Divorce Overview & The Basics

A divorce is the legal dissolution of a marriage contract. Divorce involves many complex legal and emotional issues and the divorce process can be difficult time for the parties involved, especially if there are children. Involving a knowledgeable family law attorney at in , , in this process as soon as possible can make your divorce go more smoothly, with more favorable results. Involving a knowledgeable family law attorney in this process as soon as possible can make your divorce go more smoothly, with more favorable results.

How a Divorce Legally Differs from an Annulment

Many people are confused by the legal concepts of divorce and annulment. In an annulment, a judge makes a legal declaration that a marriage is void. Unlike a divorce, an annulment establishes that the marriage never existed in law. Annulments are only granted in certain circumstances. Usually, these include situations related to fraud, bigamy or mental incompetence. Marriages may be annulled if one of the parties was already married, for example, or if consent to the marriage was based on duress.

A Separation Requirement

Some states have a separation requirement before a divorce can be granted, especially in states that allow for no-fault divorce. The ability to file an action for separation, the terms of a separation agreement, the effect of legal separation on divorce and the rules governing legal separation proceedings very from state to state.

Grounds for Divorce and No-Fault Divorce

Historically, in order to obtain a divorce, the spouse desiring the divorce had to show fault on the other side of the marriage. The divorce was only granted if one spouse had committed a certain kind of act, like adultery, cruelty, abandonment or a felony criminal offense. Fault was an important factor in determining whether or not a judge would grant a divorce, and it was also critical to decisions about related issues, like property division and alimony.

No-fault divorce was adopted throughout the United States in the late 1960s and 1970s as a response to the desire to minimize the false accusations made between couples under at-fault divorce rules. In a no-fault divorce, parties are not required to prove fault more than just proving an "irretrievable breakdown of the marriage" or "irreconcilable differences." All states have now adopted no-fault divorce, either as the only grounds for divorce or as an additional ground.

Resolution of Issues in a Contested Divorce

Before a divorce may be granted, there are usually a series of basic issues that must be resolved. Child custody and visitation must be decided. Property must be divided. Child support and alimony must be considered.

If there is disagreement between the parties on any of the basic issues, a contested divorce exists. When a divorce is contested, the couple may go through all phases of litigation including trial before a family court judge. However, in America today, only a small number of divorces actually go to trial. Instead, many couples eventually stipulate to disputed issues with their attorneys' help. Many voluntarily seek alternative dispute resolution methods like mediation or collaborative divorce. Many more are ordered by the court to do so as part of their state's divorce requirements.

The Divorce Litigation Process

The actual legal process for getting a divorce varies by state. However, most marital termination proceedings usually include a series of standard steps. The divorce litigation process begins with a petition for divorce that is usually served on the other spouse along with a summons to appear in court. The other spouse responds to the petition. Litigation then continues with the discovery process, during which each party can seek relevant information from the other. A hearing is sometimes scheduled to determine temporary orders, like who will take care of the children while the divorce is pending and whether temporary alimony is necessary. If the issues of the divorce are not settled during this process, the couple will proceed to trial where a judge will decide the issues. If the parties stipulate to the issues, a judge's final order and decree of divorce will be necessary to finalize the divorce.

Collaborative Divorce

In recent years, many couples have turned to collaborative divorce as an alternative to divorce litigation. In a collaborative divorce, the two parties agree not to go to court, or even to threaten to do so. In fact, they agree that they must fire their lawyers and hire new ones if they are unable to resolve their situation outside of the courtroom.

Collaborative divorce happens through a series of meetings between the divorcing couple, their lawyers and sometimes other neutral professionals. Together they decide the resolution of all issues related to the divorce — outside of the courtroom.

Collaborative divorce is a process that works well to reduce the cost and conflict of divorce in some situations. However, collaborative divorce does not work well for everyone. It is best used in situations in which there has not been a complete breakdown of communication. In addition, it cannot be used in situations where domestic violence is alleged.

Conclusion

Reaching the decision to end a marriage is enormously difficult. However, understanding your options under your state's laws can help you make the decisions that are right for your family. Whether you proceed with contested divorce litigation or try more collaborative methods, consulting with an experienced family law attorney at can help you achieve the best possible results. Whether you proceed with contested divorce litigation or try more collaborative methods, consulting with an experienced family law attorney can help you achieve the best possible results.

Copyright ©2009 FindLaw, a Thomson Business

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

Call for a no-obligation consultation!

(713) 622-1600

Liza A. Greene can handle all of your family's legal needs.

Frequently Asked Questions about Divorce

Q: Do I have to file the petition for divorce in the state where we were married?

A: No, it is not always necessary to file for the divorce in the state where you were married. Most divorces are filed in the state where the petitioning spouse lives, which may or may not be the state where you were married. Each state has different rules regarding the jurisdiction or authority of its courts to grant a divorce. Mostrequire residence by a spouse in that state for some minimum period of time before the divorce.

Q: What is a fault-based divorce?

A: Many courts traditionally required proof that one spouse had done something wrong in the marriage, such as commit adultery, cruelty, desertion or some other unsavory act, before a divorce would be granted. While fewer states now require a finding of fault before a divorce can be granted, the fault of a spouse can have an impact on the issues in your divorce, like the way child custody is assigned or the division of property — depending on the laws of your state.