Divorce is a complicated process usually handled by divorce lawyers, attorneys with special training and knowledge of family law. Often called the dissolution of marriage, divorce involves dismantling a marriage and distributing property and debt, plus determining which parent will have child custody, pay child support, and in some cases spousal support. Divorce takes months or even years, depending on the type of divorce and the level of contention between the parties. Lawyers for divorce representation must possess extensive understanding of the law and family court procedures.
The divorce process typically begins with either an informal separation or a separation agreement, and a petition for dissolution. Next, in many cases, the divorce lawyer representing one of the spouses files a motion for temporary orders. After that, the dissolution process may consist primarily of discovery, negotiation and settlement discussions, and often mediation until time for a trial on the unresolved issues draws near, depending on the type of divorce.
There are multiple types of divorce and categories of divorce. The first important category contains fault and no fault divorce. Fault divorce occurs when the spouse filing the petition for dissolution claims that the other spouse was specifically at fault for the breakdown of the marriage. In an at-fault divorce, the reasons one spouse was at fault are called the grounds for the divorce.
Grounds for a fault based divorce may include cruelty or abuse, adultery, or other wrongs by one spouse toward the other. If one spouse is found to be at fault for the divorce, depending on the nature of the allegations and the state, the division of property, child custody and support, and alimony or spousal support may be affected by the finding.
In a no-fault divorce, grounds are not required in order to obtain a divorce. Instead, the divorce petition requests a divorce from the court without claiming that one spouse was at fault. A common reason provided for a no-fault divorce is irreconcilable differences. No fault divorces have many benefits, including reducing the amount of money and time spent on a divorce and allowing private marital details to remain private.
Whether the divorce is contested or uncontested refers to whether the spouses agree or disagree on the divorce, property division and other issues that typically arise. In an uncontested divorce, one spouse may file for divorce and the other may simply agree with the terms and consent to the divorce as proposed.
In a contested divorce, there is at least one issue that the spouses do not agree upon. During the process of the divorce, spouses usually attempt to resolve these issues amongst themselves or with the assistance of their divorce attorneys or a mediator. Issues that the spouses are unable to resolve are decided by the court in a trial or hearing.
Simple divorces, sometimes called simplified divorce or summary divorce, are divorces where the spouses agree on the property division and other issues, and their circumstances satisfy certain requirements so that the law allows the divorce to process with relatively little court supervision.
To qualify for a summary divorce, the spouses usually must not possess a home or mortgage, and there is usually a maximum amount of community property and separate property that the spouses may own. In addition, the couple must not have children together, or in some states it may be enough that custody and visitation issues have already been determined prior to the simple divorce. '
Other types of divorce have come about as a way to decrease the conflict and expense associated with divorces, especially when no-fault divorces were unavailable, but also as an answer to contemporary divorces that are often costly and detrimental to both parties.
One of these types of alternative divorces is called collaborative divorce. In the collaborative divorce process, there are special rules designed to prevent the proliferation of disagreement common in regular divorces. For example, if the parties decide that they cannot reach agreement at some point during the process and turn to litigation, they must each find new attorneys for their divorce representation and the attorneys who represented the spouses in the collaborative process may not continue to represent them.
This is ostensibly designed to promote effort and attention on the part of the collaborative law attorneys to help their clients settle, since breakdown of the collaborative process means the loss of their client.
Another type of divorce, or at least method of carrying out a divorce, is divorce mediation. In some states, clients may choose what is actually called a mediated divorce, while in others, mediation may enter into the divorce during the regular contested divorce process. In some states, mediation may even be required by some courts in lieu of a settlement conference. '
Divorce mediation allows the parties to try to settle using a neutral mediator who helps the parties negotiate and, hopefully, compromise to reach agreement on the divorce issues.
The petition for dissolution of marriage, sometimes called a complaint for dissolution or a divorce petition, is often the first document a divorce attorney files on behalf of a client just beginning the divorce process. The divorce petition starts the process in the court system, and provides basic information such as whether there are any children and what the petitioner spouse seeks regarding custody and support. Declarations providing information about income, expenses, and separate and community property of each spouse are usually required either at this point or later on in the proceedings.
Automatic temporary restraining orders may be entered automatically with the filing of the divorce petition. Depending on the state, these orders may restrict the spouses from taking certain action with property, among other things. A spouse may not remove sums from bank accounts owned jointly, sell real estate, or make unnecessarily large purchases, for example. Some states also forbid changing insurance policies and wills during the dissolution process.
In addition to the temporary restraining orders regarding marital or community property, one or both spouses’ divorce attorneys may also request other temporary orders from the court. The temporary orders typically consist of requests for child custody orders, child support, spousal support, and for sole occupancy of the family home or sole use of certain community property such as a car.
The temporary orders issued by the court after a hearing or agreed upon by the parties remain in effect until the court makes other orders in the case, which often doesn’t occur until the parties reach a settlement or until the court hears the case to resolve issues the parents were unable to resolve on their own.
How a divorce is handled by the court and by divorce lawyers depends to some extent on where the couple resides and file for divorce. If the couple resides and files their petition for dissolution in a community property state, the property division works differently than if the divorce takes place in an equitable distribution state.
In a community property state, all income is presumed to be community property, which means that each spouse owns half regardless of who received it. Property acquired before marriage, through gift or inheritance, or after divorce or separation is separate property.
At divorce, community property is normally divided 50/50 between the spouses, although in some states adjustments may be made if one spouse has significant separate assets or under other circumstances.
In an equitable distribution state, sometimes called a common law property state, the court may use more discretion when determining how to distribute property between two divorcing spouses. There are many factors a court may consider when deciding how to distribute property and assets at divorce. Factors include the length of the marriage, property brought into the marriage by each spouse, the earning capacity and contribution to the marriage by each spouse, including contribution to the acquisition of property and other contributions such as household upkeep and child care by a homemaker.
Whereas in a community property state a divorce lawyer will have some idea of what the divorce property distribution should look like, in an equitable distribution state it is much more difficult to predict how property will be distributed.