fault (in addition to no-fault divorces), the grounds for fault-based divorces vary. Here is the laundry list (one might say dirty laundry list) of grounds:
- physical cruelty
- mental cruelty
- attempted murder
- habitual drunkenness
- use of addictive drugs
- impotency (usually unknown to the partner at the time of marriage)
- infection of one’s spouse with venereal disease
Husbands or wives in the mood for revenge probably could come up with a multi-count complaint. Some spouses want the emotional release of proving fault by their mates. But courts are not a very good forum for such personal issues, and the accuser is usually less satisfied than he or she expected to be. The degree to which "fault" affects division of property, support, and custody will be discussed in the chapters on those subjects.