For very simple divorces in which you and your spouse are in agreement, and have no children, you may be able to handle the paperwork yourself. If your divorce involves children or financial assets that the court must distribute, then you should hire an attorney. Also see how to file for divorce and the divorce process.
After you have considered your options and determined that divorce is right for you, hired a divorce lawyer, and had your initial meeting, your lawyer will draw up some initial paperwork and file it in court to initiate the divorce process. What happens next depends on many factors including the ones outlined below.
Do-it-Yourself Divorce Forms (Divorce Kits): Those relatively simple splits which are agreed-upon between both parties – known as uncontested divorce – can often be handled by the parties themselves without the involvement of attorneys. The filing party must still comply with state procedural and legal requirements in filing the divorce petition and other paperwork, but there are kits available online which aim to simplfy the process. These do-it-yourself divorce forms are available for purchase, sold by a number of internet retailers. [more…]
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.
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.
Most states have a residency requirement before allowing a divorce in the state. Often, the filing party must be a resident of the state for at least 90, 120 or 180 days prior to the divorce filing. Cases involving children have a separate jurisdictional issue, usually requiring the children to reside in state for six months prior to filing.
If both parties are residents of the same state at the time of filing, the jurisdiction question is fairly straightforward. You file for divorce in the state and county in which you live. The situation is a bit stickier if the estranged spouses live in different states at the time the divorce paperwork is filed. It is certainly still possible to get divorced – there are just a few more legal hoops to jump through along the way. You’ll need to explore this issue in depth with your attorney before filing.
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. The case is initiated by the filing of a petition in court. The case proceeds from there, either to trial or settlement. [more…]
The petition (and any temporary orders that may have been issued) must then be served on the other spouse. “Service of process” can be accomplished in several different ways. If your spouse is missing, there are other service options available to you.
As noted above, the filing spouse will often have the opportunity to request temporary orders. These are court orders which are enforceable only while the divorce is still pending. They can cover such subject matters as temporary child custody, child support, alimony, financial and insurance restraint and possession of the marital home.
In some states, the process is streamlined such that the filing spouse can request and receive reasonable temporary orders on an ex parte basis (without providing advance notice to the opposing party) at the time of the initial divorce filing. In other jurisdictions, temporary orders will only be issued after notice to the other spouse and an opportunity for hearing. In many situations, the parties and their attorneys are able to negotiate an agreed temporary order on these issues.
In some states, the court will allow a divorce case to be split (or bifurcated) into two parts. Generally, if a case is bifurcated, the first issue resolved is marital status. The court grants the couple a divorce – making them each legally single again – but reserves all remaining issues for trial at a later date. The remaining issues could include matters such as property distribution, child custody, child support, alimony or business valuation. [more…]
The next step in most divorces is an exchange of information and documents regarding the couple’s assets, liabilities, income and expenses. Sometimes, people are able to negotiate a settlement at this point in the process. If no settlement is reached at this point, the case will proceed with discovery and depositions to allow the parties and attorneys to learn more about the details of the case.
The great majority of divorce cases are settled before trial. This can be accomplished in a number of different ways. A couple, still fairly amicable, can sit down together and discuss or negotiate an agreeable resolution to their case. Some couples try collaborative divorce or their party mediation to resolve their divorce case. [more…]
The trial of a divorce case is before a judge only. Most states do not have jury trials in divorce cases (although a few states have advisory juries for such trials). The parties and other witnesses will testify under oath. Documents are submitted to the court for review and consideration. The judge then decides the custody, support and property issues and renders a decree.
Historically, divorces were only granted if one spouse could prove legal fault on the part of the other spouse. State law outlines what is sufficient behavior to be considered “fault”. State legislatures began to move away from at-fault divorce statutes 30 to 40 years ago. At-fault divorces tended to be vicious and drawn out – even in cases in which there might have been a possibility of civility or even friendship, post-divorce.
All states now offer no-fault divorces. Some states, however, still have an at-fault divorce option in addition to no-fault divorce. [more…]
Typical at-fault grounds are things like adultery, abuse and abandonment. Impotence, insanity and imprisonment are also common statutory grounds for an at-fault divorce. In at-fault divorces, couples are usually trying to avoid a long waiting period for a no-fault divorce or they are trying to make their estranged spouses pay emotionally and financially for some alleged improper behavior.
There are legal defenses to the at-fault divorce grounds. Because the court can take into account a spouse’s “fault” in determining the property distribution and alimony amounts, a good defense to at-fault divorce allegations can be crucial. A successful defense will not preclude a marriage from being dissolved but it will result in an at-fault divorce being transitioned into a no-fault divorce. [more…]
A no-fault divorce simply means that you are dissolving the marriage without placing blame. All states offer a no-fault solution. No proof of the marital breakdown is needed to obtain a no-fault divorce – other than the belief by one spouse that it is broken. Many states still require that the couple live apart for a designated period of time prior to the granting of a divorce. [more…]
The legal grounds for a no-fault divorce vary by their specific terms from state to state. Typical grounds are “irreconcilable differences” or “incompatibility”. Simply, the filing party must allege that the marriage is broken and cannot be fixed.
No-fault divorces are supposed to take some of the emotional charge out of a very personal and dramatic process. No longer are couples required to become mortal enemies in the courtroom just to get a divorce. Property division and alimony can still be affected by inappropriate behavior in some states – even in a no-fault divorce. But the intracacies of a couple’s relationship largely do not affect the disposition of any aspect of a no-fault divorce.
As mentioned above, one of the functions of a divorce case is to separate the financial lives of you and your soon-to-be ex-spouse. The division of finances and property is largely subjective in equitable distribution states and can cause substantial added stress during a divorce. Bankruptcy can be a complicating factor in a divorce as well. [more…]
In some cases, it may be appropriate for alimony (also known as spousal support or maintenance) to be awarded to one spouse in a divorce. It is generally awarded to an unemployed or homemaker spouse, or a spouse who works but makes substantially less money than the other spouse. The amount and duration of alimony payments depends on many different factors, and some states and counties are more “alimony-friendly” than others. [more…]
The divorce court will also divide all marital property and debt. Some states are known as community property states. In community property states, marital property is to be divided equally between the spouses. Other states are equitable distribution states. In equitable distribution states, the court will divide assets and debts in a “fair and reasonable” manner based on the circumstances. [more…]
Much of the financial impact of a divorce can be arranged by a pre-nuptial agreement (also called a premarital agreement or prenup) or a post-nuptial agreement. A prenup is signed prior to the marriage; a postnup can be signed after the parties have already married. In either case, the couple must each fully disclose his or her assets and income information to one another before reaching an agreement as to how to handle any of those assets should there be a divorce in the future. [more…]
In the event that one party seeks bankruptcy protection after a divorce settlement or decree, it is important to know which divorce obligations might be dischargeable in bankruptcy – and which ones are not. Child support and spousal support are not dischargeable in bankrutpcy – although a stay issued by the bankruptcy court could preclude the receiving spouse from filing suit to collect unpaid support until the bankruptcy is concluded. [more…]
There are many tax implications in a divorce case. For instance, child support is not taxable income to the receiving parent, but alimony or spousal support payments are taxable income to the receiving parent and are tax-deductible to the paying parent. [more…]
Unfortunately, many divorces involve families with dependent children. The determination of which parent wins how much and what type of custody and visitation can be difficult and hard-fought. Many courts require both parents to attend classes or counseling sessions directly related to how divorce and parental conflict affects children. [more…]
If the parents cannot agree, the court will decide the custody and visitation arrangement. There are different types of custody (primary vs. shared or joint; legal vs. physical) the court must always consider the best interests of the child(ren) to measure any decision on this subject. Visitation schedules are often based on court guidelines but must still be in the best interests of the kids. [more…]
After custody is determined, the court will make an order regarding child support. Child support is generally determined by a mathematical calculation, based on a formula designed and approved by the state’s courts. Different factors are input into the formula – things like each party’s income, the number of children, sometimes the ages of the children, their daycare expenses and their insurance expenses. A presumed child support figure is output after the calculation is completed, but if there are unusual circumstances or the income levels are extraordinarily high, this presumptive number can be modified by the court. [more…]
As noted above, divorce settlements can often be achieved through mediation. Instead of the parties battling it out in court, the couple will agree to use a “mediator” in the decision-making process. A similar option, known as collaborative divorce, allows both parties to negotiate together with the assistance of a trained attorney. [more…]
In states in which same-sex marriage is legal, same-sex divorce is handled the same as any other divorce under the law. Trickier though is the divorce of homosexual spouses who were married in a state where their marriage was legal but have since moved to a state in which it is not. The courts may not recognize them as married – and they must be married in order to ask the court to dissolve their marriage. Even in the validity of their marriage is denied, the couple will still have marital property and debt as well as potential child-related and support-related issues. [more…]
In a similar vein, the legal end of a domestic partnership or civil union is arranged for by the laws governing those relationships in the states which recognize them. The dissolution of the partnership or union in a state which doesn’t recognize those special relationship statuses will most likely be considered like the break up of any business partnership or roommate situation. A civil lawsuit can be filed to distribute assets and debts. Real property can be partitioned or ordered sold. Child issues are more difficult. [more on domestic partnerships…] [more on civil unions…]
If a couple never even makes it down the aisle and breaks up while still engaged, there may be fewer legal issues. Or not. In addition to “who gets the ring”, former fiancés may have to deal more often with the distribution of what would have been marital property if they had actually married. Lengthy litigation can ensue as people try to prove what they paid for and/or what they deserve to be awarded. [more…]