In addition to just ending the marriage, a divorce also means resolving issues related to property division, alimony, child custody, and child support. This page gives a broad overview of divorce, and links to more detailed articles that can help you answer specific questions. Because divorce law is set by each individual state, we suggest consulting a divorce expert in a city near you to give you the best advice about your unique circumstances.
A divorce can’t always be avoided, but planning for the future by using a “pre-nup” can make the process easier should you come to it. Even if you have not planned in advance, there are ways to make the process less ugly, such as using divorce mediation or by collaborative divorce.
The divorce process starts when one spouse files a petition asking the court to end the marriage. You should file this petition in the county where you or your spouse resides. You should also think about the tax implications related to when you decide to file for divorce. After filing, you must “serve” the divorce papers to your spouse. Service simply means delivering the petition to the other party as the law requires. You also need to submit proof of service to the court. States have their own requirements on acceptable ways of serving legal documents, so make sure to research your state’s laws to determine what applies to you.
How long it takes to get divorced will often depend on whether the divorce is contested or uncontested. After receiving your divorce papers, your spouse must file a response. If they fail to file a response within 30 days, you can request the court to enter a “default judgment.” A default judgment means the court assumes your spouse agrees to all the terms of your divorce filing. The response will show how your spouse chooses to deal with the divorce–whether they want to contest it.
In the past, if you wanted to divorce, states required people to prove “fault” (such as infidelity), but all states now offer some form of “no-fault” divorce model. Read More: No-Fault vs. Fault Divorce
What counts as legally acceptable grounds for “fault” will vary from state to state. Read More: Grounds for Divorce
Whether or not your spouse can stop your divorce also depends on if you are filing for a fault or a no-fault divorce.
If you and your spouse don’t agree on the divorce terms, you will need to negotiate an agreement. This may include child support, custody, and dividing your marital assets. If you cannot agree, the court may schedule a mediation session, where a neutral third party will try to help facilitate the settlement.
If you still cannot agree on the terms of the divorce, your divorce will go to trial. Most divorces don’t go to trial due to several reasons, including: because it can end up being more expensive than settling, you and your spouse can lose decision-making power, and because it is very time-consuming.
In the end, whether you reached a settlement or went to a trial, the divorce becomes final when the judge signs the divorce judgment. This judgment dissolves the marriage and outlines the specifics of the terms of the divorce.
Many people find it helpful to go through the process with an experienced family law attorney, which can even the playing field for you if the other spouse already has an attorney. Even if you are thinking of settling rather than going to trial, a divorce attorney can be essential in making sure your voice is heard. Read More: What to Look For in a Divorce Attorney
How a court will divide marital property depends on whether you live in a community property or an equitable distribution state. Diving your house or other real estate is another issue that can be tricky to navigate. You will likely have to disclose your finances in court or in settlements in the process of dividing property, and if you have debt or are encountering bankruptcy, that can be another complicating factor.
Property that you and your spouse each owned before the marriage is your own, and the court typically cannot divide it. Other types of separate property, like inheritances given to only one spouse, gifts, and personal injury compensation, are generally not considered marital property. This process is not as simple as it sounds and often requires the work of your family law attorney and accountants.
The court may also order alimony payments, also known as spousal support, as part of the final divorce order. This type of support is often ordered when one spouse makes a lot more money than the other. It may be granted for a limited period, or it may be ordered indefinitely. When determining whether to award alimony, judges often consider things like whether one of the parties gave up a career to stay home and care for the couple’s children.
Often, the most emotional aspect of a divorce involves child custody and visitation. Legal custody consists of each parent’s right to make important decisions for their children, while physical custody determines who the children live with. One parent who does not receive physical custody will usually receive visitation time with their children. That parent may also have to pay child support to the custodial parent in an amount set by the court.
Just because a divorce order is made does not mean it can’t be changed. Read More: How Do You Modify Out-of-State Divorce Decree?
While divorce may be common, when you go through it yourself, you still deserve dedicated, personal focus on your rights and unique situation. An experienced divorce lawyer can help you figure out the best way forward, explain the law, and represent you in court if it is ever necessary. Take the first step now and contact a local divorce attorney to discuss your divorce.