Divorce refers to a court procedure in which the legal marriage between two parties is dissolved. Each state has their own specific laws regarding divorce, such as residency requirements. They also have their own procedures for divorce. In general, the majority of states follow two main types of divorce: no fault divorce, and fault based divorce.
No fault divorce does not require that either party prove any wrongdoing or fault in order for a court to grant the divorce. In fact, in some states, simply declaring that you no longer wish to be married or no longer get along with one another is enough to receive a divorce. However, in other states, you may be required to live apart from each other for a specified amount of time before you are allowed to file for divorce.
The typical grounds for a no fault divorce are incompatibility, irreconcilable differences, or irremediable breakdown of the marriage. Essentially, all three reasons amount to the same thing, which is that the parties cannot get along and would like to dissolve their legal union.
Fault-based divorces are granted when the party filing for the divorce is able to provide a specific reason as to why their spouse is responsible for the failure of their marriage. In other words, one party is able to prove that the other is at fault. There are several traditional grounds for a fault divorce, including but not limited to:
- Cruelty, such as physical abuse;
- Desertion for a specific amount of time;
- Confinement in prison for a number of years; or
- Inability to consummate the marriage.
There may be many reasons why a party may want to file for an at fault divorce, as opposed to a no fault divorce. One of them is that doing so may eliminate the required mandatory separation period of no fault divorces. Additionally, some states may distribute a greater share of marital property or alimony to the party able to prove that the other party is at fault.
Several states, including California and Florida, do not allow for fault divorces at all. In those states, only no fault divorces may be granted, even in cases in which a spouse has violated the traditional grounds for a fault divorce.
Divorce proceedings result in a divorce decree. This is an official judgment providing legal evidence that the marriage has officially been terminated. This decree generally contains specific information regarding alimony or spousal support, property division, child custody, visitation, and child support.
Divorce decrees are final and legally binding, but they may be modified (changed) by the court in the future. Modifications may be obtained in accordance to changes with each party’s circumstances, such as an out of state move or significant change in employment or income.
Even simple divorces cases may involve many different legal issues. The majority of these issues are due to the need for an evaluation of both the marital estate and each individual’s separate estate. Many of these disputes revolve around the classification and division of property, such as what property may be considered marital property. In many cases, the divorcing couple is able to come to an agreement in regards to the division of their property and debts on their own.
However, if no division agreement can be reached, the court must intervene and apply any applicable laws in order to settle the dispute. Property division is decided by the state, and falls into two categories: community property states, and equitable distribution property states.
Another example of an issue to be aware of when filing for divorce would be hidden assets. There is a legal duty to disclose all information concerning assets, financial accounts, and properties. Hidden assets are those that have been intentionally concealed or transferred so that the other party cannot claim them. Child custody and visitation, spousal support, and tax implications are other frequently-encountered divorce related issues.
There are several ways in which divorce disputes may be resolved. The most common means for resolving disputes include:
- Mediation: Mediation involves negotiations regarding child custody and support, division of assets, and alimony. The negotiations take place between the divorcing couple and a neutral mediator. Mediation is often more cooperative, and may be court ordered; or
- Informal Negotiations: Informal negotiations occur when each spouse involved in the divorce comes to an agreement on their own. This is done without the aid of an impartial third party. This agreement is put into writing then submitted to the court for approval. An example of this would be when one spouse agrees that the other spouse should maintain ownership of the house. As such, there is no need to resolve any dispute regarding that specific property.
Mediation and informal negotiations are not always options when the spouses are unable to collaborate and cooperate with each other. In such cases, a formal lawsuit may be necessary in order to resolve any issues that need to be resolved.
As can be seen, there are several complicated issues that may arise through the course of divorce proceedings. Even in more simple divorce cases, there is still a lot of issues that must be handled.
Therefore, if you are filing for divorce you should consult with a skilled and knowledgeable divorce attorney in your area. An experienced divorce attorney will help you identify any legal issues that may arise in your case, as well as assist you in resolving those issues.