Dissolution of Marriage: What Every Spouse Must Know before Filing

The no-fault dissolution of marriage is available in all fifty states and allows either spouse to terminate the marriage without alleging or proving any specific marital misconduct, and the legal standard for the no-fault ground, typically described as an irretrievable breakdown of the marriage or irreconcilable differences, requires only that one spouse assert in the dissolution petition that the marriage has broken down to the point where it cannot be repaired. Divorce and divorce-law counsel can evaluate whether the specific facts of the parties' situation satisfy the legal requirements for a no-fault dissolution of marriage in the applicable state, assess whether the applicable residency requirement has been met, and advise on the procedural steps required to initiate the dissolution proceeding and serve the respondent with the petition.

The simplified dissolution of marriage procedure allows qualifying couples to complete the dissolution with minimal court involvement and at significantly lower cost, but the eligibility requirements are strict, and most states require the parties to demonstrate that neither has significant separate property, that the total marital assets are below a threshold that varies by state, that neither party is pregnant, that there are no minor children of the marriage, and that both parties agree on all terms of the dissolution. Uncontested-divorce and marital-settlement-agreement counsel can advise on the specific eligibility requirements for a simplified dissolution of marriage in the applicable state, assess whether the parties satisfy the income, asset, debt, and child-status criteria required for the simplified procedure, and develop the marital settlement agreement that most efficiently resolves all outstanding issues while qualifying the parties for the simplified dissolution track.

The court's determination of the custody and visitation arrangement in the best interests of the child is based on a multi-factor analysis that includes the child's age and developmental needs, the quality of the relationship between each parent and the child, each parent's ability to provide a stable home environment, the child's adjustment to the current school and community, any history of domestic violence or substance abuse, and in older children the child's expressed preference. Family-court-investigation and custody-counseling counsel can advise on the specific factors that the court will apply in determining the custody and visitation arrangement that is in the best interests of the child, assess whether the specific facts of the parties' situation favor a joint custody or sole custody arrangement, and develop the custody proposal that most persuasively demonstrates the petitioner's commitment to the child's welfare.

The child support calculation in most states is governed by a specific statutory guideline that determines the presumptively correct monthly support amount based on both parents' gross incomes and the percentage of time the child spends with each parent, and the court is required to apply the guideline unless the application would be unjust or inappropriate based on the specific circumstances of the case. Child-support and child-custody-lawyer counsel can advise on the specific child support guidelines applicable in the parties' state, assess whether the guideline calculation accurately reflects both parties' income and the applicable deductions, and develop the legal strategy for obtaining a child support order that accurately reflects the child's reasonable needs and the obligor's ability to pay.

The table below compares the four principal legal frameworks that govern the division of marital property in a dissolution of marriage proceeding, identifying the states that follow each framework, the basic rule for dividing marital property, and the treatment of separate property under each system.

Equitable-distribution and property-division-on-divorce counsel can advise on whether the applicable state follows the community property or equitable distribution approach to marital property division, assess the characterization of the parties' specific assets as marital or separate property, and develop the property division strategy that most effectively protects the petitioner's share of the marital estate.

The mandatory financial disclosure that both parties are required to file in a dissolution proceeding is the primary mechanism for identifying the full extent of the marital estate, but the respondent who has concealed assets, diverted income, or failed to report business interests will not necessarily be identified through the disclosure process alone, making the assistance of a forensic accountant who can analyze tax returns, business records, and financial statements an essential element of the property division strategy in cases where concealment is suspected. Forensic-accounting-investigation and gray-divorce counsel can advise on the forensic accounting techniques available for tracing and valuing assets the respondent has failed to disclose, assess whether the available financial records indicate undisclosed business interests, cryptocurrency, pension benefits, or other concealed assets, and develop the discovery and expert witness strategy for establishing the full value of the marital estate.

Spousal support in a dissolution of marriage proceeding addresses the economic disparities created by the dissolution, particularly in cases where one spouse sacrificed career advancement to support the other spouse's career or to care for the couple's children, and the court will consider the length of the marriage, the standard of living established during the marriage, each party's current and future earning capacity, and the age and health of the parties in determining the appropriate support award. Alimony-payment and spousal-support-enforcement counsel can advise on the specific factors that the applicable state's court will consider in determining the amount and duration of spousal support, assess whether the petitioner's need and the respondent's ability to pay satisfy the applicable statutory criteria for an award, and develop the litigation strategy for obtaining the maximum appropriate spousal support award.

The final decree of dissolution of marriage incorporates all of the terms of the marital settlement agreement that the parties have negotiated or the court's rulings on the issues that the parties were unable to resolve, and the party who carefully reviews the final decree before it is entered by the court to verify that all agreed or adjudicated terms are accurately reflected is far better protected than the party who discovers errors or omissions after the decree has been entered. Family-law-litigation and divorce-decree counsel can advise on the specific legal requirements that must be satisfied before the court will enter the final decree of dissolution of marriage, assess whether the marital settlement agreement or the court's judgment on the contested issues is complete and enforceable, and develop the strategy for finalizing the dissolution most efficiently while protecting the petitioner's long-term legal and financial interests.