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The formal divorce process

Mark Dombeck, Ph.D.

gavel and scales of justiceIn this section, our intention is to help people learn to cope with divorce. Practical methods for coping make best sense when the procedures and obstacles they are designed to help manage are understood. Discussion of actual coping recommendations is best put off for a section or two while we first outline how divorce works in the United States. In describing the legal divorce process we will be covering:

  • Types of divorce
  • Legal steps and procedures for completing divorce
  • Issues that must be worked out prior to a divorce being granted, including:
    • Division of property and debt
    • Child custody
    • Child support and alimony
  • Professionals who are necessary or helpful to the divorce process

What divorce is and what it is not

The term "divorce" refers to the legal termination of a marriage and all rights and responsibilities associated with that marriage. Divorce is different than Annulment which refers to the invalidation of a marriage. In divorce, marriage is recognized as something legitimate that existed at one point (from the state's point of view) but which has since ended, whereas with annulment, it is as though the marriage never took place because the marriage is declared to have been illegitimate from the start. Annulments are available only when it can be proven that a marriage was entered into under fraudulent, forced or other illegal and illegitimate circumstances. The vast majority of persons requesting exit from a marriage do not qualify based on these terms and thus annulment is uncommon.

Divorce is also different than separation, which is a legal change to the status of an existing marriage but which does not terminate the marriage. Legally separated couples continue to be married and continue to share most of the rights and responsibilities associated with marriage (joint property, custody, etc.). Separated couples cannot remarry unless they go on to get divorced. However, a select number of marital responsibilities, often including joint responsibility for partner's debts, are terminated. Separation used to be more common, but in modern times it has taken a back seat to actual divorce.

Divorce comes in two versions: "fault" divorce, and "no-fault" divorce. Fault divorces are granted only when it can be shown to the court's satisfaction that one spouse has seriously harmed the other (through adultery, abandonment, abuse or similar failing). Prior to the 1960's, most states recognized only fault divorces. However, more recently, most states have adopted no-fault divorce proceedings wherein partners can separate as they wish to based on one or both partner's assessment of incompatibility. Although court involvement remains an essential part of any divorce, a no-fault divorce proceeding generally involves less court involvement, is easier and less expensive to pursue, and is less necessarily adversarial in nature.

Fault or no-fault, the ease with which a divorce can be obtained varies substantially on a state-to-state basis, and based on how quickly spouses are able to come to terms regarding the disposition of child custody and property division. Marriages are governed by state law, and the different states impose different conditions that must be met before a divorce can be finalized. For example, states regulate the duration of the waiting period that usually occurs between when a divorce is initially filed and when it may finally be granted, or whether such a waiting period is required at all. States also vary in terms of how they approach property division and child custody. When contemplating a divorce it is always a good idea to educate yourself concerning your state's specific legal requirements regarding divorce. Engaging a competent lawyer who is expert with the laws of your state is most always also a good idea.

The legal process of divorce

The divorce process is started when one spouse file a legal document with the court (called the 'complaint' or 'petition') requesting a divorce. The complaint asks the court to grant a divorce, and might also describe some of the property that needs to be divided when the divorce is granted. The court schedules a time for an initial hearing after receiving the complaint. Both spouses must receive a copy of the complaint and the summons to appear at the hearing. If the spouses are not on speaking terms, arrangements can be made to serve a copy of the complaint and summons to appear at court to the non-complaining spouse, alerting him or her to the hearing date, and giving him or her opportunity to file an answering document with the court.

The next step in the process occurs at the initial hearing during which a judge reviews the complain and answer documents, interviews the divorcing couple, and make temporary but binding decisions governing aspects of how the couple may behave towards each other until a more permanent settlement is agreed upon. The judge's rulings might cover issues such as child custody and support arrangements and is legally enforceable until a final divorce ruling is put in place.

With the end of the initial hearing, the clock starts on a necessary waiting period which must pass before the divorce can be finalized. The duration of the waiting period is based on state law and varies by state. During the waiting period, the couple will need to decide on how they will divide joint property and debt. If minor children are involved, the couple will also have to decide how custody will be arranged, and what sort of support arrangements will be put into place to insure the children's welfare. If the couple cannot successfully handle division of their assets, debts and child responsibilities on their own, the state will impose a settlement on them, so it is very much in the couple's interest to negotiate their own settlement. Arbitration and/or mediation approaches are frequently used (or even mandated by the court) to arrive at a negotiated settlement when the couple cannot easily come to terms. Mediation is a non-binding process where a trained facilitator sits with the divorcing couple and helps them to find ways to agree on division of property and custody. Arbitration is similar to mediation, except in arbitration, the trained facilitator is also empowered to make legally binding decisions regarding property and custody divisions in the event that compromise proves elusive.

If the spouses cannot agree upon the property to be divided, an expensive and time-consuming formal process of discovery can be undertaken in which lawyers fight to discover and document hidden assets, property or debts that spouses may be hiding. Should a negotiated settlement prove elusive (an uncommon event), the judge may use the results of the discovery process in forming his or her binding decisions. The divorce becomes final only after the waiting period time has elapsed, and a final hearing has occurred during which the judge approves any negotiated settlements or imposes a settlement if one has not been alternatively reached.

Divorce Professionals

    • Divorce Lawyers.

Divorce is a legal process governed by state law. Like any legal process, it is complex and often difficult for non-legally trained people to navigate. Additionally, the stresses and emotions associated with divorce can make it difficult for soon-to-be-ex-spouses to successfully advocate for their due legal rights. For these reasons, it is generally a good idea for people contemplating divorce to hire a lawyer specializing in divorce in their state to represent them. An experienced divorce lawyer is familiar with state laws and with the practical mechanics of divorce proceedings, and can offer informed counsel that is not clouded by anger or guilt.

While the best method for finding a lawyer will generally be to obtain referrals through trusted friends and co-workers, other lawyers, or trusted advisers (such as your work-related EAP), you can also call professional associations for referrals, or find them in the yellow pages. Any lawyer hired should be a member of the state bar association and duly licensed to practice law in your state. Because lawyers specialize in different areas of the law, it is also advisable to hire a lawyer who specializes in family law. As is the case in hiring any professional, it is a good idea to interview prospective lawyers before hiring them so as to gain a sense of whether their personality, style and values match your own. In most markets there are a number of qualified lawyers and it will not be necessary to hire one with whom you are not comfortable.

    • Mediators/Arbitrators.

Lawyers are generally paid by the hour. While hiring a lawyer makes a lot of sense to help shepherd the divorce process through its necessary stages, it is not in most divorcing couple's financial interest to pay lawyers to battle out details of property, debt and custody division arrangements if it can be avoided. Instead, it is generally best if the divorcing couple is able to work out these arrangements themselves, with or without the assistance of a mediator or arbitrator. Mediators and arbitrators are essentially professionals who help couples divide their property and debt and negotiate custody and support arrangements outside the formal court environment. Mediators may or may not be formally affiliated with the courts; their decisions and advice do not bind the couple who can take it or leave it as they see fit. Arbitrators, on the other hand, are usually officers of the court (lawyers, etc.) who are legally empowered by the court to make binding, non-optional decisions with regard to how the divorcing couple's property, debt, custody and support arrangements will occur. To the extent that divorcing partners can trust one another, it is in their interest to come to an arrangement either on their own or with the assistance of a mediator. To the extend that this is not possible, the involvement of an arbitrator, or lawyers and a full-on process of discovery may become necessary in order to make an agreement possible.