Divorce is one of the most complex legal processes because of the large number of financial, emotional, and familial issues involved. When considering divorce or speaking with a divorce attorney, it’s important to have a basic understanding of the process so that you can make an informed decision. Here are some of the most frequently asked questions about divorce.
1. What are the legal requirements for a divorce?
To file for divorce in a state, the spouse filing for divorce must be a resident of that state, and there is usually a requirement that they have been a resident for a certain period of time — typically six months prior to filing for divorce. The case must be filed in the county court where either the husband or wife currently resides. The divorce papers must also allege legal grounds for the divorce including irreconcilable differences, legal separation, adultery, or abandonment, among others.
2. What is the difference between a no-fault divorce and a divorce on other grounds?
A no-fault divorce is essentially a request to part ways and divide marital property equitably. There is no requirement to show that the other spouse did anything wrong. When fault is alleged, such as abandonment or adultery, those actions must be proven at trial for the divorce to be granted. When fault is shown, property division and spousal support may be affected in favor of the spouse who was not at fault.
3. What if I don’t want a divorce and my spouse files for one?
While you may be able to challenge specific grounds alleged as the reason for a divorce, such as adultery, it is virtually impossible to completely stop a divorce requested by your spouse from being granted. No-fault divorces do not require the consent of both spouses.
4. What is a legal separation?
In a legal separation, the spouses agree to live apart in what is often a trial period to determine if they should go through with the divorce. A legal separation requires the spouses to agree on child custody and support, spousal support, and property division arrangements during the separation period.
5. What is an annulment?
An annulment is a legal process similar to divorce but that declares that the marriage never existed rather than that it was simply over. An annulment can be granted in cases of fraud, where a marriage was illegal, such as where one or both spouses was already married, where one spouse was mentally incapable of entering into a marriage, and in certain other circumstances.
It’s important to remember that a legal annulment is completely distinct from a religious annulment. Circumstances that warrant a religious annulment are often only grounds for a legal divorce and not a legal annulment.
6. Can a divorce be canceled?
If a divorce case has not been finalized, the spouses can move to dismiss the case. If the divorce has been finalized, the spouses would have to remarry. In the meantime, they could return to the divorce court to request a modification of any orders regarding property division, spousal support, and other related issues.
7. How is child custody determined?
Primary physical custody, or where the child will live most of the time, is determined based on what meets the best interests of the child. The court considers the parents’ job status, work schedule, and relationship with the child to make this decision. It is generally presumed that granting the other parent visitation rights is in the child’s best interests, but visitation may be denied if the court determines one parent is unfit to care for the child in any capacity.
Legal custody, or the ability to make important decisions such as healthcare and education, is almost always shared jointly between the parents unless visitation rights have been completely denied.
8. How is child support determined?
Total childcare costs are usually calculated as a percentage of the combined incomes of the two parents. The cost is then divided between the parents proportionally based on their income. Child support payments may be adjusted based on how much time the child spends with each parent and any unusual education, medical, or other expenses.
9. How is property divided?
Generally, property that each spouse owned prior to the marriage and property that was inherited remains the property of that spouse. Property acquired during the marriage will be divided equitably. Equitably does not necessarily mean in half and the court may consider who has primary custody of the children, the contributions of each spouse to the marriage, and the current earning potential of each spouse.
10. Who gets to stay in the marital home?
When the couple had children, the spouse with primary physical custody will generally be allowed to remain in the marital home in order to provide a stable environment for the children. Otherwise, both spouses have equal rights to the home. If they cannot come to an agreement as part of the marital settlement, the court may order that the house be sold so that they can divide the proceeds or it may consider other equitable factors such as which spouse works closest to the home. If one spouse is given the home, the other will usually receive a larger share of other assets.
11. When are alimony payments required?
Alimony, or spousal support, payments are designed to prevent a spouse from suffering hardship because they gave up job opportunities for the betterment of the marriage and are now at a disadvantage when returning to the job market after divorce. Alimony payments should allow both spouses to maintain the same standard of living. The amount and whether they are temporary or permanent depends on the length of the marriage, the contributions of each spouse to the marriage, and the economic opportunities available to each spouse after the marriage.
12. Does a divorce require a lengthy court battle?
While many divorces are hotly contested, they do not have to be. The spouses are free to enter into an agreement on one or all divorce issues. They will submit the agreement to the judge for approval, and approval is almost always granted as long as the agreement complies with the relevant laws. If agreement is reached on all issues, the spouses may not even have to attend a single court hearing.
13. What is mediation?
Mediation is a guided negotiation process in which the spouses along with their attorneys meet with a third-party mediator. The mediator will give each side a chance to explain their positions and interests and will then foster a back and forth discussion. The mediator’s job isn’t to reach a decision but to help the spouses find common ground and opportunities for mutual benefit so that they can reach an agreement on as many divorce issues as possible without going to trial.
14. Is a lawyer needed in a divorce?
A lawyer is not legally required in order to file for divorce. However, a divorce involves important legal rights including the division of thousands or millions of dollars in property, ongoing spousal or child support payments, and important non-financial considerations such as child custody. Therefore, most people find the assistance of an experienced attorney to be vital to a successful outcome in divorce proceedings.
15. Does each spouse need their own lawyer?
Technically, the spouses can share the same attorney. Spouses often consider this when the divorce is completely uncontested and they just want someone to file the court papers and draft a formal settlement agreement. However, because each spouse has separate and usually conflicting interests, the most effective way to ensure that these interests are being met is to have your own attorney who is exclusively tasked with fighting for your rights.