DIVORCE
Divorce is never an easy choice. Marriage creates a bond and certain obligations. In it’s most basic form, marriage is a contract. Divorce is the dissolution of the marriage and the obligations that came with it. The process for getting divorced varies from state to state. The procedures for filing for divorce may even vary by the county where you live.
Getting divorced may be a simple process if you and your spouse haven’t been married long, don’t own property together or have children. The term divorce is often used to describe the process for dividing your assets and debts accumulated during the marriage (Equitable Distribution or Community Property), determining whether and how much alimony (spousal support) is owed, and deciding custody and child support.
Divorce is not the same as an Annulment. An Annulment means your marriage never took place. In legal speak, an annulment voids your marriage. In most states, it’s very difficult to get an annulment. Getting an annulment has specific requirements that must be proven to the court.
Most states have some requirements for a separation period before you can file for divorce. The separation requirements vary by state and may be short or long depending on where you live. Your state may also require you to have a written separation agreement or to file for separation.
No one goes into marriage thinking they will get divorced. But if you find yourself separating from your spouse, it’s important to research the local divorce laws. It’s also good advice to seek out a family law attorney who can explain your rights and responsibilities.
Types of Divorce:
Absolute: In some states, the court can determine issues of equitable distribution, custody, and support without addressing the issue of divorce. You cannot remarry until you are divorced. An absolute divorce is the granting of the divorce and dissolution of the marriage.
Collaborative or Mediated Divorce: Alternative dispute resolution, which was previously only used in corporate litigation or large lawsuits, is now frequently used to resolve domestic issues. Many states require divorcing spouses to use the mediation process to attempt to resolve their issues prior to going to trial.
During mediation, the parties may meet with a mediator without attorneys and attempt to reach a settlement agreement or the parties and their attorneys may attend a private mediation. If the parties reach an agreement during mediation the settlement agreement is drafted and signed according to law. If the parties cannot reach an agreement, they can proceed to trial. A new approach to divorce is termed a Collaborative Divorce. The Collaborative process is much like the mediation process in that the parties and their attorneys will meet with a mediator in an attempt to resolve the domestic issues. The major difference between the collaborative process and mediation is the parties and their attorneys sign a contract agreeing to certain terms. One of the key terms is the agreement is that if the parties cannot settle during the collaborative process, the attorneys will withdraw from representing the parties. This forces the parties to hire new counsel to represent them in the trial.
Contested Divorce: A contested divorce means the parties are not in agreement. The disagreement may be to one issue such as alimony or to all issues. If the parties can not reach an agreement or settlement the court will determine the issues.
Fault Divorce: There are still states that require proof of fault before granting a divorce. In these states, you must allege the ground for your action. The allegations of fault must fall within the definition of the state’s statue in order to get divorced. Typical faults include adultery, cruelty, abuse, insanity, and abandonment.
No-Fault Divorce: Many states have adopted the no-fault divorce. If you live in a no-fault divorce state, neither you nor your spouse will have to prove that anyone did anything wrong in order to have the court grant your divorce. Alleging that you can’t live together anymore because of irreconcilable differences is usually enough to have the court grant your request. You may be able to apply separately or jointly for a no-fault divorce. Depending on where you live there may be a waiting period before you can apply. There may be other conditions that you have to meet such as living apart for a period of time or having lived in the state for a set period of time before filing.
Uncontested Divorce: In an uncontested divorce both parties have agreed to divorce and neither party is asking the court to stop divorce from being granted or asking the court to intervene in the process. In some states, this means that the parties have also agreed on how to divide their property and debt, alimony, custody and child support. The parties have negotiated a settlement between themselves either with or without attorneys. In other states, the divorce can be uncontested and the other issues such as child custody or alimony can be contested.
Filing for Divorce
Filing may be simple or complicated depending on the state where you live and the issues involved. You can typically find examples of pro se documents at the Clerk of Court’s website in your state. States such as California used form-based pleadings. These are pleadings that require you to fill-in-the-blank. Other state’s such as North Carolina use pleadings that are in whole or in part drafted by the filer. Every state will have specific requirements regarding service and how you set your case on for hearing in front of the judge.
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