Divorce is a legal process that dissolves a marriage between two people. When a divorce is finalized, each party has the option of remarrying.
Divorce laws are laws governing divorces. A divorce decree is a final ruling from a court that provides a judgment and order that makes the marriage’s termination official.
Divorce decrees will differ based on each case’s unique facts and circumstances. Divorce decrees outline the rights and responsibilities of each party as well as for instructions regarding child custody and property division, if applicable.
The divorce process will not be complete until the divorce decree is issued. An individual’s status as married or divorced will not change or be finalized until the divorce decree is issued.
An unresolved divorce may affect a variety of different aspects of an individual’s life, including:
- Property possession;
- Employment benefits; and
- Other legal rights.
What Are Some Tips When Getting a Divorce?
In some instances, getting a divorce can be a very straightforward decision. For instance, if both partners agree on the decision, or if there is a pressing need to do so (such as abuse), filing for divorce may not be a contested issue. Nonetheless, filing for divorce can be difficult and requires much forethought and consideration.
You may want to consider your options if you are considering divorce. It may be possible to obtain a legal separation before filing for a divorce. It may give you time to determine other issues, such as child custody or property.
When getting a divorce, it’s important to consider other legal issues, as a divorce proceeding can impact these.
What Are Some Legal Issues to Consider When Getting a Divorce?
Divorce often involves many other legal issues. In a divorce proceeding, the following issues may arise:
- Child custody and visitation
- Distribution of property between the parties
- The divorce proceeding may be subject to various filing requirements and court fees.
- Concerns about immigration (especially marriage-based immigration)
- Concerns regarding employment (especially spousal employment benefits)
- Divorce can change the characterization of debts and assets in the total estate in regards to taxes and estates
When getting a divorce, it is important to remember that each state may have very, very different laws governing the divorce process. This is especially true when it comes to the laws regarding property distribution during a divorce or even after a legal separation.
For instance, some states may enforce community property laws, while others might not follow community property rules. Property and assets can be divided differently during a divorce if this is considered.
Residency Requirements for Obtaining a Divorce
Every state requires the spouse filing for divorce to be a resident. Residency requirements vary by state.
Generally, however, residency requirements range from six months to one year. There are also other guidelines for divorce that individuals should follow, including:
- Being cooperative: the process will go much smoother if the parties seek to cooperate with all the other parties and attorneys involved. If a party deliberately seeks to disrupt or delay the process, they may be penalized;
- Being honest: legal penalties can result for falsifying information during divorce;
- Exercising full disclosure: especially with regards to property and assets; and
- Being prepared: many deadlines and document requests are going on during divorce. In the beginning, staying organized and on top of the requirements will be helpful.
Divorce laws may also vary by jurisdiction. Consequently, an individual may wish to review their local and state laws or consult with an attorney.
It is important to note that the cost of a divorce lawyer may vary depending upon the location of the divorce proceedings. A lawyer in a large city will likely charge more than one in a small rural town, for example.
Different Types of Divorces: “Fault” & “No-Fault” States
Divorce procedures differ from state to state. While most states have adopted the no-fault divorce system, others maintain the fault divorce system.
During a no-fault divorce, the spouse seeking a divorce does not need to prove any wrongdoing or fault on either party’s part. In some states, the individuals must declare that they can no longer get along.
In other states, the spouses must live separately for a specific period before filing for a no-fault divorce. This period may range from months to years.
With a fault divorce, the spouse filing for divorce must cite why the divorce should be granted. The fault justifications or rules vary by state, but common examples include:
- The infliction of emotional pain or unnecessary pain;
- Desertion for a specific period of time;
- Confinement in prison for a set number of years; or
- Physical inability to consummate the marriage.
Property Division after a Divorce
It is common for couples filing for divorce to reach their own agreement regarding the division of their property and debts. If the parties cannot agree, the court must step in and apply the state’s laws to resolve the conflict.
Separate state laws govern the division of marital property during a divorce, including community property states and equitable distribution states. Community property states include:
- New Mexico;
- Washington; and
All property owned by married individuals in these states is either community property, owned equally by both spouses, or separate property, owned by one of the spouses. After a divorce, community property is usually divided equally between the spouses while each spouse keeps their separate property.
All other states divide the assets and earnings acquired during a marriage equitably; a practice called equitable distribution of property. In deciding how to divide the property fairly, the court will examine numerous factors and the financial situation each spouse will be in following the divorce.
Factors such as the length of the marriage and the earning potential of each spouse may be considered.
Exceptions to the Equitable Distribution of Property during Divorce
Even though assets and earnings accumulated during a marriage are split equally in a divorce, some exceptions are provided by statute, such as:
- Misappropriation: This occurs when one spouse acquires assets or earnings unjustly before the divorce. This spouse has wronged and will not receive the misappropriated asset or earning;
- Debts: If either of the parties has debt, this debt will be considered the spouse’s obligation. Upon their divorce, the other party will not have to pay half of that debt;
- Tort liability: If there is a civil lawsuit against one party which cannot benefit the couple as a whole, then, upon their divorce, the potential monetary obligation arising from the lawsuit will be the responsibility of the party who is sued; and
- Recovery from a personal injury lawsuit: If either party is awarded a monetary amount due to a personal injury lawsuit, this amount remains with the injured party and will not be divided upon the divorce.
Are There Any Alternatives to Getting a Divorce?
Alternatives to divorce include annulment, dissolution, and legal separation. Different divorce alternatives can have different legal effects, so one should be careful which option they choose when getting a divorce.
As a final option, some jurisdictions offer what is known as “family mediation,” in which the parties attempt to resolve their differences through negotiation and mediation rather than through a formal court proceeding. A lawyer is usually needed whenever there is a possibility of divorce since each option may be equally challenging.
How Can I Get a Divorce? Do I Need a Lawyer?
Divorce is a major decision, and it can be a challenging process, legally speaking. If you’re considering divorce, it’s in your best interest to hire an experienced lawyer. A qualified divorce lawyer can help you file your claim and explain your legal rights according to the laws in your area. Furthermore, your lawyer can guide you through the court system as the process gets underway.