Divorce By State

Filing for divorce has major legal, financial, and emotional consequences. This section focuses mainly on the general laws and procedures of divorce by state.

Divorce Laws Differ Between States

States are responsible for enacting their own divorce laws. Once state laws are enacted, the state court system must follow them in presiding over the many different types of divorce matters that come before it.

Judges must rule on matters relating to spousal and child support, parental custodial rights, and the division of marital property.

Divorce court judges are given substantial discretion in their rulings. However, all state courts are guided by one overriding judicial principle: To ensure that all family court decisions are made in favor of the child’s best interests.

Divorce Law Summaries By State

State Divorce Laws Change Over Time

State laws are frequently repealed and amended, so it is always advisable to consult an experienced divorce lawyer in your state before making important decisions about your marriage.

State Specific Divorce Topics:

Since state divorce laws can differ, the topics below describe common divorce concepts but may not reflect your specific state’s divorce laws. Please see your state divorce law summary for your state’s specific divorce law process.

Grounds For Divorce  (No-Fault)

In the past, a spouse who wanted to divorce the other spouse could only obtain a dissolution of their marriage by proving the other spouse was the cause of the failed marriage. The most common grounds cited for the legal cause was marriage infidelity, otherwise known as adultery.

As you can imagine, divorces based on fault inevitably result in vindictive and unnecessary litigation and a “scorched earth” approach to resolving their differences.

Fortunately, all 50 states have adopted some form of no-fault divorce, in which both parties agree to the dissolution of their marriage by simply stating under oath that “irreconcilable differences” exist between the two spouses.

Legal Separation

Some states encourage spouses to enter into a legal separation instead of a dissolution of the marriage, usually so long as the other party doesn’t object. A separation agreement is then drafted, which will usually contain the terms of the separation, such as:

• Financial maintenance of either spouse
• Allocating the division of property
• Parental responsibilities

Sometimes, at the request of either of the parties, after a hearing, the court may appoint an attorney or guardian to represent the child’s best interests and to assign parental responsibilities and rights as they relate to the child’s best interests.

Residency Requirements

All states require that the divorce petitioners be legal residents. For example, in Colorado, one party must have been a state resident for at least ninety days before filing a petition for dissolution.

Court Ordered Mediation And Counseling

Most states can now order the divorcing parties into mediation or counseling before granting a dissolution of the marriage or even before formal court proceedings commence in the matter.

Today, divorce mediation has become the more progressive and favored way for spouses to resolve most, if not all, unresolved disputes to dissolution. In this regard, many spouses are choosing to resolve their divorce issues through collaborative divorce.

Special Counseling For Spouses With Children

In some states, a court may order a parent whose child is under the lawful age of majority to attend a parental guidance program designed to help parents understand divorce’s emotional and psychological impact on both parents and their children.

Property Division

While all states allow for “no-fault” divorce, many courts still factor in the respective parties’ past behavior and current financial condition when determining the division of community property. These factors are also considered in matters dividing child custody, child, and marital support issues.

Some states still use some form of equitable distribution when the parties can’t agree on a fair and equal property division. In these cases, many states authorize their divorce courts to base their decisions on factors such as:

• The contribution of each spouse, including that as a homemaker
• The value of a property is set apart for each spouse
• The desirability of awarding the family home to the custodial parent, as well as the economic circumstances of each spouse
• Any depletion of separate property for marital purposes or any increases in the value of the spouse’s separate property during the marriage

Most states will consider property to be separate property that is not subject to community property division in matters of inheritance, property owned before the marriage, gifts to a single spouse, property acquired after marriage, and property excluded by contract such as a valid prenuptial agreement.

Spousal Support

Many states award spousal support on either a temporary or permanent basis when one spouse has an extremely high present and future income compared to the other spouse.

States have devised specific financial formulas to calculate spousal income by combining and dividing the gross marital income.

You can now purchase and download software programs to perform estimated spousal support calculations based on your state’s formulas.

Factors To Be Considered On Spousal Support

In determining the level of support to be paid after the dissolution of marriage, the court may also consider the following factors when choosing the level of support:

• The duration of the marriage
• The standard of living established during the marriage
• The financial resources of the spouse seeking support, including marital property received in the divorce settlement and the party’s ability to meet their needs after the divorce
• The time necessary to acquire sufficient education or vocational retraining
• The age, physical health, and emotional maturity of the spouse seeking maintenance

Legal Name Change

To change one’s name to something other than their previous married name, most states will require you to petition the court (and file a copy of the court-endorsed order in the county where you reside) in the county in which you reside a sworn affidavit stating:

• The county where you reside
• Your full name
• Your desired name
• A concise statement of the reason for the name change

Many states now require the petitioner to submit a fingerprint-based criminal history and record check within ninety days before the date of your petition for a name change with the court.

A name change can happen as part of the divorce proceedings or after the dissolution. If you choose to change your name after the dissolution, or for that matter, for any other lawful reason, there are low-cost services that will prepare and file your legal documents and even be present at court to formally issue the request.

Child Custody

Most, if not all, state courts authorize the court to determine and issue all child custody orders if the divorcing parties cannot agree or for other urgent reasons. However, these orders must be based on and guided by the child’s best interests.

Factors that help determine the “best interests” of the child  include:

• The parents expressed preference concerning parenting time
• The desires of the child, assuming the child is old and mature enough to express reasoned parental preferences
• The strength of the child’s relationship with the parent
• The strength of the child’s relationship with relatives or a significant person who positively affects the child’s best interests
• The impact on the child’s adjustment to a new home and school.
• The mental and physical health of all the spouses
• A parent’s ability to cooperate with the other parent by encouraging the child to share their love, affection, and contact with the other parent
• Whether there is evidence of child sexual abuse, spousal abuse, or neglect by either parent
• A parent’s maturity and loyalty to place their child’s needs before their own.

Child Support

Child support depends mainly on each spouse’s income and expenses. States use this information to calculate child support obligations.

Child support under most states may continue until a child becomes emancipated, graduates from high school, or continues beyond the age of majority.