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
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
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
"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
The traditional fault grounds are:
- cruelty (inflicting unnecessary emotional or
physical pain) -- this is the most frequently used
ground for divorce
- 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
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.