Tips on Filing for Divorce
Each state has its own set of laws governing the process of divorce, which sometimes goes by the name of "dissolution of marriage." These are extremely disparate from state to state, although certain broad provisions are applicable. This article addresses three aspects of filing for divorce: state residency requirements, grounds for divorce, and where initial divorce papers are filed.
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State Residency Requirements
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A divorce between two people is a civil suit. Therefore, courts must have jurisdiction over at least one of the parties to a divorce in order to hear the suit and issue a final decree. Just like a corporation must have sufficient contacts in a state for someone to file suit against it, those filing for divorce must have sufficient contacts in order for the court to have jurisdiction. This is done by meeting residency requirements.
Each state sets a minimum number of days, weeks or months that a petitioner (someone filing a divorce suit) or respondent spouse must have lived in that state prior to the filing of a divorce. If both spouses reside in the same state, some states will reduce the length of the residency requirement. For example, South Carolina will not allow a petition for divorce to be filed unless one of the spouses has resided there for a year. However, if both spouses live in the state, this time is reduced to three months.
An overview of residency requirements reveals strong variances from one state to another. For example, Arkansas, Kansas and Wyoming only require that one of the spouses live in the state for 60 days before a divorce suit is filed. Other states, such as Iowa, Louisiana, Nebraska, New Hampshire, and Rhode Island, require either spouse to have resided in the state for a year. Other states lack statutes that set forth a specific duration, except to state that one of the spouses must intend to establish residency--Washington, Alaska and Indiana are three such states.
Typically, the same residency requirements apply to military personnel stationed in the state. However, some state laws contain specific residency requirements for those in the military. While Alaska lacks a specific residency requirement for nonmilitary personnel, one of the spouses must have been stationed in the state for 30 days prior to a divorce suit. Indiana stretches this residency requirement out to six months.
In addition to state residency requirements, there may be county residency requirements as well. For example, California requires one of the spouses to have resided in the state for six months and the county in which the divorce is filed for at least three months. State and county residency requirements are set by statute and can be found in the body of law governing family issues.
Filing on Grounds
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Every divorce is filed on specific "grounds." Grounds are essentially an explanation of why one person is filing for divorce. Grounds can be "no fault" or based on "fault." When someone files on no-fault grounds, he is essentially stating that neither he nor his spouse breached the marital contract. The couple simply couldn't get along. No-fault grounds are also known as "irreconcilable differences" or "irretrievable breakdown of marriage."
There is some sort of no-fault provision in every stat'e' laws; however, some states make it inordinately difficult to get a no-fault divorce by imposing lengthy, mandatory separation requirements prior to the filing date. For example, the state of Illinois requires a minimum six-month separation period for a no-fault divorce, but only if both parties agree to separate; if only one party files for a no-fault divorce, the separation period is extended for two years, after which time a divorce can be granted for any reason. South Carolina requires a one-year separation period, as does the state of New York.
Filing for divorce based on "fault" accomplishes two things. It removes a mandatory separation requirement, allowing the divorce to be expedited. Also, in some states, fault can be taken into consideration when a court divides community property, giving the innocent spouse more equity in the marital estate. Some states no longer have laws that permit "fault" divorces, allowing no-fault grounds of irreconcilable differences or irretrievable breakdown of the marriage only.
However, most states permit divorce to be filed based on grounds of fault--this is to say that one of the spouses breached the marital contract by behaving in a certain way. Typical fault grounds include adultery, abandonment, imprisonment, inability to have sex, and finally, cruelty--the most common fault ground on which divorce is filed. Other states may include additional fault grounds in cases where one of the spouses is addicted to drugs or alcohol or has suffered from a mental health disorder for a defined number of years.
If a divorce is filed on no-fault grounds, the spouse who does not want the divorce can do nothing to prevent the divorce. However, if a divorce is filed on grounds of fault, the spouse who is purportedly at fault can raise certain defenses, such as condonation, connivance, provocation and collusion (see the "Grounds" link below for an explanation of these defenses). But even if one spouse tries to fight a divorce, a court will eventually grant it, as it is against public policy to force someone to stay with a person she no longer wishes to remain married to.
Where Do You File?
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In most areas, a petition for divorce is filed in the county where the petitioner or respondent resides with the court that has jurisdiction over the matter. For example, divorce in California is heard by the state's superior court, which has several county branches. Very large counties may have numerous court offices in which a divorce may be filed; the divorce is determinate depending on where each spouse physically resides. There is always a filing fee due at the time initial documentation is filed. These fees vary from one county to another.
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