There are two basic approaches to divorce: fault-based divorce and “no-fault” divorce. Most states permit a “no-fault” divorce because the marriage is irretrievably broken. Some states still require a fault-based divorce, some allow no-fault divorces, and a few states permit both. The fault grounds or reasons for divorce vary from state to state. Cruelty is a specific fault ground for divorce in most of the states that allow fault-based divorces. Before the introduction of no-fault divorce grounds, cruelty was the most frequently used reason in seeking a divorce.
One issue that arises in divorce proceedings is the use and possession of the family home, particularly when the spouses are living in the same house and both require use and possession of the home. If the parties have minor children, the custodial parent usually receives the right to use and possess the home to safeguard the children’s interests. This right is given to the custodial parent as a form of maintenance or support, in the court’s discretion. The right given to one of the spouses is limited to a specific period after the divorce, which is determined by the court. That benefit may last in some form until the parties’ youngest child no longer is a minor.
For purposes of no-fault divorce, states use various terms to describe the basic concept of marital breakdown, including irreconcilable differences, incompatibility, supportability, and irretrievable breakdown. The realization that existing divorce laws no longer comported with the modern marriage experience and marital life led most states to recognize marital disharmony as a basis for a no-fault divorce. Statutes usually provide some definition for the concept, and courts often have the discretion to apply the standard in individual divorce proceedings.
Personal injury awards are paid to injury victims to compensate for personal injury, pain, and suffering, lost wages, loss of future earning capacity, loss of consortium (i.e., loss of companionship), medical expenses, and damages to property when the loss occurred due to another’s negligence. In a divorce, a question might arise as to whether such awards can be considered as separate property or marital property, i.e. joint property of the spouses. There are two primary methods by which courts typically classify such awards as marital or separate property, i.e. the analytic approach and the mechanistic approach.
One of the most critical parts of the property distribution process in divorce is ensuring that the marital assets have been properly valued. Either an overvaluation of undervaluation of the spouses’ marital property can prevent the parties from receiving their fair share when their assets are divided.