Getting married symbolizes more than just an emotional commitment, it entails a life-long commitment to mesh lives, commingle assets, and parent children. Ending a marriage through divorce also has life-long consequences, both legal and financial, as well as consequences for any children of the marriage. Because separating joined lives can be difficult and messy, each state has specific steps that must be taken in the process of divorce, from the couple’s separation, to the final decree ordered by a family court judge. Requirements and the process of getting a divorce vary by jurisdiction. To explore this concept, consider the following divorce definition.
Definition of Divorce
- Noun. The dissolution of a marriage by judicial decree.
- Verb. To end the marriage contract between oneself and one’s spouse.
Origin: 1350-1400 Middle English < Latin dīvortium
Uncontested Divorce vs. Contested Divorce
An uncontested divorce is one in which both parties agree to all issues, with or without mediation, or lawyers becoming involved. After the parties agree, as to how the marital property and debts will be divided, and how the children will be parented and supported, as well as all other issues that arise in separating their lives, they may present a written agreement to the divorce court judge for approval. Most divorces in the United States are uncontested.
Contested divorces are those in which the parties cannot agree to the terms and conditions of a divorce. In this circumstance, it is necessary for a judge to hear and decide the issues at a trial. This process is often very expensive, as it often entails a mountain of attorneys’ fees and additional expenses, as the parties engage in discovery, attempt to prove their position, and engage in a custody battle. This entails a great deal of preparation for trial, and more than one court date. The process takes months to years to complete, and while the parties do present their points of view, the judge usually decides the case based on an equitable division of marital assets, issuing a divorce decree and custody based on what is in the children’s best interest.
No Fault divorce vs. Fault Divorce
A “no-fault” divorce is when neither spouse is required to prove that the other party did something wrong that lead to the breakdown of the relationship. The filing party has to choose one of the reasons for divorce honored by their state, which are generally listed on the Complaint for Divorce form. The most commonly cited reason is “irreconcilable differences,” which is an elegant way to say the couple simply cannot get along, and the marriage cannot be salvaged.
In a no-fault divorce, a spouse cannot object to the petition, or refuse to get divorced. Some states, such as California, only offer no-fault divorces. Others allow either fault or no-fault, and have specific requirements for filing for no-fault. For example, the couple may be required to live apart for a specified amount of time before filing for a no-fault divorce.
In modern times, “fault” divorces are less common, and not all states recognize them. In a fault divorce, one party claims the spouse is at fault for the failed marriage. When there is evidence of one party being at fault, such as adultery, abandonment, or abuse, there is no requirement for a minimum separation time before filing for divorce, and the innocent spouse may be awarded a larger portion of the marital property.
On occasion, both spouses will request a fault divorce and make claims against the other party. This is referred to as “comparative rectitude.” In these instances, the court will determine who is the most at fault and the other party will be granted the divorce.
Uniform Marriage and Divorce Act
The Uniform Marriage and Divorce Act of 1970 (“UMDA”), also known as the Model Marriage and Divorce Act, was enacted in an attempt to make marriage and divorce laws across the states more consistent. The UMDA eliminated the need to prove fault, and recommended irreconcilable differences as the sole grounds for divorce.
As of 2015, only a handful of states have adopted the Uniform Marriage and Divorce Act, however. Some of these states have adopted only portions of the act, while others fully adopted it into law. The states that have enacted the UMDA include:
Grounds for Divorce
Each state has specific statutes that specify the grounds for which a divorce can be granted. For a no-fault divorce, the filing party simply needs to choose the state-offered grounds for divorce, which usually include:
- Irreconcilable Differences – an irreparable breakdown in the marriage.
- Incurable Insanity – requires proof that one spouse was, at the time of the divorce petition, and remains, incurably insane.
A fault divorce may be filed, based on certain grounds for divorce, which vary by state, but which often include:
- Abuse or cruelty
- Abandonment by the spouse for at least one year
- Criminal conviction of one spouse, with our without confinement of the spouse in prison
- Adultery or bigamy
- Drug or alcohol abuse
- Mental illness or incompetency
When a spouse requests a divorce based on some fault of the other party, it is up to the court to determine whether the fault is warranted. Without sufficient evidence of fault, the divorce would still be granted as no-fault. The only difference is that the requesting spouse would lose any benefits he or she may have gained by proving the other spouse was at fault for the breakdown of the marriage.
How to File for Divorce
Deciding to get a divorce is the just first step in a process that must follow certain steps specified by state law. While many people hire an attorney to ensure the process goes as smoothly as possible, it is certainly possible for any party to file for divorce himself.
Filing a Divorce Petition
The Divorce Petition and Summons, as well any other forms needed, are available from the local divorce court clerk. These documents must be filled out completely, signed, and filed with the court in the city or county in which the parties reside. There are certain residency requirements for filing for divorce, which vary by state. Basically, these require the parties’ primary residence to have been in that jurisdiction for a minimum amount of time before they can file for divorce there.
Serving the Documents
After the documents have been filed with the divorce court, they must be personally served on the spouse. The serving party can use a professional process server, a local sheriff or constable, or any person over the age of majority who is not involved in the divorce. If the other spouse cannot be located, service may be made by publication in a local newspaper, the specific method of which varies by jurisdiction.
Answering the Petition
Once the receiving spouse (the “Respondent”) receives the divorce documents, he or she must file an “Answer” with the court within a specific period of time, which is usually 30 days. Should the Respondent fail to provide an answer, the divorce may be decided in favor of the filing spouse (the “Petitioner”), as a Default Judgment. Like the petition and summons, the form for the Respondent’s answer is available from the court clerk. Most states require that a blank answer form be served with the petition and summons.
Marital Settlement Agreement
If the couple can come to an agreement as to the terms of the divorce, they can both save a great deal of time and money. Whether they come to an arrangement on their own, or with the assistance of their attorneys or a mediator, the agreed terms need to be put into a written Marital Settlement Agreement. It is not necessary that the couple agree to every issue, as even a partial agreement can shorten the divorce process. Any issues remaining to be decided may go to trial if necessary, where the judge will make a decision based on evidence and testimony presented.
Division of Marital Property
During a divorce, the most common disputes are over the division of marital property, such as their home, their cars, household furnishings, and other items. Bank accounts, investment accounts, life insurance, retirement accounts, and even debts must also be divided. The court will be looking to ensure an equitable division of these marital assets and debts. Any property the parties owned separately prior to their marriage remains their separate party, as well as items received as inheritance or gifts during the marriage in most states. Because of this, when certain property was received often comes into question.
Obviously, items cannot literally be divided in half for distribution, so the usual method of division of marital property involves both parties making a list of all of the marital assets and debts, assigning current values to everything on the list. The total value of the assets is then divided in half, the couple then deciding who gets what to satisfy their half of the value. The total amount of marital debt is also divided, half being assigned to each spouse. A party may decide to satisfy his or her portion of marital debt by allowing the other to take a larger portion of the property.
In the event the parties cannot reach an agreement, and the matter proceeds to trial, the court may take into consideration such other factors as the income level of each spouse, the respective ages of the parties, and the respective earning capacity of each spouse.
Alimony, also referred to as “spousal support,” refers to the obligation of an individual to provide their spouse with financial support after a separation or divorce. Alimony is court ordered, the amount varied depending on the income of both parties, with the goal of helping the receiving spouse maintain the standard of living experienced during the marriage. The length of time alimony is required to be paid often depends on the length of the marriage, and may take into account the future earning capacity of both parties. Whatever period of time spousal support is ordered, it comes to an end when the receiving spouse remarries or dies.
Child Custody and Child Support
Unfortunately, children are often involved in divorce. The need for a child custody and visitation agreement, as well as financial support for the children, often complicates the process. Although the child custody and child support process is considered separate from the divorce itself, high emotions often intensify the entire conflict. When the parents are able to reach an agreement for custody and support of the children, it can be put into writing and presented to the court for approval. When they cannot agree, the court assigns a neutral third party, usually a mediator, to investigate the relationships between the parents and children, and to recommend a parenting plan that is in the best interests of the children.
Related Legal Terms and Issues
- Discovery – The pre-trial efforts of each party to obtain information and evidence.
- Judgment – A formal decision made by a court in a lawsuit.
- Jurisdiction – The legal authority to hear legal cases and make judgments; the geographical region of authority to enforce justice.
- Residency – The geographical location in which a person lives or resides.
- Trial – A formal presentation of evidence before a judge and jury for the purpose of determining guilt or innocence in a criminal case, or to make a determination in a civil matter.