Frequently Asked Questions
What is a legal divorce?
A divorce is the dissolution of a marriage. After divorce, both parties are free to re-marry. During usual divorce proceedings, the couple’s assets and debts will be divided and the care and custody of any children will be decided. Each state has its own distinct divorce laws.
What are “fault divorce” and “no-fault divorce”?
In the past, divorce generally had only been granted on the basis of misconduct called “fault”: adultery, mental cruelty or another wrongful act. There were also defenses to these faults. In these divorces, the spouse at fault often received a smaller portion of the marital settlement. In a no-fault divorce, the parties merely need to state that the marriage has broken down irretrievably or that the couple has irreconcilable differences. Every state has some form of no-fault divorce, but the particulars of the laws can differ greatly from state to state.
What is an uncontested divorce?
An uncontested divorce is one in which both parties decide to divorce and the terms of the settlement without a trial. That does not mean there are no arguments or disputes between the couple. It simply means the couple will reach an agreement without going to court and having a judge resolve contested issues.
Uncontested divorces move faster through the courts and are therefore not as expensive. It also bypasses the lengthy litigation and trial process which tends to reduce hostility and allows the divorced couples to move on with their lives.
What are the requirements for filing a petition for divorce?
The requirements for filing a petition for divorce vary by each individual state. Each state has residency and domicile requirements. That means one of the parties must have been a resident or domiciliary of the state for a specified period of time prior to the filing of the petition. Some states have a “cooling off” period, during which the parties may not commence divorce proceedings (or serve divorce papers) for a specified period of time after the petition has been filed.
How long does it take for a divorce to be final?
There is usually a zero to six month waiting period after the divorce petition is filed and served to the spouse before a divorce becomes finalized. A judge may make a final ruling on the divorce prior to that date. This order will be effective immediately. However, the marriage is not finally dissolved, and the spouses may not re-marry, until after the zero to six month waiting period.
During the period between the judge’s order and the expiration of the waiting period, any action taken by either spouse is a separate act. Basically, these decisions will not affect community property.
Of course, if a divorce cannot be resolved amicably and requires litigation or a trial, it could take longer than six months to become final.
What happens if we want to cancel the divorce?
You and your spouse can dismiss the divorce after the papers have been filed. Just request a dismissal form from the county clerk before a judgment has been entered. If no response has been filed, the petitioner alone can file the dismissal form. If a response has been filed, both spouses must sign the dismissal form.
Will I have to go to court during my divorce?
If the divorce is uncontested and a marital settlement agreement is filed, the spouses may not have to go to court. In that case, all legal documents can be filed with the court, and the judgment can be mailed to you. However, the court may request a formal or informal hearing. At an informal hearing, the judge might ask questions about certain facts presented. At a formal hearing, the divorce case must be presented from the beginning.
Disputes regarding the division of property, child custody, spousal support or any other terms of the divorce do not automatically require court intervention. In many cases, they can be resolved with arbitration, mediation or third-party negotiation.
Do I have to pay alimony in a divorce?
Spousal support used to be known as “alimony.” Spousal support is not mandatory in the majority of states, but can be ordered by a judge under some circumstances.
If a spouse will have difficulty getting by without financial support, spousal support should be considered. The deciding factor for spousal support is the need to maintain the spouse at his or her usual standard of living. In other words, the law recognizes a husband or wife should not be forced to live at a level below that enjoyed during the marriage.
However, other factors also need to be considered. For example, spousal support should most likely not be considered if:
- The marriage was for a short duration (less than two or three years), and
- Both spouses are employed and self-sufficient
- This does not mean the parties cannot agree on spousal support
There is no set dollar amount used to calculate spousal support. The amount should be decided by both parties.
What is a marital settlement agreement?
A marital settlement agreement spells out the terms of the divorce, as well as the relationship between the two spouses after divorce. These agreements usually correspond to property division, child custody, child plans, debt division, spousal support and any other related issues.
While it is not required, filing a marital settlement agreement does have advantages:
- Lays out all of the agreements in writing, limiting ambiguities
- The spouses may not have to go to court. The judge might honor the written agreement if it’s written correctly and covers all material aspects of the divorce
- Proves to the court that major issues were considered, and the case will move more quickly though the system
Marital settlement agreements can be entered any time before the final judgment. They are often filed with the final judgment.
What is a complaint?
A complaint is a legal document in the action for divorce, separation, or annulment. It contains the details and reasoning for the relief requested in the summons papers, including your grounds for divorce, separation or annulment; it also contains other requests such as child custody, visitation, child support and maintenance, distribution of marital property, health insurance, life insurance, payment of legal fees and experts’ fees, exclusive possession of the marital residence, orders of protection, etc.
How does my spouse find out about the divorce?
It is necessary to have your spouse served with papers to let them know that a court case is on file. Service can be done through an independent person appointed by the court and hired by your attorneys to serve papers on your spouse, or alternatively, through the sheriff of the county in which your spouse resides.
What is joint custody?
Joint custody means that both parties will be actively involved in the raising of their children including the making of major decisions regarding major issues in the children’s lives. Those issues include choice of religion, education, medical and dental treatment, the use of dangerous devices such as the driving of an automobile, or enrollment in dangerous sports, such as football and hockey. Major decisions are made together by both parents. Day to day decisions are made by the parent with whom the children are residing or with whom they are visiting.
The children usually live with one parent, and the other parent then has visitation or parenting time. Sometimes the time spent in each parent’s house is fairly equal, but in most instances, it is not.
What does the law say about my rights to custody and visitation?
The law begins with the presumption that both parents have an equal right to time with the minor children. Most states have no law that favors either mother or father. The courts want to allow the children frequent and continuing contact with both parents, so long as the children are safe in each parent’s care.