In the United States, divorces are generally regulated by state, not federal, laws, and these laws vary widely. “There must be 50 ways to leave your lover,” goes Paul Simon’s famous song—and it turns out that’s true of divorcing your spouse, as well.
Here are just some of the factors that are treated differently from one state to another:
What you have to do to get the ball rolling.
Before you can even file for divorce, you’ll have to meet your state’s residency requirements. These range from no requirement for duration of residence (e.g. Alaska, Iowa) to a year or more (e.g. Rhode Island, New Jersey).
Many states impose a waiting period before they’ll grant a no-fault divorce. In Maryland, for example, you could wait up to two years! The wait could be imposed after your Date of Separation (DOS) but before you’re allowed to file, or after you file, but before the divorce can be finalized.
State laws defining the DOS also differ. The DOS might be the date one spouse moves out of the marital residence, the date of physical separation even if in the same house, or the date on which one spouse officially informs the other of the intention to file for divorce.
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What’s yours and what’s his.
Whether or not a particular asset gets divided in divorce depends on whether it is classified as separate or marital property. Some states, such as Connecticut, Massachusetts, Michigan, and Vermont, do not typically distinguish between marital and separate property, but most states do, even if what the law considers separate property is very limited.
In most states, separate property is restricted to:
- property owned by either spouse before the marriage, or obtained by either spouse after the Date of Separation,
- inheritances received by either spouse,
- gifts to either spouse from a third party,
- payments for pain and suffering in personal injury lawsuits, and
- property designated as separate property in an existing pre- or post-nuptial agreement.
What constitutes a fair share of your marital assets.
Everything not specifically designated separate property is usually considered marital property, which is subject to division in divorce. The division could go very differently depending on whether you live in a Community Property State or an Equitable Distribution State.
In Community Property States (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin), spouses are considered equal owners of all marital property, and assets are split 50-50. However, most states are Equitable Distribution States, in which each spouse has a legal claim to a “fair and equitable” (not necessarily half) portion of the value of all marital assets, no matter which of them is listed as legal owner. Courts consider many factors to determine fair and equitable distribution of marital property… and, you guessed it, the factors they consider (and the weight given each factor) vary from one state to another.
What you’ll need to do to prove your case.
One of the most important legal requirements in divorce is a financial affidavit—a formal document that details your assets, debts, income and expenses. Financial affidavits are called different things in different states. In New Jersey, divorcing couples file a “Case Information Statement.” The courts in Utah require a “Financial Declaration,” and in New York, we use a “Statement of Net Worth.”
Completing a financial affidavit thoroughly and accurately can be difficult no matter where you live, but specific requirements vary from state to state.
What you might expect in terms of spousal support.
At the end of the divorce process, you hope to achieve a fair settlement, right? Well, where alimony is concerned, that can mean widely different things. Recent legislation under the guise of alimony “reform,” poses serious concerns for divorcing women. Many states now limit the duration of alimony payments to varying degrees (often linking the duration of alimony to the length of the marriage). Some have banned alimony, allowing for exceptions but making them nearly impossible to get. Some states prohibit alimony if the would-be receiving spouse has committed adultery. If alimony reform legislation has not passed in your state, it is probably on the horizon.
What does all this mean, in practical terms?
Divorce laws probably don’t factor into most couples’ determinations of where to marry or live (though some undoubtedly consider them). However, if you have homes in more than one state and can choose where to file, research your various options, and choose accordingly. Make sure, when you are interviewing divorce attorneys, that they are expert in your state’s laws. And of course, if you know your marriage is on the rocks, and your husband suddenly wants to move to Georgia, for example, you should probably find out why that might be.
Jeff Landers is the author of the Think Financially, Not Emotionally® series of best-selling books on the financial aspects of divorce for women including, Divorce: Think Financially, Not Emotionally® – What Women Need To Know About Securing Their Financial Future Before, During, And After Divorce.
Blog posts are for informational purposes only and do not constitute legal advice.