State Legal Requirements for Divorce
Married couples in every state may terminate their marriage through the process of divorce (often called "dissolution of marriage" in statutes). Each state has statutory requirements and procedures for the divorce process. These requirements typically include state residency, waiting periods, grounds, and defenses to divorce. While annulment is similar to divorce in that it ends a marriage, annulment only applies to marriages that never should have been granted in the first place.
Divorce Eligibility Under State Law
Make sure you are, in fact, eligible for divorce before you file for one, particularly if the marriage was recent. Most states require at least one of the parties to be a resident for a few months (often 90 days). Many states also impose a waiting period for no-fault divorce, up to two years in some states. Also, some states that do not recognize same-sex marriage also do not grant same-sex divorces. This may well change as this area of law rapidly evolves.
State divorce requirements tend to vary the most with respect to residency and waiting periods. For example, a Missouri statute requires either party to be a resident of the state for at least 90 days before filing for divorce but has no waiting period. Connecticut, meanwhile, has a 12-month residency requirement and a 90-day waiting period.
Separation or Reconciliation Prior to Divorce
A number of states have what are called "reconciliation counseling" laws focused on saving the marriage prior to finalizing a divorce. Florida courts, for example, may put divorce proceedings on hold for three months if minor children are involved or the other party denies the marriage is irretrievably broken. During this period, both parties work with a specially trained reconciliation lawyer to work out differences and "fix" the marriage. Even if the marriage is not saved, the reconciliation process may help minimize the pain of divorce.
Most state courts will automatically enter a divorce decree if the parties have been legally separated for a period of time, often one to two years, and meet the basic eligibility requirements.
Grounds for Divorce
A "no-fault" divorce may be obtained in any state, often referred to as "irretrievable breakdown" or "irreconcilable differences." A no-fault divorce is one in which neither party is solely responsible for the breakdown of the marriage, as opposed to cases where one of the parties had an affair or otherwise violated the terms of the marriage.
Other grounds for divorce are based on the assumption that one of the parties is at fault. State laws differ, but most states allow parties to file for an "at-fault" divorce if the other party:
- Acts in a cruel or violent manner (such as domestic violence)
- Is a habitual drug user
- Is convicted of a felony
- Has abandoned his or her spouse
- Is unable to consummate the marriage
In addition, most states allow divorce if one's spouse is mentally incapacitated for a period of time. For instance, someone who is institutionalized for a serious mental health disorder may not have the capacity to agree to a divorce.
Contact a divorce attorney in your state for more information.