The divorce rate in the United States remains consistently high, and the CDC reports the divorce rate is 2.9 per 1,000 people. Although the word divorce may conjure thoughts of conflict and bitter disputes, there are many ways to end a marriage without conflict. Each state provides people with a variety of ways to file for divorce. Generally, couples can reach agreements as to any terms in a divorce without court intervention.
This article describes the different types of divorces and the ways divorcing couples can obtain a divorce with and without the help of courts or other third parties.
Fault and No-Fault Divorce
Whether a divorce is “fault” or “no-fault” determines what the parties have to prove in order for the court to grant the divorce and also affects the types of awards to each party. Traditionally, all states had fault divorce statutes, meaning the spouse who wanted to get divorced had to show the other party committed wrongdoing in order for the Court to approve the divorce. Fault divorces reflect traditional notions of marriage and the public policy in favor of keeping marriages intact.
Under the fault system, courts required couples to prove the marriage could not be saved before it would grant the divorce. Some bases for justifying a divorce include adultery, abuse, mental illness, or prison confinement for a long period of time.
In a state with fault divorces where both parties want a divorce, each party would provide the court with evidence of wrongdoing on the other’s part. In those situations, the court determines who is least at fault and grants that party the divorce. This doctrine is referred to as comparative rectitude, and ensures that the court can grant a divorce in situations where both parties may have done something wrong.
Over time, most states eliminated fault divorces entirely while others give the party seeking a divorce the option to file either a fault or no-fault divorce.
In no fault divorce states, the party seeking a divorce does not have to provide the court evidence of any wrongdoing or basis for the divorce. The party simply checks a box on the divorce petition that the marriage suffered from either irreconcilable differences or that the other party suffers from permanent legal incapacity.
Some people seeking divorce may choose fault divorce because it allows the party to request a larger portion of the marital estate or even punitive alimony payments if that party proves the other party’s fault. Because each side is entitled to present evidence of wrongdoing and rebuttal evidence, fault divorces are timely, costly, and a much more invasive process than no-fault divorce.
When a divorce is uncontested, it means that neither party to the marriage objects to divorce or the proposed terms. An uncontested divorce happens when neither party contests child custody arrangements or financial distribution of the marital estate, and both parties come to an agreement about the terms of the divorce without the court’s intervention. The parties both file paperwork with the court. Because nothing is contested, there is usually no need for hearings or court intervention. As such, uncontested divorces are quicker and less costly than divorces where the parties cannot agree to the terms (contested divorce).
The contested divorce is what most people imagine when they the think of the word “divorce.” In a contested divorce, the parties do not agree about one or more major issues, and the judge decides how to divide the couple’s estate. The most common issues are spousal support, alimony, division of assets like the family home, retirement, and cars, and child custody. Contested divorces are often expensive and lengthy, particularly when the parties have high value assets, businesses, or child custody issues.
In a contested divorce, each party puts on their case to the judge, and the judge makes a determination on the contested issues. This form of divorce is public, often costly because it requires attorneys to attend multiple hearings, depositions, and trial, and time-consuming.
Arbitration is an option for divorcing parties who want to resolve their divorce outside of the court system, but need help coming to agreements about the division of their estate. In arbitration, the parties use a private judge who is often a retired judge or an experienced attorney. The arbitrator acts as the judge and makes a determination on the issues as the judge would in court. Arbitration is generally less expensive and quicker than regular court. Arbitration further allows the parties to use a neutral third-party to resolve their issues outside of the public court process.
Mediation is another tool available to divorcing couples to help them work out some of the issues with their divorce. Like an arbitrator, a mediator is a neutral third-party who is often a retired judge or highly experienced attorney. The mediator listens to both sides and helps the parties come to a resolution on contested issues. Unlike in arbitration where the arbitrator makes a decision like a judge, the mediator does not make a decision on the issues between the parties. Rather, the mediator helps the parties to communicate so they can reach an agreement. Once an agreement is reached, the parties bring their agreement back to the court for the judge to finalize with a divorce judgment.
Collaborative divorce is another way for parties to avoid the formal court process. It involves the parties retaining separate legal counsel who are familiar with collaborative law. The parties sign an agreement with their counsel stating that they will collaborate to resolve their issues, and that if they fail to do so, counsel will withdraw from representation. The point of collaborative divorce is to resolve issues outside of the court system.
The parties meet as a group with their respective attorneys on a regular basis to work on resolving their issues. The parties may use a mediator if needed to facilitate communication. Collaborative divorces may often utilize other experts, like child custody mediators or accountants, to assist with specific issues. Once the parties reach an agreement, they file their divorce petition and settlement agreement with the court. Collaborative divorces are another way for parties to save time and money by avoiding the normal court process.
A default divorce occurs when one party files for divorce and the other spouse does not respond. In some instances, the other party cannot be found and, thus, cannot be personally served with the divorce petition. Sometimes a spouse will evade a process server to prevent service. When one of the spouse’s does not respond to a divorce petition, the court grants the filing spouse’s petition by default. The parties do not need to appear in court, and the petitioner who filed for divorce will have a judgment entered according to his or her wishes.
A default divorce is quicker and cheaper than the regular divorce process and has obvious benefits for the filing spouse. However, courts usually only grant a default divorce after the filing spouse attempts service on the missing spouse in different ways, including in-person, by mail, and via publication in a newspaper.
Some divorcing couples may qualify for a summary divorce when they meet certain requirements. A summary divorce is a streamlined divorce for those couples without substantial property or other issues. It requires less paperwork and less time than a traditional divorce. A couple qualifies for summary divorce if: (1) they were married for a short period of time—usually under five years; (2) they have no children; (3) the couple does not have significant real property; (4) the total value of the entire marital property is under a certain amount, usually less than $45,000; (5) the couples’ separate property is under a certain value; and (6) both parties agree to waive spousal support.
Summary divorce essentially allows couples married for a relatively short amount of time who have little assets or debts to have their divorce granted quickly. Some states even allow parties with children to file for summary divorce so long as they reach a child custody agreement.
Same Sex Divorce and Domestic Partnership
Divorces for married same sex couples and registered domestic partners follow the same processes described above. The Supreme Court legalized gay marriage nationwide in its June 26, 2015 opinion in Obergefell v. Hodges. That decision prevented the handful of states that banned same sex marriage from enforcing their bans. Just as same sex couples can legally wed, they now follow the same process as opposite sex couples when they want to divorce.
Domestic partnerships allow couples or co-habitants to legally define their relationship by registering without getting married. When domestic partners want to end their legal relationship, they may have children together or share assets. Domestic partners can also seek dissolution or summary dissolution, and ending a registered partnership follows generally the same processes as ending a marriage.
One prerequisite in almost every state before a court will grant a divorce is that one or more spouses must be a resident of the state for a required period of time. Residency requirements range from being a resident at the time of filing to one year of residency in the state. Residency requirements serve to prevent people from forum shopping, or picking the state to divorce in with the most favorable divorce laws. A court may dismiss a case where one or both spouses cannot prove they meet the residency requirements.
Individual counties within states also have their own residency requirements. Parties looking to file for divorce should check both their state and county residency requirements before filing a divorce petition.