Divorce

Introduction

Divorce is the legal termination of a marriage. The law of divorce has undergone fundamental transformation over the past half-century, with the shift from fault-based to no-fault divorce representing one of the most significant changes in American family law. Divorce proceedings address the dissolution of the marital relationship, the division of property, spousal support, and, when children are involved, custody and child support.

Grounds for Divorce

Historically, divorce required proof of fault grounds, such as adultery, cruelty, desertion, or imprisonment. The innocent spouse had to prove the other spouse’s misconduct to obtain a divorce. The fault system was widely criticized for encouraging collusion, perjury, and acrimony in divorce proceedings.

All states now permit no-fault divorce, under which a spouse may obtain a divorce without proving fault. The no-fault grounds are typically irreconcilable differences, irretrievable breakdown of the marriage, or living separate and apart for a specified period. Some states have retained fault grounds alongside no-fault grounds, and fault may still be relevant to property division or spousal support in some jurisdictions.

Property Division

Upon divorce, the court must distribute the parties’ property. Two approaches exist. Community property states (nine states) treat property acquired during the marriage as owned equally by both spouses. Each spouse is presumptively entitled to half of the community property upon divorce, though the court may make unequal divisions for equitable reasons.

Equitable distribution states treat property based on what is fair and equitable, not necessarily equal. The court considers factors including the length of the marriage, the contributions of each spouse to the marital estate, the economic circumstances of each spouse, and the conduct of the parties during the marriage. Equitable distribution gives courts broad discretion to achieve a fair result.

Alimony

Alimony (spousal support) is a payment from one spouse to the other after divorce. Alimony is not automatic; it depends on the circumstances of the case. Courts consider factors including the length of the marriage, the financial resources of each spouse, the standard of living during the marriage, the age and health of the parties, and the contributions of each spouse to the other’s earning capacity.

Types of alimony include temporary alimony (pendente lite) during the divorce proceedings, rehabilitative alimony to enable a spouse to become self-supporting, permanent alimony (increasingly rare), and lump-sum alimony. Alimony is modifiable upon a showing of changed circumstances and terminates upon the death of either party or the recipient’s remarriage in most states.

Division of Retirement Assets

Retirement assets accumulated during the marriage are subject to division upon divorce. The Employee Retirement Income Security Act (ERISA) requires a Qualified Domestic Relations Order (QDRO) to divide pension and retirement plan benefits. A QDRO is a court order that recognizes the former spouse’s right to receive all or a portion of the plan participant’s benefits.

The Uniform Divorce Laws

The Uniform Marriage and Divorce Act (UMDA) and the Uniform Premarital and Marital Agreements Act provide model legislation that has influenced state divorce law. While not all states have adopted these uniform acts, they reflect the modern approach to divorce, emphasizing no-fault grounds, equitable distribution, and the best interests of children.

Conclusion

Divorce law has evolved from a fault-based system to one that emphasizes no-fault dissolution and equitable resolution of financial issues. The principles of equitable distribution, the availability of alimony, and the division of retirement assets define the financial consequences of divorce. Understanding divorce law is essential for family law practitioners and for individuals navigating the dissolution of marriage.