Divorce is the legal dissolution of a valid marriage. After a divorce is final either members of the marriage may remarry, and property that was acquired by both parties in the marriage is now owned “in common”. This means that half of this property is given to one spouse and half is given to the other. Also, child custody and support is decided upon as well as alimony in the case of a dependant spouse. A divorce can be entered upon either as fault or no-fault, the availability of which can vary from state to state.
There are several different ways for a couple to end a relationship or simply take a hiatus in the eyes of the law. This first potential situation is a separation in which the couple is still legally married, but partners are living in separate residences. This is different from legal separation or limited divorce, in which the actual marriage is still intact, but parameters can be set on such matters as property, child custody, and spousal support. An annulment is the legal conclusion of a marriage, but does not recognize the marriage as having ever existed. Absolute divorce is the legal conclusion of a state-recognized marriage, where a record of the divorce is kept and the partners are free to remarry. Divorces fall into the two sub-categories of fault and no-fault divorce. In case of separations involving division of property, prenuptial or premarital agreements can come into play.
A separation is a consensual agreement between both parties of a married couple to live in separate residences. This can either be temporary or permanent, and is not legally recognized by the court, except in some states with the case of no-fault divorce. Therefore, there can be no ruling on issues such as property rights, spousal or child support, or the custody of children.
In these situations the legal marriage between two partners is left intact. Both partners reside apart and neither spouse has a right to sexual intercourse with the other, though they are still technically married. The difference between a separation and legal separation is the ability to rule on division of property, support of a dependant spouse or child, and child custody. Legal separations are typically pursued when the couple cannot reach an agreement about these subjects privately and need legal intervention.
During a legal separation or limited divorce, the court establishes fault between the partners. Fault is used to decide how property, money, and custody should be appropriated between the spouses, and may also be used later in the event of an absolute divorce. Since the parties cannot reach a resolution on these issues themselves, fault must be established for the court to take action.
Though both spouses lose the right to sexual intercourse with the other under these circumstances, engaging in sexual acts with another person outside the marriage can still be held against them in court as adultery.
Like divorce, an annulment is the legal termination of a marriage, but it differs in that it treats the marriage as though it never existed. Also, an annulment is established on different grounds than divorce. Typical grounds for annulment include some proof that the marriage was invalid in the eyes of the law. Invalidity can be established in a number of ways: if the spouse was still married to another person or was a minor at the time of the marriage, if the spouse married under duress, if the relationship is incestuous, if the spouse concealed having a sexually transmitted disease or drug addiction, being impotent, or concealing the inablility or unwillingness to produce offspring.
There are many reasons why a couple would opt for an annulment rather than a divorce, such as religious reasons and the quieter, less volatile nature of the separation. In many states there are also legal proceedings for the division of property, child custody and support, etc.
Fault divorce is the less common and typically more revenge-centered form of divorce, and is frequently thought of as a bit antiquated. Conditions of a fault divorce must be decided upon in court, since the parties cannot come to any conclusions on their own regarding who deserves what and who is to blame for the marriage’s failure. Fault is argued before a judge, who determines whether or not to grant the divorce based on the factors laid forth in each party’s arguments. In some states, fault can also be considered in determining how money, property, and any custody rulings should proceed. Fault can be established by a number of reasons which tends to vary between states. The most common faults are adultery, mental or physical abuse, drug abuse, mental defect, and impotence.
No-fault divorce is far more common than fault divorce. In a no-fault divorce both parties concede that neither is responsible for the failure of the marriage, but that it must be terminated due to “irreconcilable differences”. It is not necessary for both spouses to file for divorce; if one spouse wishes to end the marriage they may file for the dissolution alone. No-fault divorce is often the more amicable and humane way to terminate the marriage, since the complex nature of spousal relationships is taken into consideration. Division of assets and custody of children are decided upon by both parties, and the state cannot consider any “faults” in granting those appropriations. In many states a legal separation of the partners is necessary for the state to grant a no-fault divorce. These required separations can last anywhere from six months to five years.
A prenuptial or premarital agreement is a written agreement between two partners regarding division of property, alimony, or child custody in the event of divorce or death. These are contracted and signed before they enter into marriage, and can be very helpful in the event of a messy divorce. They prohibit either spouse from claiming assets not laid out in the agreement or not consensually decided upon with the termination of the marriage. A prenuptial agreement is valid only if the partners agreed upon the terms of their own volition, have signed the document, and have had it authorized by a notary public.
Whether you choose to proceed with a limited, fault, or no-fault divorce, it is important to have a divorce lawyer representing you. A good divorce lawyer has the necessary knowledge of the law required to ensure your needs are met and you are getting a fair shake in the legal proceedings. Even if the divorce is consensual and relatively amicable, division of property, tax issues, and child custody can become very complex, and a divorce lawyer can help protect your rights.
In evaluating a divorce lawyer, the most important factors to consider are experience, fee structure, proximity to you and your spouse, and simply whether you like that lawyer or not. Typically, less experienced divorce lawyers are appropriate for uncomplicated divorces with few assets or limited disagreements between the spouses regarding child custody, support, and disposition of assets and liabilities. In a divorce between a high net- worth couple, a more experienced divorce lawyer would be more desirable. However, there are many excellent lawyers who have only practiced for a few years and are capable of handling high net worth divorces and other complex divorce issues.
Divorce lawyers generally charge on an hourly basis, though, some divorce lawyers offer fixed fee rates for uncomplicated divorces.
Divorce can be one of the most stressful experiences in life. If you are contemplating divorce, it is prudent to speak with an experienced divorce lawyer to guide you through the divorce process from the marital separation agreement to the final divorce decree and all the steps in between.