Divorce
A divorce is the termination of a marriage by legal action, requiring a petition or complaint for divorce (or dissolution in some states) by one party. Some states still require at least a minimal showing of fault (grounds), but no-fault divorce is now the rule in which incompatibility is sufficient to grant a divorce. The major issues in divorces are division of property, child custody and support, alimony (spousal support), child visitation and attorney’s fees. Only state courts have jurisdiction over divorces so the petitioner/complainant can only file in the state in which he/she has been a resident for a period of time. In many states, the time period from original filing for divorce and final judgment (or decree) takes several months to allow for a chance to reconcile.
From the legalities, divorce gives both parties the legal right to marry another. A divorce also legally divides the couple’s assets and debts as well as determines the care and custody of their children. Every state approaches these issues differently although most states use similar standards.
The most relevant issues to be decided during divorce proceedings are alimony or spousal support, division of marital assets, and, if children are involved, child custody, visitation and child support.
Grounds
The grounds for divorce are set regulations in each state that specify under what circumstances can either party be granted a divorce. A fault divorce is a divorce that takes place on the grounds that one party can be considered at fault. In several states, the couple must live apart for several months before they are granted a divorce.
Following is a brief explanation of a few of the many reasons for one party to be granted a fault divorce.
- Adultery is a consensual sexual relation when one of the participants is legally married to another person. In some states it is still a crime and is grounds for divorce for the spouse of the married adulterer.
- Extreme cruelty is an archaic requirement to show infliction of physical and/or mental abuse by one of the parties to his/her spouse to support a judgment of divorce or an unequal division of the couple’s marital assets. In some states, evidence of cruelty may result in division of property favoring the suffering
spouse.
- Infertility is the inability to conceive a child or carry a pregnancy to full term. If infertility of the other party was not discussed prior to marriage, this can be grounds for divorce.
- Abandonment means willfully leaving one’s spouse and/or children, intending not to return, without the abandoned spouse’s consent.
Fault or No-Fault
A fault divorce traditionally requires one spouse to prove that the other spouse was legally at fault to obtain a divorce. The “innocent” spouse is then granted a divorce from the “guilty” spouse. Today, many states still allow a spouse to allege fault in obtaining a divorce. The traditional fault grounds for divorce are adultery, abandonment (desertion), cruelty, imprisonment, physical incapacity and incurable insanity. Some courts consider fault in determining the amount of spousal support.
A no-fault divorce is a divorce in which the dissolution of a marriage does not require fault of either party to be shown. Either party may request, and receive, the dissolution of the marriage, despite the objection of the other party.
The following list of states allows no-fault divorce as the sole grounds for divorce:
The following list of states indicates those that have added no-fault to traditional divorce:
The following list represents states that consider incompatibility as grounds for divorce:
Many states have a “waiting period” before a couple can file for divorce. This is to enable them to possibly reconcile. The following list shows the prerequisite for couples residing apart and filing for divorce:
• Alabama - 2 years
• Arkansas - 18 months
• Connecticut - 18 months
• Hawaii - 2 years
• Illinois - 2 years
• Louisiana - 6 months
• Maryland - 2 years
• Missouri - 1-2 years
• Montana - 180 days
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• Nevada - 1 year
• New Hampshire - 2 years
• New Jersey - 18 months
• New York - 1 year
• North Carolina - 1 year
• Ohio - 1 year
• Pennsylvania - 2 years
• Rhode Island - 3 years
• South Carolina - 1 year
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• Tennessee - 2 years
• Texas - 3 years
• Utah - 3 years
• Vermont - 6 months
• Virginia - 1 year
• West Virginia - 1 year
• District of Columbia - 1 year
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Annulment
An annulment differs from a divorce as it is a judicial statement that there was never a marriage. An annulment means that the individuals were never united in marriage as husband and wife. Currently, most states have annulment statutes. An annulment declares that a marriage, which appears to be valid, is actually invalid. There are two kinds of invalid marriages. A void marriage is one that was invalid from the very beginning. The major grounds for a void marriage are incest, bigamy and lack of consent. A voidable marriage is one that can be declared illegal but continues as valid until an annulment is sought.
Fraud is the most common ground for annulment. The misrepresentation, whether by lies or concealment of the truth, must encompass something directly pertinent to the marriage, such as religion, children or sex, which society considers the foundation of a relationship.
Physical or emotional conditions may also be elements for an annulment, especially if they interfere with sexual relations or procreation. Other health conditions providing grounds for an annulment include, but not limited to, alcoholism, incurable insanity and epilepsy.
Alienation of Affection
Alienation of affection is a tort claim for willful or malicious interference in a marriage by a third party without excuse or justification. There are only nine states that consider alienation of affection a viable cause for action:
• Hawaii
• Illinois
• Mississippi
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• Missouri
• New Hampshire
• New Mexico |
• North Carolina
• South Dakota
• Utah
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There are five states that have judicially eliminated alienation of affection:
• Idaho
• Iowa
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• Kentucky
• South Carolina
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• Washington
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The following states have statutorily eliminated alienation of affection:
Currently, Alaska does not have case law or statutes that clearly address this issue. Louisiana has never recognized alienation as a pliable cause for action and Ohio does not allow (by statute) monetary recovery for alienation of affection. Recently, North Carolina has extended the time frame in which one spouse can file an action for alienation of affection.
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