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DMK has put together a general process of events, types of divorce and legal guide to provide you an idea of what to expect during the process.

It's important to speak with an attorney in your residing state for guidance relevant to the specific laws and process of divorce before you separate.  If you prefer pro se representation (meaning to represent yourself), you should still have a firm understanding of your state's divorce laws.   The law may seem straight forward, but interpreting it is complicated.  Many lawyer's offer a free initial consultation.

Before you separate

There are some important things to know before you separate.  These are not applicable to every circumstance or state nor is this list inclusive of every pre-separation to-do.  This list is meant to provide you some foreknowledge of possibilities to confirm or exclude before you leave.

State Laws

There are three important issues to know about your State Laws.  If applicable, get information related to your state's rules for child support and Child Custody Laws.  Some states require a separation period and/or couples therapy before the process can be completed.  You should also find out if your state is a Community Property or Equitable Distribution state.  

His and Her Guide

Each spouse has a very different set of concerns when divorcing.  The first place to start in your legal process is to refer to our His and Hers Divorce Planners located in our DMK Divorce Workshop 2020.  This will provide you with with specific details and needed items for a typical divorce.

Legal Representation

It's not easy to cope with the many emotions and concerns when in the initial stages of divorce.  Choosing an attorney can seem complicated to the average legal consumer.  Where do you start?  How do you know which attorney is best for you?  What should you have prepared before hiring someone?   It helps to have an idea of the process of hiring an attorney.  Refer to our Legal Guide for the complete process of hiring legal representation.  

Who files for divorce?

The spouse who initiates the divorce will sign and file a divorce petition for dissolution of the marriage. The other spouse will then be the respondent and depending on the residing state, have a specified period of time to respond.  In many states, if you "share" an attorney, the spouse who initiates contact with the attorney first will be the one who initiates the divorce regardless if he/she was the one who actually "initiated" the divorce between the two spouses.  This means the couple technically does not share an attorney.  The attorney represents one spouse only.

Legal Separation

Upon separating, regardless if it is a legally required separation for divorce in the couple's state, a legal separation agreement can be established regarding temporary support, custody and living arrangements.  Often, this is the basis from which the permanent divorce settlement is established.  However, like a "practice run" it will likely be modified in order to create the best, final divorce settlement agreement.  A separation agreement is indefinite, but neither spouse can remarry until a legal dissolution of marriage is established.

Developing Settlement Agreements

It's financially prudent if both spouses negotiate the terms of the settlement with little to no legal assistance in order to keep costs down and expedite the overall process.  The couple should still have a strong understanding of the laws in their state before negotiating their settlement. It's best for each spouse to have at least consulted first with a local attorney regarding the situation in order to negotiate the best settlement.

If the couple decides on all terms of the agreement, one or both attorney's could complete the legal paperwork and file (based on the couple's negotiated settlement).  Both spouses would sign the settlement agreement outside of court, following any required waiting or separation periods.  There would not be a trial.  Once the judge grants it, the divorce would then be completed.  There may be a 30 day waiting period following the divorce.  So, it's best to avoid new marriages until such a period expires.

The total process of an uncontested divorce usually takes about 90 to 120 days.  Most divorces in the United States are completed within one year.  However, each situation is different.  While some divorces can be completed without the help of an attorney, legal representation is recommended for most.

Annulment

Some couples may choose to annul their marriage rather than divorce.  Legal annulments establish the marriage never existed while a divorce recognizes it existed but has been dissolved.  Usually the marriage is a short duration in months rather than years.  There will be a requirement in most states for a compelling argument to pursue an annulment.  Misrepresentation, concealment or failure to consummate are some common reasons for annulment.  Speak with your attorney regarding the laws of your state and requirements to annul a marriage. 

Religious annulment

Also, do not confuse a legal annulment with a religious one.  There may still be requirements of your Church (e.g. Catholic Church) to annul a marriage beyond legal annulment.  The most common purpose to do so is for either spouse to remarry in the Church.  Refer to our DMK article Can my marriage be annulled in the Catholic Church?  Also, refer to our section Turning to Faith for common responses or requirements of Churches, religions or faiths regarding separation or divorce.


Types of Divorce

Information related to each type of divorce is listed below.  Refer to your attorney with specific questions related to your circumstances and state laws to determine the best type of divorce for you.

No-Fault Divorce and Divorce with Grounds

No-fault divorce refers to a legal dissolution of marriage establishing no wrongdoing from either spouse. All states offer no-fault options with many states still allowing (optional) grounds for divorce. 

However, 17 states and the District of Columbia only offer no-fault divorces.  They are considered "true no-fault states" because their laws do not provide an option for ascertaining fault for either spouse. This divorce simply requires you to assert separation, incompatibility or irreconcilable differences/irretrievable breakdown of marriage. This is considered a no-blame divorce where both spouses are shown to have no wrongdoing.

The petitioner does not need to provide evidence that the defendant has breached the marital contract.   Many times, no-fault divorces are chosen by couples that wish to keep the details of their divorce private.

Unless you file for a no-fault divorce, you will need to find out if your state is a "true" no-fault state or a state that offers options for filing with grounds for divorce.  In addition to no-fault options, most states will also have various options for filing for divorce with specific grounds (blame). The options for grounds for divorce vary in each state (when offered), so refer to your legal representative for guidance.

Grounds for Divorce

All States except "True" No-Fault States

The most common fault grounds for divorce include: adultery, cruelty, unreasonable behavior, imprisonment, abandonment, mental illness, criminal conviction, abuse. Some states also include drug abuse, impotency and religious reasons. There are at least 11 fault grounds in the U.S. so consult an attorney for grounds available in your state.  Regardless if your state offers the opportunity to file with grounds, many couples choose no-fault divorces which are available in all states.  They are usually faster and have fewer legal expenses since the large percentage of no-fault divorces do not go to court.

No-Fault Divorce

"True" No-Fault States 

Some states have a wider range of options while 17 states and the District of Columbia are considered "true" no-fault states, not recognizing fault or blame from either spouse when filing for divorce.

Hybrid/Separation Based Divorce

No-Fault States and States 

Some states also offer a combination of fault and no-fault divorces. It requires the couple live separate and apart for a specified time period. The time period is based on the requirements of the state. Some no-fault states also offer the option of these separation based divorces.

Summary

Not available in all states. This type of divorce is best suited for short marriages where there are limited marital assets or reasons for support. This is not ideal for marriages where there are children and consequently a need to negotiate the terms of child support and custody.  Referred in some states as a Joint Petition for Summary Dissolution of Marriage. Often a DIY divorce, most couples obtain the paperwork from a local family court for this type of divorce.

Uncontested

The most common type of divorce.  It's not the same as a no-fault divorce, which refers to the grounds for divorce.  An uncontested divorce refers to the agreement regarding the grounds.  It's common for no-fault divorces to be uncontested since both agree to the desire for a divorce and that neither spouse has presented reasons for fault that would provide an opportunity for disagreements regarding the settlement based on one spouse's negligence to the marital contract.

Usually the couple share an attorney to manage all of the associated paperwork and filings. This usually results in a faster divorce than other types of divorce processes, as noted above. The couple decides the terms as they best fit each other's situation and needs.

Methods of Divorce

There are many ways to process divorce (methods the divorce is legally dissolved).  We have listed the most common methods below.  Upon establishing the type of divorce best suited for you and your spouse, you will decide how you wish to process it.   Remember, each state has different laws and options available.  Use our guide so that you better understand the options offered in your state when presented by your attorney or family court.

Refer to our Methods of Divorce page for explanation of each of the above listed ways to process divorce.


Post Divorce Afterthoughts

It is complicated and expensive to appeal a Final Judgement of Divorce (Divorce Decree) and rarely successful.  There must be compelling circumstances specific to legal error, abuse of discretion and/or fraud.

Modifications can also be costly and require a convincing and consistent change of circumstance (e.g. loss of job, job transfer, medical event) as a reason to seek the modification.  However, if both spouses agree to the modification (change in terms of the original court order), it may be relatively straight forward, but still requires a judge to approve before being finalized. 

It will be more difficult to get a modification if you and your spouse approved a Settlement Agreement as part of your original court order and the Petition to Modify comes shortly after the divorce was finalized. 

In the case of a Settlement Agreement, the judge will be more likely to consider the petition if there has been a reasonable period of time between the original court order and the modification, since a substantial change in your circumstances is more likely to occur over a longer period of time rather than a few months following the divorce.  

As always, consult a local attorney for specifics regarding laws in your state as they apply to your circumstances.  It's important you have a good understanding of your case, laws in your state and the process you wish to take to permanently dissolve your marriage and establish a settlement agreement in order to reduce concerns following the court order.  

For more information on the legal aspects of divorce consider these DMK Legal Sections:

DMK Legal Guide

DMK Legal Process Page

DMK Legal Directory

DMK Divorce Settlement Page

 

-OurDMK.com



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