Starting a divorce case
People who are married have the right to terminate their marriage through a legal process known as divorce. Often called the dissolution of marriage in state statutes, there are statutory requirements and procedures to meet before you complete this process. Typically, the legal requirements include residency, mandatory waiting period, separation or reconciliation counseling and legal grounds.
For most state laws, the dissolution of marriage must be filed and decided in the proper court. A “no-fault divorce” policy exists in all states. This means that the court does not determine which spouse is guilty of marital misconduct, such as having an affair, before granting the divorce.
If you decide to file for divorce, you must have resided in the county and state for a certain period prior to filing. The length of period in most states is six months. For the county level, the typical residency period is three months.
Mandatory Waiting Period
There is a mandatory waiting period that begins from the date you file to the finalization of your divorce. In other words, do not expect your divorce to become final on the same day that you file. On average, your waiting period is six months, but could be from zero to 12 months.
Separation or Reconciliation Counseling
Some state courts will automatically grant your divorce, without a waiting period, if you have been legally separated from your spouse for at least one or two years. Additionally, there are basic eligibility requirements to meet before a divorce is granted under this circumstance.
Many states have reconciliation counseling laws that are designed to save the marriage before the divorce is finalized. Some courts will place divorce proceedings on hold for three months when minor children are involved. The court might also delay proceedings if your spouse believes the marriage is not irretrievably broken.
During the counseling session, you and your spouse can work with a trained reconciliation attorney and attempt to fix the marriage by working out differences. Even if this does not save the marriage, the process may help to minimize the pain of going through a divorce.
Other than separation, states generally will recognize irreconcilable differences as another legal grounds for divorce. In its simplest form, irreconcilable differences means the difficulties in your marriage cannot be reconciled, which have led to a permanent breakdown of your marriage.
You may also have grounds for divorce under the at-fault rule, which could apply if either you or your spouse:
• Displays cruel or violent actions, such as domestic violence
• Is addicted to drugs
• Has been convicted of a felony
• Has abandoned the other
• Is mentally incapacitated and institutionalized due to a serious mental health disorder
• Cannot consummate the marriage
Meet Jurisdictional Prerequisite
The legal requirement applies to filing for divorce in the appropriate court. Typically, this is the county where either you or your spouse has lived for at least three to six months before the divorce was filed.
Making Sure You are Eligible for Divorce
Before proceeding with filing for divorce, make sure you meet the eligibility requirements. This is particularly true if you were recently married. Most states have a residency requirement of up to 90 days. Others may impose a waiting period if you want a no-fault divorce. This could last for two years.
Also keep in mind that there are states that do not accept same-sex marriages as a legal union. Therefore, those states will not grant same-sex divorces. Laws governing this type of union continue to evolve and may change in the near future.
This guest blog post was written by NYC divorce attorney Steve Raiser.