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As DivorceWriter celebrates its 15th year of providing uncontested divorce products and services, we’re taking a look back on how divorce has become easier and also looking ahead to the changes that still need to happen to make the process more efficient and accessible to everyone.
Before 2007, the only no-fault grounds for divorce in New Jersey required the spouses to live at different residences for 18 months before the divorce could be finalized. To speed up the process, New Jersey added a no-fault grounds allowing for a divorce when the couple has had irreconcilable differences that have caused the breakdown of the marriage for six (6) months or more. This new law has no separation requirement, which means that two people can now file for divorce on no-fault grounds, even if they still live together, as long as their marriage has been broken down for at least six consecutive months. Now, Arkansas is the only state with a no-fault grounds that requires an 18-Month no cohabitation separation requirement.
Until 2010, New York was the only state in the U.S. that didn’t offer a no-fault divorce grounds. Instead, someone filing for divorce was forced to allege fault, most commonly in the form of cruel and inhuman treatment or adultery. With the addition of the no-fault option, however, New Yorkers gained the ability to get a no-fault divorce on the grounds that the marriage has been irretrievably broken for at least six months. Although 80% of DivorceWriter customers choose no-fault, New York still retains six fault grounds.
Before the Maryland legislature added mutual consent as a grounds for divorce in October 2015, couples in Maryland were forced to be separated for 12 months before getting a divorce. However, the mutual consent law was lacking because while the new law allowed couples with no children to get an uncontested divorce without having to be separated for 12 months first, couples with minor children, even those who had reached an agreement on everything, still had to live apart for a year before filing for divorce, or instead file for divorce under one of the state’s more complicated fault grounds. Fortunately, in 2018, the Maryland legislature extended the mutual consent grounds to couples with minor children.
In June 2015, the U.S. Supreme Court in a 5-4 decision issued a ruling legalizing same-sex marriage nationwide, making the U.S. the 21st country to legalize marriage for gay and lesbian couples. Inherent in this ruling is the right of same-sex couples to end their marriages through divorce. Among the tasks that needed to be accomplished was switching legal forms to gender neutral language. Nearly five years later, there are still a few places where state-issued forms continue to use gender-specific language. For example, some state birth certificate forms don’t accommodate same sex parents. While there’s a presumption of that the husband is the father, it’s unclear whether all states will recognize a woman as the other legal parent just by virtue of being married to the mother at the time of birth.
Twelve states have statewide e-filing in new divorce cases, while nine states have e-filing in some counties. In Illinois and Iowa, all divorces must be e-filed, regardless of whether you have an attorney. In all other states where e-filing is available, it is optional for pro se filers.
There are several benefits of e-filing. Besides being more environmental and alleviating the storage issues facing courthouses, e-filing allows the filer to skip the trip to the court clerk's office.
The growth of social media in nearly every aspect of our lives has affected divorce in two ways. First, facebook and dating sites have become a leading cause of divorce by making infidelity easier. Second, social media activity can be used as evidence of fault (ex. adultery, spending money) and/or unfit parenting in divorce cases, when custody, property division and spousal support are issues. Judges have even allowed social media to be used to serve divorce papers.
Back in 2005, clerk’s routinely turned away pro se filers with minor children claiming that the law or the judge required them to have an attorney. While it's true that divorces involving children can present complicated issues with child support and custody, denying people the right to represent themselves is not the answer. Fortunately, the incidents of this are far fewer. One exception is Mississippi, where many judges still require an attorney in divorces involving minor children.
When spouses can agree on the division of property and debts as well as the custody and care of any minor children they have, divorces could be finalized without either party ever going to court, as is the case in about half of the states. The other half require at least one spouse to testify in open court to things that could have been sworn to under oath in affidavits or verified petitions.
In Texas, for example, which only requires a 60-day wait before the hearing to finalize your divorce can be held, if you live in Bexar County and want to represent yourself rather than hire a lawyer, it takes three to six times longer than that to end your marriage. That’s because the Bexar County Staff Attorney’s office, where all divorce cases filed by people without an attorney, or pro se, must be reviewed for legal sufficiency can the matter be set for a hearing to finalize the divorce, making the estimated time for the review process is anywhere from six to 12 months--several months longer than the 60-day required waiting period in Texas.
In states that offer a simplified or summary divorce option, where the parties have agreed on everything and often there are property limits and cannot involve children, require both parties to attend a hearing to finalize the divorce. This is the case in Florida and Illinois, among other, states. In non-simplified (standard) uncontested divorces in those states, only the spouse who files for divorce has to attend a hearing to finalize the divorce. It seems counterintuitive to call a process simplified when it requires both spouses to come to court.
There may be times when judges should require a hearing before finalizing a divorce, even if the parties have entered into a written agreement, such as (1) a child support amount that deviates significantly from the guidelines, (2) denying reasonable visitation to a non-custodial parent, and (3) one spouse receiving little or no property despite having limited means for self-support. When not of these is the case, it may be a waste of judicial resources to require a hearing to finalize an uncontested divorce with an agreement.
Unlike the federal courts, which implemented e-filing over a decade ago, state courts have been slow to get on board, particularly in family law cases like divorce. Twenty-nine states plus DC don’t offer e-filing in new pro se divorce cases. In some of those states, while attorneys can e-file divorce cases, people representing themselves without attorneys cannot. Even in Los Angeles County, with a population of more than 10 million, you cannot open a divorce case by e-filing. In most of the U.S., filing for divorce means what it always has--filing your paperwork (usually in triplicate) in person or by mail with the Court Clerk's office. That being said, in the next decade we likely see paper filings largely replaced by e-filing. That being said, we should expect to see e-filing largely replace traditional paper filings in the next decade.
The time it takes to get a divorce varies greatly by state. In states like Florida and Illinois, which offer a simplified divorce option for those who qualify, in many counties you can get divorced the day you file if both spouses are present. Meanwhile, in ents of reducing or eliminating waiting requirements argue that there are a lot of consequences that accompany divorce, especially for minor children, and that ending your marriage merits consideration.