Divorce Laws, Demystified

Contemplating a split? A brief primer on divorce laws in the U.S.

Divorce Laws, Demystified

Divorce law is just a complex as all other areas of law, which means it's very complicated. Since these laws are set at the state level, differences from one state to another can have a huge impact on the process of divorce and how settlements are developed. For this reason alone, getting good legal advice from an experience lawyer in your state can be vital.

Explaining every difference in state laws would take a library's worth of words. This articles addresses one important difference you will need to understand: What grounds for divorce are available in your state, and how will the choices affect you?


Grounds for Divorce
Back in the old days, divorce was hard to get, possible only when one spouse could prove the other had done something wrong. In other words, there had to be grounds for divorce. Traditional grounds included abusive behavior, adultery, desertion, criminal behavior and various kinds of fraud. Awards of child custody, property divisions and alimony were based in part on who was at fault or who, in the judge's opinion, was worse.

This made divorce highly contentious, leaving families emotionally shredded as well as legally divided.

No-fault divorce was created to avoid this conflict and allow a couple to declare they no longer wish to be married. No-fault divorce is also described as irreconcilable differences or incompatibility. Oklahoma first offered no-fault divorce in 1953, but after California passed a no-fault law in the late 60's, other states followed suit. Today all states offer no-fault divorce.


The No-Fault States
Some states only offer no-fault divorce. No grounds for divorce are considered, and alleged faults of either party are not considered in deciding financial matters. About fifteen states, including Arizona, California, Oregon, and Wisconsin are in this category. State laws change, though, so this is something you will want to research.

While the goal of no-fault divorce is a good is to reduce unnecessary conflict and emotional pain the consequences have not all been positive.

In the no-fault states, divorce is both easy and unilateral. In the states offering only no-fault divorce, one spouse can decide he or she wants a divorce and get one, whether or not the other partner agrees. Since the courts do not consider fault, a spouse who has behaved very badly indeed can get a divorce and be awarded a significant settlement. In situations where one partner is unhappy and wants out, there is little incentive to stay and work things out. In some circumstances, there may be a financial incentive to leave.

The bottom line is, in no-fault states, you can get a divorce if you want one, and do little to avoid one if you do not.


Fault vs. No-Fault Options
All states offer no-fault divorce as an option, and most still include the traditional grounds as well. Again, state laws differ, but generally, if a state offers both routes (fault and no-fault), the no-fault option is only available when both partners agree. This creates some incentive for partners to work together, at least to some extent, in moving toward (or away from) divorce.

As a backup, many states allow no-fault divorce to proceed when one partner objects if the spouses have lived apart for a specified length of time, which can range from six months (Vermont) to five years (Idaho). However, some states do not allow a no-fault divorce in circumstances where there are children, or if the partners fail to agree.

In seeking a divorce for specific grounds, you need to prove in court that those grounds exist. This alone leads many couples to agree to a no-fault divorce, but there can be good reasons for you to go ahead and wash that dirty linen in public.

When to Choose the Fault Option
The primary reason to file for divorce on specific grounds is to protect your children. All states will consider parental behavior in deciding where children will live, who will care for them, and who can visit them.


Generally speaking, courts today will not punish a decent parent by taking away his or her children. If, for example, your spouse had an affair but is otherwise a good parent, this will probably not affect custody or visitation. On the other hand, abuse, desertion and criminal behavior will all be important in deciding how children will be cared for. If your spouse behaves in ways that puts your children in danger, you want the court to know.

A second reason might be to influence the financial settlements. Again, it's important to remember that the move toward a no-fault climate for divorce means that the courts will not punish bad behavior, or reward good behavior, by deciding how much money each spouse will receive. So, do not go to court looking for revenge. You are not likely to succeed, and may anger the judge (which is never a good idea).

On the other hand, if your spouse has behaved in ways that harmed you financially, this can legitimately affect the financial settlement and should be brought to the courts attention. For example, if you have been deserted and your spouse has failed to support you and your children for some time, a judge can require spousal support and child support to be retroactive. In other words, the judge can make your spouse pay you for all the time he or she was gone and in the future as you raise your children.


The courts are not happy with spouses who hide or misuse marital assets. If your spouse had an affair and spent money that belongs to both of you buying things for his or her new flame, some states see that as misuse of assets that should be repaid. This could be another reason to file for divorce on the grounds of adultery, rather than choosing the no-fault option.

Explore Your Options
Divorce is a traumatic and confusing time. It's hard to think straight and make good choice. Do not make a snap decision, or agree to something your spouse suggests without doing your own research. In all cases, it's vital to understand the laws in your state and how they apply to your situation. The point here is to consider all the options and choose the one that best fits your needs.