What is Divorce?

Divorce is the most common form of marriage termination, other than death of a spouse. A divorce:

  • terminates an existing marriage
  • allows the parties to remarry
  • determines their rights against each other following the marriage

Who May Divorce?

A divorce can only be obtained where there was a valid marriage between the parties:

  • If a marriage was void, either because the parties were too closely related (an incestuous marriage) or because one of the parties was still married to another person (a bigamous marriage) or some other reason, the marriage must be terminated by an annulment rather than a divorce.
  • If a marriage was voidable but has not been annulled, it can be terminated by a divorce.

Effect of Divorce

The effect of divorce is to terminate the marriage between the parties as of the date that the judgment of divorce is granted. Following the divorce, the parties are free to remarry. Some states formerly refused to allow remarriage immediately after divorce without judicial consent. At the time of divorce, the court may make determinations regarding the children of the marriage and the financial affairs of the parties.

How a Divorce is Obtained

In every state, application must be made to a court to obtain a divorce. Many states have eliminated the requirement that the court hold a hearing in divorce cases; at least where all of the financial and child related issues have been settled between the parties. Some states still require a formal hearing in all cases, but no state grants a divorce simply on the demand of one party to the marriage.

Grounds for Divorce

Each state lists grounds for divorce, which must be proven in order for a divorce to be granted. These grounds are divided into fault and no fault grounds.

  • Each state offers at least one no fault ground
  • A decreasing number of states offer the alternative of fault based divorce

No fault grounds for divorce are classified as marriage breakdown or separation grounds.

  • In states where separation is the standard for a no fault divorce, the person seeking the divorce must demonstrate that the spouses have lived separate and apart for a fixed period of time, usually six months, but in some states substantially longer.
  • In states where marital breakdown is the standard, the divorce seeker needs to establish that the marriage is no longer viable. This can usually be established simply by the individual’s testimony that they refuse to continue in the marriage. Breakdown statutes often impose waiting periods before a divorce will be granted.

Traditionally, the only way to obtain a divorce was to establish that the other party to the marriage had committed some marital fault and that the person seeking the divorce was innocent of such fault. The modern view of fault divorce looks at comparative fault. Where both parties were at fault, a divorce may be granted to the less guilty party or to the parties jointly. Various fault grounds continue to exist in some states. The most common fault grounds are adultery, desertion, and physical or mental cruelty. Individual states offer additional grounds including, for example, impotence and imprisonment.

Residence and Fee Requirements for a Divorce Action

In order to be eligible for a divorce, each state has a residence or domicile requirement that must be met before a divorce action can be filed. The most common provision is that one of the spouses must have resided in the state for one year where the divorce action is filed, but this rule varies. States are entitled to charge a filing fee for obtaining a divorce, but must make provision for waiver of that fee for indigents who are seeking a remedy.