There’s not just one way to divorce. The differences can be in the law, like fault or no-fault, or in the way you and your spouse approach it, like uncontested, contested, or default. This article describes briefly the different kinds of divorce in general terms, with links to more information about some kinds of divorces.
No matter how you slice it, divorce is expensive and timeconsuming. The most important variable is how well you and your spouse are able to put aside your anger and grief and cooperate on the big issues of money and children. The better you are at working together to make decisions for your changing family structure, the better for your bank account and for your chances of emerging from the divorce with a decent relationship with your ex.
In many states, an expedited divorce procedure is available to couples who haven’t been married for very long (usually five years or less), don’t own much property, don’t have children, and don’t have significant joint debts. Both spouses need to agree to the divorce, and you must file court papers jointly. A summary (sometimes called simplified) divorce involves a lot less paperwork than other types of divorce—a few forms are often all it takes. You can probably get the forms you need from the local family court. For this reason, summary divorces are easy to do yourself, without the help of a lawyer.
The best choice, if you can make it happen, is an uncontested divorce. That’s one in which you and your spouse work together to agree on the terms of your divorce, and file court papers cooperatively to make the divorce happen. There will be no formal trial, and you probably won’t have to ever appear in court.
The court will grant a divorce by “default” if you file for divorce and your spouse doesn’t respond. The divorce is granted even though your spouse doesn’t participate in the court proceedings at all. A default divorce might happen, for example, if your spouse has left for parts unknown and can’t be found.
Fault and No-Fault Divorce
In the old days, someone who wanted a divorce had to show that the other spouse was at fault for causing the marriage to break down. Now, every state offers the option of “no-fault” divorce. In a no-fault divorce, instead of proving that one spouse is to blame, you merely tell the court that you and your spouse have “irreconcilable differences” or have suffered an “irremediable breakdown” of your relationship.
In divorce mediation, a neutral third party, called a mediator, sits down with you and your spouse to try to help you resolve all of the issues in your divorce. The mediator doesn’t make any decisions; that’s up to you and your spouse. Instead, the mediator helps you communicate with each other until you can come to an agreement.
(See Divorce Mediation for more on this type of divorce process).
Collaborative divorce involves working with lawyers, but in a different way from the usual expectation.You and your spouse each hire lawyers who are trained to work cooperatively and who agree to try to settle your case. Each of you has a lawyer who is on your side, but much of the work is done in cooperation. Each of you agrees to disclose all the information that’s necessary for fair negotiations, and to meet with each other and both lawyers to discuss settlement. You all agree that if your divorce doesn’t settle through the collaborative process, your original attorneys will withdraw and you’ll hire different attorneys to take your case to trial.
(Thinking collaboration might work for you? See Collaborative Divorce).
In arbitration, you and your spouse agree that you’ll hire a private judge, called an arbitrator, to make the same decisions that a judge could make, and that you will honor the arbitrator’s decisions as if a judge had made them.
If you and your spouse argue so much over property or child custody that you can’t come to an agreement, and instead take these issues to the judge to decide, you have what’s called a contested divorce. You’ll go through a process of exchanging information, settlement negotiations, hearings, and, if you can’t resolve the case after all that, a court trial. If this sounds like your situation, you'll want to talk to a lawyer.
Divorce for Same-Sex Couples
Six states and the District of Columbia now allow same-sex couples to marry—Connecticut, the District of Columbia, Iowa, Massachusetts, New Hampshire, New York, and Vermont—but they’re not the only states that allow same-sex couples to divorce. In California, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, Rhode Island, and Washington State, same-sex couples who have registered as domestic partners or entered into civil unions must use the same forms and procedures as married couples to end their legal relationship.
Adapted from Nolo's Essential Guide to Divorce, by Emily Doskow.