What Laws Govern Family Law and Divorce
Family law is primarily a matter of state law and each state has its own rules, which are found in statutes and case law. Federal local, and international law play a minor role. Thus, you should research your state domestic relations laws to know how to proceed with a specific matter.
Terminating the Marriage
The first step to terminating a marriage is to determine which termination process to select. Depending on the complexity and nature of the termination, you may decide to:
- Annul the marriage.
- Proceed with a dissolution of marriage procedure.
- Get legally separated.
Let’s review each option in more detail to help you understand which one suits you best.
An annulment is a declaration that a prior marriage was void from the beginning because of some defect that existed at the time it was created. An order of annulment means that the couple was never married. Some grounds for annulment include:
- Lack of consent.
- Lack of capacity (such as alcohol, drugs, insanity).
- Incurable physical incapacity (such as not being able to have children).
Divorce (Marriage Dissolution)
Unlike annulment, a divorce terminates a valid marriage. There are six common grounds for a divorce:
- Cruel and inhuman treatment.
Involves physical and/or emotional abuse. Normally, you will need to show that the abuse occurred for more than one year. However, the timeframe may differ depending on your jurisdiction.
Requires voluntary sex or deviant conduct with another person. If the adultery is in dispute, the other spouse will need to testify about the issue.
Desertion is the unjustified and permanent departure from the marriage for greater than a year. Constructive desertion involves abandoning the marriage without physically leaving.
- No-fault divorce.
A no-fault divorce allows a unilateral decision by one spouse that the marriage is irretrievably broken. You must testify under oath and show that the marriage is irretrievable broken or that you both have irreconcilable differences. To file for a no-fault divorce, you will often have to go through a separation period, which may last for a few months and will depend on the state laws. During this time, you and your spouse will have to live separately or prove that you maintained separate households while sharing a living area.
- Drug addiction/alcoholism.
For a divorce based on drug addiction/alcoholism, you must show that the drug addiction and/or alcoholism is voluntary and confirmed. Depending on your jurisdiction, you may need to prove that the addiction/alcoholism occurred over the course of several years.
To file on the basis of insanity, your spouse must have become mentally ill in the course of a marriage and the illness must have lasted for a long period of time. Your state may require institutionalization or support obligation.
In addition, a divorce may either be contested or uncontested. With an uncontested divorce, both spouses are in full agreement in regards to financial, child-related, and other aspects of their marriage dissolution. If there are no minor children involved, the court will likely find for the petitioner (the person who has filed for the divorce) and will enter a judgement of dissolution.
However, if the marriage is contested, meaning that spouses did not reach consensus on some or all of the aspects related to their marriage dissolution, the court may:
- Order counseling
- Continue the proceedings for a reasonable length of time to enable the parties to effect a reconciliation
- Take any other action as necessary that will be in the best interest of the parties and any minor children of the marriage.
However, if the court does find that the grounds on which the divorce is based are valid, it may enter a judgement of the dissolution of marriage.
Legal separation involves you and your spouse retaining the husband and wife status. However, you will have to live apart with your economic rights adjudicated. The grounds for legal separation involve the same grounds as divorce in addition to your spouse failing to support you economically
Understand that the final judgement of one state entitles another state to full faith and credit. This means that a final divorce decree in one state will be recognized in another state.
Economic Effects of a Divorce
There are several economic effects that a divorce may have on both parties. For example, one spouse may be granted alimony, marital and non-marital property will be divided, and child custody will be determined.
Alimony is the support obligation of one spouse to the other spouse. It’s not a punitive device but rather a continuation of one party’s duty to support the other party, and this duty arises from the marital relationship. There are different types of alimony and the type of alimony will be based on one spouse’s need for it and the other spouse’s ability to pay it.
Types of Alimony
The types of alimony are temporary alimony, permanent periodic alimony, rehabilitative alimony, and permanent alimony.
- Temporary alimony is available while an action for dissolution of marriage is pending. It is meant to help the spouse who is more economically deficient, and that spouse can petition the court for maintenance while the case is in process. The court has the discretion to award alimony and can adjust the amount.
- Permanent periodic alimony allows the court to assist a party with the transition from being married to being single. For this type of alimony, the court will consider who’s at fault, the age of the parties, their health, their education and earning capacity, the duration of the marriage, and whether custody affects that party’s ability to work.
- Rehabilitative alimony is awarded by a court to assist a party in becoming self-supporting. The court awards an amount to assist a party in obtaining education or job training. When awarding rehabilitative alimony, the court considers whether the paying spouse has obtained greater education or job skills during the marriage, and whether the spouse receiving the alimony provided support for the other spouse to do so. This type of alimony is limited in amount and has a termination date. It may also be modified or terminated if there is a substantial change in circumstances or if there is a noncompliance with the rehabilitative plan that the spouse is assigned.
- Permanent alimony is awarded to a party who lacks the financial ability to meet his or her own needs following the dissolution of marriage. It will usually be awarded if the marriage lasted for a long period of time (often more than 10 years). This type of alimony will be awarded after the court has determined that no other form of alimony is fair and reasonable under the circumstances.
However, permanent alimony will terminate automatically upon the death of either party or remarriage of the spouse receiving the alimony. Much like rehabilitative alimony, it will be modified or terminated if there is a substantial change in circumstances or the spouse receiving the alimony enters into a supportive relationship. If the spouse enters into a supportive relationship, they must show extreme hardship for the court to continue to provide support. However, co-habitation with another party is not typically enough to terminate the support.
Factors Considered in Court
The court will consider the following factors in determining which type of alimony to award one spouse:
- The standard of living established during the marriage.
- The duration of the marriage.
- The age and physical condition of both parties.
- Financial resources of each party, which include non-marital assets, and the marital assets and liabilities distributed to each party.
- Earning capacities, education levels, vocational skills, and whether either party is able to find employment or the time needed to obtain education or training to find employment
- The contribution of each party to the marriage, including childcare and the career building of the spouse.
- The responsibilities each party will have to endure with regards to minor children.
- Any source of income available to either party.
To enforce alimony, a court can seize and sell the property of the spouse ordered to pay the alimony. The court can also take away their driver’s license, revoke their professional license, attach a lien to their property, or the spouse can even do jail time.
Distribution of Property
When a married couple divorces, their property is divided though a process called equitable distribution of assets. The court may make an equitable distribution of all marital assets, which include all property acquired by either spouse during the marriage from a source that is entangled or connected with the marriage. Assets that are nonmarital will not be divided. The presumption in the equitable distribution procedure is that all marital property must be distributed equally unless there is justification for unequal distribution. The court may either order payments in a lump sum or in installments as a supplement to equitable distribution. Note that alimony and equitable distribution are two different procedures and the court will decide each matter separately.
Marital vs. Non-Marital Property
The first step in the equitable distribution procedure is that the court will separate marital assets and liabilities from non-marital assets and liabilities.
Non-marital assets include:
- Property owned before the marriage.
- Inheritance and non-interspousal gifts to a spouse during the marriage in their name only.
- Property that the souses have agreed to be separate property.
- Non-economic personal injury or worker’s compensation awards, such as those for pain and suffering.
- Income derived from non-marital assets during the marriage unless the income was used or relied on by the parties as marital assets.
- The appreciation in value of any of these mentioned unless the appreciation in value is due to the active effort of the other spouse.
Non-marital liabilities include any liability incurred by forgery or the unauthorized signature of one spouse signing in the name of the other spouse.
Martial property includes:
- Property acquired during the marriage.
- Gifts made in contemplation of the marriage.
- Vested intangibles, which include stocks, pensions, benefits or funds accrued in the marriage during retirement, profit-sharing, annuity, deferred compensation, and insurance plans.
- The value of a professional license acquired during the marriage.
- Economic personal injury or worker’s compensation awards, such as lost wages or medical expenses.
To determine the date for marital assets and liabilities, the court will consider the earliest of the date of the parties’ valid separation agreement or the date of the filing of a petition for dissolution of marriage. The court will also determine the date on what is fair and equitable.
Equal Distribution vs. Unequal Distribution
As stated above, the presumption in the equitable distribution procedure is that all marital property must be distributed equally unless there is justification for unequal distribution. The court will consider several factors to determine whether there is justification for unequal distribution. Those factors include:
- One party’s loss of health insurance.
- A party’s loss of inheritance rights.
- The care for and education of the children, as well as services of a homemaker.
- The length of the marriage.
- Each party’s education and income.
- Each party’s earning capacity.
- The health of each party.
- The amount of assets and liabilities
- Each party’s contribution to acquire the property.
- The desirability of a party retaining the marital home as a residence for dependent children.
Depending on your jurisdiction, you may be entitled to reimbursement if you helped put your spouse through school – graduate school, medical school, or law school. Note that if it is equitable, one spouse may be awarded exclusive custody of the marital home for a specified period. The disability of one spouse may also be a factor in considering whether to award one spouse exclusive custody of the marital home. However, this may be subject to modification whenever there is a change in circumstances.
Once there is a property settlement in the dissolution of marriage proceeding, the decision is final and cannot be modified. Depending on your jurisdiction, the property distributed is not considered taxable and is therefore not considered income of the spouse who has received the distribution. The other spouse may not deduct the distribution of the assets from their own income.
Child Custody and Support
As a general rule, both parents have a duty to provide support for their children until the child is 18 years-old. However, this rule can vary depending on the circumstances. The court will determine all matters related to parenting and time-sharing and the standard for determining this is whether the plan is in the best interest of the child. Typically, a court will merge a parenting plan with the divorce judgement; however, it can also be a separate agreement.
Parental custody is determined by applying the “best interest of the child” standard:
- Some jurisdictions require that each child has frequent contact with both parents and favor parents sharing the rights and responsibilities for their children.
- A court will typically favor keeping the children together and consider their wishes.
- Further, the court will also look into the marital and living situation, education, and financial position of the parents.
- Lastly, a court will consider the health of each parent and whether there was a history of domestic violence in the marriage.
In certain jurisdictions, each parent will get a significant time with their children, but not every court will grant joint custody. For example, both parents may be granted legal custody (decision-making rights concerning their children), and only one parent may get physical custody, so the children will live with them and the other spouse will get visitation rights. Overall, most jurisdictions favor that each parent have a frequent, continuing, and meaningful contact with their children.
Relocation of a Child
There may be restrictions on removing a child from their home state and relocating to another state. A child’s home state is the state where the child lived for more than 6 consecutive months with a parent residing in the same state. The parent who has custody of a child will typically have to get permission from the court and show that it is in the best interest of the child to relocate.
Further, some jurisdictions require that the parent wishing to relocate obtain written consent from every person entitled to access to the child or serve a petition to relocate on every person who has access to the child. Relocating without the proper requirements can subject the parent to contempt and other court proceedings can compel the return of the child.
Again, it is the duty of both parents to provide support for their children until that child reaches 18 years old. The amount of child support that a parent is awarded is based on the monetary need and ability for each spouse to pay. The amount is typically calculated based upon the percentage of income and the number of children that both parties have. Some jurisdictions have statutory guidelines to determine the amount of the child support.
Child support may be modified or terminated if there is a substantial change in the financial situation, childcare costs, if the child reaches the age of majority, or if the child becomes self-sufficient or gets married. If you have an out-of-state child support order, you should refer to the Uniform Interstate Family Support Act (“UIFSA”). The UIFSA states that once the initial child support order is entered, all states must defer to the order and the initial state has exclusive jurisdiction over the child support order. The exclusive jurisdiction will typically continue as long as the child or parent resides in the initial state.
Planning for Divorce – Checklist
It is important to keep yourself organized and put all your documents in a file. You can choose to place the items in an electronic file or a physical file. It is a good idea to have both. Further, you should educate yourself on the laws in your jurisdiction and how they will apply to your divorce proceeding. You may choose to work with a divorce attorney or financial planner in your jurisdiction or seek a mediator if you have agreed on a divorce settlement with your spouse.
To help you in the process, we have created a divorce preparation checklist, which you can review in detail below. It includes guidelines on basic actions you might want to consider taking, as well as information that you would need to gather to make a marriage dissolution process smoother. Additionally, you are welcome to download a shorted version of a divorce checklist in pdf format:
Download Divorce Checklist
Photos and Videos
It is important to take photos of all your valuables. You should take photos art, jewelry, electronics, furniture, antique pieces, and any other item that you deem to be valuable or sentimental. Keep the photos in both your electronic and physical file.
Solid Support System
A divorce can take a mental, financial, and physical toll on you. Having a great support system is essential during this time. Remember, your goal is to make the divorce process as smooth as possible and to get your fair share of what you contributed to the marriage. You may want to consider a therapist or counselor for you and your children. Also consider a real estate agent if you are planning on selling your home. Most importantly, gather your closest friends and family who will support you and remain positive throughout the process.
You will need to gather personal information for yourself, including your legal name, phone numbers, emails, birth certificate, social security card, etc. You should also gather your employer information, including your employer’s name, address, phone number, and email. Further, you should have a copy of your health insurance information and a certified copy of your marriage certificate. You should also have the same information for your spouse and children or dependents.
Most jurisdictions require a financial disclosure when you are going through a dissolution of marriage proceeding. It is important to make a copy of all the documents associated with your assets and liabilities. For example, make a copy of your:
- Tax returns.
- Financial statements.
- Bank statements.
- Brokerage statements.
- Loan applications and/or loan documents.
- Credit card statements.
- Deeds to any real estate property.
- Vehicle registrations.
Also, gather your pay stubs, any tax-assessed valuations, and real estate appraisals. Sort out what you believe is marital and non-marital property.
It is also important to track your income. Keep a copy of your payment information, including your:
- Base salary.
Depending on your jurisdiction, you may want to have a copy of the information regarding your income for the last three years.
Also make a copy of the documents on your secondary income, including:
- Investment income.
- Social security income.
- Unemployment insurance.
- Worker’s compensation.
- Personal injury.
Your assets include property that you own. You need to gather information about your real estate, including the:
- Type of property.
- The address.
- The title holder.
- Purchase price.
- Outstanding mortgage amount.
- Current assessed value.
- Fair market value.
- Date of the last assessment.
Also have evidence of whether the real estate was a non-interspousal gift or inheritance documents.
If you have investment accounts, keep copies of IRA/Roth IRA documents, annuities documents, workplace savings plan documents, stock options, 529 documents, stock certificates, bonds, CDs, mutual funds, and money market funds.
Also keep track of what you spend. For household expenses, keep a copy of your rent/mortgage payments, maintenance costs, homeowner’s/renter’s insurance, HOA fees, real estate taxes, personal care, subscriptions, clothing, cleaning, entertainment, groceries and food, and gas costs. Make copies the cost of all utilities, childcare, education expenses, extracurricular expenses, and pet care.
Essentially, you should record and make copies of any expenses which play a factor in the divorce proceeding.
What Documents are Needed to File for Divorce?
Documents that you need to file a divorce vary depending on your jurisdiction. You will need to research the official forms required for your state and, sometimes, county. Make sure you have:
- Complaint or Petition for Divorce form.
- A Parenting Plan if you have children.
- Family Court Cover Sheet if required.
- A certified copy of your marriage certificate.
- Proof of Service form that will show the court that your spouse has received copies of divorce documents after you filed them.
- Documents that establish the residency requirements in your state, such as your driver’s license, electric bill, lease agreement, etc.
You may be required to mail in your divorce papers, so double-check the mailing address and contact the clerk’s office with any questions. Also, be sure to make two copies of all the forms and get a certified check for the court fees. If you cannot afford to pay the filing and other fees to the court, you will likely be able to get and file a Fee Waiver form. If a court finds that you indeed cannot make such payments, it will grant you a relief.