If you are considering divorce or are currently representing yourself in a divorce proceeding, you may not know what a divorce decree is and how to get one. We will discuss those issues and many others below. However, it would help if you kept in mind that these are general principles. Therefore, you need to familiarize yourself with your state’s divorce laws.
What is a Divorce Decree?
A divorce decree is the court’s final judgment that legally ends the marriage. Each state might use a different name for the document. The divorce decree will give you the date the court’s decision is final. This is an important date that you will need to know. Each state might include other information in the divorce decree as required by their state’s law.
How Do You Get a Divorce Decree?
Once upon a time, getting divorced was extremely rare. The party who filed for divorce had to prove the other spouse did something wrong — like commit adultery — to end a marriage. Those grounds still exist, but they are antiquated. This is called “fault-based divorce.” The filing party must allege and prove their case, just like a plaintiff in any other lawsuit. The non-filing party can defend the case as a defendant might in a civil suit as well. Fault-based divorce actions are costly and time-consuming. There is an easier and more efficient method of obtaining a divorce.
Now, every state has a version of a “No-fault divorce” law. The no-fault divorce scheme allows either party to allege an “irretrievable breakdown” of the marital relationship to get divorced. The other party cannot prevent the divorce from occurring, even if they want to remain married. The theory supporting the unilateral dissolution of the marriage stems from the need to allow battered spouses to leave an abusive relationship.
You cannot simply walk into court and get a no-fault divorce. Most states have a separation requirement. You should check your state’s laws to determine how long you have to live apart from your spouse before filing for a divorce. Additionally, your state has residency requirements. Most states’ laws require a person seeking to obtain a divorce to live within that state for a specific time before filing.
You do not get a divorce decree simply by filing a complaint in court. Filing a divorce case in court means that both parties must disclose their finances to the other. This must be done openly and honestly. Also, most states impose an automatic restraining order on both sides, which prevents anyone from selling property or otherwise taking steps to diminish the property’s value to the detriment of the other.
A judge will need to make temporary orders that establish each parties’ rights and responsibilities before the case finalizes. For example, temporary orders might include custody and visitation rights of the children, temporary support payments by the non-custodial parent, and spousal support, if applicable.
Unless you and your spouse reconcile, you know that the marriage will officially be over when the judge issues a divorce decree. However, there are fundamental rights and responsibilities that the judge must rule upon when granting a divorce. Those necessary rights involve child support, spousal support, and division of marital property.
The court will want to close the case eventually. Closing the case means that you either go to trial or that you and your spouse agree on the custody and support arrangements for your children and how to divide your assets and liabilities.
Reaching an agreement can be difficult, but it is more efficient, less stressful, and can save money compared to going to trial. You have a right to go to trial, so if you don’t agree or there is a peculiar issue involving your property, then you might need to ask a judge to decide the case at a trial.
Why is a Divorce Decree Important?
Your divorce decree not only sets the date the judge rules your marriage is over; it is also the final word from the court regarding the division of your marital assets and your parental rights and responsibilities. Parenting rights include child custody, parenting time (visitation), and child support. There are many nuances involved in child custody and support.
Property rights are often hotly contested. Unless you have a pre-nuptial or post-nuptial agreement that controls the division of assets, the terms of your property division will be outlined in the divorce decree.
Division of marital property can be complex. Some states have a community property law, while others base property division on equity or fairness. Marital property is any property you acquire during your marriage for use in the marriage. However, some property could be divided as personal rather than marital even though you acquired it during your marriage. Inheritances might fall into this category.
Part of dividing property also means dividing marital debt. You are not discharged from paying your debts even though you got divorced. This would include a mortgage you have on your home. Then, it would be best if you decided what to do with the marital home.
It would help if you also considered the question of what to do with your retirement accounts. Any money deposited in a retirement account during the marriage must be divided. Retirement account administrators require a Qualified Domestic Relations Order (QDRO) that defines how the funds in the retirement account must be distributed.
A divorce decree might include other information as well. A judge will require one of the parties to provide health insurance for the other. Additionally, one of the parties might need to purchase life insurance to benefit the spouse or children.
Alimony is a huge issue. Each state has alimony or spousal support law. Alimony or spousal support is based on the premise that each person should live according to their lifestyle while they were married. Again, this is highly nuanced and case-specific, and there is no simple formula to apply when determining if someone should pay alimony and, if so, how much.
Finally, the divorce decree will restore certain personal rights if you request them. For example, one party could retain their married last name or revert to using a maiden name if desired.
How Can You Change Your Divorce Decree?
Changing the judgment can be difficult. Usually, the terms of a divorce decree are unable to be altered. However, alimony, child custody, and child support may be changed. Every state has a procedure that you must follow. Typically, courts require you to file a complaint for modification in court and allege that you have experienced substantial circumstances. Then you have to explain the change and why it is significant.
Your ex-spouse can oppose your request to modify the divorce decree. The court will look more deeply into the facts of your case to determine if your situation warrants modification.
When is a Divorce Final?
The answer to that question depends on your jurisdiction. Some states have a waiting period between the time the court issues the decree and when it becomes effective. Many jurisdictions refer to that as a “Nisi” period. Once the period elapses, then the decree becomes final. At that point, either party is free to marry again because they will no longer be married as of that date.
What Happens if Your Former Spouse Does Not Abide by It?
A divorce decree is a court order. If your former spouse does not abide by the order, they are in contempt of court. You are responsible for ensuring compliance with the court’s ruling. The court will not watch over your ex unless there are particular issues regarding child support or supervised child supervision.
Each court will have a procedure to follow. Usually, someone seeking to enforce a court order must file a complaint for contempt and have it served on your former spouse. The court will give you a hearing date, and if your ex fails to show up, the judge could put out a warrant. Furthermore, the judge could send your ex-spouse to jail for failing to comply with a court order. Judges do not want to do this; they would rather see the person obey their orders. Therefore, this is an extreme and seldom-used remedy.
Ask a Qualified Lawyer for Help
If you have any questions about the divorce process or obtaining a divorce decree, you should seek help from a qualified divorce lawyer in your state.
