Divorce: free legal advice, forms
By Mary Allen [February 28th, 2012]
Divorce is the legal termination of a marriage. In some states, divorce is called dissolution or dissolution of marriage. A divorce usually includes division of marital property and, if necessary, arrangements for child custody and support. It leaves both people free to marry again.
Annulment and separation FAQ
Learn about these options instead of–or before–divorce.
How does an annulment differ from a divorce?
Like a divorce, an annulment is a court procedure that dissolves a marriage. But an annulment treats the marriage as though it never happened. For some people, divorce carries a stigma, and they would rather their marriage be annulled. Others prefer an annulment because it may be easier to remarry in their church if they go through an annulment rather than a divorce. Grounds for annulment vary slightly from state to state. Generally, they may be obtained for one of the following reasons:
- Misrepresentation or fraud - For example, a spouse lied about the capacity to have children, stated that she had reached the age of consent or failed to say that she was still married to someone else.
- Concealment - For example, concealing an addiction to alcohol or drugs, conviction of a felony, children from a prior relationship, a sexually transmitted disease or impotency.
- Refusal or inability to consummate the marriage - Refusal or inability of a spouse to have sexual intercourse with the other spouse.
- Misunderstanding - For example, one person wanted children and the other did not.
These are the grounds for civil annulments; within the Roman Catholic Church, a couple may obtain a religious annulment after obtaining a civil divorce in order for one or both spouses to remarry.
Most annulments take place after a marriage of a very short duration–a few weeks or months, so there are usually no assets or debts to divide, or children for whom custody, visitation and child support are a concern. When a long-term marriage is annulled, however, most states have provisions for dividing property and debts, as well as determining custody, visitation, child support and alimony. Children of an annulled marriage are not considered illegitimate.
When are married people considered separated?
Many people are confused about what is meant by "separated" and it's no wonder, given that there are four different kinds of separations:
- Trial separation - When a couple lives apart for a test period, to decide whether or not to separate permanently, it's called a trial separation. Even if they don't get back together, the assets they accumulate and debts they incur during the trial period are usually considered jointly owned.
- Living apart - Spouses who no longer reside in the same dwelling are said to be living apart. In some states, living apart without intending to reunite changes the spouses' property rights. For example, some states consider property accumulated and debts incurred between living apart and divorce to be the separate property or debt of the person who accumulated or incurred it.
- Permanent separation - When a couple decides to split up, it's often called a permanent separation. It may follow a trial separation, or may begin immediately when the couple starts living apart. In most states, all assets received and most debts incurred after permanent separation are the separate property or responsibility of the spouse incurring them.
- Legal separation - A legal separation results when the parties separate and a court rules on the division of property, alimony, child support, custody and visitation–but does not grant a divorce. The money awarded for support of the spouse and children under these circumstances is often called separate maintenance (as opposed to alimony and child support).
Grounds for divorce FAQ
You can get a no fault divorce in any state, but you may want to understand fault grounds as well.
What is a "no fault" divorce?
"No fault" divorce describes any divorce where the spouse suing for divorce does not have to prove that the other spouse did something wrong. All states allow divorces regardless of who is at "fault."
To get a no fault divorce, one spouse must simply state a reason recognized by the state. In most states, it's enough to declare that the couple cannot get along (this goes by such names as "incompatibility," "irreconcilable differences" or "irremediable breakdown of the marriage"). In nearly a dozen states, however, the couple must live apart for a period of months or even years in order to obtain a no fault divorce.
Is a no fault divorce the only option even when there has been substantial wrongdoing?
In 15 states, yes. The other states allow a spouse to select either a no fault divorce or a fault divorce. Why choose a fault divorce? Some people don't want to wait out the period of separation required by their state's law for a no fault divorce. And in some states, a spouse who proves the other's fault may receive a greater share of the marital property or more alimony.
The traditional fault grounds are:
- cruelty (inflicting unnecessary emotional or physical pain–this is the most frequently used ground);
- desertion for a specified length of time;
- confinement in prison for a set number of years, and
- pphysical inability to engage in sexual intercourse, if it was not disclosed before marriage.
What happens in a fault divorce if both spouses are at fault?
Under a doctrine called "comparative rectitude," a court will grant the spouse least at fault a divorce when both parties have shown grounds for divorce. Years ago, when both parties were at fault, neither was entitled to a divorce. The absurdity of this result gave rise to the concept of comparative rectitude.
Can a spouse successfully prevent a court from granting a divorce?
One spouse cannot stop a no fault divorce. Objecting to the other spouse's request for divorce is itself an irreconcilable difference that would justify the divorce.
A spouse can prevent a fault divorce, however, by convincing the court that he or she is not at fault. In addition, several other defenses to a divorce may be possible:
- Collusion - If the only no fault divorce available in a state requires that the couple separate for a long time and the couple doesn't want to wait, they might pretend that one of them was at fault in order to manufacture a ground for divorce. This is collusion because they are cooperating in order to mislead the judge. If, before the divorce, one spouse no longer wants a divorce, he could raise the collusion as a defense.
- Condonation - Condonation is someone's approval of another's activities. For example, a wife who does not object to her husband's adultery may be said to condone it. If the wife sues her husband for divorce, claiming he has committed adultery, the husband may argue as a defense that she condoned his behavior.
- Connivance - Connivance is the setting up of a situation so that the other person commits a wrongdoing. For example, a wife who invites her husband's lover to the house and then leaves for the weekend may be said to have connived his adultery. If the wife sues her husband for divorce, claiming he has committed adultery, the husband may argue as a defense that she connived–that is, set up–his actions.
- Provocation - Provocation is the inciting of another to do a certain act. If a spouse suing for divorce claims that the other spouse abandoned her, her spouse might defend the suit on the ground that she provoked the abandonment.
But think twice before you raise a defense to a fault divorce. These defenses are rarely used–for a couple of very practical reasons. First, proving a defense may require witnesses and involve a lot of time and expense. Second, your efforts will likely come to nothing. Chances are good that a court will eventually grant the divorce, because there is a strong public policy against forcing people to stay married when they don't wish to be. Your money and energy may be better spent elsewhere–say, on paying mutual debt or saving for the children's college education.
Divorce requirements FAQ
Durational residency requirements for all fifty states, and more.
Do I have to live in a state to get a divorce there?
All states require a spouse to be a resident of the state–often for at least six months and sometimes for as long as one year–before filing for a divorce there. Someone who files for divorce must offer proof that he has resided there for the required length of time. Only two states–South Dakota and Washington–don't specify the period of time that qualifies you for resident status.
If you think that your spouse will file for divorce in another state, it may be prudent to spend the money up front and file first–in your home state. Rarely is a divorce settled in one court appearance, and if your spouse files elsewhere you could rack up a lot of traveling expenses. Also, any modifications to the divorce decree, including the property settlement agreement and arrangements for child custody and support–must be filed in the original state. This could keep you traveling out of state for years to come, especially if you have children with your spouse.
Can one spouse move to a different state or country to get a divorce?
If one spouse meets the residency requirement of a state or country, a divorce obtained there is valid, even if the other spouse lives somewhere else. The courts of all states will recognize the divorce.
Any decisions the court makes regarding property division, alimony, custody and child support, however, may not be valid unless the non-resident spouse consented to the jurisdiction of the court or later acts as if the foreign divorce was valid–for example, by paying court-ordered child support.
Family court: Key decisions made on a fast track
What to expect if you go to court over a divorce or other family matter.
Typical lawsuits take months, if not years, to make it to court. But if you're getting divorced and need a quick decision from a judge about who gets the kids, the car or the house, obviously you can't wait that long.
You don't have to. When couples separate, important issues are often resolved in a short hearing before a judge, not a full-scale trial. These hearings are usually held in a special court, called family court in most states.
Commonly, these quick hearings are less formal than standard court hearings, and less intimidating. But their brevity means that you must be prepared and know exactly what you want: you may have only a few minutes to ask for it.
What kind of issues come up before and during the divorce process? Let's say a husband moves out, and the wife who's left behind needs money to feed and shelter their children. She, realizing that she would starve long before a full trial could be held, is desperate for help. She can go to court to request a temporary order from a judge, even though a formal divorce action has not yet been filed. Her request will be put on a fast track, and a hearing scheduled within days or weeks.
Spouses can also ask a court to temporarily:
- order (restrain) a spouse from coming near or contacting the other (or, if he hasn't already done so, to move out of the family home);
- establish child custody and visiting arrangements;
- provide for spousal support (alimony) payments;
- order either spouse not to sell valuable assets, or
- give possession of the family home or car to one of the spouses.
These temporary orders are usually valid until the court holds another hearing or until the spouses arrive at their own long-term settlement through negotiation or mediation.
Who goes, who stays and what to do
No matter who moves out of the house, it's best that one of you go to court that same business day–or the next day at the latest–to quickly resolve any critical issues. If you're staying with the children, you should immediately file for custody and child support. This accomplishes two things. First, you will be awarded the proper amount of child support and the court will acknowledge that you live with the children–most likely granting physical custody right off the bat. Second, your spouse cannot successfully claim that the children were kidnapped. He or she may raise such a claim, but when you arrive with proof that you filed for custody and child support, the court will most likely dismiss it.
How to get divorced without using a lawyer–and when you might really need one
Divorce. You probably know of people who suffered the torments of hell going through one, and you also probably know people who pulled it off without much fuss.
Why are some divorces sensible and others catastrophic?
The answer often depends, to a surprising extent, on just one factor: how much you rely on lawyers and courts to resolve troublesome issues. From the standpoint of cost, heartache and quality of the final result, the less you use the court, the better.
But how do you avoid it?
In theory, at least, it's simple: work out thorny issues yourselves, with help from a neutral third person if you need it. Don't let lawyers haggle over such vital matters as how your children will be raised, what happens to the family home and how your property will be divided. If you can work these issues out yourselves–and many, if not most, couples can–you will save yourselves untold anguish, time and money. And even more important, you will spare your children the ugly spectacle of extended parental fights, letting them come through the divorce as unscathed as possible.
Once you have resolved the big questions, all that remains is to ask the court, in writing, to grant a divorce. In many states, you don't even have to appear in court. Many courts now make it relatively easy for people to handle the whole process without a lawyer.
But first, you've got to tackle those big questions. Can you and your spouse–someone you may not feel much like cooperating with at the moment–do it on your own? A surprising number of divorcing couples are eventually able to come to terms without outside assistance.
If you fear violence
If you fear that your spouse might harm you or your children or abscond with your property, take action immediately. Move to a safe place, and if necessary get a temporary restraining order keeping the spouse away. Close joint bank and credit card accounts. But don't take these steps if you don't need to. Otherwise they will likely cause so much bad feeling that you may lose the chance for a civil divorce.
Do it yourself divorce: Divorce forms and divorce papers
Going through the process of divorce today is often needlessly difficult and costly.
Courts are taking steps to make the process more "user friendly" so that people without attorneys can deal directly with the court system. Many family law legal matters can be made simple and straightforward. For these matters, a well-prepared set of instructions and the right forms allow you to handle the situation on your own.
Many couples can handle their own, no-fault divorce without the assistance of an attorney, saving thousands of dollars in attorney's fees and maintaining control over their divorce action.
Do it yourself divorce forms and packages listed below make it easier for you...
These divorce packages contain instructions and state specific forms. View free previews and law summaries. Download in Word format.
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