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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.
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 October 12, 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 cruel and inhuman treatment and adultery, to get a divorce. With the addition of the no-fault option, however, New Yorkers can get a no-fault divorce on the grounds that the marriage has been irretrievably broken for at least six months without alleging fault on the part of the other spouse. In addition to six-months’ irretrievable breakdown, New York still offers six fault grounds. Approximately 80% of DivorceWriter's New York customers select , the remaining customers who selected a fault ground selected the following grounds most frequently: Abandonment, Cruel and Inhuman Treatment, and having a Settlement Agreement on file for more than a year.
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 married. However, the addition of mutual consent 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.
On June 26th 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. Twenty-nine states plus DC don’t offer e-filing in new pro se divorce cases. In some of those states, attorneys can e-file divorce cases, but people representing themselves without attorneys cannot. 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.
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, making infidelity easier. Second, social media activity is often used as evidence of fault or unfit parenting in contested divorce cases, especially those involving custody, property division and spousal support. Judges have even allowed social media 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 get an attorney. While the intention was probably good given that divorces involving children can present complicated issues with child support and custody, denying people the right to represent themselves, especially those who lacked the resources to hire an attorney, is not the answer. Instead, if the judge has a concern, such as about a major child support deviation or the parenting plan, those things could be addressed in the courtroom. Fortunately, these days we don’t often hear who were told they couldn’t get a divorce with minor children without a lawyer, the incidents are far fewer.
While the situation has improved, clerk’s routinely would tell people that online divorce paperwork would not be accepted and then follow up by directing to a website where they could obtain nearly identical paperwork online. The streamlining of divorce with uniform documents, self-help options and the acceptance of online document sources have made it easier for people to get a divorce without an attorney.
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, not to mention the added stress on the parties (ex. unpaid time away from work, arrange a babysitter and possibly transportation) to always require a hearing to finalize an uncontested divorce by 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. Even in Los Angeles County, with a population of more than 10 million, you can't 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. 12 states have statewide e-filing in new divorce cases. Nine states have e-filing in some counties. Twenty-nine states plus DC don’t offer e-filing in new pro se divorce cases. In some of those states, attorneys can e-file divorce cases, but people representing themselves without attorneys cannot.