The divorce process can be long and complicated, or it can be relatively quick and straightforward depending upon the specific circumstances of the married couple and the state in which they are seeking a divorce. Some states allow a couple to opt for a legal separation instead of a divorce. Some states require spouses to live separate and apart for a specific period of time prior to filing for divorce, while other states do not have this requirement. Depending upon the state where the divorce complaint is filed, the parties also may be eligible for a joint simplified divorce, which is a process common for couples with limited assets and no children from the marriage. It is extremely important to work with a divorce lawyer who has experience handling cases in your state. The following general information explains the divorce process, from separating from a spouse through to the final divorce judgment or decree.
Separation from a Spouse and Separation Agreements
Some states will require spouses to live separate and apart for a particular period of time before they are eligible to file for divorce. This is known as a waiting period. Depending upon the state, waiting periods can vary, but often are periods of at least six months. To live separate and apart, the parties must do so continuously for that amount of time and cannot attempt a reconciliation during the period in which they are living separate and apart. Other states have no waiting period requirement, and in some states spouses are not required to live “separate and apart” at all under state law.
Depending upon a particular couple’s circumstances, it may be necessary to have a separation agreement. Some states have specific provisions for separation agreements, which can provide relief until the divorce is final. There are states that also permit legal separation, which can result in a final order for support and custody unless one of the parties later files for divorce. Other states, however, do not have provisions for separation agreements or legal separations. In states where there are no specific provisions for separation agreements, the parties typically can work with a divorce attorney to develop an agreement that will be in place during their separation and until the divorce is final.
Filing a Petition for Divorce
The first actual step in the divorce process is for one of the spouses to file a petition for divorce. Depending on the state where the divorce is filed, the process of filing for divorce can have different terminology. Some states require a party to file a petition for the dissolution of marriage, while others require a divorce complaint. Once one of the parties has filed a petition for divorce, then “divorce papers” as they are commonly known will be served on the other spouse. Once the other spouse receives the complaint for divorce, that spouse will have a specific period in which to answer the complaint. When a spouse is served divorce papers and does not file an answer, a default judgment can be entered.
The state in which a party files for divorce can be extremely significant in terms of whether that party needs to allege fault. Some states still have fault-based grounds for divorce in which a party can or must allege grounds for the divorce, such as infidelity or cruelty. Many states, however, have “no fault” grounds for divorce. In many of these states, simply living separate and apart is proof that the marriage cannot work, and the court can grant a divorce.
Division of Marital or Community Property
Divorce always involves the division of marital or community property. Depending on the state, assets and debts from the marriage are known either as marital property or community property. Most assets and debts acquired prior to the date of marriage or during the marriage through an inheritance or gift will be classified as non-marital or separate property and will not be divided. It is important for parties to know that commingled property—or the mixing of separate and marital property—can result in a change in that property’s classification.
In general, for purposes of property division, states are either “equitable distribution” states or “community property” states. In equitable distribution states, marital assets and debts are distributed in such a way that the court determines to be fair to both parties. Typically, states have specific statutory factors that a court can consider in determining what an equitable distribution would look like. Differently, many community property states say that community assets and debts are owned jointly by the spouses and thus will be divided 50/50 between them. At the same time, some community property states shift from this model slightly, allowing community property to be divided in a manner that is just to both parties.
Alimony or Spousal Support, and Child Support
To receive alimony (or spousal support or maintenance) in a divorce case, the spouse seeking it must request it. Then, in most states, the court will first determine whether alimony is appropriate before it decides how much alimony to award and for what duration of time. Depending upon the state in which a party files for divorce, alimony can be awarded based on fault, such as infidelity. Other states award spousal support regardless of fault, only consider the spouse’s needs. States also have different methods for determining the amount and duration of maintenance. Many states use general guidelines for determining alimony based on the spouses’ incomes and a variety of other factors, such as the seeking spouse’s earning capacity and education, as well as the standard of living established during the marriage.
In terms of child support, states also vary. Some states use an “income shares” model in which they consider both spouses’ incomes to calculate a total child support amount, and then distribute that child support obligation based on each spouse’s individual income and amount of parenting time. Other states only require the non-custodial parent to pay child support. Regardless, most states have child support guidelines that provide an objective child support amount based on income and the number of children.
Child Custody Orders
Different states have different terms for child custody. Some states award legal and physical custody, which can be awarded either solely or jointly. Other states use terms like parental responsibilities, time-sharing, and parenting time to refer to a parent’s right to make important decisions about the child’s upbringing and to spend time with the child.
Nearly all states make child custody decisions based on what is in the “best interests of the child.” The “best interests” standard allows courts to consider a wide variety of factors to determine what kind of custody arrangement is best for the child under the particular family’s circumstances.
Mediation and Other Forms of Alternative Dispute Resolution
Some spouses may be able to resolve their disputes through mediation or other forms of alternative dispute resolution. When parties reach an agreement through mediation, the court can approve the agreement and can enter the terms in the final judgment. Otherwise, the divorce will need to go to trial, and the parties will need to present their cases to a judge.
Divorce Final Judgment
The final step in any divorce process is a divorce final judgment. The final judgment will provide all of the information about the divorce in writing, from how property will be distributed between the parties to how parents will share child custody responsibilities. The divorce order is binding, and the spouses must abide by it. If one of the spouses does not abide by the final judgment, the other spouse can initiate court proceedings to require that spouse to comply.
It is important to understand that a divorce will result in a final judgment regardless of whether the parties reached an agreement through mediation or the court needed to determine the outcome of the divorce case. If the parties reached an agreement through mediation or another method, the court will still need to finalize that agreement in the final judgment. If the court made the final determination because the parties could not reach an agreement, then the court’s decision will also be rendered in the final judgment.
