• Divorce

    divorce legal helpSimply put, a divorce is a severing of a marital union. Going through a divorce can be one of the most difficult times in an individual’s life. For first marriages, the divorce rate in the United States is 40-45%, and this number increases for second marriages to around 60%, and further increases to just below 75% for third marriages. Many falsely believe that obtaining a divorce is a simple process by filing for divorce in a court with jurisdiction. This is almost never true.

    To obtain a divorce, the couple must obtain a court judgment which is a judicial decree that declares that the marriage is dissolved. A married couple does not have a constitutional or legal right to divorce; states permit divorce based on state law. Some states require a cooling off period after a legal separation before the divorce proceedings can be initiated. After the divorce is finalized, both parties are free to remarry though some states have time restrictions on remarriage.

    There are four types of divorces; absolute, limited, conversion and no fault. An absolute divorce is a divorce that requires evidentiary support of misconduct or wrongdoing by a party. A limited divorce is also known as a separation decree. This type is where the court does not dissolve the marriage but grants a legal separation. Some states allow a conversion divorce that shifts a legal separation to a legal divorce after the parties have been separated for a statutorily set period of time. Most states now allow no fault divorces. This is the same as an absolute divorce but there is no requirement of a showing of fault. The only evidence the court needs to grant the divorce is that the relationship is no longer viable, there are irreconcilable differences that resulted in the breakdown of the marriage, or the conflict prevents any possibility of reconciliation or the marriage is irreparably broken.

    When filing for divorce, an individual must decide as to whether they will file for a no-fault divorce or a fault divorce. In a no fault divorce, the party seeking the dissolution of the marriage is not required to prove the spouse did something wrong, and can file citing any reason recognized in that jurisdiction. Generally, this can be something as simple as “irreconcilable differences.” To obtain a fault divorce, a party must prove that the spouse did some action that is recognized as grounds for fault. Not all jurisdictions recognize fault divorce. The main difference between these two types of divorce, other than the burden of proving fault, is that a fault divorce will generally not require the parties to be separated before the divorce is granted. Although all jurisdictions allow for no fault divorce, some require the parties to be separated for a period of months or years before a court will grant the divorce.

    Parties seeking a divorce will face many issues. If the couple has children, the parties will need to decide who will get custody of the children and who will be required to pay child support. Most jurisdictions have guidelines for calculating the amount of support based on the parent’s level of income and the custody agreement between the parties. The couple will need to distribute their property, which can lead to intense arguments between the parties and their attorneys. In most cases, one party will be required to pay alimony to the other. Individuals may also need to change provisions in their wills, insurance policies, trusts, and other estate planning documents. This is not an exclusive list of issues that arise in divorce, and the issues involved will vary on a case by case basis.

    An order of divorce may address various issues of the couple’s case. The order can include information on property division, alimony, spousal support, child custody, visitation or child support. One area that is covered in almost every divorce order is property division. There is both marital and separate property. Marital property is any property acquired during the marriage. Separate property is any property purchased or owned before the marriage. If separate property substantially changed value during the marriage it is converted to marital property. If the separate property is sold or exchanged during the marriage then the property remains separate. The division of property seeks to equitably divide the marital assets. This does not mean equal but fair and only marital property can be divided.

    Alimony is another common area that is addressed. Alimony is a payment from one spouse to another. There are three types of alimony: permanent, temporary and rehabilitative. Permanent alimony is payments that continue for life or until remarriage.

    Temporary alimony is payments over a period of time, generally the length of the property division litigation. Rehabilitative alimony is payments over a short period of time after the property division is over. Alimony determined by the length of the marriage and the attributes of the parties.

    An action for divorce may be brought by either spouse and it may be uncontested or contested. An uncontested divorce is the most common and quickest type of divorce. An uncontested divorce can be completed without legal counsel. A contested divorce usually takes much longer and develops from an inability to reach an agreement. A contested divorce generally requires legal counsel and will usually require judicial intervention to obtain a conclusion.

    Sometimes only one person wants a divorce, and the other party will wish to challenge the divorce action. When it is a no fault divorce, the filing of the divorce action is usually in itself an irreconcilable difference, and the only way to challenge the divorce would be to challenge the court’s jurisdiction over the parties. However, fault divorce actions can be challenged on several grounds. Because fault divorce requires the party seeking the divorce to prove fault by the spouse, the spouse can simply prove that no such fault ever took place. Even if fault is proved, the spouse may claim condonation, provocation, collusion, or connivance as a defense if it is recognized in the jurisdiction. However, even upon proof of a defense, the court is still likely to grant the divorce for public policy reasons.Each state has its own specific divorce laws, codes, statutes and rules for handling the legal termination of marriage and these laws vary greatly from state to state. It is important to consult the laws of the state before proceeding with a divorce especially if proceeding without counsel. Although it is not necessary to hire legal counsel to assist in a divorce proceeding, it will most likely be beneficial to do so, especially if the other party has retained counsel. Fighting for alimony, child support, child custody, and a fair distribution of property can be a long and arduous task, and obtaining counsel to help battle for your rights will increase the likelihood of a successful outcome.
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