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Q: Divorce differences between states ( Answered 5 out of 5 stars,   0 Comments )
Subject: Divorce differences between states
Category: Family and Home > Families
Asked by: mlsreality-ga
List Price: $100.00
Posted: 02 Apr 2006 07:35 PDT
Expires: 02 May 2006 07:35 PDT
Question ID: 714599
I am about to move from high-priced California to another state.  In
considering which state to move to, unfortunately I must also consider
how each state treats divorce, as my wife and I may divorce in the
next year. While I already know about the 7 community property states, are
there other factors or criteria by state that I should consider in my
selection of a new state?
Subject: Re: Divorce differences between states
Answered By: wonko-ga on 02 Apr 2006 11:08 PDT
Rated:5 out of 5 stars
In addition to deciding whether or not to move to a community property
state, there are many differences between the states in how divorce is
handled.  Other factors you may want to consider include provisions
for alimony, child support and visitation rights, requirements for
establishing residency, waiting periods before a divorce can be
finalized, and whether or not the state offers no fault or fault
divorces (Nevada even offers both kinds).

Note that if you have a prenuptial or postnuptial agreement, "It's
very important to note that any time you change jurisdictions; you
must verify that your legal documents are valid in the new state where
you live."  "Prenuptial Agreements-True Love for True Greed?" 
You would want to check with a family law attorney regarding the
enforceability of your prenuptial or postnuptial agreement before you
moved so that you would know if it would be valid if your spouse did
not want to cooperate in making required changes to it to make it
enforceable in the new state.

Here is a listing of the factors that tend to be important to most people:

"Divorce in an American Court: If the parties cannot agree on issues
such as the division of property, custody, visitation and child
support, then the best option would be to file in the home state of
one of the parties. As each state's divorce laws differ, the
information provided below is general. You should consult with a legal
assistance attorney regarding the specific laws of your state.

a. Grounds. Most states have "no fault" divorce. Generally, one party
simply alleges irreconcilable differences. Some states still have
grounds for divorce where one party alleges fault. A legal assistance
attorney can give you more information.

b. Custody. Most states award custody of minor children based on the
"best interests of the child." To determine the "best interests of the
child," courts generally look at factors such as who was the primary
caretaker. Some states have created rebuttable presumptions in favor
of victims of spouse abuse when determining custody. Generally, there
are two types of custody: physical and legal. The children reside with
the parent awarded physical custody. The parent awarded legal custody
determines matters such as education and religious training.

c. The Uniform Child Custody Jurisdiction Act. Every state has adopted
some form of the Uniform Child Custody Jurisdiction Act (UCCJA) or the
Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). These
acts provides that only a child's "home state" has jurisdiction to
award custody. Generally, the "home state" is defined as a state where
a child has resided for six months, or where the child has significant
contacts. Consult with a legal assistance attorney if you have
questions about "home state" jurisdiction.

d. Child Support. Most states have enacted "child support guidelines,"
requiring the non-custodial parent to pay child support. Generally
there are two types of child support guidelines. The first type
determines support by taking a flat percentage of the non-custodial
parent's net income. Net income is income after taxes. The second type
determines support pro rata by considering each party's income and
expenses. Some states require mandatory allotment. Child support is
then taken out of the non-custodial parent's pay and is either paid
directly to the custodial parent or through a child support
enforcement agency.

e. Spousal Support. Spousal support or "alimony" varies from state to
state. Some states allow only temporary spousal support until the
divorce is final. Other states allow only rehabilitative alimony.
Rehabilitative alimony is awarded to a spouse temporarily until he or
she can complete his or her education or start over in a career.

f. Property Division. Most states require an equitable distribution of
marital property- Equitable distribution may or may not require the
parties to divide marital assets equally. If the parties cannot agree,
the court will decide based on the facts and circumstances of the
case. Again, some states have enacted factors to be used in
determining division of property.

At least seven states are "community property" states. Generally in
"community property" states, the parties will each be awarded one half
of the marital assets. However, the court can deviate from that based
on the facts and circumstances of the case. Ask a legal assistance
attorney about your state's law."

"Divorce Advice" Law Center

"State Divorce Information" (2005) provides convenient
summaries of divorce laws by state accessible by clicking on each
state in the frame on the left-hand side of the page.  These summaries
will give you a general idea of differences between the states.

"U.S. DIVORCE RATES & LAWS" provides information
about waiting periods and counseling laws in each state.  Note that
spousal consent plays a role in some states in determination of the
waiting period.

"Child Support Calculators" (2005) provides calculators
to determine child support obligations for each state.

"Divorce Laws of the Fifty States, District of Columbia and Puerto
Rico" Legal Information Institute, Cornell University Law School provides links to
tables summarizing divorce laws in the 50 states and to the applicable
statutes for each state.

"Divorce State-by-State" (2006) provides links to
information about divorce laws organized by state.

"Family Law Statutes By State" SPARC provides another set of
links to state statutes governing divorce and other family law issues.

In conclusion, if you desire to finalize a divorce within the next
year, identifying states that require relatively short stays in order
to establish residency for divorce purposes and that have short or no
waiting periods would be necessary to accomplish your goal.  Nevada
requires only one spouse to have lived in the state for six weeks in
order to obtain a divorce, does not impose a waiting period, and
provides no fault divorces if a statement of incompatibility is filed.
 However, it is a community property state.



Search terms: best state for divorce; divorce law "by state"

Request for Answer Clarification by mlsreality-ga on 02 Apr 2006 14:02 PDT
To be more specific:
We have no children.  I have earned considerable assets from stock
options. While my wife works, she has not earned a "living wage" for a
while.  We have no prenup.

What I was looking for was a state-by-state basic understanding of
alimony and division of assets.  While I understand that "equitable
distribution" covers a lot of ground, is there any way that I can
understand if states differ in how they approach this issue?

Clarification of Answer by wonko-ga on 02 Apr 2006 15:22 PDT
Alimony and property division are both highly subjective decisions,
making it impossible to predict what might happen in your case.  I
have gathered some additional resources below explaining why this is
the case and what factors are usually considered.

I have learned that New York does not offer "no fault" divorces,
making it particularly unattractive, and that Connecticut includes
alimony in 25% of divorces, which is well above the national average. 
"Divorce" Wikipedia (April 1, 2006)  However, the
differences between most states tend to be subtle, and judges have
enormous discretion to arrive at what they consider to be a "fair"
agreement in "equitable distribution" states.

Unfortunately, I have not been able to locate any resources which
would indicate that a particular state is the best one for a wealthy
person to get divorced in.  There is sufficient uniformity among the
states that, aside from avoiding community property states, factors
regarding residency and waiting periods are likely to be the deciding
factors.  The availability of a no fault divorce is also likely to be
desirable, unless you will be seeking to assign fault to your spouse. 
Most states will require you to live there for some time prior to
granting a divorce, so I would start with states where I might want to
live that are not community property states (states other than
Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas,
Washington, and Wisconsin), use the links I have provided to read
those states' divorce statutes, and then follow up with a divorce
lawyer located in those states that interest you to understand any

Nationally, alimony is awarded in only about 15% of divorces or
separations.  "Alimony/Maintenance" ABA

"The purpose of alimony is to avoid any unfair economic consequences
of a divorce, even after property is divided and child support, if
any, is awarded. Courts set few specific guidelines to attaining this
broad goal: instead of telling judges how and when to award alimony,
most courts simply grant them broad discretion to decide what is fair
in each case."

"No mathematical guidelines exist to tell courts how to calculate
alimony. In addition, each state legislature sets its own policy
regarding whether and when alimony may be awarded.

The Uniform Marriage and Divorce Act (UMDA), which many states use as
a model, recommends that courts consider the following factors:

The financial condition of the person requesting alimony; 
The time the recipient would need for education or job training; 
The standard of living the couple had during the marriage; 
The length of the marriage; 
The age, physical condition, and emotional state of the person requesting alimony; 
The ability of the other person to support the recipient and still
support himself or herself."

"What is Alimony?" West's Encyclopedia of Law

"Each state's law specifies a set of factors for a judge to consider
in granting alimony.  Although these factors vary from state to state,
they typically include the following:

The standard of living of the parties (higher means more alimony).

The ability of the payer to pay (more means more alimony).

The parties' reasonable needs under the circumstances.

The income and property of each party.

The duration of the marriage (longer means more alimony).

The age and health of both parties.

The present and future earning capacity of both parties.

The ability of the party seeking maintenance to be self supporting,
how long that will take, and what training will be required.

Any reduced or lost lifetime earning capacity as a result of having
foregone or delayed education, training, employment, or career
opportunities during the marriage.

The presence of children in the respective homes of the parties.

The tax consequences to each party.

The contributions as parent, wage earner, homemaker, and to career or
career potential of the other party.

The wasteful spending of marital property by either spouse (the
spender is penalized).

Any giving away of marital property before the divorce filing (the one
who gave it away is penalized).

Cohabitation of the recipient spouse, as it affects his or her needs."

"Finance - Alimony Alternatives" Family Law Software, Inc. (2006)

"Will the division of property and potential spousal support be
affected by whether or not I obtain a fault or no-fault divorce?
That depends on the state. In some states the court can consider the
spouses' faults in deciding how to distribute property and provide
spousal support. In a no fault divorce situation, the actions of the
respective spouses in the breakdown of the marriage do not affect
property distribution or spousal support rights."


"Tables Summarizing the Law in the Fifty States" show which states
allow fault to play a role in determination of alimony.

"What is ?equitable distribution?? 
Most states employ "equitable distribution" in dividing marital
(community) property as a result of the dissolution of marriage
(divorce). Instead of a strict fifty-fifty split (in which each spouse
receives exactly one-half of the marital or separate property),
equitable distribution looks at the financial situation that each
spouse will be in after the termination of the marriage. While
equitable distribution is more flexible, it is harder to predict the
actual outcome, since the various factors are subjectively weighed.
Factors considered in equitable distribution include:

1. Earning power of the spouses (one might be much greater than the other) 

2. Separate property of the spouses (one might be greater in value than the other) 

3. One spouse having done all the work to acquire the property 

4. The value that one spouse contributed as the home-maker for the family 

5. Economic fault of one spouse in wasting and dissipating marital property 

6. Duration of the marriage 

7. Age and relative health of the spouses 

8. The responsibility for providing for children of the marriage 

9. Spousal abuse or marital infidelity (to penalize the offending spouse)."


"Each state?s divorce laws set forth mandatory "factors" judges must
consider before making an equitable property division or awarding
alimony. Some states also have "discretionary" factors courts may
consider. Here are some mandatory "factors" incorporated into most
state laws. Ask you lawyer for a copy of your state?s statute.

Length of the marriage 
Age, health, occupation of the parties 
Station in life and life-style 
Liabilities and needs 
Contribution to the marital estate (economic, domestic, child-rearing, etc.) 
Assets and liabilities, sources and amount of income 
Behavior of the parties during the marriage 
Vocational skills, employability"

"Definition of Equitable Distribution" DivorceNet (July 17, 2004)

"Property Division by State" DivorceNet
provides links to information about property division for most states,
although some have more information than others.


mlsreality-ga rated this answer:5 out of 5 stars
The researcher provided very good references, and general summaries of
the issues involved. The researcher laid out the facts available and
provided a general guide through the issues.  It appears that there is
no rating services available, which would lead to the more detailed
comparison I was hoping for.

There are no comments at this time.

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