Divorce Law – An Overview

Divorce Law – An Overview

Divorce law is one of the most complex and challenging areas facing any American citizen. A divorce is more than just two people separating; it is the untangling of a lifetime of co-mingled finances, living space, and relationships that extend far beyond the couple who are divorcing. In addition, because marriages are sanctioned by the states and not the federal government, divorce laws have fifty different sets of rules, and sometimes the same divorce will be wrangling with two or more of these sets.

In a divorce, each partner has very specific rights laid forth by each state. Most states support a no-fault divorce, in which one spouse may divorce the other for the oft-quoted “irreconcilable differences” reason. Every state allows divorce in certain other situations: infidelity, criminal behavior, any kind of abuse, where abuse includes both physical abuse as well as emotional or mental abuse.

While a divorce is often easily obtained, the finer details may not be so simple. A basic no-fault divorce – one in which neither partner is held to blame for the failure of the marriage – when the spouses have no children and no property held in common can be completed very quickly. As soon as both have names on a deed or even a car title, children are born, or one partner makes significant income during the marriage, this simplicity changes.

The state in which divorce is first filed is usually the state whose divorce law will govern the ensuing processes. If both partners file at the same time in different states, arbitration may be necessary to determine which state is the correct governing body. Why is this important? Because in California, spouses are supposed to make a 50-50 split of community property, while in Nevada spouses have an “equitable division” of property, which is more likely to result in the spouse who made more money taking more with him after the marriage is dissolved. Only California, Arizona, Idaho, Louisiana, New Mexico, Texas, Washington, and Wisconsin have community property division starting with a 50:50 ratio. All other states use equitable distribution laws.

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Children are the other common bug in the ointment. In the first half of the 20th century, the husband almost always got them; after that, the wife almost always got them. Today, it’s becoming more common for either the husband or wife to get primary custody of the children. But that varies from state to state, and case to case. If there are children involved in the divorce, and both partners want to keep primary custody, it is absolutely essential to get a lawyer. Both your hearts and the future of your money are involved in this critical issue.

Pensions and 401K’s are another area of contention. Military members, up until last year, often kept their whole pensions even when the wife had been there for 18 of 20 military years (this law has since been changed.) In most cases, pensions are divvied up under a “qualified domestic relations order” (QDRO), and paid out to the two spouses after the pension matures by the pension plan administrator. You can expect the same division rules that applied to your community property to apply to pensions.

You can see where divorce law can become very complex very fast. In cases where your lives are not tightly entangled and you are both fine with the divorce, you’re fine using a quickie no-fault divorce, even one where you fill out your own paperwork. In any other case, you really need a lawyer to guide you through the minefield.