Divorce Overview

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Divorce Overview

What are the grounds and steps to get divorced?

A divorce is a judgment by a court that ends a marriage, and redefines the relationship

of the former husband and wife. Until the 1970s, divorces were granted only if either spouse was guilty of some form of "marital misconduct," usually physical cruelty, abandonment, or adultery. Today, every state has enacted "no-fault" divorce laws that require courts to establish only that a couple's marriage is irretrievably broken, or, in some states, that the couple have lived apart for a specified period of time.

What are Grounds for Divorce?

Each state sets its own grounds for divorce but they generally fall into two categories:

Fault grounds:

Adultery
Drug/alcohol abuse
Imprisonment
Physical/mental abuse
Incest
Mental incapacity/insanity
Desertion
Fraud
Impotence

No-fault grounds:

Separation
Irretrievable breakdown
Irreconcilable differences

Note: Don't confuse no-fault divorces with uncontested divorces. In an uncontested divorce, the couple has no disagreement about ending the marriage, and has come to terms about marital property, spousal support, and child support issues. In a no-fault divorce, any or all of these issues could be a source of conflict that must be decided through negotiation or by the court.

What are the steps of a Divorce?

Petition (complaint): The process begins when either spouse (the "petitioner") requests a divorce, and provides reasons for doing so. The petitioner may also request spousal support and child custody.
Summons: The other spouse (the "respondent") receives notice that petition has been filed.
Response: If there's no response (or "answer"), it is assumed the divorce is not contested.
Separation agreement: If both sides agree on issues such as allocation of resources and child custody, the filing with the court of a separation agreement at this point can expedite progress toward a divorce decree.
Discovery: In the absence of a separation agreement, both sides may request information and documents from the other spouse, in an attempt to build evidence relevant to their issues in the divorce. This process can be relatively informal, or entail the use of legal devices like interrogatories, depositions, and subpoenas.
Settlement: Following discovery, both sides negotiate a settlement regarding children and/or property and it is submitted to the court. If the court approves of the settlement, the divorce is granted.
Trial: If a settlement cannot be reached by negotiation, the case goes to trial. Divorce trials almost always take place before a judge who determines the settlement under state guidelines and grants the divorce.
Decree: The court issues a final decree (or "judgment of divorce") that officially ends the marriage.

Do I need a lawyer?

Not necessarily. If you and your spouse agree on most issues, and possess few assets, you may be able to get a divorce without a lawyer. But if you have children and significant property to divide, lawyers are advisable. Each spouse should have their own lawyer.

If your case is not particularly complex or contentious, you may be able to hire a lawyer who is not a specialist in matrimonial law. Most general practitioners would be able to handle most simple cases. Choose someone you trust, a person in whom you can confide your most intimate personal and financial information. Divorce lawyers won't help you handle the psychological process of divorce, but you can expect them to help you address your immediate concerns, offer good advice - and keep your secrets.

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