Divorce laws are specific to each of the individual 50 states as well as the District of Columbia. While there is a lot of similarity between states’ divorce statutes, there are some important differences. The following general and specific states’ information is intended to provide you with current divorce education and resources that could be helpful to you as you decide on your divorce process.
CHILD CUSTODY AND SUPPORT
Courts apply varying factors in making a decision as to who gets custody of a couple’s minor children. Needless to say, this aspect of divorce is the most gut-wrenching. Hopefully, you and your spouse will be able to come to those agreements without going to trial. The Collaborative Divorce and Mediation processes strive to put children’s needs first. Consider these processes if your divorce involves decisions regarding custody (parenting decision-making) or visitation (parenting time). All of the individual states’ resources below include specific information about child custody and support. We urge you to become familiar with your state’s practices and guidelines.
There are 3 different models that states use to determine child support payments. Most states use the Income Shares Model. The court first reviews each parent’s income and based on total income and the number of minor children who need support, identifies a basic figure from a child support table. Common factors are what is in the best interest of the child, trying to preserve the standard of living the child(ren) enjoyed prior to the divorce, and special needs. Courts also consider the paying spouse’s economic circumstances. Lastly, most courts can order either parent or both parents to pay child support. The other 2 models are the Flat or Varying Percentage of Income Model and the use of a Child Support Worksheet. You can find more specific information about these models in the state resources in the sidebar.
SPOUSAL SUPPORT, ALIMONY and MAINTENANCE
These 3 terms are synonymous. Some states refer to alimony, an older term for support payments to the lower-earning spouse, while others use support or maintenance payments. A court’s award of spousal support is based on factors such as the length of the marriage, the contribution of each spouse economically to the marriage, including the role of homemaker, the future earning potential of the receiving spouse, and the paying spouse’s ability to make payments. Future support payments can also influence how the court may divide a couple’s marital assets.
Some states recognize different types of support. These include temporary support for a limited period of time, rehabilitative support until the receiving spouse has had sufficient time to retrain him/herself or find appropriate employment, reimbursement support to compensate one spouse for putting the other spouse through college, graduate programs such as law school or medical school, and/or vocational training, and permanent support.
Property division refers to how the marital property gets divided between you and your spouse. Do not assume it’s going to be 50/50, or some other number that you’ve heard from friends and family! Many factors will come into play including taxes, retirement contributions, the need for child care, length and contributions of each spouse to the marriage, and others. There are 2 types of property division in state divorce statutes: equitable distribution and community property.
41 states and the District of Columbia are equitable distribution states. What this means is that the marital assets will be divided by the court in an equitable, but not necessarily equal, proportion, depending on the circumstances of the case. The other 9 states are community property states. Courts divide marital assets(assets held jointly or commingled), but not separate assets 50/50 between the spouses. Separate property such as property brought into the marriage, gifts and inheritances remain the separate property of the associated spouse. Lastly, courts may not divide community property 50/50 if they find such division “unconscionable.”
LEGAL GROUNDS FOR DIVORCE
It is important to understand that both marriage and divorce are legal contracts. To qualify for divorce, states institute specific grounds that must be met first. There are no-fault grounds for divorce, and at-fault grounds. No-fault grounds do not need to be proven; they can be asserted by the parties. The 2 most common no-fault grounds are “irreconcilable differences or incompatibility,” and “the marriage is irretrievably broken.”
A little over half of the states allow at-fault grounds. Some states recognize both types of grounds. If your state allows at-fault grounds and you wish to claim one or more of these, then the burden of proof rests with you. While a court may award a better settlement if there are at-fault grounds in your case, you need to decide if it is worth the extra cost to prove these in a court of law. It is also helpful to know your local area and the judges’ preferences. Your attorney should be able to advise you about whether it makes sense to claim at-fault grounds. The most common at-fault grounds are: adultery, abandonment or willful desertion, neglect, conviction of a felony and/or incarceration, habitual drunkenness and/or drug addiction, and extreme cruelty of treatment.
DOMESTIC PARTNERSHIPS, CIVIL UNIONS AND SAME-SEX MARRIAGE
Today almost half the U. S. population (42%) lives in a state that provides some form of protection for same-sex couples. 10 states, including the District of Columbia, recognize same-sex marriage. 5 states do not recognize same-sex marriage, but do recognize same-sex marriages entered into in another state. 8 states recognize either broad rights and protections, similar or identical to marriage, for domestic partners (termed civil unions) or offer limited protections.
Different states have different legal terms for divorce. The most common is Dissolution of Marriage. Others include Divorce from the Bond(s) of Matrimony, Absolute Divorce and Total Divorce.
PRO SE or DO-IT-YOURSELF DIVORCE
States furnish divorce instruction and forms primarily for individuals who wish to represent themselves instead of working with an attorney. @divorce does not recommend that you attempt to represent yourself in a divorce case. Our view is that this is one of the biggest deals you will make in your lifetime, so trying to save money by representing yourself could cost you lots in the long run.
Keeping this in mind, it will be helpful for you to have a basic understanding of your state’s divorce laws and its courts. This is why we have provided state court websites in the state links in the sidebar, along with a summary of your state’s laws that relate to property division, alimony, maintenance and spousal support, and child support.
Individual counties may also have their own divorce forms. You can look up this information by typing in your county in your search engine, e.g. “Cook County Illinois Divorce Forms.” Some state court websites have maps where you can look up the locations of county courthouses.
Click on your state: