What You Need to Know Before Getting a Divorce

Below is what you need to know prior to ending your marriage, including the requirements for divorce and options to hashing it out in court.

In many cases, getting a divorce can be somewhat easy, particularly if you don’t have children and aren’t owners of a lot of assets together. But divorces typically involve a lot of rules and documentation—and usually a lot of emotion and negotiation.

If you both agree about how to split your assets and split parenting duties or are totally at odds on all the matters involved in terminating your marriage, you are going to need to know the below to get your divorce started correctly.

Requirements for Divorce

Every state requires spouses to meet some fundamental requirements before they may get a divorce. Prior to you starting divorce proceedings, check articles on state laws for filing for divorce to be sure that you are eligible to get divorced in the state in which you’re planning to file.

Residency Rules for Divorce

Provided that you adhere to the state’s marriage license statutes, you are allowed to get married in any state—even when you aren’t living there. The requirements for terminating a marriage, though, are not as laid-back. You are required to fulfill a state’s residency requirements before you can file for divorce through its courts.

In mostly all states, at least one of the spouses is required to have resided there for a certain amount of time prior to filing for a divorce. Typically, the minimum time is 6 months, but it ranges from 6 weeks to 2 years in some cases. There are discrepancies on this general residency requirement:

Oftentimes, the residency requirement is conditional, which means that it is going to be longer or shorter subject to circumstances like where the spouses got married, where the events that led up to the break-up of their marriage occurred, or if each of the spouses live in the state.
Typically, the residency requirement is in reference to where you truly live, but in a couple of states it is in reference to your “dwelling,” or the place you deem as your permanent home.

Do You Need To Be Separated Prior to Getting Divorced?

In a lot of states, you are not required to have to be separated from your spouse prior to getting divorced. But a couple of states require that spouses have lived “separate and apart” for an amount of time, either before they can file for divorce or before the judge is going to finalize their divorce. Many times, like in South Carolina, the separation requirement only concerns to spouses filing for no-fault divorces (more on that below).

The minimal separation time is typically a year, but may be subject to certain situations. For example, Virginia usually requires a 1 year separation prior to spouses being able to file for no-fault divorces, but the requirement is decreased to 6 months when they have a written separation contract have no children. (Va. Code 20-91(9) (2022).)

The laws and/or courts in various states may have various interpretations of what “separate and apart” means—like if a couple may be deemed separated when they continue to live in the same dwelling but sleep in separate bedrooms and keep separate households.

You should find out sooner than later if your state has a separation requirement and, when, what you must do to fulfill the requirement—including if you are required to move out of the family home. If not, the court could reject your petition for divorce or postpone your divorce when you don’t fulfill any requirements in your state.

Grounds for Divorce

Divorce laws differ from each state. But one regulation in every state is that in your divorce petition you must give reasoning (“grounds”) for petitioning a divorce. Grounds for divorce come into 2 classifications: “no-fault” and “fault-based.”

No-Fault Divorce

Every state gives divorcing spouses the choice of filing for a “no-fault” divorce. In other states, a no-fault divorce is the only choice.

In no-fault divorces, neither of the spouses are required to show or prove that the actions of the other caused the end of their marriage. Rather, the spouse that files for divorce simply states that their marriage is over and there’s no reasonable chance of getting back together. In a lot of states, the reasoning given for a no-fault divorce is that the spouses have “irreconcilable differences” or that there has been an “irretrievable breakdown of the marriage.”

A lot of spouses decide to pursue a no-fault divorce. No-fault divorces are less complex and less combative than fault-based divorces: Since you don’t have to prove your spouse did something wrong, there’s usually less anxiety and tension throughout the divorce process. Not having to accuse your spouse of bad behavior is especially helpful when you have children that might be impacted by the proceedings. Additionally, when you don’t have to fight about fault, the divorce could move more quickly. And less arguing usually always means decreased legal fees.

Fault-Based Divorce

When you file for a fault-based divorce, you are required prove that your spouse did something that caused the marriage to end. Reasoning for fault-based divorces usually include adultery, excessive cruelty (mental and/ or physical), and abandonment.

Since fault-based divorces can be so disputable (and costly), a lot of divorcing couples are going to choose for a no-fault divorce. Nevertheless, if your state deems fault when splitting marital property or evaluating the need for spousal support, filing a fault-based divorce might be a good alternative. (But might not be necessary to introduce the matter of your spouse’s bad behavior for the intent of deciding those matters.)

When you think you may file a fault-based divorce (or when your spouse has already filed one), consider speaking with with an attorney—seeking a fault-based divorce can be a lot more complex (and more challenging to win) than no-fault divorces.

The Matters in a Divorce

As part of your divorce, you are going to have to address several matters related to terminating your marriage. You and your spouse might negotiate and reach agreement on matters, either on your own or through divorce mediation. When you can’t agree on any matter, a judge is going to have to decide for you after holding a trial.

Dividing Property

In a lot of divorces, spouses are going to have to split their property and liabilities. The general rule is that marital property—typically, property the spouses obtained and liabilities they incurred throughout their marriage—are required to be split between the spouses. The specific rules for splitting marital property are subject to whether you live in an “equitable distribution” state or a “community property” one.

Equitable Division

A lot of states follow the convention of equitable distribution. Meaning that the court is going to split the marital property between you both based on the facts of your case. Whatever the judge feels are fair in your particular case are going to establish how the judge splits the property. Equitable distribution does not guarantee that each spouse is going to get an equal share.

Community Property

In community property states, all marital assets—referred to as “community property”—are typically divided equally among the spouses, unless there’s another reason to split it another way. Community property typically includes:

all property obtained by either spouse throughout the marriage, irrespective of whose name the property is in
each spouse’s income throughout marriage, and
liabilities incurred by either spouse throughout marriage.

Marital vs. Separate Property

In both equitable distribution states and community property ones, many assets are deemed the “separate property” of one of the spouses. Separate property typically includes any assets owned prior to the marriage, in addition to some kinds of property obtained throughout the marriage, like presents and inheritances. When an item is your separate property, you are going to be able to keep it following the divorce.

Occasionally, nevertheless, assets that were separate property can turn into marital property. For example, should you “commingle” (combine) separate property with marital property throughout the marriage, the separate property is going to probably lose its safeguarded status and is going to be divided throughout the divorce. One way of avoiding this result is to retain your separate property in an individual account and keep records on all transactions involving your separate assets.

Alimony

Alimony (sometimes known as “spousal support” and “maintenance”) is in reference to payments that one spouse makes for helping support the other spouse throughout or following a divorce.

After taking into consideration factors like the spouses’ income and earning ability, a lot of courts grant alimony for a limited time. For instance:

Judges might grant temporary alimony during the time a divorce case is progressing through the court system. The rules for granting temporary alimony are usually less demanding than for other types. They’re typically based on if the supported spouse needs the financial help, and the other spouse can afford for paying it.

After the divorce is finalized, judges might grant what’s usually called “rehabilitative alimony” to help the supported spouse become self-reliant. The grant might last only as long as it takes for the supported spouse to find employment or gain the required education or job skills that are going to allow that individual to earn enough to live on.

When divorcing couples have been married for a longer period—anywhere from ten to twenty plus years, subject to your state—a judge may grant the supported spouse “lifetime” or “permanent” maintenance. This kind of grant is made in uncommon cases where it’s probable that one of the couples is going to never be able to be financially independent from the other.

Child Custody and Parenting Visitation

In considering child custody and parenting time matters, judges assess what is in the “child’s best interests.” Provided that it’s in the best interests of the child, a lot of judges devise child custody orders to guarantee that both parents remain actively involved in their child’s life.

Nowadays, it’s common for judges to grant “joint legal custody” to the parents. Meaning that each of the parents have a say in important decisions concerning topics like schooling, spiritual upbringing, and non-emergency medical treatments. Nevertheless, judges might grant “sole legal custody” to only one parent when joint legal custody is not in the best interests of the child —like when one parent is unfit in making those decisions, or the ongoing quarrel between the parents is so huge that making decisions together is only going to lead to more distress.

Joint legal custody does not consequently mean that the parents are going to have joint physical custody—which means that the child spends just about the same amount of time with each parent. Even though the trend is progressing towards a preference for joint or shared physical custody, it may not be best for the child for several reasons. In that case, the judge is going to grant sole and/ or primary physical custody to one parent, while commonly providing the other parent with a visitation schedule.

Child Support

Each of the parents are responsible for supporting their children financially. Each state uses child support regulations for calculating how much funding a parent needs to contribute. A lot of states’ regulations specify that each parent’s income and the amount of time the parent spends with the child is required to be taken into account in the support calculations. The amount of child support granted can also be impacted by other associated aspects, like a child’s medical requirements (such as medical bills not covered by insurance and health insurance) and the expense of after school activities.

Can You Get a Divorce Without heading to Court?

Your divorce is not going to be finalized until a judge signs a judgment or written divorce decree. But that doesn’t mean that you and your spouse must litigate your matters in court. Below are possible options.

Uncontested Divorce

If you and your spouse can work alongside each other and come to an agreement on all the matters in your divorce, you may be able to file for an uncontested divorce. An uncontested divorce is a more simple, quicker way to terminate your marriage than a conventional contested divorce. Each state has their own procedures for uncontested divorces.

In addition to being less quarrelsome and faster, an uncontested divorce is usually less costly than contested divorces. A lot of couples can get through the process without hiring an attorney, either by themselves or with the assistance of mediation, online divorce services, or both.

Divorce Mediation

In a mediated divorce, an unbiased, trained 3rd party (known as a “mediator”) assists both spouses to work one another to come to an agreement concerning the issues in their divorce. Mediators are never going to make decisions for you. Instead, they guide you and your spouse through the process of identifying the issues, recognizing possible solutions, and agreement negotiation. Should mediation be successful, mediators are going to generally prepare a document that is a reflection of your agreements. That document can then be the steppingstone for a written marital settlement agreement that you are going to submit to the court. If the judge approves the agreement, it is going to usually become part of your final divorce decree.

Mediation has a lot of advantages:

It’s usually a lot faster and less costly than litigation.
Mediation helps encourage future communication among the spouses.
When its successful, mediation provides couples with more control over the result of their divorce—in which typically means they are going to be more satisfied with the outcome.
For a lot of spouses, mediation is also much more beneficial and gives them more control over the timing of their divorce. A lot of mediators and services even provide spouses the option of carrying out their divorce mediation through their website.

Overall, mediation is a perfect option for spouses that are willing to work with each other to come to a a compromise and that can negotiate honestly and on the same level. Nevertheless, mediation is a terrible option when there is present or threatened domestic violence or when one spouse is uncooperative.

Collaborative Divorce

Collaborative divorce is an alternative when spouses want to avoid battling in court but wish to have attorneys negotiate for them. In collaborative divorces, the spouses and their attorneys agree to attempt their best to come to an agreement on their divorce matters. If they can’t come to an agreement, the attorneys are required to withdraw from representing their clients, and the spouses are required to begin the divorce process all over, including the hiring of new attorneys. The threat of having to start from beginning and incur added attorneys’ fees usually provides strong incentive for the couple to negotiate with good intentions and reach a compromise.

How Long Is It Going to Take to Get Divorced?

From the time you file your initial divorce papers, many states have a mandatory waiting period—usually 3 to 6 months—before a judge is going to sign your final divorce decree. However, those waiting periods are only the minimum. Subject to the circumstances in your case, it could take longer than that to get your divorce finalized—occasionally much longer. In a divorce survey carried out by Martindale-Nolo Research, thirty five percent of spouses said their divorce took over a year. As their survey unveiled, the most important factors that impact how long a divorce is going to take are:

the number of disputed matters in divorces, and
how long it takes spouses to settle those matters, or whether if they need to go to trial to have a judge resolve the disputes for them.

So, when you’re concerned about getting divorced as quickly as possible, you should do everything possible to try to come to a fair settlement of the matters in your case, as soon as you can.

Do You Need an Attorney to Get Divorced?

Many—if not all—states enable spouses to represent themselves in divorce issues (referred to as appearing “pro per” or “pro se”). However, whether that’s wise is another question. Spouses that can’t agree on matters of custody and parenting time, spousal maintenance, or allocation of property is probably going to need to hire an attorney to assist them in reaching the outcome they want.

Nevertheless, when spouses agree on all their matters and having a written marital settlement agreement, they may not need to hire representation. They can usually do their divorce on their own and use DIY divorce guidelines and documents provided by a lot of local courts. Or they can file for divorce online by using a service that is going to provide them with the completed documents they require, based on their answers from an online survey. Many of these services are even going to take care of the filing process, for an added fee.

In conclusion, if funding for an attorney is an issue but you feel the need for legal counsel in your divorce, you could see if a local attorney is going to be willing to work with you on a as-needed basis or consulting—like to answer particular questions or examine your draft settlement agreement. You may also be eligible for free or low-cost legal help from your local county bar association or legal aid office.

Source:

Joseph Pandolfi, R. J. (2021, October 22). What you need to know before getting a divorce. www.nolo.com. Retrieved September 27, 2022, from https://www.nolo.com/legal-encyclopedia/getting-started-with-your-divorce.html

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