Divorce - Overview
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. (See chart.)
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Guide to Family Law
Copyright © 1996, 2000 American Bar Association
