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Types of Divorce
Divorce (also called dissolution of marriage)
laws varies from state to state. There are two
basic methods, fault based and no-fault based.
In some states that do not require a party to
claim fault of their partner, a court may still
take into account the behavior of the parties
when dividing property, debts, evaluating
custody, and support.
laws varies from state to state. There are two
basic methods, fault based and no-fault based.
In some states that do not require a party to
claim fault of their partner, a court may still
take into account the behavior of the parties
when dividing property, debts, evaluating
custody, and support.
Laws vary as to the waiting period before a divorce is effective.
Residency requirements vary, issues of division of property are
typically determined by the law of the state in which the property is
located.
Residency requirements vary, issues of division of property are
typically determined by the law of the state in which the property is
located.
No-fault divorce
No-fault does not requires the husband or wife to prove that there was
any wrong-doing nor any evidentiary proceedings at all.
any wrong-doing nor any evidentiary proceedings at all.
Laws providing for no-fault allow a family court to grant a divorce in
response to a petition by either party to the marriage. Laws providing
for no-fault also limit the potential legal defenses of a respondent who
would prefer to remain married.
response to a petition by either party to the marriage. Laws providing
for no-fault also limit the potential legal defenses of a respondent who
would prefer to remain married.
Requirements for divorce before
no-fault divorce
no-fault divorce
Before no-fault, a dissolution of marriage
could be obtained only through showing fault
of one of the parties in a marriage. This was
more than just falling out of love. This meant
that one spouse had to claim that the other had
committed adultery, abandonment, felony, or
other serious culpable acts.
could be obtained only through showing fault
of one of the parties in a marriage. This was
more than just falling out of love. This meant
that one spouse had to claim that the other had
committed adultery, abandonment, felony, or
other serious culpable acts.
The other spouse could plead a variety of defenses, like recrimination
(essentially an accusation of "so did you"). A judge could find that the
respondent had not committed the alleged act or the judge could
accept the defense of recrimination and find both spouses at fault for
the dysfunctional nature of their marriage.
(essentially an accusation of "so did you"). A judge could find that the
respondent had not committed the alleged act or the judge could
accept the defense of recrimination and find both spouses at fault for
the dysfunctional nature of their marriage.
Either way, the judge could refuse to dissolve the marriage, although it
was also possible for the judge to grant one or both parties a divorce.
was also possible for the judge to grant one or both parties a divorce.
At-fault divorce
Prior to 1975, states which permitted divorces also required proof by
one party that the other party had committed an act incompatible to
the marriage. This was termed "grounds" for divorce (popularly called
"fault") and was the only way to terminate a marriage. Most
jurisdictions around the world still require such proof of fault. In the
United States, only New York state still requires fault for a dissolution
of marriage.
one party that the other party had committed an act incompatible to
the marriage. This was termed "grounds" for divorce (popularly called
"fault") and was the only way to terminate a marriage. Most
jurisdictions around the world still require such proof of fault. In the
United States, only New York state still requires fault for a dissolution
of marriage.
Fault-based can be contested and may involve allegations of collusion
of the parties, or condonation, connivance, or provocation by the
other party. Contested fault divorces can be expensive, and not usually
practical as eventually most divorces are granted. Comparative
rectitude is a doctrine used to determine which spouse is more at fault
when both spouses are guilty of breaches
of the parties, or condonation, connivance, or provocation by the
other party. Contested fault divorces can be expensive, and not usually
practical as eventually most divorces are granted. Comparative
rectitude is a doctrine used to determine which spouse is more at fault
when both spouses are guilty of breaches
Summary divorce
A summary (or simple) divorce, available in some states is used when
spouses meet certain eligibility requirements, or can agree on key
issues beforehand.
spouses meet certain eligibility requirements, or can agree on key
issues beforehand.
Key factors:
- They have been married less than 5 years.
- Do not have children, or in some states they have resolved
custody and set child support payments. - Minimal or no real property (no mortgage).
- Marital property is under $35,000 not including vehicles.
- Each spouse's personal property is under a threshold (typically
the same as marital property)
Uncontested divorce
It is estimated that upwards of 95% of divorces in the US are
"uncontested," because the two parties are able to come to an
agreement.
"uncontested," because the two parties are able to come to an
agreement.
When the parties can agree and present the court with a fair and
equitable agreement, approval of the dissolution of marriage is almost
guaranteed.
equitable agreement, approval of the dissolution of marriage is almost
guaranteed.
If the two parties cannot come to an agreement, they may ask the
court to decide how to split property, deal with the custody of their
children.
court to decide how to split property, deal with the custody of their
children.
Collaborative divorce
Collaborative divorce is becoming a popular method for divorcing
couples. They come to an agreement together on divorce issues. In a
collaborative divorce, the parties negotiate an agreed resolution with
the assistance of attorneys who are trained in the collaborative divorce
process and in mediation. Often with the assistance of a neutral
financial specialist and/or divorce coach(es).
couples. They come to an agreement together on divorce issues. In a
collaborative divorce, the parties negotiate an agreed resolution with
the assistance of attorneys who are trained in the collaborative divorce
process and in mediation. Often with the assistance of a neutral
financial specialist and/or divorce coach(es).
The parties are empowered to make their own decisions based on their
own needs and interests, but with complete information and full
professional support. Once the collaborative divorce starts, the
lawyers are disqualified from representing the parties in a contested
legal proceeding, should the collaborative law process end prematurely.
own needs and interests, but with complete information and full
professional support. Once the collaborative divorce starts, the
lawyers are disqualified from representing the parties in a contested
legal proceeding, should the collaborative law process end prematurely.
Most attorneys who practice collaborative divorce claim that it can be
substantially less expensive than other divorce methods (regular
divorce or mediation). However, should the parties not reach an
agreement, any documents or information exchanged during the
collaborative process cannot later be used in further legal proceedings.
The collaborative process is a confidential proceeding, there are no set
enforceable time lines for completion of a divorce using collaborative
divorce.
substantially less expensive than other divorce methods (regular
divorce or mediation). However, should the parties not reach an
agreement, any documents or information exchanged during the
collaborative process cannot later be used in further legal proceedings.
The collaborative process is a confidential proceeding, there are no set
enforceable time lines for completion of a divorce using collaborative
divorce.
Mediated divorce
Divorce mediation is an alternative to traditional divorce litigation. In a
divorce mediation session, a mediator facilitates the discussion
between the husband and wife. Assisting with communication and
providing information and suggestions to help resolve their differences.
divorce mediation session, a mediator facilitates the discussion
between the husband and wife. Assisting with communication and
providing information and suggestions to help resolve their differences.
At the end of the mediation process, the separating parties have
typically developed a tailored divorce agreement that can be submitted
to the court.
typically developed a tailored divorce agreement that can be submitted
to the court.
Mediation sessions can include the party's attorneys or
a neutral attorney or an attorney-mediator who can
inform both parties of their legal rights, but does not
provide advice to either, or can be conducted without
attorneys.
a neutral attorney or an attorney-mediator who can
inform both parties of their legal rights, but does not
provide advice to either, or can be conducted without
attorneys.
Divorce mediators may be attorneys who have experience in divorce
cases. Divorce mediation can be significantly less expensive than
litigation. The adherence rate to mediated agreements is much higher
than that of adherence to court orders
cases. Divorce mediation can be significantly less expensive than
litigation. The adherence rate to mediated agreements is much higher
than that of adherence to court orders
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