united-states family-law divorce
Is there a better state for men divorce?
<p>I am currently overseas and will be returning to the state of my choosing soon.  I need to get a divorce and don't want to land in a man hating state.  I have 3 kids and have been married for 9 years.  I'm the higher income earner since she refused to work and since I work from home I do the parenting too.  It's important I at least get 50/50 of my kids.</p>

<h1>General Considerations</h1>
<p>While I am not convinced that this question isn't proper for this site, I don't think that, for the most part, it has a clear and simple answer.</p>
<p>Also, strictly speaking there is no such thing as a &quot;man-hating state&quot; because <em>de jure</em> distinctions based upon gender in divorce law are constitutionally forbidden. But, that doesn't mean that some states don't have laws that are usually more favorable to a typical man than others. For example, there is meaningful variation between states in the law of maintenance (a.k.a. alimony) that favor the more or the less affluent spouse, although less than you might naively expect.</p>
<h1>Interstate Differences</h1>
<p>There are a handful of states that are quite distinctive. For example, in the states where I am licensed, New York State was the last state to have a &quot;no fault&quot; divorce option, which could help you or hurt you depending on the circumstances as judges there still have a mindset that fault matters, and Colorado has some distinctive rules related to presumptive maintenance awards, to non-parental custody claims, and to the treatment of property received by gift, or inheritance or owned prior to the marriage.</p>
<p>But, most U.S. states are very similar on most important issues, particularly on matters of child support (where federal welfare regulations create strong incentives for states to have almost uniform laws) and parental rights and responsibilities (where the &quot;best interests of the child&quot; standard is almost universal with only slight differences in case law). Every state now has a &quot;no fault&quot; divorce option (and most completely disregard all forms of marital fault in making their decisions) and most states afford judges in divorce cases very wide discretion on issues of property division and maintenance.</p>
<p>There are differences between states regarding the legal standard for dividing property in divorce (some states are &quot;community property&quot; states, some are &quot;quasi-community property&quot; states and some a separate property states each of which have detailed rules that matter in some states). But, it also isn't uncommon, for example, to divide property acquired in a community property state according to the community property rules of the state where the property was acquired rather than the property division rules of the state where the divorce is taking place. The differences tend to be greatest in situations where there is substantial property owned by a spouse that was owned prior to the marriage or was received by gift or inheritance, particularly in a long marriage.</p>
<p>There are also some states that have more specific rules governing maintenance awards (a.k.a. alimony), but the majority rule affords a judge immense discretion in making maintenance awards. So, often the tradeoff is not so much between a more favorable regime and a less favorable regime on the merits, but between a more predictable regime and one with a greater range of possible outcomes, even though the outcome in the average case may be very similar.</p>
<p>Sometimes very fine details can really matter (often much more than &quot;big picture&quot; issues that are used to classify state divorce law regimes).</p>
<p>For example, some states use the economic circumstances of the parties on the date that the divorce is filed to make decisions on property division and maintenance, while others use the date of the divorce hearing. If your family's economic circumstances are in rapid flux, either up or down, that difference could be huge in your particular case. And, incidentally, there is nothing inherently pro-husband or pro-wife about either rule. One rule might favor men with rising fortunes, while another might favor men with falling fortunes.</p>
<h1>Intrastate Differences Are Mostly More Important Than Interstate Differences</h1>
<p><strong>For the most part</strong>, however, <strong>the differences in typical outcomes between particular judges and particular geographic regions within a state are more important than the differences between states.</strong> This is also why you should usually ignore anecdotal evidence you hear that is usually specific to a judge in someone's case, rather than having much to do with the law of a particular state. Your mileage will vary.</p>
<p>Judges in affluent counties, for example, may be more inclined to think that a higher alimony award is necessary to maintain someone's standard of living, but may also be more sophisticated on average, in understanding assets like ownership interests in closely held businesses or complex financial instruments, that may be unfamiliar to judges in less affluent counties.</p>
<p>Divorce cases in counties that are growing rapidly in population typically take longer to process cases than in counties that have stable or declining populations, because the number of judges assigned to a county typically lags behind changes in population, and judges with larger case loads only have so many days a year upon which they can hold hearings. There are some counties in Colorado where you can get a two day divorce hearing six months after the case is filed and others where you can expect a two year wait for a two day divorce hearing, due to differences in local caseloads.</p>
<p>Particularly in &quot;best interests of the child&quot; determinations, the outcome is inevitably influenced by the personal life experiences of your particular judge and two different judges in the very same county could easily come up with radically different decisions based upon precisely the same facts.</p>
<p>Some of this, on average, is influenced by regional culture. For example, an average judge in rural Alabama may have different ideas about the best interests of the child, than an average judge in Seattle, Washington. But, your case wouldn't be in front of an &quot;average judge&quot;, it would be in front of one particular judge. It is entirely possible, for example, that your rural Alabama judge spent most of his life in Seattle, was chosen to serve as a judge because there were no other qualified lawyers who wanted the job in that rural county, and has views about what is in the best interests of a child that are very different from the &quot;average&quot; rural Alabama judge. In general, judges in rural areas are more urban in their sensibilities and more secular in their world views than the general population (per a survey of rural judges I saw in print form and no longer have an easy way to cite).</p>
<h1>How To Evaluate Your Options</h1>
<p>As a practical matter, the best approach for someone in your situation is to identify several different particular places you might choose to move (down to the particular county level), and then talk to lawyers in each to evaluate your likely prospects in light of the facts of your particular case.</p>
<p>While a lawyer licensed in only one state is generally not forbidden from comparing the law of multiple states by the laws of professional responsibility, the practical reality is that few lawyers have the kind of expertise necessary to do so on a national basis. You might find a lawyer near a state boundary who is knowledgable, for example, about the differences in the divorce laws between New Jersey, New York and Connecticut that are all present in the same metropolitan area. But, there are few lawyers personally qualified to make meaningful and accurate comparisons between, say, Georgia, Maine, North Dakota, Texas and Idaho.</p>
<h1>Your Attitude Towards The Process Matters</h1>
<p>Finally, one sentence in your question really sticks out: &quot;I need to get a divorce and don't want to land in a man hating state.&quot; So does your statement &quot;It's important I at least get 50/50 of my kids.&quot;</p>
<p>These sentences reflect a somewhat cynical and self-centered attitude towards divorce law and the divorce process, in general, which is quite common among men contemplating a divorce, and which almost always receives a negative response from judges, no matter which county they serve.</p>
<p>If a judge sniffs a hint that you think that the process isn't fair, or if a judge discerns that you care more about what you want than what is best for your kids and fair for your wife, almost every judge in every jurisdiction will burn you. If a judge gets any sense that you have that kind of attitude, you are almost certain to have a worse result in almost all matters in which the judge has any discretion, which is almost all of them in a case like yours.</p>
<p><strong>UPDATE July 9, 2019 To Address Additional Sub-Topics:</strong></p>
<p>Two areas where there are significant differences in the law between states are how infidelity is treated legally and how marital agreements are treated.</p>
<h1>Heartbalm Lawsuits</h1>
<p>One quite important issue in a handful of outlier states is the existence or lack thereof of heart balm lawsuit such as lawsuits for &quot;alienation of affections.&quot; These are lawsuits by a spouse against someone having an affair with that spouse (usually as satellite litigation parallel to a divorce).</p>
<p>As explained <a href="https://washparkprophet.blogspot.com/2010/09/alienation-of-affections-tort-lives-in.html" rel="nofollow noreferrer">here</a> (with further sources at the link), as of 2010:</p>
<blockquote>
<p>[I]n fiscal years 2000–2007, there were an average of 230 alienation
of affections filings in North Carolina per year — a bit over 0.5% of
the number of all divorces. The tort is also recognized in Hawaii,
Illinois, Mississippi, New Mexico, South Dakota, and Utah, but it
seems to be often litigated only in North Carolina and (to an
apparently smaller extent) in Mississippi[.]</p>
</blockquote>
<p>Prevailing parties have won hundreds of thousands to millions of dollars. These states also frequently allow the consideration of fault in making economic decisions in divorce cases as well (although the &quot;best interests of the child&quot; standard is the norm even in these states).</p>
<p>The U.S. Supreme Court has declined to declare these actions unconstitutional on several occasions (usually be simply denying certiorari in cases well suited for addressing the issue).</p>
<p>Most other states have abolished these lawsuits, and in Colorado, it is actually a crime to try to file one in its courts or to attempt to secure a settlement of such a case.</p>
<p>In a case where infidelity is at issue, this factor can be a very significant one. Choice of law issues (i.e. determining which cases are and are not, for example, subject to the North Carolina alienation of affections tort in various complicated fact patterns with some in state facts and some out of states facts), can be very tricky, however.</p>
<p>I am certain that this is still good law in North Carolina and Mississippi, but the status of these lawsuits in other jurisdictions may have changed in the last decade.</p>
<h1>Criminal Adultery Statutes</h1>
<blockquote>
<p>[In] Virginia, as in 22 other [states] including Massachusetts, adultery
remains a criminal act, a vestige of the way US law has anchored
legitimate sexual activity within marriage.</p>
<p>In most of those states, including New York, adultery is a
misdemeanor. But in others — Massachusetts, Idaho, Michigan, Oklahoma,
and Wisconsin — it is a felony, though rarely prosecuted. In the armed
forces, it can be punished severely, although usually in combination
with greater wrongdoing.</p>
<p>In nearly all the rest of the industrialized world, adultery is not
covered by criminal code.</p>
</blockquote>
<p>From the <a href="https://www.bostonglobe.com/news/nation/2012/11/15/adultery-still-crime-states-including-mass/KiIPGRcFnAeT4CGmenFTKM/story.html" rel="nofollow noreferrer">Boston Globe crediting the New York Times (November 15, 2012)</a>.</p>
<p>As of 2019, only 19 states have criminal adultery statutes as several states have repealed this statutes since 2012.</p>
<p>In the context of a divorce in a &quot;no fault&quot; divorce state (all states have &quot;no fault&quot; divorce, but some also have a parallel fault based divorce system or allow consideration of fault in economic decision making in the case) where there has been infidelity this creates the tricky situation where the divorce court may not consider adultery in making its decisions, even though that conduct is a crime (and sometimes even a felony) in that state.</p>
<p>Generally speaking, these statutes are vary rarely actually prosecuted despite the fact that the &quot;crime&quot; is fairly common and is reported in those states more frequently than you would guess, as a matter of prosecutorial discretion, and generally speaking, it is not possible to prosecute this crime without the approval a prosecuting attorney who is a government official responsible to an elected official, usually a county attorney, district attorney, or state attorney general.</p>
<p>But, the mere fact that conduct is a crime can influence how that conduct is treated in a civil case.</p>
<h1>Pre-Nup and Post-Nup Recognition</h1>
<p>The are modest differences in the extent to which different states will treat a prenuptial agreement or a post-nuptial marital agreement as valid (and there are also differences in how individual judges evaluate their state's legal standard). In a case where one of these is allegedly present this could be quite significant.</p>
<p>For example, in some states, a marital agreement is presumptively invalid or conclusively invalid, if it is not in writing and does not have a certification from an attorney representing each party and other disclosures mandates by statute. In other states, the requirements for a marital agreement are only slightly heightened relative to an ordinary contract between strangers, although most require them to be in writing and screen them for signs of &quot;undue influence&quot; in persuading a &quot;poor spouse&quot; to give up important rights. A few states even honor oral agreements between spouses entered into before or after the marriage, if they are proven with sufficient specificity and convincing enough evidence.</p>
<p>No states that I am aware of allow for decisions relating to child custody to be made in a marital agreement, as void because a key party (the child) does not consent to it, and do not allow the grounds for a divorce to be changes except through a &quot;covenant marriage&quot;. Most states (but not all) do not allow valid marital agreement to contain rights that depend upon marital fault.</p>
<p>States also vary in the extent to which arbitration clauses in marital agreements (such as an agreement to submit a divorce to a Jewish rabbinical forum for arbitration) are honored.</p>
<p>There are also choice of law issues with regard to all of these questions.
Some states will apply the law of the state where the agreement was allegedly entered into in order to determine its validity, while other states will simply apply forum state law to evaluate that question regardless of where it was executed because the forum state has jurisdiction over the couple and the marriage at the time of the divorce. Neither approach is forbidden by the U.S. Constitution.</p>
<h1>Covenant Marriage</h1>
<p>Three states also have what amounts to a marital agreement since it customizes the obligations of marriage called <a href="https://en.wikipedia.org/wiki/Covenant_marriage" rel="nofollow noreferrer">covenant marriage</a> that basically limits divorces to either fault based divorces or &quot;no fault&quot; divorces with much longer waiting periods than usual.</p>
<blockquote>
<p>Covenant marriage is a legally distinct kind of marriage in three
states (Arizona, Arkansas, and Louisiana) of the United States, in
which the marrying spouses agree to obtain pre-marital counseling and
accept more limited grounds for later seeking divorce (the least
strict of which being that the couple lives apart from each other for
two years)....</p>
<p>Despite the goals of covenant marriage proponents, in the three states
with covenant marriage statutes, only an extremely small minority of
newlyweds has chosen covenant marriage. In Louisiana, between 2000 and
2010, only about 1 percent of marrying couples chose a covenant
marriage, with the other 99 percent choosing to marry under standard
marriage laws permitting no-fault divorce. In Arizona, estimates of
the rate of covenant marriage among new couples range from 0.25
percent to 1 percent. In Arkansas, a similarly very small number of
couples choose covenant marriage.</p>
</blockquote>
<p>Covenant marriages are not necessarily recognized outside covenant marriage states, making these limitations, in practice, easy to circumvent by moving to a new residence across a state line for a short period of time. This is one of several reasons why they are not popular options for newly marrying couples.</p>
