Divorce, which legally ends a marriage, is often a highly emotional and stressful process for everyone involved. A divorce will bring about significant changes in your life. During the process, you will decide such things as alimony (spousal support), division of property and how to care for and support your children. A divorce lawyer can help you understand these complex areas of family law and inform you of your options.
Depending on your circumstances and the divorce laws in your state, you may find that an annulment or separation is a better alternative than divorce. If you are considering divorce, a divorce attorney can ensure your legal rights are protected and help you through this difficult process.
Unlike divorce, which legally ends a marriage, annulment is a legal determination that the marriage was never valid. In both situations the marriage is over, but annulment is designed to protect people who truly never should have married. Annulments are more difficult to obtain than divorces but may be available in cases involving:
- Marriage between close relatives or underage persons
- Mental incompetence
Generally, with an annulment there are no ongoing legal and financial obligations such as spousal support. However, some states will protect a person who reasonably believed the marriage to be valid by giving them the same rights and benefits as a legal spouse (often called the putative spouse doctrine). However, if neither spouse was aware the marriage was invalid, the court may only grant a divorce.
Spouses considering divorce may enter into a trial separation, which is an informal arrangement to live apart. Whether or not your state's divorce laws require a separation or "cooling off" period, it is often a beneficial step. A separation may result in reconciliation or at least ease the transition into divorce.
Some states recognize a more formal arrangement known as legal separation (sometimes called a limited divorce) through a court order or written agreement between the parties. During a legal separation, couples remain married but live as if they were divorced. A legal separation creates legally enforceable arrangements for key items such as:
- Spousal support
- Child support
- Custody and visitation
- Division of assets and debts
Even if your state does not recognize legal separation, an attorney can help you get an interim separation agreement. Legal separation can also be a practical long-term solution for couples who cannot divorce because of children or religion, or due to financial considerations (including health insurance and retirement benefits).
Separation agreements often carry great weight with the courts in determining the final divorce settlement. An experienced family law attorney can help you ensure that your separation agreement accurately represents your long-term wishes.
Filing For Divorce
Most states require one or both spouses live in the state in which they are filing for a divorce. The divorce papers must also state the type of divorce they are seeking (fault or no-fault) and the grounds, or legal reason, for the divorce.
Today, every state except New York allows no-fault divorces and more than half allow fault-based divorces. A no-fault divorce, as the name implies, does not assign blame to either party for the breakdown of the marriage. In most states, grounds for a no-fault divorce are:
- Irreconcilable differences
- Irretrievable breakdown of the marriage
If you have an uncontested (meaning the parties agree on all of the issues) no-fault divorce that does not involve children, you may qualify for a simplified divorce. This is usually faster, less expensive and can be arranged out of court.
While either spouse can unilaterally end the marriage with a no-fault divorce, a fault-based divorce can be stopped by disproving or defending the claim. Grounds for a fault-based divorce may include:
- Physical or mental cruelty
- Drug or alcohol addiction
A fault-based divorce is desirable to some because it can shorten or eliminate a separation period, and the "injured" party may fare better in the maintenance awards and division of assets.
Alimony, Property Division and Issues Concerning Children
Alimony, division of property, custody, visitation and child support are issues decided by the parties in a marital settlement agreement or by the court.
Alimony. Alimony payments help an economically dependent spouse maintain the standard of living enjoyed during the marriage. Temporary alimony provides assistance during the divorce, rehabilitative alimony helps the recipient get adjusted and established financially after the divorce, and permanent alimony can last for life or end upon the remarriage of the receiving spouse. In determining whether and how much alimony should be awarded, the courts will consider:
- Length of marriage and separation
- Age and health of the parties
- Income and future financial prospects
- Culpability in the demise of the marriage (only in fault-based divorces)
Division of Property. Property and income attained during the marriage is normally considered marital property. Marital property is divided at the end of the marriage. In community property states, each spouse is ordinarily entitled to 50 percent of the marital property. In equitable property states, courts will consider a variety of factors, including duration of the marriage, earning power, fault, non-marital assets, homemaking services and prenuptial agreements. Most states allow spouses to keep their non-marital or separate property. Property distribution laws can be quite complex and vary greatly amongst the states. Contact a divorce attorney to learn more about property distribution in your state.
Child Custody & Support. Child custody, support, and visitation are crucial factors that must be decided in divorces where children are involved. Laws vary from state to state but are intended to focus on the "best interests of the child." Child support guidelines begin with parental income and the needs of the children, but may also consider other facts and circumstances. However, any fault in dissolution of the marriage should not affect child support or custody awards.
If sole custody is awarded, one parent will be the primary caregiver and make major decisions for the children. The non-custodial parent usually has visitation rights. Joint physical custody means both parents will spend a substantial amount of time with the children. Whether or not parents share physical custody, courts prefer joint legal custody, meaning both parents will be involved in major decisions. Please visit our page on child custody for more detailed information.
When You Need a Lawyer
The American Bar Association estimates that 95 percent of divorces are settled out of court between the parties, with the assistance of mediators and attorneys. However, even in the most amicable and least complicated of circumstances, you should consult a divorce attorney to make sure you don't give up rights you didn't know you had.
Alimony or spousal support that is part of a separation or divorce agreement is tax deductible to the payer, and taxable income to the payee.