Once it’s clear that you or your spouse want to end your marriage, the next step is to figure out how to get divorced. You’ll need to decide whether:
There are a few factors to consider when deciding which divorce path is right for you.
Spouses must identify a ground (reason) for their divorce when they file. All states and the District of Columbia allow spouses to file for divorce based on a no-fault ground, meaning no one is to blame for the breakup. Spouses can simply cite irreconcilable differences, which is also referred to as the irretrievable or irremediable breakdown of the marriage, depending on where you live. These terms refer to the same basic concept—that the couple simply can’t get along anymore, there is no chance of a reconciliation, and the marriage is broken beyond repair. There’s no need to identify and prove misconduct or a bad act that caused the divorce. In some states, spouses can alternatively base their divorce on a separation for a specific length of time.
In several states, spouses can still file for a fault-based divorce, which means the ground for divorce is that one spouse engaged in misconduct that led to the breakdown of the marriage. These vary from state to state, but the most common fault grounds include adultery, abandonment, abuse, and addiction to alcohol or drugs. Fault cases typically take longer to resolve in court because you have to provide admissible evidence and prove to a judge the misconduct occurred and that it caused the divorce.
You should speak to an experienced family law attorney in your area before you file for a fault-based divorce to find out if you meet the requirements, can prove your case, and whether there is any advantage to pursuing a fault divorce that may outweigh the added legal fees, court costs, stress, and conflict with your ex.
If you’ve already been served with divorce paperwork by your spouse’s attorney, you should consult with an attorney as soon as possible. Divorce and family law rules vary from state to state, and unless you already know your state laws and local rules, there will be a lot to learn to get up to speed.
Family law is a specialized field and a simple mistake on your paperwork can have life-long ramifications or unintended consequences. Because the stakes are so high and personal in a divorce, it’s best not to try and take on an experienced family law attorney. Once your spouse has lawyered up, you need to hire an experienced attorney, can explain your rights and responsibilities, use specialized knowledge to advocate on your behalf, and obtain the best possible result for you and your family.
When divorcing parents have children that are under 18, they will have to make decisions about child custody, both legal and physical. Legal custody refers to the right to make decisions about your child’s health, education, and welfare, while physical custody refers to where the child will live and whether both parents will spend equal time with the child or one parent will be the primary parent.
Parents must also agree on child support issues, including who will pay, what the amount will be, and how often payments will be made. All of these issues should be determined using state guidelines and must be in the child’s best interests.
When parents can’t agree on these issues, they will either have to go to mediation to try and come to an agreement or they will end up in court asking a judge to decide for them.
Alimony (which is also called spousal support or spousal maintenance depending on where you live) is a payment made from a higher-earning spouse to a lower-earning or unemployed spouse for a period of time.
There are several types of alimony which are intended to cover different things. For example, temporary alimony is paid during the divorce proceeding so the lower-earning spouse can meet basic needs, like food, shelter, and other expenses. It ends when the divorce case is completed and a judge issues another alimony order.
Long term or permanent alimony is reserved for long term marriages, where one spouse has the financial ability to pay, and the other spouse has a low or no earning capacity. It’s intended to allow the supported spouse to live as close to the marital standard of living as possible. The rules on determining the amount and duration of alimony vary from state to state, but if you and your ex can’t reach an agreement on this issue, it may be time to consider mediation or to speak to an attorney and head to court.
Generally speaking, in all states, the assets you and your spouse acquire together during your marriage are considered “marital property, which must be divided in some way between the two of you in your divorce.
In community property states, marital property is called community property and is divided equally—in a 50/50 split. In equitable distribution states, marital property is divided equitably, which means it’s divided in a way the court believes is fair, which is not necessarily 50/50.
Marital debts are divided in a similar fashion, but there are exceptions when one spouse wasted assets without consent or incurred debts which were not for the family’s benefit. For example, if one spouse used martial funds to rack up gambling debt or to take trips and buy gifts for an adulterous affair, a judge will usually assign these debts to the “guilty” spouse and order that the “innocent” spouse be reimbursed.
If you and your spouse have very little property or debt to divide or if you can agree on what constitutes martial property, how much it’s worth, and how it should be divided, then you can probably handle this part of your divorce on your own. If you can’t reach an agreement or feel like you need help coming to one, you should contact a mediator or reach out to an attorney who can represent you in court.
If your case is relatively simple—for instance, you and your spouse don’t have substantial assets or minor children together—and you agree with your spouse on the important issues, DIY is a real possibility.
If you and your spouse disagree about any of your divorce-related issues, mediation might be a good option; it can work even when divorcing spouses clash on meaningful issues. Sometimes spouses are able to work with a mediator and otherwise handle their case themselves. Other times, it makes sense for a spouse to also hire an attorney, who can work behind the scenes and guide them through the mediation process.
Collaborative divorce is another alternative to the traditional divorce process. It’s similar to mediation in that the goal is to avoid court, but the specific process is quite different. With collaborative divorce, you and your spouse must both hire attorneys that are specially trained in collaborative law, and you have to commit to avoid court. This process can be expensive, so it’s important to do some research and learn all you can about collaborative divorce before you choose this path.
Of course, in some cases, spouses find that they have no option but to hire an attorney and go through the normal court process. For example, it’s normally important for spouses who have suffered domestic abuse to have a lawyer advocate on their behalf. If you believe your spouse is actively hiding assets or wasting marital funds, you should contact an attorney to protect your interests.
If you’re uncertain about which course to take as you prepare to tackle your divorce, keep in mind that you can consult with an attorney at any time, without committing to hire one.