Legal Requirements for Divorce

Under most state laws, a divorce (or “dissolution”) action must be filed and decided in court. All states have a “no-fault divorce” policy. In other words, the courts are not concerned with which spouse was guilty of marital misconduct.

The following legal requirements are necessary to file for divorce in most states:

  1. Residency: The spouse filing for divorce must have resided in the state and county for a certain period. Six months is a common state requirement, and three months is typical at the county level.
  2. Waiting Period: Most states have a mandatory waiting period from the filing to the finalization of a divorce. In other words, you cannot file and finalize a divorce on the same day. The average waiting period is 6 months but can be anywhere from 0 to 12 months. After the waiting period, the divorce is finalized and both parties are free to remarry.
  3. Legal Grounds: States generally recognize two legal grounds for divorce: (1) irreconcilable differences and (2) separation. “Irreconcilable differences” simply means there are marital difficulties that cannot be reconciled and have led to the permanent breakdown of the marriage.
  4. Jurisdictional Requirement: An action for divorce must be filed with the proper court. The appropriate court is typically in the county where either the wife or husband has resided for at least 3-6 months prior to filing for divorce.

A divorce starts with a divorce petition. The petition is written by one spouse (the petitioner) and served on the other spouse. The petition is then filed in a state court in the county where one of the spouses resides. It does not matter where the marriage occurred. The petition includes important information regarding the marriage. It names the husband, wife and any children and states if there is any separate property or community property, child custody, and child or spousal support.

Serving the Divorce Petition

The petition (or the divorce papers) must be served on the other spouse. This phase of the process is called “service of process.” If both spouses agree to the divorce, the other spouse only needs to sign an acknowledgement of the receipt of service. However, if the other spouse refuses to sign or is difficult to locate, you can hire a professional process server to personally deliver the papers.

Completing service of process starts the clock running on your state’s waiting period. It also sets automatic restraining orders on the spouses and helps establish the date of separation. At this point, the spouses are not permitted to take any children out of state, sell any property, borrow against property, or borrow or sell insurance held for the other spouse.

Divorce Petition Response

The other spouse is known as the “respondent.” Although it’s not required, the respondent can file a response to the petition saying he or she agrees. Filing a response shows both parties agree to the divorce. This makes it more likely the case will proceed without a court hearing, which could delay the process and cost more. Generally, if a response is not filed within 30 days, the petitioner can request that a default be entered by the court. The responding spouse can also use the response to disagree with information presented in the petition.

Final Steps of a Divorce

Both spouses are required to disclose information regarding their assets, liabilities, income and expenses. If the divorce is uncontested and the spouses can agree on the terms of the divorce, there is only a bit more paperwork to file. Once the court enters the judgment, the divorce is final. However, the marriage is not formally dissolved and the spouses cannot remarry until the end of the state’s waiting period. If there are disputes that cannot be resolved, court hearings and maybe even a trial will be required.

Legal Separation or Divorce: Which is Better Financially?

In a legal separation, the parties are still married, versus a divorce where the marriage is ended. A legal separation is a court order that mandates the rights and duties of a couple while they are still married, but living apart. In a divorce, the spouses are no longer married. Legal separations are not too common, but can be helpful to a situation where the spouses work through any personal or financial issues affecting the marriage. In proceedings for legal separation, the court decides the following, much as it would in divorce proceedings:

  • Separation maintenance: this includes alimony and child support, but is called something different to distinguish it from the effects of a divorce. The court papers for separation maintenance are usually filed by a lawyer through what is referred to as a “motion pending litigation”. The court’s decision on awards for separation maintenance does influence what each spouse is awarded should they later continue to divorce proceedings.
  • Child custody
  • Child visitation
  • Property division

Property division during legal separations and divorces are typically determined by the couple’s situation and how it relates to the property. The following situations are common forms of separation affecting property division:

Trial Separation

A trial separation refers to a period of time during which spouses live apart to decide whether or not to continue the marriage. This trial separation has no real legal effect, unlike a legal separation where the parties are ordered by a court to fulfill certain property divisions and duties. Instead, a trial separation is viewed as a period of time in the couple’s marriage. Any property or debt acquired during a trial separation is still considered to be acquired during the marriage, and hence, probably marital property. This is true even if the couple ultimately never gets back together. Not until either spouse decides to end the marriage does this property classification have the potential to change (depending on the state the couple lives in).

Living Separately

Sometimes, circumstances arise that lead to couples living apart with no intent, one way or the other, to continue the marriage. Additionally, some states have laws that require couples seeking to file a no-fault divorce to live apart for a designated period of time. Living separately can affect the property division. Property and debt acquired while living separately is classified differently depending on what state the couple lives in. Some states determine the property classification based on whether either spouse has the intent to end the marriage.

For example, in community property states, all property and debt acquired before this intent to end the marriage is still considered community marital property. When one of the spouses gains the intent to end the marriage, then all property and debt acquired thereafter is separate property. Other states consider property and debt acquired while merely living apart to be separate property, regardless of the spouses’ intent. Still other states consider all property and debt to be marital property until the divorce complaint is filed with the court. Be sure to check your own state’s laws to see how they address property.

Permanent Separation

Once a couple decides to separate for good, they have a permanent separation. This permanent separation probably has no legal effect as compared to a legal separation in which one of the spouses has actually filed separation paperwork in court. Most states view all property and debts acquired after a permanent separation as the separate property of that acquiring spouse. Debts that are acquired by either spouse after a permanent separation, but before a final divorce, and are used for things necessary for the family, are treated as joint debts of both spouses. These debts can include things like house payments, maintenance of the family home, and expenses relating to the care of the children.

Get Legal Help with Your Legal Separation or Divorce

Because each state has its own laws regarding property and debt division, it’s important to check your own state’s laws. These determinations can become quite convoluted due to the changing of the couple’s circumstances, so it is a good idea for each spouse to consult with his or her own attorney for help. A local family law attorney can help you sort through the consequences of a legal separation vs. a divorce.