Divorce Information

Background
Types of divorce: No-Fault Divorce; Fault/Contested Divorce; Default/Uncontested Divorce; Divisible/Bifurcated Divorce; "Quickie" Divorce; Foreign Divorce
Residency Requirements
Contested and Uncontested Divorce
Remarriage
Temporary Orders
Violence
Divorce Mediation: How Mediating Spouses Protect their Legal Rights; Divorce Checklist
Legal Divorce Proceedings: Filing for divorce; Discovery; Responding to discovery requests; Arrangements while the divorce is pending; Pretrial hearings; The trial; Witnesses; Testimony in camera; Right to appeal

Divorce is the legal termination of a marriage. Marital status can only be terminated by a court of law. In a divorce, a court declares the marriage contract broken. Historically, a court would only consider granting a divorce if one spouse had done something wrong--for example, committed adultery or deserted a spouse. Today, you can get divorced for any reason or for no reason at all. However, eEven if you and your spouse are in total agreement about how you will divide your assets, you must still show the judge, who has the final power to grant the divorce, that both parties are being treated fairly in the division of property and settlement of custody and support.

Types of divorce

There are two basic types of divorce:

"Fault" divorce, which means divorce for a particular reason, referred to as the "grounds" for the divorce and
"No-fault" divorce.

The grounds for divorce vary from state to state. Grounds for divorce in each US state

Although in many states the presence of fault is not taken into account when dividing marital property, in some states marital misconduct can be considered when dividing property and awarding support, and even in deciding custody matters. For example, laws in Alabama, Connecticut, Maryland, New Hampshire, South Carolina and Virginia allow the court to consider marital misconduct in determining the equitable distribution of the marital property. Further, Georgia, Louisiana, North Carolina and South Carolina bar an award of alimony to a spouse who has committed marital misconduct. In a few states, including West Virginia and Louisiana, a spouse who commits adultery is not eligible for alimony.

No Fault divorce

Generally speaking, in a no-fault divorce action, spouses can terminate a marriage at will. The spouse suing for divorce does not have to prove that the other spouse did something wrong. The concept of a no-fault divorce is that it doesn't matter who did what to whom that caused the marriage to break down; all that matters is that there is no reasonable prospect of reconciliation. One spouse must simply state a reason recognized by the state and, in some states, the couple must also live apart for a period of time. Marital misconduct does not need to be proven.

The most common grounds for no-fault divorce are:

separation
irreconciliable differences
irretrievable breakdown

So if you file for divorce on no-fault grounds you are in essence saying that you should no longer be married because:

you no longer live together or
you are no longer compatible and have very different goals, needs and desires out of life or
your marriage has deteriorated beyond the point of repair.

Fault divorce/Contested divorce

A fault divorce is only granted if one of the spouses is legally at fault--hence the term "fault" divorce. Today about two-thirds of states still offer some form of fault divorce when marital misconduct has been established.

In a fault divorce the petitioner (the person asking for the divorce) must prove that an act by his or her spouse constitutes marital misconduct and provides a legal reason for a divorce.

Traditional grounds are:

Cruel and inhuman treatment - the physical and mental well-being of plaintiff is endangered, making it unsafe or improper for plaintiff and defendant to continue living with defendant.

Adultery

Abandonment - where defendant abandons the plaintiff for a period of time prior to starting the divorce action and continuing to the present

physical - spouse left marital home with no intention of returning, without any good reason to do so and without other spouse's consent
constructive - one spouse refuses to engage in sexual relations without consent, cause or justification
lockout - one spouse refuses to allow the other spouse into the home continuously

Imprisonment - for a certain amount of time, starting after the marriage and the imprisoned spouse must still be in prison at time divorce action begins

Separation agreement

What happens in a fault divorce if both spouses are at fault? Under a doctrine called "comparative rectitude," a court will grant the spouse least at fault a divorce when both parties have shown grounds for divorce.

Can a spouse successfully prevent a court from granting a divorce?
One spouse cannot stop a no fault divorce. Objecting to the other spouse's request for divorce is itself an irreconcilable difference that would justify the divorce. A spouse can prevent a fault divorce, however, by convincing the court that he or she is not at fault. In addition, several other defenses to a divorce may be possible:

Collusion. If the only no fault divorce available in a state requires that the couple separate for a long time and the couple doesn't want to wait, they might pretend that one of them was at fault in order to manufacture a ground for divorce. This is collusion because they are cooperating in order to mislead the judge. If, before the divorce, one spouse no longer wants a divorce, he could raise the collusion as a defense.
Condonation. Condonation is someone's approval of another's activities. For example, a wife who does not object to her husband's adultery may be said to condone it. If the wife sues her husband for divorce, claiming he has committed adultery, the husband may argue as a defense that she condoned his behavior.
Connivance. Connivance is the setting up of a situation so that the other person commits a wrongdoing. For example, a wife who invites her husband's lover to the house and then leaves for the weekend may be said to have connived his adultery. If the wife sues her husband for divorce, claiming he has committed adultery, the husband may argue as a defense that she connived -- that is, set up -- his actions.
Provocation. Provocation is the inciting of another to do a certain act. If a spouse suing for divorce claims that the other spouse abandoned her, her spouse might defend the suit on the ground that she provoked the abandonment.

Caution: these defenses are rarely used -- for a couple of very practical reasons. First, proving a defense may require witnesses and involve a lot of time and expense. Second, your efforts will likely come to nothing. Chances are good that a court will eventually grant the divorce, because there is a strong public policy against forcing people to stay married when they don't wish to be.

Default divorce/Uncontested divorce

When a party to a divorce is served with a summons but doesn't appear in court, in some states, the court will automatically grant the divorce, known as a "default" or "uncontested" divorce. Until recently marriage, unlike other civil complaints, could not be granted by default. States protected what they perceived as a state interest in families staying intact by only granting divorces when there was proof that the person seeking the divorce was entitled to a divorce decree. Now that fault grounds have been abandoned or reduced to a lesser role in divorce proceedings, an assertion by one party that the marriage is irretrievably broken is enough to warrant granting a divorce decree in some states.

If a couple has worked everything out and come to an agreement beforehand, a default divorce may be a way for the spouses to avoid unnecessary costs in time and money.

Divisible or bifurcated divorce

In a divisible or bifurcated divorce the marriage between spouses is terminated, but other issues, such as the division of property, alimony, child support or custody arrangements, are left to be determined at a later date or at trial. Couples pursue a divisible or bifurcated divorce when one or both spouses want to terminate the marriage quickly, perhaps so they may remarry, yet they want to wait to resolve other issues.

"Quickie" divorce

In osome countries, such as Mexico, Haiti or the Dominican Republic, divorces can often take place within a matter of a few days and are therefore commonly referred to as "quickie divorces." In fact, there are some places where an individuals can obtain a mail-order divorce without ever leaving home.

It is commonly understood that although quickie divorces may be appealing for obvious reasons, they can be risky. Recognition of quickie divorces varies greatly from state to state.

Check with an attorney to determine whether this type of divorce is valid in your state and if it will be appropriate in meeting your future needs. The only benefit to this type of divorce is that it may free you quickly to remarry. However, if you want to get alimony, child support or contest any issues of property settlement, this is not the route to go.

Remember, if your divorce is not considered valid in your state, you could someday run into a problem with bigamy if you remarry.

Foreign divorce

A foreign divorce is a divorce obtained outside the state in which the spouses live, either in a different country or in a different state. As a general rule, the divorce decree of one state must be recognized in all other states.

If, however, the state that is requested to honor the divorce decree determines that neither of the spouses lived in the state where the divorce was granted, it may not have to recognize the divorce decree. (Ex. you and your spouse live in State X. You move to State Y to meet the residency requirements but then move back to State X. State X can refuse to recognize the divorce since you moved to State Y for the sole purpose of obtaining the divorce.)

Remember, if your divorce is not considered valid in your state, you could someday run into a problem with bigamy if you remarry.

What Happens If One Spouse Does Not Consent To A Divorce? If your spouse doesn't want a divorce it's still going to move forward. However, your spouse may contest your claims and force you to prove they are true. What's key is that as long as you can prove a grounds for divorce (that your spouse committed adultery, for instance), your spouse cannot force your to remain married. If you can't prove it's true, then your divorce won't be granted unless you have some additional grounds that you can prove. That is one reason why it may be good to file for divorce on more than one grounds.

RESIDENCY REQUIREMENTS

The requirements for establishing residency vary from state to state. List of residency requirements for each state

If you think that your spouse will file for divorce in another state, it may be prudent to spend the money up front and file first in your home state. Rarely is a divorce settled in one court appearance, and if your spouse files elsewhere you will be travelling to whatever state he has filed. Also, any modifications to the divorce decree, including the property settlement agreement and arrangements for child custody and support, must be filed in the original state. This could keep you traveling out of state for years to come, especially if you have children with your spouse.

If one spouse meets the residency requirement of a state or country, a divorce obtained there is valid, even if the other spouse lives somewhere else. The courts of all states will recognize the divorce. Any decisions the court makes regarding property division, alimony, custody and child support, however, may not be valid unless the non-resident spouse consented to the jurisdiction of the court or later acts as if the foreign divorce was valid -- for example, by paying court-ordered child support.

"Contested" And "Uncontested Divorce"

A case is contested if the parties cannot agree on every one of the issues involved in their particular situation. Common areas of disagreement include, but are not limited to, the following: grounds, custody, visitation, division of assets, child support, maintenance (alimony), payment of family debts, contribution toward educational expenses (college or parochial), payment of health insurance for the dependent spouse, income tax structuring, etc.

A case remains "Contested" until each and every item is resolved. If, however, at any time during the pendency of the case, the parties and their attorneys can reach an agreement on all of the issues, they can then stipulate to the court to have the matters heard as an "Uncontested" matter.

When this occurs, the court will accommodate the parties and provide an expedited Hearing in which it will hear proof regarding the grounds and the settlement. If the standards of the court and the law are met, the court will approve the settlement and enter Judgment on that day or shortly thereafter.

For more information: www.Mycounsel.com

Remarriage

In most states, you can get married the day your divorce decree is made final if you want. In the few states that do set a time limit, the period is not very long, except in Oklahoma and Wisconsin where the parties must wait six months after a divorce is final to remarry. You would have to check the laws in your state to determine whether or not there is any restriction on your remarriage.

How long does the whole process take?

It can be as little as several months or as much as several years. The amount of time depends in great part upon how much you and your spouse can agree upon; the more you are able to determine between you, the less will be in dispute for a judge to decide. The more assets, debts and other financial issues, the more lengthy the process may be due to the complexity of the situation.There really is no way to tell how long it will take to get divorced. Even apparently simple cases can blow up suddenly into complex ones.

Is there always a trial?

Only if you and your spouse cannot reach a settlement. If you do go to trial, the decisions on custody, support and dividing property will be left to the judge, so it's often best if you and your spouse can negotiate a settlement agreement outside of court. This agreement spells out the terms of your divorce. If your case does proceed to a trial, it will probably be heard by a judge. Juries rarely hear divorce cases.

Are divorce records public?

Yes. Anything that is filed with the court is part of the public record, and any interested individual can go to the court clerk's office and request to see a divorce file. Similarly, anyone who is interested can come and sit in the courtroom while a divorce case is being presented. However, due to the sometimes sensitive nature of allegations in divorce cases, it may be possible to have your file sealed and the courtroom closed during proceedings. Whether or not your case can be sealed will depend upon the particular case and the law in your state.

Temporary Orders

When couples separate, important issues are often resolved in a short hearing before a judge, not a full-scale trial. These hearings are usually held in a special court, called family court in most states. Commonly, these quick hearings are less formal than standard court hearings, and less intimidating. But their brevity means that you must be prepared and know exactly what you want: you may have only a few minutes to ask for it. Issues, such as money and custody, come up before and during the divorce process. A spouse can go to court to request a temporary order from a judge, even though a formal divorce action has not yet been filed. The request will be put on a fast track, and a hearing scheduled within days or weeks.

Spouses can ask a court to temporarily:

Restrain a spouse from coming near or contacting the other spouse
Restrain a spouse move out of the family home
Establish child custody
Establish child visitation arrangements
Provide for spousal support payments
Give possession of the family home or car to one of the spouses or
Order either spouse not to sell valuable assets, run up debt, freeze/close any joint accounts

These temporary orders are usually valid until the court holds another hearing or until the spouses arrive at their own long-term settlement through negotiation or mediation

No matter who moves out of the house, it's best that one of you go to court within 1-2 days to quickly resolve any critical issues. If you're staying with the children, you should immediately file for custody and child support. This accomplishes two things. First, you will be awarded the proper amount of child support and the court will acknowledge that you live with the children, most likely granting physical custody right off the bat. Second, your spouse cannot successfully claim that the children were kidnapped. She or he may raise such a claim, but when you arrive with proof that you filed for custody and child support, the court will most likely dismiss it.

If You Fear Violence

If you fear that your spouse might harm you or your children or abscond with your property, take action immediately. Move to a safe place, and if necessary get a temporary restraining order keeping the spouse away. Close joint bank and credit card accounts. But don't take these steps if you don't need to. Otherwise they will likely cause so much bad feeling that you may lose the chance for a civil divorce.

The Sawnet Domestic Violence page has a list of organizations that help victims of domestic violence.

Divorce Mediation

Divorce mediation is a process in which divorcing spouses negotiate an acceptable divorce agreement with the help of a neutral third party (mediator). The mediator should know the law and may often be a practicing attorney or a retired judge. The mediator will listen to both sides, make suggestions, and attempt to lead the two of you to a consensus, instead of imposing a decision upon you as a judge would.

An advantage of mediation is that consensual agreements are more likely to be complied with in the future, and they usually leave the parties feeling more satisfied with the outcomes. It is also usually much cheaper to mediate than to litigate.

However, If you and your spouse have difficulty communicating, or harbor strong feelings of anger and hostility towards each other, or if there are allegations of abuse, or if one of you is extremely resistant to the idea of a divorce, mediation may be doomed from the start.

How do mediating spouses protect their legal rights?

Because divorce involves legal questions, every divorcing spouse should know and understand his or her legal rights before agreeing to a settlement. One way for a mediating spouse to do know his or her rights is to work with a consulting lawyer who knows and understands mediation. Doing some independent legal research is another option. It's best to do this as early in the process as possible, then follow up with a legal review before signing the settlement agreement.

Divorce checklist

26 basic issues that you should consider when divorcing. The list goes beyond the basic custody, visitation and support issues.

Checklist from divorceonline.com

Financial Issues to Consider from divorce-and-money.com

Legal Divorce Proceedings

This is a brief overview of what your divorce proceeding will be like. There may be more steps to your proceeding dependin on the issues need to be resolved. However, this provides a good synopsis of a divorce proceeding.

Filing for divorce

A divorce begins when one spouse files a petition, or a complaint, against the other. The spouse petitioning for divorce is called the plaintiff or the petitioner. The spouse who is being sued for the divorce is typically called either the defendant or the respondent. The petitioning spouse must file the complaint and any other required documents with the clerk at a divorce court.

The complaint should contain:

an identification of the parties,
a short and clear statement of the reasons or grounds for the divorce,
an explanation of why the court has jurisdiction to grant the divorce decree, and
a request for the judgment the claimant feels he or she is entitled to.

The court will then determine whether it has the power to hear the case. For a court to have power to hear the case, usually one or both of the spouses must live in the same state as the court.

After one spouse files a complaint, a copy of it, along with a summons, is sent to the other spouse. A summons is a written notification that a divorce has been filed and that the spouse is required to appear in court.

In most states the respondent or defendant has 20 to 30 days to file a response with the court in answer to the complaint. In this letter, the responding spouse can raise any defenses to the complaint. If the spouse who initially filed for divorce drops or dismisses the original complaint, the respondent may file a counter-petition that allows the court to continue the divorce proceeding.

Discovery

Discovery is the pre-trial process by which the parties in a case gather information from each other and from any relevant witnesses in preparation for trial. There are several methods of discovery:

Interrogatories
Document requests
Depositions
Subpoenas

Each method of discovery is a way of asking questions and getting answers from the other party to the suit and from relevant witnesses. Through discovery each party can access facts, deeds, documents and information from and about the opposing side. Discovery also helps the court to make fair and informed decisions by revealing all the facts on both sides.

During the discovery process of a divorce proceeding, each spouse can get information about the assets accumulated and debts incurred by the other spouse during the course of the marriage.

Discovery assists each spouse in determining the value of property owned by the other spouse, such as investment properties, stock portfolios or retirement benefits. Through discovery spouses may also get information about assets accumulated before the marriage.

In addition to information regarding financial matters, discovery allows the parties to gather information relating to other areas of the divorce, such as child custody. Interrogatories are written questions that one party to a suit serves upon the other party or a witness. The party served with interrogatories must answer the questions in writing and under oath.

A request for the production of documents lists specific documents that one spouse asks the other to gather and deliver for review. The list may be quite extensive. The documents requested in a divorce proceeding typically include bank statements or other financial statements.

A deposition is the oral testimony of the opposing side or witnesses for the opposing side. The testimony is taken under oath out of court, typically at one of the lawyer's offices. Responses given during the deposition can be used to discredit a witness who changes his or her testimony at trial.

A subpoena is an order to appear and testify in a court hearing or deposition. Subpoenas are used to require a person who is not a party to the case to appear and testify about certain matters pertaining to the case. Evidence that isn't in the possession of the parties to the case may also be subpoenaed from third parties.

In a divorce proceeding a subpoena may help a party get information about a spouse's employment, bank accounts, retirement benefits, insurance coverage and medical records.

Responding to discovery requests

Generally, a party or witness has 30 to 60 days to answer a discovery request. If your spouse doesn't respond to your discovery request, you can file a motion with the court to compel your spouse to respond. The court sets the time limits within which both sides must complete discovery. The court also has the power to impose financial penalties if a party to a suit refuses to comply with discovery requests on a timely basis.

Arrangements while the divorce is pending

While your divorce case is pending, you may need to deal with living arrangements, bill payments, childcare, and visitation rights. If you and your spouse are unable to reach a temporary agreement regarding these issues, your attorney can file a petition for temporary provisions with the court.

Your spouse is usually given time to contest the petition and, consequently, it may take several weeks or even months before the court sets a hearing date. At the hearing the court will determine who gets to stay in the home and who has temporary custody of the children.

The pretrial hearing

In many states the judge may hold an informal hearing before the trial, called a pretrial conference. The pretrial conference allows the judge to assess the issues and witnesses presented by both parties and estimate the length of the trial. The judge may also attempt to get both parties to settle.

The trial

The trial generally takes the following course:
The trial begins with the attorney for each side presenting opening statements that briefly summarize his or her client's version of the case.

The person who initially filed for divorce--the plaintiff--calls witnesses to testify and presents factual evidence in support of his or her case.

After the plaintiff has presented his or her side of the case, the defendant or respondent has the opportunity to call witnesses to testify and present factual evidence in support of his or her side.

Following the defendant's presentation, both parties to the case may call additional witnesses to rebut, or refute, the testimony of any prior witnesses.

After all the evidence has been presented, the attorney for each party gives a closing argument that summarizes the evidence and highlights any points that the he or she believes the opposing side has failed to establish.

The judge normally takes the matter under advisement and will call the parties into court at the time the official ruling is read into the record.

Sometimes the court may appoint a separate attorney to represent any minor children affected by the divorce. This attorney is referred to as the guardian ad litem, attorney for the minor child/children, or CASA (court appointed special attorney), depending on the state in which your trial takes place.

Unless issues of custody and visitation rights are contested, it is generally not necessary for children to be represented at the trial. However, if the court does appoint an attorney to represent any minor children, that attorney may also be present during all court proceedings.

Witnesses

The witnesses most likely to be called to testify in a divorce case will be the spouses. Additional "expert" witnesses may be called in cases where there are other issues for the court to decide.

For example, if a spouse contests a custody issue, witnesses may be called to testify about the best interests of the child. An accountant or appraiser may be called to testify about a specific business or property value. If a spouse has outstanding debt, the person to whom the money is owed may testify about that debt.

Testimony in camera

In a divorce trial, some testimony may be given in camera, in the privacy of the judge's chambers. In camera review of evidence or testimony is used when the subject matter is sensitive--for example, if children testify privately about their relationship with their parents.

Generally, the parents must agree or stipulate to an in camera hearing, although some state statutes allow the court to conduct such a hearing without parental permission. Attorneys for both parties may be present but some states permit the judge to interview the child alone.

If the child is represented by a guardian ad litem, attorney for the minor child, or a court appointed special attorney, the attorney will also attend the in camera interview.

Right to appeal

If the trial judge rules against you in a divorce hearing, you may appeal. An appeal is a review of the judge's decision by a higher court, also called an appellate court. After the trial judge decides the case, both parties generally have between 30 to 45 days to appeal the decision to the appellate court. The appellate court determines if the trial judge erred in his or her opinion of the case.

However, appellate courts do not generally reverse a trial court's determinations of factual matters. In general, appellate courts only reverse a trial court's decision if the trial judge made a significant error in interpreting the law. If the case is reversed, the appellate judge will send it back to the trial judge with instructions on how to remedy the error.

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