Divorce Law
It is a reality of modern life that not every marriage lasts forever. The divorce rate has been steadily rising throughout the United States for decades. If you are considering ending your marriage, you should learn something about the process in advance.
You may file for divorce only in a state where you are a resident. Almost all states require a certain period of residency before a person can file for divorce there. This period can extend for six months or a year. If you know that your spouse is planning to file for divorce in another state, you may want to file first in the state where you live to avoid the expense of traveling for divorce proceedings.
Changes to related agreements involving alimony, child custody, or child support must be made in the state where the divorce was granted. All states will recognize a divorce properly granted in any other state, but is not required to do so if the original state did not have jurisdiction over the couple.
Spouses who are considering divorce when they are over 50 may face unique challenges. There may be a range of implications for your retirement plans, health care plans, Social Security benefits, and benefits related to ownership of a family home. Discussing these implications with a divorce lawyer before filing for divorce may help you uncover potential issues and identify optimal strategies for reaching the best outcome.
Hiring a lawyer to represent you in a divorce can have advantages and disadvantages. If your relationship with your spouse is so broken that you cannot communicate effectively with him or her, or if your spouse was abusive, you likely will want a lawyer to help protect your rights. You also should get a lawyer if your spouse has a lawyer.
If you can work out the key issues in a divorce without a lawyer, both parties may be able to save significant money on legal fees. Handling a divorce without counsel may be better suited for couples ending a short-term marriage with comparable wages and no significant assets or children.
That said, the primary benefit of hiring a lawyer is so you understand your legal rights, particularly in a complex divorce. If one party has separate property or the couple has significant marital property, minor children, or major differences in income, the couple would almost certainly benefit from assistance of counsel in their divorce. While divorce lawyers can exacerbate the tension in a family already under stress simply by representing their clients with full energy, they can also guide their client through a collaborative divorce process that defuses the pressure during this unfortunate time.
Choosing Between Fault and No-Fault Divorces
A key distinction to know is the difference between fault and no-fault divorces. All states now permit no-fault divorces, which are an easier and more common way to end a marriage. In a no-fault divorce, neither spouse needs to show that the other spouse did something wrong. A spouse instead must provide a reason that state law recognizes as sufficient to show that the couple cannot get along. This is often termed “incompatibility” or “irreconcilable differences.” Often states require that the spouses live apart for a certain period before they are eligible to file for a no-fault divorce.
Some states also allow fault divorces, which require one spouse to prove that the other spouse did something wrong. This is the traditional form of divorce, but it has become less widely used than no-fault divorce. The most typical ground for granting a fault divorce is cruelty, which covers emotional distress as well as physical pain. A spouse also can seek a fault divorce based on adultery, desertion, imprisonment, or lack of sexual capacity.
A fault divorce is less straightforward than a no-fault divorce, but some people still find it an appealing option. In contrast with a no-fault divorce, a fault divorce does not require a separation period. The spouse who is not at fault also is more likely to get more of the marital property, a larger alimony amount, and custody of any children. If both spouses are at fault, a court generally will grant the divorce to the spouse who is less at fault.
But a fault divorce also has downsides that sometimes offset its advantages. A spouse cannot stop the other spouse from getting a no-fault divorce, while a fault divorce can be contested. The spouse against whom the fault divorce is sought can argue that he or she is not at fault, or that the other spouse tolerated or provoked the activity on which the divorce is based. In reality, however, courts usually are reluctant to deny someone’s request for any type of divorce because forcing people to remain married seems harsh and contrary to good public policy.
Distinguishing Divorce from Separation
Sometimes spouses want to remain legally married for personal reasons, such as religious or financial issues, but they still want to end their relationship. If you are in that situation, you can consider seeking a legal separation. This means that a court will divide your property while deciding on alimony, child custody, and child support, which are called separate maintenance in a separation. A legal separation looks just like a divorce in every practical way except that a court does not grant a divorce.
You should not confuse a legal separation with other types of separation that do not have legal effect. For example, some couples decide to experiment with living apart for a certain time to see whether they want a legal separation or a divorce. This period is called a trial separation, and any assets or debts that arise during this period are considered marital property.
Alternately, the spouses may decide that they don’t want to live in the same home anymore. Some states interpret this arrangement, called living apart, to end the period when marital property is accumulated. Other states classify property accumulated during this time as marital property unless the couple actually seeks a divorce.
A trial separation can lead to a permanent separation, or a couple may decide to start a permanent separation immediately. Even a permanent separation does not have legal effect unless the couple files for legal separation. On the other hand, a court generally will not view property accumulated by either spouse during a permanent separation as marital property. This is a key difference distinguishing trial separation and living apart from permanent separation.
The important thing to remember, though, is that a separation does not have legal effect unless you ask a court to recognize it as a legal separation. Most couples prefer to seek a standard divorce, but this is still an option to consider.
Distinguishing Divorce from Annulment
As an alternative to divorce, an annulment is even less common than legal separation. When a court grants an annulment, the marriage will be treated as though it never happened, which can be useful to members of some religions who want to remarry (although some religious institutions grant religious annulments, which do not typically affect the individuals’ legal relationship).
Like a fault divorce, a civil annulment requires a spouse to provide a specific reason for seeking it. These reasons include fraud, lack of consummation, incest, bigamy, mental impairment, coercion, or marriage to a spouse below the age of consent. As you can see, a court will grant an annulment only in limited cases. When a couple seeks an annulment within a short time after a marriage, the court often has little to decide in terms of marital property, child custody, or child support. However, annulments can end longer marriages as well. You should be aware that any children born in a marriage that is annulled will not be considered illegitimate.
