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What It Is, How It Works, And What You Need To Know
In the simplest terms, a divorce is the ending of a marriage while both spouses are still living. But the truth is, divorce and legal separation is often anything but simple.
Also See:
- The Divorce Process
- Mediation / Collaborative Divorce
- Alimony
- Annulment / Nullity
- Broken Engagements
- Same Sex Divorce
- Changing Your Name After Divorce
- Divorce Forms
The Basic Process
In order to obtain a divorce, a couple must first be legally married, either through a formal ceremony or under common-law marriage . One or both parties must file for divorce in the Family Court where the judge will issue a decree that dissolves the marriage.
Unlike an annulment, a divorce does not void the marriage – that is, it doesn’t erase the fact that the marriage ever existed. Instead, a divorce simply ends the union from the point of divorce forward.
Divorce Laws by State
Different states have different ways of governing divorce. Some states offer a true "no-fault" solution while others expand the grounds to include certain acts and behaviors. And still other states have specific requirements regarding separation prior to filing. To find the specific laws in your state, check the "Divorce Laws in All 50 States" article and click your state.
Aspects of a Divorce
In addition to ending the marriage, a divorce also must typically deal with a variety of variables regarding the lives of the parties involved. Over time, most couples will amass a certain amount of property, be it a house, cars, boats, furniture and the like, as well as monetary assets such as a savings account or a 401(k).
In addition to assets, couples also typically have long-term debts that they entered into jointly as well as day-to-day expenses that allow them to maintain a certain standard of living.
The divorce will deal with all these issues through debt allocation and property division. The court may also consider the issue of alimony, especially when one spouse makes considerably more than the other.
If the couple has any children as a result of the marriage, custody , visitation and child support will also be addressed.
Legal Separation
A legal separation is a court-documented "split" in both the physical and emotional sense. It does not automatically lead to divorce and couples can reconcile without having to re-marry, however it does legally distinguish the couple as living apart and being "separated" from one another.
Legal separations are most often used in states that require a documented separation period prior to granting a divorce however, most states recognize legal separation and will grant them even if they are not a prerequisite to getting a divorce. Different states have different separation period requirements. Also see: What is the difference between divorce and legal separation
Types of Divorce
There are different ways to deal with all of these issues and thus, different types of divorces.- Summary Divorce – Some states will allow a simplified divorce process if the parties meet certain criteria, such as a short-term marriage of 5 years or less and the absence of major assets, property or children.
- No Fault Divorce – Most states now allow a “no-fault” divorce which simply means that the parties do not have to go into who’s to blame for the split. Reasons for no-fault divorces include incompatibility and irreconcilable differences. In this type of divorce, any property division or other distribution is done equitably between the two parties, without any punishment or bias because of bad behavior during the marriage.
- At Fault Divorce – This type of divorce relies on one spouse being the “victim” in the relationship while the other was the cause of the breakdown in the marriage. In an at-fault divorce, the parties are typically trying to persuade the court to make the soon-to-be ex pay financially for their “suffering”. This could be through alimony payments, debt assumption or a variety of other means. At-fault divorces typically require litigation and can be quite expensive.
- Uncontested Divorce – An uncontested divorce is similar to a summary divorce except that the parties can have children and considerable property and assets to be distributed. What makes the divorce “uncontested” is that both parties have already addressed the issues of property division, alimony and custody, visitation and child support. All that is required is for the judge to approve the couples’ agreement and the divorce can be granted. Also See: Divorce Forms.
In addition to these types of divorces, mediation is also becoming a popular alternative to litigation. Inside of the parties battling it out in court, the couple will agree to use a mediator who may or may not have absolute power in the decision making process. This allows the parties to negotiate their unique issues without spending hundreds of thousands of dollars on attorney’s fees and court costs.
A similar option is known as “collaborative divorce” which allows both parties to negotiate with the assistance of trained attorneys. The attorneys are prohibited from representing the parties in court, should the collaborative process fail and the entire process is much cheaper than traditional litigation, making it an attractive alternative to going to court.
While all states have established divorce procedures, the standard of evidence and the types of divorces allowed can vary from state to state, so its best to consult with an attorney to discuss the laws and requirements of your state before filing your petition for divorce.
Also See:
Divorce FAQ's:
- What is an "agreed" or "uncontested" divorce?
- How do I file for divorce if my spouse is missing?
- What is the difference between divorce and annulment?
- What is the difference between divorce and legal separation?
- Is property acquired during separation considered marital property?