Questions and Answers About Divorce

According to the government, about 50% of marriages end in divorce. If you are married or plan to marry, this means there is a high chance of a divorce someday. Everyone should know the basics. Here are answers to some of the most often asked questions about divorce.

Q. How does divorce differ from separation?

A. A divorce is a court order ending the marriage. Separation means a couple is still married but lives apart. This is often a first step to a divorce, but sometimes the couple gets back together. Or a couple may live separately but stay married for religious reasons, financial reasons or because the couple cannot (or doesn’t want to) get a divorce. These couples can get a “legal separation.” Like a divorce, the parties will resolve custody, support and property issues. However, a legal separation does not end the marriage. You cannot remarry unless you get a divorce.

Q. What is an annulment?

A. An “annulment” is a court ruling that no marriage existed because of a problem at the start. In a divorce, a valid marriage is legally ended. Grounds for annulment vary, but most states will annul a marriage involving a minor, incest or bigamy. Fraud can also be a ground, especially if facts are concealed that would have caused one of the couple not to marry. For example, if a person hides a prior divorce, the other party may have grounds for an annulment. Though divorces and annulments differ, in most states the results are similar. Alimony will be awarded, property will be divided, and responsibilities for any children will be established. Also, the parties are free to remarry.

Q. What are grounds for divorce?

A. These differ in each state. Many states permit divorce for “irreconcilable differences” or “irretrievable breakdown of the marriage.” Depending on the state, other grounds can include adultery, cruelty, conviction of serious crimes, desertion, long-term imprisonment, or mental illness.

Q. What is a no-fault divorce?

A. This is a divorce that can be granted without showing that either spouse did something wrong. In a no-fault divorce, a spouse just needs to give a reason for divorce recognized by the state, like “irreconcilable differences.” Many states that allow no-fault divorces require the couple to have lived apart for a certain period of time.

Q. What is a fault-based divorce?

A. This is where a court grants a divorce only if a spouse did something wrong which the state allows as grounds for divorce. A separation period is usually not required. In some states, the spouse not at fault may receive more property and support.

Q. Do all states have both fault and no-fault divorce?

A. Almost all states permit no-fault divorces. Some states offer just no-fault divorces, but most allow both fault and no-fault and let a person choose which to request.

Q. How do I file for divorce?

A. A divorce typically begins when one party files a petition (or complaint) along with several other papers in the proper court. These papers will include a summons to notify your spouse of the divorce filing and give him or her a set period of time to respond. A copy of the divorce petition and other papers must be served on your spouse.

Most states have “residency requirements” that must be met. These laws require at least one spouse to live in the state for a certain length of time (usually six months or a year) before filing for divorce. There may also be requirements that a person live in the county where the divorce action will be filed for a certain length of time before filing for divorce.

Q. How long will the divorce process take?

A. Most reported statistics say the average divorce case lasts about one year. But this differs due to many factors. Several states add a waiting period, typically two to four months, before granting a divorce hearing. The process is also affected by how complex your divorce is, whether it’s contested, disputes over dividing assets, support and child custody. Many courts will grant a divorce even if more time is needed to complete proceedings for other matters.

Q. How do I deal with problems before the divorce is granted?

A. After filing a divorce petition, your lawyer can help you ask the court for temporary orders on matters like support, child custody and visitation. If you are being harassed, the court can issue a restraining order to protect you.

After temporary issues are resolved, the parties work on resolving permanent support and custody issues. You can do this with the help of mediators and lawyers. Mediators are people who do not make legal rulings but rather help the parties reach a mutually agreeable solution. If you and your spouse cannot reach an agreement on property, support and custody issues, there will be a trial and a judge will make these decisions.

Q. We have children. How will they be protected?

A. Divorce does not end either spouse’s responsibility for your children. The divorce judgment will include orders for child custody, visitation with the children and financial support.

Q. Will my spouse get all our property?

A. Many couples, with help from lawyers, work out how their property will be divided. If they can’t, then a court decides. The court divides the couple’s property based on state law. In the nine community property states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin), the couple’s community property — the property either spouse obtained through working during the period of the marriage — is divided evenly. In other states, courts consider various factors, including the couple’s assets, the length of the marriage and each party’s contribution to it, and then divide the property “equitably.” This does not necessarily mean the split will be even.

The separate property of each party to the marriage will stay with that person. Separate property is property you own before the marriage and the interest or other income it generates during the marriage (in a few states, most income generated by separate property is community property). Separate property also includes anything you receive during the marriage by someone’s will, as well as any gift you receive from someone other than your spouse.

Q. If I want to get a divorce or separation, do I need to be represented by a lawyer?

A. Emotions and important legal issues are involved in any divorce or separation, so it’s strongly advised to be represented by a lawyer. Each spouse should have his or her own lawyer, even if the parties are on friendly terms. A lawyer can advise you about property division, support, custody and other issues, and explain tax and other consequences regarding these matters.

There are usually complex issues involved when a marriage breaks down. Call our firm for more in depth answers to these and other questions you have about divorce.

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