An Overview of Divorce Law

The number of American married couples dissolving their marriage through divorce is consistently numerous. In fact, the National Center for Health Statistics reports that 3.6 people out of 1000 people per capita divorced in the year 2005, which was significantly lower than the highest American national per capita average of 5.3 per 1000 in 1981. Nevertheless, 2.23 million marriages occurred in 2005 according to the United States Census Bureau. Of these 2.23 million marriages, the National Center for Health Statistics conservatively estimates 43% will end in divorce, and according to the United States Census Bureau, over 50% of these marriages dissolve in divorce.

Finding the proper answers on divorce and divorce related issues is all part of the healing process following the end of a marriage. Having a knowledgeable legal professional at your side during such an emotionally challenging time not only increases your chances at acquiring ideal divorce terms, but also, relieves a divorcing party of the immense burden of tackling such a legitimately confusing task alone.

The Beginning of a Divorce Case

In keeping with the "50/50" trend of marriages and divorce, the beginning of a divorce case starts fifty percent of the time that individuals sign marriage licenses. Prior to signing the marriage license, the first, or what should be the first, legal document involved in a divorce proceeding is the prenuptial agreement. The first mistake some couples make in regards to this issue is feeling that a prenuptial agreement is not necessary. Nothing could prove further from the truth. Contrary to media portrayals of celebrity divorces, the prenuptial agreement covers much more than just asset division during a divorce.

Actually, prenuptial agreements should cover issues such as:

  • Note validity of the marriage itself as well as the prenuptial agreement terms
  • Division of assets
  • Distribution of alimony or spousal support money
  • Division of debts incurred during marriage
  • Protection of assets garnered prior to marriage
  • Sanctions for infidelity, criminal behavior, or substance abuse
  • Sanctions for documented spousal abuse, whether physical or otherwise

Typically, courts will uphold the validity of any prenuptial agreements when written properly through the assistance of lawyers. Frivolous demands or agreements, such as those not documentable or verifiable in statistical numbers, will not be upheld and could potentially invalidate a prenuptial agreement. Lawyers can assist clients in ensuring this will not occur.

Once the Decision to Divorce Is Made

After assessing their relationship to whatever extent necessary, couples will acknowledge their intentions to end the marriage. For some, one party will not wish to end the marriage, while the other does. Interestingly, the National Center for Health Statistics notes that women initiated an average of 66% of all divorces throughout the past ten years. Once a spouse files for divorce, the other individual automatically becomes party to the divorce proceedings regardless of their personal intentions to save the marriage. At this point, seeking separate legal counsel is of the utmost importance for each party.

From this point, the intentions, demands, and desires of the couples parting ways influence the type of divorce proceedings, which will occur. A divorce can prove to be an expensive and emotionally draining process, one which both parties can maintain an adversarial stance all the way to a costly and enduring family court intervention. Again, contrary to popular entertainment media fodder, this is simply not the case. In fact, 90% of divorcing couples, through the mediation and advice of lawyers, can amicably reach fair and agreeable terms without court litigation.

Some labels for the various formats of divorce include:

  • No-fault divorce
  • At-fault divorce
  • Mediated divorce
  • Collaborative divorce
  • Summary divorce
  • Uncontested divorce

It is also important to note that divorce is within state-level jurisdiction, thus state laws always prove applicable in all the aforementioned types of divorce proceedings.

No-Fault Divorce or At-Fault Divorce?

Considering the median length of time the average American marriage lasts is 11 years, there is plenty of time for one spouse to find fault in another spouse as grounds for divorce, however, the courts only consider specific items as grounds for an at-fault divorce.

Traditionally, the following items are grounds for an at-fault divorce proceeding:

  • Infidelity
  • Desertion
  • Criminal behavior
  • Abuse
  • Incarceration
  • Mental instability
  • Physical incapacity

When parties are both deemed at-fault in the ending of a marriage, the courts implement the doctrine of comparative rectitude to gauge the level of guilt in the dissolution of the marriage. Persons may choose an at-fault divorce in order to retain more assets from their spouse in the end of the marriage. Other motives for pursuing an at-fault divorce can include skipping the waiting period some states require for no-fault divorces.

Since 1985, no-fault divorces are available in all states, but as opposed to at-fault divorces, no-fault divorces require some form of physical separation prior to the actual divorce in many states. Grounds for no-fault divorces remain vague and virtually interpretable in any manner on purpose. Reasons for no-fault divorces include irreconcilable differences, incompatibility, and irremediable breakdown of a relationship.

Mediated and Collaborative Divorces

In mediated and collaborative divorces, divorcing spouses employ the assistance, knowledge, and representation of lawyers to complete their divorce agreements. Typically, these forms of divorce prove to be much less expensive and exhaustive than court litigation. Divorcing parties will express their desires, interests, and needs through representative attorneys and collaborate to a reach an affable and amicable decision. In mediated divorces, a mediator is implemented as a liaison between the divorcing parties and their legal representation, much as if a judge would be, but without involving the family courts.

Summary Divorces

Some jurisdictions allow for simplified summary divorces, which essentially expedite the divorce process for couples.

There are certain restrictions to filing for some of these divorces including:

  • Marriage must be under five years in length
  • Marriage produced no children
  • Marital asset amount is under $35,000
  • Married couple is under no mortgage obligation
  • Each individual's personal assets are less than $35,000

Uncontested Divorces

The most common form of divorce is the uncontested divorce. Although estimates vary, an average of 85% to 95% of divorces in the United States falls under the umbrella category of uncontested. Essentially, lawyers work with clients to reach an agreement on the divorce terms. At this point, the divorcing parties present the agreement to the courts, which in turn will typically ensure the terms are not coerced in any manner. If both parties are content with their agreements, a family court judge will declare a divorce valid in accordance with terms presented by the divorcing couples and their legal representatives.

If you are considering, or have started the process for getting a divorce, you should discuss your case with a local divorce lawyer.

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