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Understanding the Basics of Divorce Law

Your divorce may be your first encounter with the legal system (except for that appearance or two in traffic court). Understandably, the prospect of dealing with lawyers, courts, and legal mumbo jumbo can be intimidating.

One of the best ways to steel yourself for what's to come and boost your self-confidence is to find out about the laws that apply to divorce and the legal processes involved in getting a divorce.

Not just anyone can get divorced

To get a divorce, you have to meet some minimum state requirements. The most common are the following:

  • Residing in your state for a specific length of time. A handful of states have no residency requirement — your obvious destination for a "quickie divorce" — but most states require that one or both of you be a resident for a minimum amount of time before you can either file a petition for divorce or before your divorce can be granted. Six months is the most common residency requirement, but it may be weeks, months, or even a year, depending on your state.
  • Getting divorced in the state where you live. That is, you must get divorced in the state you call your permanent home — and not in the state where you got married.
  • Being separated. Some states require that before you can be divorced you must live apart from your spouse for a certain length of time. The theory behind this requirement is that, with enough time, you and your spouse may have a change of heart and reconcile.

Resolving practical issues

You and your spouse have to decide on a number of fundamental issues before your divorce is final. (If you get a legal separation before you divorce, you still have to work out these same issues.) Your decisions must include the following:

  • How will your marital property and debts be divided? Complex laws — including state property laws and federal tax laws, plus numerous interpretations of those laws — can make deciding who gets what a complicated undertaking, especially if you and your spouse have managed to amass a considerable amount of assets.
  • Will one of you pay spousal support or alimony to the other? If so, how much will the payments be and for how long will they continue?
  • If there are minor children from your marriage, how will custody, visitation, and child support be handled? This issue can be one of the most emotional in a divorce. Some spouses fear that if they don't get custody, they will no longer play a meaningful role in the lives of their children; others may view fighting for the kids as a way to get back at their spouses.

Responding to a federal government mandate, all states have guidelines for determining the minimum amount of child support that should be paid in a divorce.

If you and your spouse can work together to resolve these issues, your divorce can be relatively quick and inexpensive. However, if you can't resolve it between the two of you, or if your divorce has complicating factors (your marital property or debt is substantial, for example) ending your marriage can take time and money. In a worst-case scenario, you must look to the courts for help.

If you are an older woman who never worked outside the home during your marriage or has not done so in many years, you may have difficulty finding a well-paying job after you are divorced. Therefore, getting an adequate amount of alimony for a long enough period of time is essential to your maintaining an acceptable post-divorce lifestyle. However, if your divorce is rancorous, your spouse may fight against paying you the alimony you think you need.

The rules of the game in divorce court

The divorce laws and guidelines of your state provide a framework and set boundaries for resolving the basic issues that must be decided before your marriage can be ended. In other words, those laws and guidelines are actually quite flexible, within certain limits:

  • As you work your way through the divorce process, you and your spouse have a considerable amount of leeway when you decide on most of those issues, as long as you are both in agreement.
  • As you address the division of your marital property, spousal support, and child custody and visitation, assume that a family law judge is looking over your shoulder. This means that whatever you decide about those matters should be fair to you both, given the laws of your state, and your decisions should reflect an appreciation of what the judge would probably decide if your divorce were to end in a trial.
  • Among other factors, local norms and cultural values can influence the outcome of a divorce. A judge in a more socially conservative part of a state may decide the same issue — alimony or which parent gets custody, for example — quite differently than a judge in a more socially liberal part of that same state (and vice versa).

Second-guessing family law judges can be tricky because judges have considerable discretion in how they interpret the law. Furthermore, although you would like to think that all judges approach legal issues with no bias, the truth is that their decisions are at times colored by their own prejudices, preferences, and real-life experiences. For example, if your divorce goes to trial, the judge who hears your case may have just been divorced and may feel that he or she was "taken to the cleaners" by his or her ex-spouse. Or the judge's daughter may be a single, divorced mom who struggles to make ends meet because her ex-spouse is not meeting his support obligations.

You can appeal a judge's decision, but appeals are hard to win. Moreover, appealing means spending more money on an attorney and then, if you win your appeal, more money on a new trial.

Divorce law helps resolve legal and financial issues. The law will not resolve the anger, guilt, fear, or sadness you may feel. Don't look to the legal system to do that for you. You'll be left feeling disappointed and frustrated when your divorce is over.

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