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The Ultimate Guide to Divorce

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The Ultimate Guide to Divorce

A divorce occurs when a married couple decides to formally dissolve their marriage. The divorce process may be simple or complex depending upon the length of the marriage and the types of possessions under dispute.

If a couple has been married for many years, has minor children, owns property together, and has incurred debts during marriage, the divorce may be lengthy and will require the aid of a family law attorney.

Are There Different Kinds of Divorce?

There are three general types of divorce:

  • Absolute Divorce: To acquire an absolute divorce, most courts require some type of evidentiary showing of misconduct or wrongdoing on the spouse’s part. An absolute divorce, when complete, returns both parties’ status to "single."
  • Legal Separation: Legal separation are court decrees resulting in the termination of the right to cohabitate. In legal separation, the court does not officially dissolve the marriage and the parties’ status remains as "married."
  • No Fault Divorce: No-fault divorce statutes do not require the petitioner to state a reason for the end of the marriage. In these states, the court must only find:
    • The relationship no longer works
    • Irreconcilable differences exist which lead to the end of the marriage
    • There is no possibility of reconciliation
    • The marriage is broken

How Do I Start My Divorce?

The first step in the divorce process is filing a divorce petition in your local court. Even if the parties both agree that they want to get divorced, one must file the initial petition to begin the process. As stated above, some states require the party filing, the petitioner, to state grounds for divorce.

However, some states do not require grounds for divorce. For example, California is a no-fault state wherein the petitioner need only state "irreconcilable differences" as the reason for the petition. Some states still consider fault grounds such as adultery or abandonment as grounds for divorce.

What Other Documents Need to Be Filed in My Divorce?

Some additional documents that may be required are the following:

  • Temporary Orders: The court may issue temporary orders outlining specific actions that must take place and last until the final divorce hearing. These temporary orders may include orders for child support, spousal support, and child custody.
  • Service of Process: A petitioner filing for divorce must ensure that the petition is also served on the respondent. If both parties agree to the divorce, the respondent need only sign an acknowledgment.
  • Response: Upon service of process, the respondent, or the party being served, files a response to the petition for divorce stating that they either agree or disagree. Filing a response shows that both parties agree to the divorce. In most courts, if a response is not filed within 30 days of receipt of process, the petitioner can ask the court for a default to be entered by the court.
  • Divorce Discovery: Discovery is how the parties gather information about either party to the divorce.
    • Disclosures: Upon the filing of the petition of divorce, the parties are required to disclose information regarding their assets, liabilities, income, and expenses.
    • Interrogatories: These include a list of questions that the attorneys send to the opposing side. In a deposition, the party being deposed swears under oath and answers questions asked by opposing counsel. Anything said in a deposition may be used in court.

How Long Does the Process Take?

There are a number of issues that will determine how long it will take for your divorce to become final. On average, most states require a 0 to 6 month waiting period after the initial divorce petition is filed. If there are no contested issues in the divorce, and no waiting period, an uncontested divorce could be completed in anywhere from six weeks to 12 months. However, on average, most divorces take up to ten months.

What Happens to Property and Debts in a Divorce?

Depending on what state you live in, your property will be divided according to community property laws or common law.

Common Law States: In common law states, property ownership is determined by the name on the deed, registration document, or other title papers. In common law states you are free to leave your property to anyone. In situations where both spouse’s names are on the property, both spouses own a half-interest in the property. Debts incurred in common law states are only the responsibility of the party who incurred the debt. For example, if a husband purchased a car during marriage in his name, and his name alone, at divorce, the husband is solely responsible for the remaining payments on the car.

Community Property States: In community property states earning made and property purchased with those earnings are considered community property. At time of divorce, community property is divided equally with property split 50/50. Additionally, property inherited by one spouse, including money, retains its separate property character. This property is not subject to division at the time of divorce. When it comes to debts, both parties own the debts if the debt was jointly undertaken. Unless a party can prove otherwise, debts undertaken during marriage are considered to belong to both.

What Is Spousal Support?

Spousal support is the support provided by one spouse to another during a legal separation and/or after a divorce. Laws regarding spousal support vary from state to state. In granting spousal support, the courts look at the length of the marriage.

Spousal support is typically only granted in marriages that are five years or longer. There are many different types of spousal support, so retaining an attorney to aid in finding a solution to your support needs is important. Additionally, parties can agree that spousal support will not be provided, unlike child support.

What Happens to My Children in Divorce?

When divorcing parties have minor children, the issue of child custody comes into play. There are two types of child custody—legal custody and physical custody. Legal custody is the ability of one or both parents to make educational, health, and religious decisions in rearing their child or children.

Physical custody is the day-to-day care of a child and establishes where a child will live. In amicable divorces, parties can typically come to a favorable solution regarding custody. However, in situations where a divorce is more contentious, the court will step in and order custody to one parent or both parents.

Who Determines Child Support?

Anyone who is determined to be a child’s parent is responsible for supporting the child. Child support may be ordered by the court to be paid by one parent when one is the non-custodial parent and the other is a custodial parent.

Child support may also be ordered if both parents share joint custody of the child and share responsibility. In some situations, a parent with sole custody of the child or children is ordered by the court to be paid to the noncustodial parent when the child or children are with the noncustodial parent.

Do I Need a Family Law Attorney?

Not every divorce is the same. Depending on your particular situation there are several factors that must be determined prior to divorce to ensure that your rights are protected.

Additionally, if there are minor children involved, maintaining a stable environment during the difficult process of divorce is paramount. It is essential in most divorce cases to hire an experienced family law attorney to protect your rights, your children and your property.

Photo of page author Kirin McKenna

, LegalMatch Legal Writer and Attorney at Law

Last Modified: 04-20-2017 01:54 PM PDT

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