U.S. Divorce Law – Rules, Child Custody and Alimony

U.S. Divorce Law

Divorce is the legal dissolution of a marriage by a court or other competent authority. Divorce Law is governed by the laws of state where it occurs and varies from state to state. Previously, a reason was required for application of Divorce, but now “No Fault Divorce” is allowed in every state of U.S.



What is No Fault Divorce?

No fault divorce is the most common type of divorce in USA. It does not require showing the fault or marital misconduct by either spouse. When the marriage partners mutually consent for divorce, a simple reason like incompatibility, irreconcilable differences, irretrievably broken is sufficient to end the marriage. The parties must state the reasons for the irreconcilable differences between them. In few states of USA, living separately is also a ground for No Fault Divorce. A couple living separately must bring witness to testify the separation period.


What is a Fault Divorce?

A fault divorce is showing the fault or marital misconduct by either spouse for judicial termination. There are various grounds for Fault divorce such as abuse, adultery, cruelty, abandonment, desertion, mental illness, inability to engage in sexual intercourse, insanity, severe sexually transmitted diseases imprisonment or religious grounds.


What are the Grounds for Divorce?

Divorce is a subset of family law. The circumstances under which a person can be granted a divorce are known as grounds for Divorce. The U.S. Divorce Law differs from state. Each state has its own grounds to file for a divorce varying by state statutes. It is based on either fault or no-fault grounds. The state courts have jurisdiction to decide the matter. The petitioner must state the reason for divorce in the petition and file it in the state where he/she resides and follow all the rules for obtaining a divorce. These reasons can be:

  1. Desertion/Abandonment

If any of the spouse has physically left the marital home i.e. living separately for a long period of time results in desertion/abandonment. It can also be upheld as emotional desertion where the cruel behavior makes you feel to leave the marital home. Constructive desertion petition can be filed where one spouse leaves the relationship, rather than leaving the home.

  1. Carnal Abandonment /withholding Sex

Carnal Abandonment is a willful refusal to have sex with his or her spouse for an extended period of time. It is considered as a constructive abandonment.

  1. Abuse (Physical, Emotional or Psychological abuse)

Treating a person with cruelty or violence, regularly or repeatedly amounts to domestic violence which includes physical, Emotional or Psychological abuse.

  1. Adultery

Adultery means a spouse having an extra marital affair during the marriage. A single act of sexual intercourse by any spouse is sufficient to constitute adultery.

  1. Sexual Misconduct

This ground relates to unwelcome sexual conduct such as rape, coercion, intimidation,pedophilia or manipulation by the spouse.

  1. Alcoholism and addiction

An Alcoholic or Drug using spouse threatening under the influence. It has a major impact on child custody.

  1. Impotence

This ground varies from state to state. Your own testimony is not enough to cite this ground, medical records are required. In some state this ground is not granted unless you prove that impotence is permanent.

  1. Mental illness

It depends on the seriousness of the mental health illness. Each state in US examines this ground separately.

  1. Conviction

If a spouse has criminal history i.e. he has been convicted or charged with a crime. In some states of US, a minimum imprisonment of 12 months or more is required for this ground to be applicable.  

  1. Religious Grounds

If any spouse changes his religion during the marriage or develops strong or weak liking to their religion which is  not suitable to the other spouse. It is a less common ground for Divorce.


What are the costs for Filing a Divorce?

 The cost for divorce varies from state to state. California is the most expensive state to file in costing over $400 (excluding Divorce attorney fees). The cheapest is Wyoming costing over $70 (excluding Divorce attorney fees). It is advisable to investigate the total cost for filing a Divorce by consulting to a Divorce Lawyer in your area taking the filing fee into account.

What matters are included in a divorce settlement?

The divorce settlement agreement also includes matters of child custody, child support ,spousal support,, alimony, and the division of your property i.e. family home, vehicles or other assets, division of debt, etc. In many states of USA, the behavior of parties is taken into account  for deciding these matters in courts.

Divorce Law and Child Custody

Child Custody is the right given by the competent court to a parent to take important decision concerning a child’s life in general i.e. education, health, place of living religion, etc. The internationally accepted child custody principle is “the child resides in accordance with the best interest of the child”. Despite this principle, the child custody rules and requirements differ from state to state in USA.

Divorce & Child Custudy


How long you have to be married in order to get alimony or spousal support ?

Spousal support is granted to only those who are legally married. It varies from state to state. In some states a minimum of at least 10 years is required, other states limit the amount of alimony you can receive instead of seeing how long you have to be married before you receive it.

How is property divided after a divorce?

When the court grants a divorce, the property will be divided between the spouses equitably (not always equally decided under the Equitable Distribution Law. During the divorce both the spouses  must  tell the court about their total income and if they owe any debts.


What is equitable distribution?

Equitable distribution means dividing the property as fairly as the court thinks is possible. Although it doesn’t guarantee that the court will decide the property should be divided equally (50-50) between the spouses.


Which property can be claimed in divorce?

There are two types of property to be considered in a divorce

  1. Marital property: The property bought by either spouse during the marriage. The title name of property does not matter. Both the spouse are entitled for marital property. It can be divided between both the spouses.
  2. Separate Property: The property that you owned  before the marriage, inherited or was gifted to just you by someone other than your spouse. 

Can Separate Property Become Marital Property?

Separate property becomes marital property if it has been mixed with marital property.

What can wife claim in divorce?

The wife can claim for child custody, alimony or spousal support, division of marital property by hiring a family lawyer. In USA most of the states are equitable distribution states. However the wife cannot claim from her husband’s Separate property after divorce.

What is common law marriage?

A common law marriage is where the couple lives  together for a period of time and holds themselves as being married to their family, friends, and  community without  going through a formal ceremony or getting a legal marriage license.

Divorce and common law marriage

Divorce law requires to obtain a marriage license and enter into a legal relationship. Common law marriage in not legal and you can’t get a divorce legally unless your marriage is legal. It does not matter if you have lived together for a period of time or taken another name.


Questions to Ask divorce attorney on First Visit

1. Divorce law Attorney Fee

The first question you should ask during the consultation to a family lawyer is about the fee whether the attorney will charge you for each hour or a fixed fee. divorce proceedings can take years sometimes to get finalize, so you must be financially prepared.

2. Procedures of divorce

Every state in u.s. has different procedures to file divorce, you and your divorce attorney must follow it. The time for divorce to get finalized will depend on the complexity of your situation, so the lawyer should provide you with an estimated timeline.

3. Alimony and spousal support

Each States have specific whether a spouse may seek alimony/spousal support from the other spouse. In some cases, it depends on the length of marriage. All questions related to alimony must be asked during the initial consultation with your divorce attorney.

4. Child Custody and Child Support

When children are involved in divorce,who will retain custody is important.Therefore, you should ask your chances for obtaining to your divorce attorney.


5.Division of Marital Assets and Division of Debts

Most states in USA provide a straightforward method for allocating joint assets between the spouses. However, the division  varies for each state in USA  as state property laws dictate the ownership rights of the spouses. Therefore, it is important to ask your lawyer about the property division and debts if any.

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