Divorce can be a complicated process, depending on if children are involved and if agreements over assets can’t be reached amicably. Here are the things you must know in order to reach the best possible outcome. For some marriages, the break can actually be very clean and the process can take only a few months. The average amount of time that it takes to complete a divorce from filing to settlement is usually just under a year.
Types of Divorce
Each divorce has its own unique components and, therefore, needs that must be met. Look below to help you determine what type of divorce will be the best option.
- “Fault” Divorce is when a spouse has been violent or abusive, committed adultery, desertion, severe drug addiction, or other significant actions that harmed the marriage.
- This type of divorce does not have a required period of separation, and if the fault can be proven, the spouse that is filing for divorce or given “comparative rectitude” may receive a better settlement.
- Understand that you will likely have to provide at least one witness to the court. One catch with a fault divorce is that it can be stopped by the accused spouse if the court determines that they are free of fault.
- Beware that the blame can also be placed on the plaintiff if they previously stated that they condoned, set up, or provoked the problem behavior of their spouse.
- Some states don’t recognize fault divorce.
- “No-fault” Divorce doesn’t require one spouse to blame the other spouse for the divorce. They simply choose a state-recognized reason. Common reasons are “irreconcilable differences” or “irretrievable breakdown.”
- Some states will require a period of separation, which could last for months or even years.
- Whatever the case, if one spouse is certain they want a divorce, there is nothing the other person can do to stop it. In fact, if they did try to stop it, this would simply add to the case and support the divorce.
- Every state recognizes this.
- Summary Divorce (aka Summary Dissolution or Dissolution) This type of divorce is streamlined for couples that have no kids and few assets. While the marriage will end just like it would in other divorce processes, this version of no-fault divorce eliminates a large part of the usual divorce process. In order for this to happen, both spouses must come to an agreement on their own before filing for the dissolution. Sometimes outside help from professionals can be hired to help make the agreement, but it is not necessary.
What about Annulment?
While divorce terminates a legally valid marriage, an annulment is attained by invalidating the union. Basically, it is completely voiding the marriage as though it never happened. Each state has its own rules regarding acceptable reasons and timing for when this option is no longer possible for the couple. The reasons for this can vary greatly from impotence/barrenness to fraud, underage marriage, mental incapacity, or to marriage between close relatives.
THE STEPS TO TAKE FOR DIVORCE:
Make it official:
- Make a petition (aka complaint). It is recommended that this be written up by a lawyer. This will cover why the spouse filing wants a divorce as well as how they prefer to deal with finances, property, custody, etc. If anything is overlooked at this time, it could cause problems during negotiation.
- File divorce papers at court. It is important for you to understand the residency requirements of the state about where to file. Some states require someone to have lived there at least six months in order to file there, while others require up to a year.
- Only one of the spouses has to technically meet these requirements, but understand that the court does not have jurisdiction over the other spouse if they are residing in another state.
- Serve them to your spouse either on your own, by a friend or through a paid professional server. If there is a concern around domestic violence, some states allow for police to serve the petition free of charge.
- Any potential future modification must also be filed in the home state.
- The spouse should provide their response within the deadline, which is usually three weeks, but make the effort to be sure that this is the case where you are.
- This is where they are able to counter the preferences of the spouse that has filed for the divorce.
- If the spouse being served doesn’t live where the divorce was filed, the court will attain jurisdiction when the other spouse receives the divorce documents. If your spouse lives out of state or out of the country, it is highly recommended that you seek out a divorce attorney.
It is possible in some states to ask for a temporary order to help the family through the process. This can be helpful since many families are unable to instantly maintain two separate households. This can also help sort out how the children will be cared for and financially supported. This will require additional hearings.
If the Spouses Can Agree on a Settlement with Minimal Legal Intervention:
- Mediation is informal (collaborative) if an agreement is easily reached. Some states require a formal mediation program. An “alternative dispute resolution” specialist can be helpful during this process.
- This agreement will only need to be confirmed and approved by the judge in an informal hearing.
- The couple will receive their divorce decree.
If the Spouses Need Legal Assistance to Reach a Settlement
- If the spouses are unable to find a settlement on their own, then the divorce settlement is put into the hand of the divorce court and the “discovery” process is put into action. Spouses will exchange information and documents with each other, their lawyers, and the court. Custody and alimony is also discussed during this time. Both spouses have a right to know all of the property that the other owns, both within and outside of the marriage.
- The evidence is presented by the divorce attorneys.
- Any issues that haven’t been able to be agreed upon will be reviewed by the judge
- The judge or magistrate decides on a settlement
- If both spouses are still unwilling to agree to this settlement, an appeal is possible.
What About Our Children?
Child custody and child support papers will also be filed during this time. Also, a temporary order can help protect the family from sudden traumatic changes. Go here for more information about child support.
What About Our Pets?
For many, pets are also valuable members of the family. Unfortunately, deciding what to do can be quite a challenge when both spouses want to keep them. Sadly, it is also sometimes the case that neither person is able to care for these poor creatures, so they are simply given up. Traditionally, pets have been recognized as property rather than family members, but there has been a shift over the years. Now, it is possible to get a court order for custody, visitation, and even alimony that considers the wellbeing of the family pet/s.
What about financial assets and debt that we shared?
The goal of the court is to be as fair as possible as property and assets are split up. Likewise, they strive to equally share the burden. There are some exceptions here and there, and a lot also depends on your state.
- What is the financial picture of the couple?
- Who is the “outspouse”? (the person that didn’t handle the finances much or at all)
- Who has been responsible for what bills?
- What are the marital, separate, and commingled assets?
- Was there a joint account?
It’s not uncommon for spouses to hide assets from the other during the divorce process. Understand that both spouses are entitled to full disclosure. A lawyer can help greatly investigate this if you feel this might be this case for your situation. The “discovery” process will compel the secretive spouse to honestly speak before the court.
Legal support Can Make the Difference
Divorce can be a long and grueling process, and it is even worse if you find that you unnecessarily waived property, certain rights, or other assets that matter to you. Also, not every settlement that the court determines is going to be acceptable. It is possible that you will want to appeal or modify the decision. It is recommended that you seek out the guidance and representation from a divorce lawyer from the beginning to help things go as smoothly as possible. Divorce lawyers will fight for you to make sure that you’re treated fairly during the process. Divorce can be contentious and you want someone knowledgeable and experienced in your corner to make sure you get everything you’re entitled to.