Demystifying the Law: Seven Things to Know if Considering Divorce

Posted July 22, 2010 in Demystifying the Law by
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Divorce. It’s self-explanatory, isn’t it? Not so fast. If you’ve never gone through the process, there may be some things that take you by surprise. Here are seven things you may not know – but need to – if filing for divorce.

1. Divorce laws are governed by the state and you may have to meet residency requirements before you can file for divorce. We’ve all heard about "quickie divorces," and the fact is, some states make it easier to obtain a divorce than others. Other states – known as community property states – can be more attractive divorce venues to a person whose spouse has significantly more assets and higher income. But before you pack your bags, talk to a local lawyer to understand the residency requirements and how long you’ll have to wait before filing for divorce.

2. You can’t easily "venue shop" for a child custody court. It’s not uncommon for people to move to another state to take advantage of more favorable divorce laws. (In the legal profession, this search for a friendly court is known as venue shopping.) However, it’s much more difficult to venue shop for child custody issues. The Uniform Child Custody Jurisdiction and Enforcement Act, which is law in every state but Massachusetts and Vermont, says once a state court hears a child custody issue, that state has exclusive and continuing authority over all future custody issues. Before a court can even hear an initial custody issue, the court asks:

  • In which state did the child live continually for the past six months? That state would typically be assigned jurisdiction over all current and future custody issues.
  • If the child didn’t continually live in a single state for the past six months, to which state does the child have a significant connection? And is there one state that has substantial evidence regarding the child’s relationship, care and protection? That state would typically be assigned jurisdiction.

3. You don’t necessarily have to blame your spouse – or take the blame – when filing for divorce. Most states allow couples to file for either a no-fault divorce or a fault-based divorce. A no-fault divorce says, quite simply, that a couple has irreconcilable differences and the marriage has failed. With a fault-based divorce, one spouse must give a specific reason – such as adultery, cruelty, mental illness or incarceration – for the divorce to be granted. Some states have abandoned fault-based divorce entirely.

4. Divorce doesn’t have to be bitter or nasty. There’s a trend these days toward what’s known as collaborative divorce. The collaborative divorce process recognizes that some couples want to settle their differences in a positive, cooperative manner. In a collaborative divorce, the couple and their lawyers agree to stay out of court, freely share information and avoid taking advantage of any mistakes that might be made.

5. Although people think of an annulment as something a church grants, you may be able to get a state-issued legal annulment. When the state legally annuls a marriage, it is, in effect, saying, "This marriage license should not have been granted. Because the marriage license is invalid, the marriage is invalid." For example, if someone was mentally or physically coerced into the marriage, then they did not voluntarily consent to get married. Or, if one person was married to someone else at the time of the marriage, that person would not have been eligible for a marriage license. However, children are still considered to be born "in wedlock."

6. The concept of alimony has changed significantly in the last generation. Once upon a time, a man paid his ex-wife alimony until she either died or remarried. No more. Alimony, often known as spousal support or maintenance, is now intended to get the lesser-earning spouse back on his or her feet. It’s a temporary payment for someone who’s re-entering the workforce or updating job skills. And while it may come in the form of a monthly check, it may also be a lump-sum payment.

7. Because divorce laws vary from state to state, you’ll want to talk to an experienced local attorney before you take any actions. Filing for divorce, moving out of the house, opening separate bank accounts – all of these can have a long-lasting impact on a potential divorce. A lawyer can explain the law, help you understand your legal options and develop a strategy for your divorce.

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