Basic Elements of Divorce

Aug 8, 2012 by

Before you file for a divorce, you should know that the right to get a divorce in the United States does not fall under the jurisdiction of the federal government, but is instead is always granted by individual state courts. Those state courts also govern the varying terms and conditions of divorce laws too. The courts in all 50 states have different statutes on their books and interpret the laws according the jurisdiction they are in, but in general there are several types of divorce common to most all state courts.

The first and most common type of divorce is an absolute or legal divorce that occurs when a judge terminates a marriage in court and both parties are free to marry again. Absolute divorces in contested divorce cases used to require proof of misconduct or wrongdoing had been committed by a spouse, but with the recent widespread adoption of no-fault divorce laws in most states, blame is no longer required to get a legal divorce decree. Most states now allow couples to get a no-fault divorce without an attorney or having to prove misconduct on the part of either party. The court only has to find that the relationship is not viable, the spousal differences are irreconcilable and that reasonable reconsideration is not possible.

Some people may confuse a separation decree or limited divorce with actual divorce, but they are not the same thing as a separation decree only terminates the cohabitation part of a marriage but does not terminate it.  Another type of divorce is a conversion divorce that is a court-ordered period of separation that is eventually converted into a permanent, legal divorce.

The different state divorce courts will divide the debts and assets of a marriage in one of two ways; as community property or equitable property. In those few states that do use community property law, the assets and debts are split right down the middle. There are only nine community property states including Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. All of other states in the nation utilize equitable property division laws. Equitable division mandates property is divided according to what the court determines is the most fair and equitable split depending on the particular economic situation of each spouse at the time of the divorce. This means the divorce court can give more than half of any property to one spouse.

Regardless of the state of jurisdiction, when it comes to deciding child custody issues, all courts will make their decisions based on the best interests of the children involved. The courts will consider the age, sex, and mental condition of children as well as the overall home environment. Parental behavior is always a critical factor in any child support decisions too.

Anyone considering asking for spousal support in the form of court-ordered alimony payments should know that alimony is usually only temporary. The payments will only cover a specified interval of time until the other party can get back on their own feet again. Less common is permanent alimony that mandates payments for life or until the other party dies or remarries.

Divorce is never a pleasant undertaking, but it can help to know that the basic elements of divorce laws are designed to serve the best interests of the individual, the family and the community as a whole. If handled properly, there is no reason the outcome cannot be positive for all involved.  


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