Divorce law varies by state, Grownups. Know the rules that apply where you live so you can be an informed negotiator.
Geography can impact many aspects of your divorce, both now and in the future. Ask these important questions so you can plan accordingly.
1. When can I file for divorce and on what grounds? You may be ready to file for divorce, but will your state make you wait? Years ago, most states required you to file for divorce on fault grounds, such as extreme cruelty, adultery, alcohol/substance abuse, or abandonment. While these grounds still remain available in some states, all states have now adopted some form of no-fault divorce, such as “irreconcilable differences” or “separation.” The question you need to ask is whether your state requires a mandatory waiting or separation period before you’re permitted to file on no-fault grounds.
For example, in New Jersey, if you choose to file under the no-fault grounds of “irreconcilable differences” in your complaint for divorce, you must state that you and your spouse have been at odds for a period of six months or more. (However, there’s no requirement that you be separated or living apart during that six-month period.) In other states, there’s a mandatory separation period before you can file on no-fault grounds. This separation period may be longer depending on whether or not you have children.
2. Where can I file for divorce? Many states require that you’ve been a resident for at least a year before you can file for divorce. So, what do you do if you recently moved? What if you and your spouse are now separated and live in different states? What if you own property in more than one state? It’s important to discuss the jurisdictional requirements with an attorney in your area to find out which state (and even county) you should file in.
3. Am I likely to pay or receive alimony/spousal support in my state? Will I have to pay for health insurance benefits for my spouse? The laws governing spousal support can be very different depending on where you live. For example, some states have set guidelines for calculating the amount and duration of alimony, whereas others just give vague “factors” the court should consider. Some states require that you be married for a certain number of years before you can even qualify for alimony; others have no such requirement. In the past few years, Massachusetts passed an alimony reform bill that eliminated “permanent” or “lifetime” alimony, and set limits regarding term alimony.
When you meet with an attorney, ask whether your state recognizes the following four types of alimony, and how each could impact your divorce:
– Temporary or limited duration: This type of alimony can be ordered during the separation period or for a limited period following your divorce.
– Rehabilitative: This alimony gives a spouse who has been out of the workforce sufficient support to obtain the skills necessary to re-enter the workforce. Often this amount will be calculated based on the cost of going back to school to obtain or finish a degree or trade.
– Permanent: Now eliminated in many states, this type of alimony continues until either party’s death or the remarriage of the spouse receiving the alimony.
– Reimbursement: In some states, if you earned your educational degree during the marriage, your spouse may be entitled to “reimbursement” either for the marital contributions made to your education or the expected future earnings you will receive as a result of your degree.
4. Do I live in a community property or equitable distribution state? Will my inherited or premarital assets be protected or subject to distribution? It’s important to know how your state determines the division of both assets and debts: In some states, even if you kept an asset in your individual name, if it was acquired during the marriage, your spouse can get his or her share.
5. Will I be allowed to move after my divorce is finalized? If you have a shared custody arrangement with your spouse, you may be required to get your spouse’s (or the court’s) permission before you can relocate to another state with your child.
6. How long will I have to pay (or will I receive) child support? Can my spouse (or I) be compelled to pay for our children’s college costs? In some states, you’re required to pay or entitled to receive child support until your child has graduated from college. In others, a child is considered emancipated at age 18.
7. How soon should I update my will/estate? Many states prohibit changing the beneficiary designations on your retirement accounts and life insurance policies during the divorce process. However, once everything is finalized and your assets are divided, you should have your will reviewed and updated. Keep in mind you may be required to maintain life insurance for the benefit of your spouse and children post-divorce as part of the final settlement or judgment.
Of course, each individual case—and state requirements—will be different. To avoid potential problems, make sure you get advice from a lawyer specializing in family law in your area.
Kristin M. Capalbo is a family law attorney based in New Jersey.
This post is not legal advice and does not create a confidential attorney-client relationship. It is being offered for informational purposes only. For personalized advice, consult a family law attorney in your area.
Read more in our Grownup Divorce series:
- What are You Actually Deciding When You Plan to Get a Divorce?
- I’ve Decided to Get a Divorce. What Will it Cost?
- How Will My Finances Change After I Get a Divorce?
- Is a Pre-Nup Right for You?