Divorce Law

When a married couple goes through a divorce, it means that their marriage will end. Marriage itself is a legal construct, so divorce, being the dissolution or ending of a marriage is also a legal construct. A married couple who does not wish to live together as a married couple but do not have a divorce are still legally married, with whatever this entails in state and federal laws.

What Is Divorce Law?

Divorce law concerns the legal ramifications of the dissolution of a marriage. Divorce laws, like many laws in the U.S., are state based, so divorce law in Tennessee or Alabama isn’t necessarily the same as divorce law in California or Massachusetts. However, there are more similarities than there are differences, allowing some broad generalizations about the scope of divorce law across the country.

Divorce lawyers may specialize in divorce cases or may deal in divorce cases as part of their practice in family law. As divorce involves making decisions about property division, financial arrangements for alimony, child support and child custody, divorce lawyers must have a good understanding of the state’s family law to be able to help with the divorce process.

Note that when a couple or an individual spouse decides to initiate divorce proceedings, this doesn’t necessarily mean that they need to hire a divorce lawyer. However, they must be able to navigate the relevant state divorce laws before a divorce is made legal by the family law court. Whether a divorce lawyer is necessary or not usually depends on how the couple treats the divorce. If the two spouses can come to an amicable agreement about the many decisions that have to be made they may find it a lot cheaper and more convenient to avoid having to hire a divorce lawyer. However, if there is a lot of disagreement between the two spouses, in other words if the divorce is contested, it is advisable for each spouse to hire a divorce lawyer to help them with the legal consequences of these differences and challenges.

Whether a divorce lawyer or lawyers are hired or not, most state divorce laws mean that there is a legal process involved in filing for divorce. Most states attempt to ensure in this process that:

• division of marital assets is done on an equal, fair or equitable basis (in some states this is defined as equal division rather than equitable division);
• spousal support (alimony) is determined where the divorce is deemed to result in an unequal or unfair economic situation affecting one or the other spouse;
• child custody arrangements for dependent children (minors) are resolved in the best interests of the children;
• child support payments are determined to ensure that the spouse who is not given custody of the children still provides sufficient and fair economic support for those children.

What Are The Different Kinds of Divorce?

Although states have varying divorce laws, they all recognize that there are two main types of divorce. These are:

• uncontested divorces are divorces in which both spouses agree on the main decisions (as listed in the last section above) they have to make before a divorce can be legally obtained. As long as the couple can come up with a signed agreement concerning the decisions that they have to make about property division and child custody, it is unlikely that the court has to intervene.
• contested divorces are when the two spouses cannot agree on one or more important decisions regarding their divorce. In most cases, decisions about an uncontested divorce are made by the court.

In many states, divorces may also be classified as ‘fault’ divorces or ‘no-fault’ divorces. All states these days recognize no-fault divorces. In a no-fault divorce, the party filing for divorce simply states that there has been an irreconcilable breakdown in the marriage and that there is no specific fault ascribed to one or the other spouse. No-fault divorces tend to be simpler and less expensive than fault divorces. A no-fault divorce may be uncontested or contested.

In some states, a spouse can also file for a fault divorce. This is when the spouse alleges that the breakdown in the marriage is due to the fault of the other spouse, e.g. because of infidelity, cruelty, failure to consummate the relationship, financial irresponsibility, child abuse, etc. As might be expected, these types of divorce take longer to be decided on and are more likely to be contested.

In many states, a couple may decide to separate but not go through a divorce. This may be for religious or cultural reasons or for the benefit of their joint children. The court may agree to a legal separation that does not involve an actual divorce as long as the normal decisions involved in a divorce are agreed to.

Some divorces end up in what is called an annulment. An annulment is determined when the legality of the marriage has been questioned. When the marriage is determined to have been illegal (e.g. when one or both spouses were married to someone else at the time and hadn’t been divorced), then the court may grant an annulment.

Note that as same-sex marriage is recognized by all states in the U.S., the divorce process for same sex couples is identical to that for heterosexual couples.

What Issues Are Involved In a Divorce?

The main challenges involved in a divorce are decisions which must be made about assets and property owned by the couple, either individually or jointly, who is going to retain the family home, if there is one, what happens to the dependent children, who, if anyone may become responsible for spousal support and child support if there are dependent children.

States differ somewhat when it comes to making decisions about property division. All courts prefer couples to come to a workable agreement about how marital property should be divided, but may still want to see evidence that the agreement does not leave one of the spouses unfairly dealt with or who has been under a level of coercion before agreeing to the way property is divided. Also, states like Massachusetts consider all property, whether it was acquired in an inheritance or before marriage as property to be divided equitably, while in many other states, only property jointly owned or acquired after marriage is considered for division. Also, states differ when it comes to the concept of ‘equal division’ i.e. division of marital property on a 50/50 basis and ‘equitable division’ which is based on the court’s concept of fair division of property, a more complex process.

The problem of child custody and child support tends to be dealt with by all states in more or less the same way. The priority of courts when given the role of making decisions about divorce is that the ‘best interests’ of the children are taken into account. This means that the court must look into many aspects of their potential care.

What is the Divorce Process?

As has already been mentioned, different states have different divorce laws and requirements, despite there being more similarities than differences. Couples going through divorce should acquaint themselves with their own state’s divorce laws before initiating a divorce. Hiring a divorce lawyer (or divorce lawyers, each representing a different spouse) is a sensible decision when trying to navigate your state’s divorce laws, especially if the divorce is likely to be contested.

The divorce process is outlined below.

1. Separation (in some states)

Some states insist that a couple separates before filing for divorce, although many couples find that separation is inevitable anyway when one or both file for divorce. The term separation may mean living in different parts of buildings or living in the same building but not living as a couple.

2. Filing for divorce

To initiate the divorce process, one or the other spouse must file a petition for divorce with their local court. A divorce lawyer can help to prepare the petition. The petition must include relevant details, such as:

• names, addresses and social security numbers for both spouses;
• type of divorce sought, e.g. fault or no-fault;
• reasons for seeking a fault divorce if this is the choice;
• details of minor children;
• requests for property division, alimony (if any), child custody and support.

The petition is given to the court and a fee paid (in most states there is a process in which this fee may be waived if the spouse has proof of low income and assets).

3. Serving the divorce papers

Once the petition has been filed, the spouse who has filed must ensure that the other spouse is ‘served’ with a copy of the documents that have been filed. This can be done by an appointed court sheriff, a private individual or in the local paper if the whereabouts of the other spouse cannot be determined.

4. The waiting period for a response

Most states allow a period of time for the spouse served with the divorce papers to respond to the petition. Failing a response in time, the spouse requesting the divorce may be granted with a default divorce based on the grounds and requests in the original petition. In the response, also called the ‘answer’, the spouse served with divorce papers either agrees to the divorce (uncontested) or contests some or all of the requests.

5. Hearings

What happens next depends on whether the two spouses agree to the terms of the divorce. Many states insist that the couple separate for a determined period, i.e. six months or a year, before a divorce can be granted, even if the couple can agree on most things. Where there is a contested divorce, there may be a series of hearings where the two spouses and their legal representatives appear before a judge to determine areas of disagreement.

6. Divorce settlement agreement

A couple can make a settlement agreement at any stage of the divorce process. In many cases, especially if the divorce is uncontested, an agreement can be compiled and signed by both parties and presented to the court. In most cases, this will be determined to be a suitable basis for granting a divorce by the court. By coming to a mutual agreement themselves, it means that the couple has much more control over major decisions about their divorce than allowing the court to make a binding decision by itself.

7. Trial

A trial is relatively rare and only requested when there are substantial disagreements between the spouses on issues such as property division and child custody which have not been resolved through mediation and other measures.

Can You Settle a Divorce Out of Court?

The court does not have to be involved in making the important decisions about a divorce. The court is only involved when a couple cannot resolve their differences in any other way, even with legal help from divorce lawyers. The court may only be used after trying mediation (informal meetings and discussion). The couple may also opt for arbitration, but although this doesn’t involve the court it does lead to a binding decision, whereas a court decision can be appealed.

Fill out a Free Case Evaluation to be connected with an independent divorce attorney who subscribes to the website who may be able to help with your case.