Divorce

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DivorceDivorce and all the legal issues associated with it—child custody, visitation, child support, alimony or spousal support, property division—these matters all differ based on state law.

The Grounds for Divorce

Traditionally, divorce always required a showing of fault. The modern trend, however, is toward what is known as “no-fault” divorce. Though all states now offer the option of a no-fault divorce (New York ended its holdout in 2010), there are still a majority of states that allow the filing of a divorce action based on the fault of one of the parties. A party that can successfully show that the other spouse caused the breakup of the marriage may obtain an advantage in custody, support and property determinations.

The no-fault divorce laws vary from state to state, and typically require that you correctly state the language required. The most common verbiage used in no-fault proceedings is one of the following:

  • The marriage is irretrievably broken
  • There has been an irremediable breakdown of the marriage
  • The parties have irreconcilable differences
  • The parties have been living apart for a specific period of time

Likewise, the grounds for at-fault divorce are different in each state, but may include:

  • Adultery
  • Incarceration
  • Physical, emotional or mental abuse
  • Substance abuse
  • Abandonment/desertion (the amount of time varies from state to state)
  • Insanity
  • Infection with a sexually transmitted disease
  • Impotence

Many states allow for an annulment—different from a divorce—if the parties are too closely related to each other. An annulment assumes that the marriage never legally occurred.

The Different Ways of Finalizing a Divorce

The dissolution of a marriage is either contested or uncontested. If there is any dispute about any outcome of the divorce—custody, visitation, support or property—the divorce is considered to be contested. Each party in a contested divorce will have his or her own council (or will represent themselves). A contested divorce may be resolved by negotiation, mediation or trial.

Because the dissolution of a marriage requires a court order, even when parties have no dispute over any of the issues related to the divorce, one party must still file a complaint (legal petition) for divorce.

The parties may elect to submit all disputes to mediation, where a third party works with them to find and implement mutually agreeable solutions. In a recent development, known as the collaborative divorce approach, the parties agree to resolve all matters without the intervention of the courts. Learn more about the collaborative approach to divorce.

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