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Unfair Divorce Laws: Are States Out of Touch?

Divorce laws in the U.S. typically center on common themes: alimony, property distribution, residential laws, child custody, child support and the grounds for divorce themselves. However, while the majority of state divorce laws are substantially the same and reflect modern notions of equity and fairness, there are important individual differences, especially related to child custody, property distribution and grounds for divorce. In some jurisdictions, old laws predating current views on divorce are still on the books, leading some to complain of unfair divorce laws.

Are Your State's Divorce Laws Unfair?

What constitutes an "unfair" divorce law is often a matter of perspective and opinion. What is unfavorable to one spouse might be considered quite acceptable to the other. There are specific variations in states' statutes, however, that are often cited by divorcing parties, legal experts and others as raising issues of fairness.

For example, some states allow conversion divorce, which means that if a couple have been living separately for a certain period of time, they are automatically entitled to a divorce. Other states merely consider that time apart as a legal separation and hold that the couple is still legally married. Likewise, many states allow what is called a no-fault divorce, meaning that one party in a divorce need not allege fault, such as adultery or mental cruelty. Some, though, still do not.

There are also state-by-state differences involving distribution of property, child and spousal support, and the rights of fathers. Comparisons among these differences often lead to charges of unfairness when one state has adopted more modern and progressive laws and another hasn't.

Some Specific Examples

The New York Times took its state to task in 2010 for remaining the only state in the nation that does not have true no-fault or irreconcilable differences grounds for divorce. In an editorial, the paper said:

"The current rules inflict serious financial and emotional costs. Litigants end up spending thousands of dollars in unnecessary legal fees, and courts devote significant time to airing the painful and highly personal details of a breakup. It is a ridiculous use of judicial resources at any time, but especially in tough fiscal times."

Likewise, Illinois has been chastised by some legal experts for what they consider outdated custody language in its Marriage and Dissolution of Marriage Act. Massachusetts is widely considered to have vague and onerous alimony laws that allow for, for example, alimony for life. In nearly every states there are specific statutes that are cited as examples of unfairness.

Dealing with Unfair Divorce Laws

The Legal Information Institute at Cornell University Law School has detailed information on divorce laws in all 50 states, the District of Columbia and Puerto Rico. This resource, as well as a local divorce lawyer, can help you make the most of the opportunities your state laws allow and limit the chance that you will end up with a divorce agreement you feel is unfair.