Most couples don’t consider a state’s divorce laws when they’re deciding where to live or buy a house. Statistically speaking, though, about half of those couples will be profoundly affected by the very regulations they’re choosing to ignore.
Almost every part of the divorce process is regulated, and every state has its own laws, making for many potential variations. If you are divorcing in New York, for example, your experience might be vastly different from those of your friends in Connecticut and New Jersey – even though you all live close enough to one another to meet weekly for lunch!
The most central questions about the divorce process have different answers depending on where you live. Here are a few important examples:
When can you file?
Differences begin even before any legal filing is made, as you must first meet your state’s residency requirements. In some states, you can become a legal resident and file for divorce the next day. Others require in-state residence by at least one spouse for a specified time, possibly a year or more.
Many states also impose a waiting period before granting a no-fault divorce. A Minnesota resident wouldn’t have to wait at all, while her friend in Maryland could wait up to two years! It’s not just the length of the wait that varies, but also when in the process it is imposed. Some states mandate a wait between the Date of Separation (DOS) and filing for divorce; others require a certain amount of time after you’ve filed, but before your divorce can be finalized.
In addition, the Date of Separation is defined differently in different states. It might be the date on which one spouse officially informs the other of the intention to file for divorce, the date one spouse moves out of the marital residence, or the date of physical separation even if within the same house.
What belongs to whom?
Division of assets is the meat of the divorce process. The first step is to identify separate vs. marital property. Some states, including Connecticut, Massachusetts, Michigan, and Vermont, do not typically make the distinction, 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.
Other assets will usually be considered marital property and subject to division in divorce.
How will marital assets be divided?
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, of course, the factors (and the weight given each one) vary from one state to another.
What documentation will the courts require?
One of the most important and substantial requirements is a financial affidavit—a legal document listing your assets, debts, income, and expenses. Financial affidavits are called different things in different states. Your friend in New Jersey will file a “Case Information Statement.” In New York, they use a “Statement of Net Worth.”
Specific requirements for the information that must be provided vary from state to state. Generally speaking, the questions are exhaustive and detailed. Many women consult a divorce financial advisor to help them complete the affidavit.
What kind of support might your settlement include?
Laws governing spousal support are changing across the nation, and unfortunately, this so-called alimony “reform” poses serious concerns for divorcing women. The trend is to limit the duration of alimony payments, often linking it to the length of the marriage. Some states have banned alimony altogether, allowing for exceptions but making them nearly impossible to get. Others prohibit a spouse who has committed adultery from receiving alimony.
Variations in divorce laws can work for or against you in any given state, but education and preparedness are always your best strategies. You may have overlooked it when you decided where to live or bought your house, but make sure, when you are interviewing divorce attorneys, that they are expert in your state’s laws.
Reminder: Most states are Equitable Distribution states, in which marital assets might not be divided 50/50. Your situation is likely to be more complicated than that.
Hot tip: If you have homes in more than one state and can choose where to file for divorce, research the laws in each potential jurisdiction. A difference in state laws could mean a difference in the terms of your settlement, as well.
Legal matters: If alimony reform has not passed in your state, it is possibly pending. Contact your state representative to find out what’s happening in your legislature.