Divorce Law

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.

"No fault" divorce describes any divorce where the spouse suing for divorce does not have to prove that the other spouse did something wrong. All states allow divorces regardless of who is at "fault."

To get a no fault divorce, one spouse must simply state a reason recognized by the state. In most states, it's enough to declare that the couple cannot get along (this reason goes by such names as "incompatibility," "irreconcilable differences," or "irremediable breakdown of the marriage").

In nearly a dozen states, however, the couple must live apart for a period of months or even years in order to obtain a no fault divorce.

A fault divorce may be granted when the proper grounds for divorce are present and at least one spouse files for it.

The traditional fault grounds are:

• cruelty (inflicting unnecessary emotional or physical pain) -- this is the most frequently used ground for divorce
• adultery
• desertion for a specified length of time
• confinement in prison for a set number of years, and
• physical inability to engage in sexual intercourse, if it was not disclosed before marriage.

Some people don't want to wait out the period of separation required by their state's law for a no fault divorce. And in some states, a spouse who proves the other's fault may receive a greater share of the marital property or more alimony.

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.

No, 15 states offer no fault divorce only. This means that a no fault divorce is the only option even when there has been substantial wrongdoing.

The other states allow a spouse to select either a no fault divorce or a fault divorce.

The Noble Law Firm is located at 4400 North Corporate Parkway in Palm Beach Gardens, Florida 33410. We represent our clients before Federal and State Courts in Miami, Fort Lauderdale, West Palm Beach, Stuart, Martin County, Port St. Lucie, Vero Beach, Jacksonville, Tampa, Orlando, Tallahassee.

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