by FreeAdvice staff
The divorce process can begin with a separation, which can either be informal or through a court order. A separation through a court order is called a legal separation.
An individual may also choose to forego the separation period and file for a divorce right away. Separation can have several meanings in the pre-divorce context.
Some states have laws that allow legal separation, while others recognize separation just on the basis of the couple living in separate homes or “separate and apart.” Some states do not recognize separation as a status at all.
A separation agreement is sometimes the first step in the divorce process, and often comes into play when a couple needs to meet the state waiting period requirement before they file for divorce. This waiting period can be anywhere from a few months to a year.
While some states do not have a waiting period requirement, this requirement is significant because it ensures that frivolous divorces are not filed, and that the couple has ample time to consider their choice to divorce.
Separation to Prevent Debt Liability
Separation agreements can also sever the economic relationship of a marriage, meaning that all debts, income, and assets acquired after separation are the sole responsibility of the individual spouse. This is especially important in community property states where each spouse’s income is the joint property of both spouses. During a divorce settlement, a period of separation can be used as evidence that the economic relationship had ended.
A couple can also choose to separate temporarily as a means to try to work out the problems in their marriage. Further, some couples choose separation over divorce as a status in itself, generally for insurance or religious reasons.
In states that do not recognize separation as a status, a couple will have to file a divorce petition to start any required waiting period or get a temporary order for an economic dissolution that precedes the divorce settlement. Temporary orders are discussed further below.
Filing The Petition
To begin the formal divorce process, one spouse will fill out a divorce petition, often called a “Letter of Complaint” or a “Complaint for the Dissolution of Marriage.” This petition must be filled out according to specific statutory requirements, and will generally have an area to list the family members involved, the assets at issue, and whether the property is separate or community, or marital or non-marital.
Grounds for Divorce
The petition will also ask the spouse to state the grounds. All states have available grounds for a no-fault dissolution, and some states will have grounds for a fault-based divorce.
A no-fault divorce is the most commonly used type, as many states no longer have a fault-based option. At one time, most states would not allow a couple to file to dissolve their marriage unless there was one party at fault.
Legislators soon realized, however, that it was unnecessary for the state to require a showing of fault in a divorce, and that a required showing of fault often led to inequitable property dissolution. Hence, the no-fault divorce was born, and is now the dominant law in the U.S.
Fault Based Filing
Although all states now have no-fault options, in some states it is still possible to file a petition that claims the other spouse was at fault for the breakdown of the marriage.
A spouse may choose to claim the other was at fault since some state laws have a shorter waiting period for the final decree. Even states that have the fault-based grounds available, however, generally do not use fault to decide property division, with the exception of spousal abuse grounds. Also, the proof of fault may cause delays in the case, so be sure to check your state law or attorney before you consider this option.
Choosing Where to File
After the petition is completed it must be filed in a court of the state in which one of the spouses resides. It does not matter if you were married in the state where you file the petition, it is only required that one of the spouses live there.
There are generally applicable filing fees that must be paid at the time of filing as well.
Service of Process
After the petition is filed with the court, it must be served on the other spouse. This is called service of process and means that the spouse must receive and sign a copy of the divorce petition. Different states have different requirements about how service of process must be done, so you should check with your attorney or courthouse.
Most states will allow you to hire a professional process server to perform the service, which is especially useful if the other spouse cannot be found or the spouse refuses to sign the papers.
After being served, the spouse may choose to file an answer to the petition or they may choose to do nothing. If they choose to file an answer, they can choose to respond to or disagree with any issues raised in the petition, or they can sign a voluntary appearance document which simply acknowledges that they agree with the other spouse.
If they choose not to respond, the other spouse can have a default entered, confirming the petition for divorce.
Setting a Temporary Order
Another important step in the divorce process is a temporary order. Once the divorce petition has been filed and served, one or both spouses may choose to set a temporary order hearing. A temporary order temporarily resolves issues that can’t wait for the final divorce decree, like child custody, child visitation, spousal support, and property and debt division issues.
There is no requirement to get this order after filing for a divorce or dissolution of marriage, but since divorce proceedings can often take months or even years, an order is useful to settle issues that spouses are having difficulty resolving on their own.
Automatic Restraining Orders
In most states, certain financial and child-related restraining orders are automatically entered when the divorce petition is filed. These restraining orders can prohibit both spouses from leaving the state with their child/children, selling off any assets, or spending any community or joint property in a reckless manner until the date of the final dissolution. However, a temporary order hearing will address other financial or child-related details that are not included in these basic restraining orders.
Property Distribution and Debt Division
Much of the property and debt distribution that occurs during the process of divorce depends both on the system that the state uses for dividing property, and whether the property is classified as marital property or non-marital property. Some states are community property states, and some are separate property states.
Marital property is property that is shared by both spouses, and non-marital property is property that is owned by one or the other. Generally speaking, more of the property earned and acquired during marriage is classified as joint property in community property states than it is in separate property states.
However, the law of equitable distribution in separate property states allows a court to distribute separate property to both spouses, so that the division is fair at the end of the divorce process.
Commingling Marital and Non-Marital Assets and Debt
All marital property and marital debts will usually be divided equally, unless a spouse has comingled non-marital funds into the property or debt. An example of non-marital funds would be an inheritance, or funds acquired pre-marriage.
Commingling happens when one spouse uses non-marital funds to purchase an asset, and marital funds are used to improve it, or pay off any outstanding debts. In this case, the property is comingled, and the spouse who contributed the non-marital funds may be entitled to reimbursement, or some other arrangement can be made.
Personal property is divided according to the personal preferences of the spouses. The spouses can split the personal property in any way that they deem fair. It may be helpful to make a list when dividing personal property to designate who would like which item.
At times, where personal property has significant cash value or where the spouses are unable to agree for other reasons, it may help to involve a mediator to help the parties reach an agreement. In general, the court doesn’t wish to be bothered with small disputes regarding furniture and kitchen appliances.
Liability for Marital Debt
Generally speaking, creditors can reach either spouse for all debts that are acquired during marriage, no matter who the acquiring spouse was. However, as with marital property, debt division can become more complicated when a non-marital property asset is used to take out a loan, and marital property is used to make payment on the loan.
For example, if a wife took out a car loan right before marriage (non-marital property), and her husband shared the payments on the loan after marriage (marital property), at divorce, this would be a comingled debt and would need to be divided as such.
Resolving Child Custody Issues
The single most important thing parents need to resolve during the process of dissolution is the way they will continue to raise their children.
It is generally best, for all parties involved, for parents to resolve child custody issues on their own or through negotiation or mediation with their attorneys. Some states call this a parenting plan and no longer use terms like custody and visitation.
There are many issues that must be addressed in child custody decisions. These issues include where the children will live, how much time they will spend with each parent, where they will spend holidays, and which parent will make the important decisions about the children.
One or both parents might make legal decisions, such as where the children will go to school and what medical care or medication they will receive. Parents also have to resolve issues about the religious training and activities of their children.
Types of Custody Arrangements
If the parents cannot agree on custody decisions, they may file a custody petition with the court. Under most state laws, child custody is designated into four main types including sole physical custody, joint physical custody, sole legal custody, and joint legal custody.
Physical custody refers to where the children will live or spend the majority of their time. In sole physical custody, the children live with one parent and the other parent is usually given visitation rights.
Joint physical custody is when the children divide their time more or less equally between the two parents’ homes. Legal custody refers to legal decisions made about the children, such as health, welfare, and education decisions.
Another way in which a court can label a custody arrangement is by alternating custody or divided custody. This arrangement basically means that both parents have joint physical and legal custody over the children.
Child and Spousal Support
Spousal and child support can be distributed or awarded to either spouse and will be primarily based on the length of the marriage, time needed for parenting by the custodial spouse, income and earning potential of the spouses, and other assets. The laws for spousal support vary a great deal from state to state, so check with an attorney to determine your local laws.
Spousal support is awarded most often when one of the parents has given up work, or their potential to make a living, in order to raise the children during the marriage. However, spousal support can also be given in various other situations as well.
Considerations In Awarding Spousal Support
The court will take into consideration the age and health or the spouses, what each spouse brought to the marriage, as well as whether there was any martial misconduct such as infidelity or domestic violence. Spousal support can be awarded permanently, for a set time, for a time that will allow the supported spouse to become self-supporting, or in a lump sum.
Child Support Awards
After a divorce or dissolution, both parents remain responsible for supporting the children. Divorcing parents need to decide how they will divide up the childcare expenses. There are several factors to consider in working this out, such as the income and assets of the parents and whether one parent has primary childcare responsibilities.
Child support may also have tax consequences. In many states, child support is mandatory and is awarded according to a set formula which takes many factors into account, including incomes of the parents, assets, number of children, and others.
Child support is usually for minor children, but a court may order that a parent continue to pay support when a child is an adult if the child is attending school or is disabled or otherwise dependent.
Spousal and child support can also be adjusted depending on the circumstances of the ex-spouses. If there is an increase in income, loss of a job, or high medical costs for a child, the parties can go back to the court that made the original child or spousal support order to ask for an adjustment to reflect this change in circumstances.
Finalizing the Divorce Agreement: Negotiation, Mediation, and Trial
During the divorce process, one of the most difficult parts to get through is agreeing how to split assets, debts, and determine spousal and child support. However, this agreement is necessary, and both spouses must sign off on it before the judge will issue the final judgment for divorce. Because the divorce process is full of emotional issues, many spouses choose to negotiate the final agreement through their attorneys.
Negotiation usually begins with the discovery process. The discovery process is a process in which specific questions are asked about assets and debts, called interrogatories and requests for admissions, and requests for paperwork and other documents are made, called requests for production of documents.
Through the discovery process, all financial information is learned about both sides, and the lawyers will meet on their client’s behalf to try to reach a final agreement. Each party may serve the other with discovery and both parties are legally bound to answer and produce everything they are able to. Failure to do so can mean hefty fines by the court.
If the parties’ attorneys are unable to reach a final agreement on their own, the parties may choose to use a mediator. A mediator is a neutral third party that has no stake in the divorce proceedings, and will be able to give an unbiased view about what the final agreement should look like.
Finally, if negotiations through these avenues fall flat, the parties may always choose to fight it out at trial. Divorces are not typically tried in front of a jury, but the spouses will have a chance to tell their side of the story to a judge. In turn, the judge will make the final decision regarding the division of assets, debts, and any unsettled decisions about child custody, child support, or spousal support.
Litigation at trial can be expensive and time consuming, and the parties are stuck with whatever the judge orders. More often than not, neither party is happy with many of the decisions of the judge. It is usually much more favorable for both parties if they are able to come to an agreement.
Final Judgment of Dissolution
The divorce process ends with the final judgment of dissolution. The final judgment is the final order of the court which legally ends the marriage. The final judgment can contain legally binding orders about other issues, such as child custody, child support, visitation, spousal support, property division, and how property division is to be carried out. It can also restore the pre-marriage name to one or both spouses.
One party is often required to prepare the final order, which may incorporate part of the spouses’ agreement, if they have reached one. When the final judgment is signed by the judge, the divorce is final.
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