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 of the matter is that divorce and legal separation are often anything but simple.

A divorce accomplishes several basic things. First, and most simply, the legal bond between husband and wife is dissolved. Second, the assets and debts of the marriage are distributed between the spouses. Third, child custody is determined in families with children. And, finally, support payments may be ordered - either child support or spousal support (also called maintenance or alimony, depending on the jurisdiction).

Overview

1. Considering Divorce
2. Planning for Divorce
3. Divorce Filing and Litigation
4. After Divorce
5. Do-it-Yourself Divorce
   

1. Considering Divorce

1.1 Types of Divorce

Depending on your circumstances, there are a few different types of divorce (also called dissolution in many states). Which route to take all depends on where you live and whether or not you and your spouse can come to an agreement.

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.

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. All that is required is for the judge to approve the couples’ agreement and the divorce can be granted.

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.

At-Fault Divorce – Some states still have an at-fault divorce option in addition to no-fault divorce. In this type of divorce, the filing spouse must allege fault on the part of the other spouse for the breakdown of the marriage.

1.2 Legal Separation

Legal separation is one of the most misunderstood aspects of family law. Despite the assumptions of many, a separated couple who have filed for divorce is not legally separated. Legal separation is a totally separate mechanism under the law. Everything that can be accomplished in a divorce (child custody, child support, spousal support and property division determinations) with the exception of the legal dissolution of the marriage. Legal separations are also used in states that require a documented separation period prior to granting a divorce. [more...]

1.3 Annulment

Another option to end a marriage is annulment. An annulment is not the same as a divorce. Annulment relies on the idea that the marriage either shouldn't or wouldn't have taken place if all the facts had been rightly known. While a wedding may have occurred, there was never actually a legal marriage to terminate and thus all that is needed is to officially declare the union to be void or voidable. [more...]

2. Planning for Divorce

2.1 Counseling

Many people choose to undertake marriage counseling prior to considering a divorce. Often, a good, experienced counselor can help a couple work through relationship issues and begin to repair rifts. If couples counseling is not successful, individual counseling through the divorce process can still be beneficial to husband, wife and children. The actual divorce can be very emotionally painful to every member of the family. Therapeutic assistance can help repair emotional wounds and allow each family member to move forward with rebuilding relationships post-divorce. [more...]

2.2 Hiring an Attorney

When a spouse is ready to move forward with divorce, the first step will be to choose a divorce attorney. If a marriage is short-lived and has no children, it may be simple to file for divorce without the assistance of a lawyer. For most, it is best to hire an attorney to help navigate the court system and its requirements. [more...]

2.3 Compiling Information

Your divorce attorney will start by asking you for quite a bit of detailed information about your marriage, children, income, expenses, assets and debts. Because the parties will eventually be required to exchange documentation of these matters, it is a good idea to compile as many pertinent documents as you can locate and provide them to your attorney. The documents will allow your attorney to immediately get "the big picture" of the financial portion of your divorce and will streamline the process going forward. [more...]

3. Divorce Filing and Litigation

After you have hired an attorney and had your initial meeting, your lawyer will draw up some initial paperwork and file it in court to initiate the divorce process. But how do you actually file for divorce? What is this paperwork, how do you choose what court to use and what happens next?

3.1 Jurisdiction

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.

3.2 Legal Process

3.2.1 Overview

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...]

3.2.2 Service of Process

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.

3.2.3 Temporary Orders

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.

3.2.4 Bifurcated Divorce

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...]

3.2.5 Discovery and Depositions

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.

3.2.6 Divorce Settlement

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...]

3.2.7 Trial

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.

3.3 At-Fault Divorce

3.3.1 Overview

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...]

3.3.2 Grounds for At-Fault Divorce

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.

3.3.3 Defenses of At-Fault Divorce

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...]

3.4 No-Fault Divorce

3.4.1 Overview

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.

3.4.2 Grounds for No-Fault Divorce

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.

3.4.3 Repercussions of No-Fault Divorce

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. [more...]

3.5 Financial Aspects of Divorce

As mentioned above, one of the functions of a divorce case is to separate the financial lives of the soon-to-be ex-spouses. The division is largely subjective (at least in equitable distribution states) and can cause substantial added stress during a divorce. [more...]

3.5.1 Alimony / Spousal Support

In some cases, it may be appropriate for alimony to be awarded to one spouse. Alimony is also referred to as spousal support or maintenance. 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. Some jurisdictions are more alimony-friendly than others. You'll need to speak with your attorney about alimony in your jurisdiction. [more...]

3.5.2 Division of Property / Debt

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...]

3.5.3 Pre-Nuptial and Post-Nuptial Agreements

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. In each case, the parties must fully disclose their assets and income information to one another before reaching an agreement as to how to handle any assets should there be a divorce in the future. A prenup is signed prior to the marriage. A postnup is signed after the parties have married. [more...]

3.5.4 Bankruptcy

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.

3.5.6 Taxes

There are many tax implications in a divorce case. Child support is not taxable income to the receiving parent. Alimony or spousal support payments are taxable income to the receiving parent and are tax-deductible to the paying parent. [more...]

3.6 Children and Divorce

Unfortunately, many divorces involve families with children. The determination of custody and visitation can be difficult and hard-fought. Many jurisdictions require both parents to attend classes or counseling sessions directly related to how divorce and parental conflict affects children. [more...]

3.6.1 Custody / Visitation

If the parents cannot agree, the court will decide the custody and visitation arrangement. Although shared physical custody is gaining more acceptance in the court, primary physical custody will generally be awarded to one parent or the other, with visitation for the other parent. Legal custody - or the right to take part in the major decisions of the child's life - can still be joint, even if primary physical custody is awarded to one parent. The standard the court must use to measure any decision is the best interests of the children. Visitation schedules are often based on court guidelines but must still be in the best interests of the kids. [more...]

3.6.2 Child Support

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. If there are unusual circumstances or the income levels are extraordinarily high, this presumptive number can be modified by the court. [more...]

3.7 Mediation / Collaborative Law

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...]

3.8 Same-Sex Divorce Issues

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...]

3.9 Ending a Domestic Partnership or Civil Union

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...]

3.10 Broken Engagements

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...]

4. After Divorce

For many couples and former couples, the legal considerations don't stop at the signing of the divorce decree.

4.1 Modification of Divorce Decree

If financial or other circumstances change after a divorce, the original divorce decree can often be modified. Modifications happen generally with child custody, visitation, child support and alimony. Unless there was fraud in failing to disclose marital property, the property distribution portion of the decree is generally final and non-modifiable.

4.2 Changing Your Name After a Divorce

Many women change their names after divorce - either back to their maiden name or to a former married name. In many cases, this change can be accomplished legally in the divorce decree. If it is missed in the decree, a separate suit can be filed to petition the court for a name change.

After the name is legally changed, there are name change kits available for purchase to assist in completing the process. [more...]

4.3 Estate Planning After Divorce

Another important consideration after divorce is estate planning. Probate can get very messy if a couple gets divorced but the ex-spouses are not taken out of each other's wills and trusts. Revisiting estate planning documents after a divorce is especially important if there are children.

5. 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...]

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?