How Divorce Works

Fault vs. No-fault Divorce

In 1970, California changed the way people looked at divorce as well as the ease at which they could get out of a marriage by passing the first no-fault divorce law in the United States. Before that, in order to get a divorce, one spouse had to have done something wrong -- be "at fault" for the failure of the marriage. Those wrongdoings are called "grounds for divorce" and include adultery, physical or mental cruelty, desertion, confinement in prison, physical incapacity (for the purpose of sexual intercourse) and incurable insanity. If the defending spouse didn't want the divorce, he or she had to deny what they were being accused of and defend himself or herself in court.

While many states still allow fault divorces, they all also allow no-fault divorces. No-fault divorces are just what they sound like: No one is at fault for the failure of the marriage. Even if there were some misconduct, it doesn't matter in a no-fault divorce. The basis for dissolving the union may simply be "incompatibilities" or "irreconcilable differences." There usually doesn't have to be any explanation or proof of a problem. In most states, it doesn't matter if the other spouse consents to the divorce or not.

Contested vs. Uncontested Divorce

A divorce is uncontested if one spouse either:

If an agreement can't be reached on every issue, then it is a contested divorce, and the couple has to take the issues before a judge. Contested divorces cost a lot more and usually create a lot more turmoil.

Simplified Divorce

Some states allow a simplified divorce, which speeds up the divorce process and usually keeps it out of court. Simplified divorces are uncontested, no-fault divorces with no disagreements on the settlement.

State laws differ on simplified divorce, but usually it is a less expensive and less stressful way to go. Some states require only that you fill out forms and have a judge approve your settlement agreement. Others will only allow you to seek a simplified divorce if there are no dependent children (under 18) and no outstanding financial debts involved. Simplified divorces are usually granted very quickly (30 days after filing is common).

State Variations

All states have different divorce laws. While there is a Uniform Marriage and Divorce Act that some states have adopted, details and procedures still vary wildly. Some states have also adopted the Uniform Divorce Recognition Act, which requires that the divorce be filed in the state where both spouses live. If they get a divorce in a different state, their state of residence won't recognize it, causing big problems down the road if one of them wants to remarry.

Even states that haven't adopted the Uniform Divorce Recognition Act usually have a residency requirement for divorces, meaning you have to have lived in that state for a specified length of time before you can file for divorce there. Because some states also have requirements for lengthy separations before divorces can be final, people seeking quick divorces often move temporarily to states that have shorter separation periods just to get their divorces faster.

So how do you go about getting a divorce? Do you have to go to court? If you have a contested divorce or you are seeking a fault divorce in order to gain greater spousal support or child custody, then the answer is probably yes. If not, then going to court isn't always necessary. In fact, currently only about 10 percent of divorces are taken before a judge. Most are settled out of court.

Litigated Divorce

The typical divorce involves one spouse filing a complaint and then both spouses hiring attorneys. Each attorney begins "discovery" to determine how to divide marital property. Eventually, either the two attorneys work out a settlement on behalf of their clients or it goes to court and is decided by a judge. The couple is not actively involved in the negotiation. The final settlement covers distribution of property, child and spousal support and child custody/visitation issues.

Mediated Divorce

Mediation is growing in popularity for divorce because it puts the couple in charge of the negotiation and how property is distributed. With the help of a neutral professional, the couple can discuss and negotiate the issues to reach a result that both parties are comfortable with. If mediation doesn't work, they can move forward with the traditional, litigated case and let a judge decide.

The couple doesn't avoid court completely with mediation, however. The agreement still has to be approved, forms completed and the divorce finalized through a court process. But, they avoid having their dirty laundry aired in public and they don't have to call friends and family to testify at a trial.

Collaborative-law Divorce

Another option growing in popularity and availability is collaborative law. Collaborative law is a new process for dispute resolution that includes an upfront, written agreement stating that the divorce will not go to court. Instead, it is more of a dispute-resolution setting in which the couple remains in control by way of face-to-face negotiation sessions. Those sessions include both spouses and their attorneys. They may also hire professionals such as therapists, appraisers or other consultants.

Essentially, the attorneys are there to answer legal questions, and the couple controls the negotiations. Both spouses have agreed that information will be exchanged (discovery) in a timely manner. Because each spouse understands his or her individual interests and needs better than anyone else, this process allows them to present those needs and find a solution quickly.

Rather than being out to "win" -- creating an adversarial atmosphere -- the attorneys in this case become problem solvers and negotiators because the whole focus and goal of the process is the settlement. If a settlement can't be reached, the attorneys agree to be fired and pass on all of their files and information to subsequent attorneys. This helps control costs because the next attorney doesn't have to repeat the discovery process.

As we discussed on the previous page, there are several ways to go about getting a divorce, and how much it costs varies greatly. According to Divorce Wizards, a litigated divorce will usually cost more than $30,000, while a mediated divorce can cost less than $5,000. People can save considerable money (and anguish) by agreeing to a settlement and not going to court. Mediation, with or without the help of an attorney, is almost always the least expensive way to go if you need outside guidance.

You can also do it all yourself, known as Pro Se. According to Daniel Sitarz, the attorney who wrote "Divorce Yourself: The National No-Fault Divorce Kit," people can draft their own settlement agreements, fill out the forms and file for divorce without the help an attorney. That is, if they can agree on the settlement.

However, not all cases can be settled without the help and advice of a divorce attorney. Disagreements over property, spousal support and child custody have to be settled, and if a mediator or collaborative attorney can't help resolve the issue, then the only thing left is to take it before a judge. You can represent yourself in the case, but this is a bad idea if your spouse has hired an attorney, because you'll be starting out at a disadvantage. According to most experts, both spouses using the same attorney is also a bad idea. It creates a conflict of interest for the attorney, and both sides can't be represented fairly.

Overview of the Process

The process of getting divorced varies depending on several factors. First of all, the location determines a lot of what is required. The type of divorce being sought and whether or not there are children involved also changes the process. If there are no children under 18 and there is no disagreement about distribution of property, then a simplified divorce is often possible. When there are children involved and when there is disagreement about the settlement, then it gets stickier. Many courts require childcare classes for dealing with children after a divorce, and some also require couples to go through mediation to work through disputes. The basic steps are as follows:

In the following sections, we'll walk through each of these steps and examine the various options available at each stage in the divorce process, starting with separation.

Separation

Often the first step taken in the process of getting a divorce is for one spouse to move out of the shared residence. This might just be a trial separation while they decide if divorce is imminent or if they might get back together, or this might be a definite step in the initiation of the divorce. If it is the former, then this is not a legally recognized separation, and any assets or debts created during this time are still jointly owned.

When people refer to "legal separation" they usually mean that period of time they are required to live apart before they can file for divorce. Most states don't actually have a "legal separation," just the separation requirement, which entails living (and sleeping) in different locations at all times. Even getting back together for short periods of time may reset the clock for the separation period. Separate bedrooms in the same house do not constitute a separation. Like for the final divorce, there can be an agreement to divide property and temporarily establish spousal support and child custody. Any assets or debts accumulated during the separation belong to the individual rather than the couple.

Sometimes, people choose a legally recognized separation in lieu of a divorce, meaning the couple is still legally married but living apart indefinitely. This arrangement may be preferable for insurance or other reasons.

Filing a Petition

People can only file for divorce in the state where they live and must have already met the separation requirements.

Filing for divorce, also called filing a "Complaint for Dissolution of Marriage," requires appropriate forms to be completed, a fee paid and the papers filed with the district court in the appropriate county. If you're using an attorney, the attorney will help complete the forms and file them. If not, you're usually on your own. The court personnel will not answer legal questions or help with paperwork.

Part of the petition for divorce is the "grounds for divorce." Even when filing for a no-fault divorce, there has to be a stated reason. Many states simply have a single available ground for no-fault divorce, such as "irretrievable breakdown of marriage" or "irreconcilable differences." Other states have three or four grounds. Fault-based divorces have varied grounds depending on the state.

Another part of the petition includes a listing of items that will be at issue such as the residence, cars and other shared possessions.

Notifying the Spouse

Once you file the complaint, your spouse has to be notified, or served. You (or your lawyer) must submit to the court proof that your spouse has been formally notified. Usually, the spouse can simply sign what is sometimes called a Voluntary Appearance document. If your spouse signs a Voluntary Appearance document, then he or she simply agrees to everything in the complaint and does not have to respond. Otherwise, he or she must formally respond, or file an answer, within a specific period of time -- usually 20 to 30 days. And, once he or she responds, there is another waiting period before a hearing can be set.

If your spouse is served and does not answer, then the judge can grant you everything requested in the complaint.

If your spouse cannot be located, then usually a "service by publication" can be filed. In this case, notice about the divorce appears in a newspaper serving the county where your spouse last lived. This method for service usually allows a longer response period.

Temporary Hearing

Because a trial can be a year away, there may be a "temporary hearing" (also called a motion) to establish temporary child or spousal support and other issues. Some common requests for "temporary" relief include:

After the temporary hearing, there is often a long wait. That time is usually used to get situated in the new, separate living arrangements and begin thinking about the permanent settlement.

The Agreement

Often the most important and/or difficult parts of the divorce is agreeing on how to divide property and debts and establishing child custody and spousal support. Those items have to be detailed in a written agreement. If it can be done fairly without going to court, then that's better for everyone. The agreement outlines the rules and states what conditions each spouse has agreed to. It is a legally binding contract and can have two primary purposes:

If both spouses are using attorneys, then the attorneys will gather financial and other information from their clients and the opposing spouse (this is the discovery stage) and meet to negotiate the terms of the settlement on their clients' behalf (see How Lawsuits Work for more information about the discovery process.) If you can't reach an agreement using this method or a collaborative-law method, then you may choose to try a mediator. With mediation, as mentioned earlier, the couple is in charge of the negotiation. Some states require mediation if you can't easily reach an agreement. If mediation doesn't work, then the next step is to take the matter to court and let the judge decide.

Trial

When you take a divorce to court, it can become a true battle. It is the attorney's job to "win" the case for his or her client -- to seek what is in the client's best interest. That inherently creates a more hostile environment. Of course, if the case has made it to court, it's probably pretty hostile anyway.

Usually, divorce trials are held with only a judge, no jury. Because many of the issues that must be addressed during this process are interrelated, there is sometimes a specific order to how things are addressed. A typical order may be:

The judge bases the final decision on the evidence presented and usually makes a decision right away or within hours.

Finally, if a spouse is not happy with the outcome, he or she has the right to appeal. If the appeal is granted, the matter goes back to court.

Now let's look at the division of property and custody.

Dividing family assets, liabilities and other property can be tricky. Not only do you have to list everything along with its current market value (current as of the time of the original filing), but what you also have to keep track of what you owe on it. A new car that you purchased for $15,000 two years ago may only be worth $10,000 today, and you may still owe a balance of $9,000. It's a complicated process.

Also, there is marital property and nonmarital property. Anything that you owned before the marriage is nonmarital property and stays with you (or you could negotiate if your spouse wants it). Gifts you were given by your spouse, such as an engagement ring or a plasma television, remain with you and aren't considered marital property, either.

One way some people begin the process of dividing marital property is to come up with a list and divide it by:

Then, there are monetary assets such as equity in a house, bank accounts, stocks, retirement accounts, life insurance and other joint assets. In the case of retirement accounts, the current value is the value if you were retiring today.

Add to that debts such as car loans, mortgages, credit card balances (as of the filing) and other debts, and a picture of the total assets becomes more clear. How to divide it may still be fuzzy, and that's where the negotiations are important. The courts have forms for you to fill out where you list everything and calculate total assets. Some couples close or freeze joint accounts and keep track of debts paid or accrued during the separation in order to keep the list of assets current.

Child Custody

When children are involved, you must file a custody petition. This is separate from the divorce filing itself, but since both fall under the jurisdiction of family court, you can usually handle both at the same time. When you're discussing custody, the best interest of the child should always be the driving force for decisions. Thinking about things like not moving children from the school they attend and the friends they have is very important. Additionally, questions such as which parent has the most time to spend with the child and which parent has family close by often provide decision-making points. The parent who has been the primary caregiver often gets a greater custody role.

Sole custody means one parent has both physical custody and legal custody. Legal custody entails the right to make decisions regarding the upbringing of the child. When sole custody is awarded, the non-custodial parent usually gets regular visitation rights.

Joint custody allows both parents to have a say in the child's upbringing. This type of custody can be further divided into joint physical custody (the child lives with both parents at different times) and joint legal custody (both parents have equal say in decisions regarding the child). In this type of custody, it is possible for a judge to grant sole physical custody and joint legal custody or vice versa.

There is also divided custody or alternating custody, which means the parents split the time the child is physically with them and share legal custody for decision making.

Occasionally, families with more than one child will give one parent custody of one child and the other parent custody of the other child. This is usually known as split custody and is uncommon.

Next, we'll look at child support and alimony.

Child support is money paid to the custodial parent to pay for reasonable needs of the child or children for health, education and other maintenance. In most states, child support is determined based on the combined incomes of both parents and sometimes also takes into consideration fixed expenses such as a mortgage, car payments and utilities. A formula is used based on total gross income. In North Carolina, for example, if the parents have a combined monthly gross income of $10,000, the child support required for one child is $1,064, for two children is $1,423 and for three children is $1,583. This amount is then divided based on each spouse's earnings and financial situation. Either spouse can request higher or lower payments, and a judge decides if more or less money is warranted based on the circumstances.

Sometimes, additional support may be requested to pay for extras such as private school, extracurricular expenses, summer camp, college, life insurance for the "paying" parent and even extensions beyond age 18. Because these extras are beyond what the law imposes, they are usually incorporated into separation agreements. If the terms of the separation agreement have been signed by both parents and are incorporated into a consent order, then the court can enforce the extra support.

Subsequent Changes

If any changes are made in the child custody arrangement or in spouse incomes that would affect child support payments, then those changes must be documented and submitted to the court. For example, one child might decide to live solely with one parent rather than going back and forth every week. Since a change like that would alter the child-support payments, it should be documented. Otherwise, an unscrupulous spouse can sue for support payments even though the child didn't live with him or her at all; and in some cases, the now non-custodial parent should be paying support to the now custodial parent. But without the court-approved change of the document, the now custodial parent still owes support payments to his or her spouse.

Alimony

When one spouse has given up earning potential in order to raise the children, the other spouse needs to compensate him or her. Judges grant alimony by considering such things as:

State laws vary in which of these things a judge might consider and how much weight each will have. In most states, though, the length of the marriage plays a significant role.

How long alimony is paid is another consideration. Typically, it is a temporary term, but occasionally it can be required for life. This usually depends on how long it will reasonably take the spouse receiving alimony to reenter the job market. Alimony may also be decreased (but not eliminated) as the recipient's earning potential increases.

As you can see, divorce can be a very complex process. To learn more about divorce and related topics, check out the links on the next page.

Divorce procedures are often complicated by a lack of communication between the two parties involved. Because the divorce process can be long and arduous, it’s important to have access to up-to-date information regarding the status of your divorce proceedings. The Internet can be a helpful tool because it allows you to access the court system’s database to see if your case has been filed yet. Because court records are public information, you can also call the court system to see if your case has already been filed.

When the lines of communication between you and your spouse have been completely severed, it’s often difficult to serve your ex with a divorce. Some states require your spouse’s mailing address in order for you to file, which can create a problem in certain situations. If you are no longer on speaking terms with them and have no idea where they live or what their phone number is, then their mailing address can be difficult to attain. If this situation does arise, other options can be made available to the filing party. Most jurisdictions will allow you to obtain service of the missing party by means of publication. This means that if you publish your missing ex’s name in the same general circulation that the court uses, you will be able to obtain service after a month or two. You would not, however, have every option available to you that you normally would, but you should at least be able to get a divorce.

Divorces that involve shared custody of children can also be very confusing. Physical custody and legal custody do not always go hand in hand and one or the other can be classified as joint, divided or split. Because there are so many variations on custody, it can become perplexing when it’s time to file your yearly taxes. If the divorce decree doesn’t explicitly name the parent who can claim the children, then that right goes to the parent who has physical custody of the child or children for the majority of the year. Of course, there are other dependency rules that must be met in order for that parent to be able to claim the children. The parent who has physical custody for the majority of the year has the right to pass the dependency exemption to his or her ex by means of Form 8332, but it is not required under any circumstance.