Generally speaking, there are two types of divorce. One is called “divorce from bed and board,” which is available in some states. At its core, this allows couples to legally separate, and is typically used by spouses who want to live their own lives but, for whatever reason, don’t want to formally end their marriage. Divorce from bed and board is infrequently seen these days.
The more common type of divorce is an “absolute divorce” which dissolves the marriage. A legal clean break, so to speak. It’s this concept that this article will focus on.
There are various methods available to reach the goal of having a judge issue a judgment of absolute divorce. For the sake of convenience, it’s become standard practice in the law to label each of these methods as a separate kind of divorce, which is how we’ll describe them below.
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 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. For this reason, summary divorces are easy to do without the help of a lawyer. You can usually get the forms you need from your state court’s official website, or from the local family court clerk’s office.
In terms of dealing with the court process, the path that normally generates the least amount of stress is an uncontested divorce. That’s one in which you and your spouse settle up-front all your differences on issues such as custody and visitation (parenting time), child support, alimony, and division of property. You’ll then incorporate the terms of your settlement in a written “property settlement agreement” (sometimes called a “separation agreement”).
Once your case is settled, you can file for divorce with the court. Courts almost invariably fast-track these types of cases, so you can get divorced in a relatively short period of time. In some states, you many not even have to make a court appearance, but rather can file an affidavit (sworn statement) with the court clerk.
A default divorce occurs when you’ve filed for divorce, and your spouse doesn’t respond. You’d likely see this, for example, if your spouse has left for parts unknown and can’t be found.
Assuming you’ve complied with the court’s rules and regulations, a judge can grant the divorce despite the fact your spouse hasn’t participated in the court proceedings. On its face, this may seem like the ideal situation. No one is there to contest what you’re asking the court to give you. But be aware that there are pro and cons to a default divorce.
If you and your spouse are at loggerheads over one or more marital issues, to the point that you can’t come to an agreement, then it will be up to a judge to decide those issues for you. This is what’s meant by a contested divorce.
Contested divorces are stressful, time-consuming, and expensive (think mounting attorneys’ fees). You’ll go through a lengthy process of exchanging financial and other relevant information, mandatory settlement negotiations, and court hearings for temporary relief, such as interim alimony, for example, if warranted.
And if you can’t resolve the case after all that, there will be a court trial. The burdens of a contested divorce are why the vast majority of divorce cases ultimately settle at some point before trial.
This refers to the grounds (reasons) on which you’re basing the divorce. Your state’s laws will set out the permissible grounds for divorce. In the not-too-distant past, people who wanted to dissolve their marriage had to show that the other spouse was guilty of wrongdoing, such as adultery or cruelty. Needless to say, accusing your spouse of misconduct could make for quite a contentious divorce.
Now, however, all states offer some form of “no-fault” divorce. In a no-fault divorce, instead of proving that a spouse is to blame for the marriage failing, you merely state that you and your spouse have “irreconcilable differences,” or have suffered an “irremediable breakdown” of your relationship.
But note that just because the grounds for a divorce may be no-fault, that doesn’t mean the case is uncontested. You still have to resolve all your other marital issues.
Before filing for divorce, options are available to you if you need assistance in trying to resolve your differences. These are referred to as “alternative dispute resolution” (ADR) methods. One of those is divorce mediation. Here, a trained neutral third party (the mediator), sits down with you and your spouse to try to help you resolve all of the issues in your divorce.
It’s not the mediator’s job to make decisions for you. Rather, mediators offer guidance and help you communicate with each other until, hopefully, you reach a meeting of the minds. A successful mediation usually ends with the preparation of a property settlement agreement.
Another ADR option is “collaborative divorce”. This entails working with lawyers who are specially trained in this method of settling divorces. The spouses hire their own lawyers, each of whom is obligated to work cooperatively, with the sole purpose of trying to settle your case. Each spouse agrees to disclose all the information that’s necessary for fair negotiations, and to meet with each other and both lawyers, as often as necessary, to attempt to reach a settlement.
You all must agree that if your divorce doesn’t settle through the collaborative process, your original attorneys will withdraw and you’ll have to hire different attorneys to take your case to court. This is done to ensure that all participants, including the attorneys, are acting in good faith, with nothing to gain from veering away from the goal of settlement.
In states that allow it, a third form of ADR is “divorce arbitration”. This option is the most similar to a trial, because the arbitrator (usually an attorney or a retired judge) will make a decision on your marital issues, after being presented with the facts of your case and reviewing the documentation you would ordinarily produce at trial.
The benefits of arbitration are that it’s typically conducted in an informal—and thus less intimidating—setting than a courthouse (usually the arbitrator’s office) and, as with the other forms of ADR, allows you the flexibility of picking meeting times that fit your schedules. This makes it more cost-effective than having to make court appearances, which often involve sitting around racking up attorneys’ fees while waiting for a judge to become available.
The potential downside to arbitration is that, unlike mediation and collaborative divorce, the arbitrator’s decision is almost invariably final. You give up your right to appeal it; a right you would have in a standard court trial. It’s something of a roll of the dice in that regard, which is why arbitration isn't as popular as the other ADR methods.
In light of the United States Supreme Court’s ruling in Obergefell v. Hodges, 576 U.S. 644 (2015), all states now recognize same-sex marriages. Divorce for same-sex couples is no different than for any other married couple.
If you have questions about these procedures, contact a local family law attorney for advice. The laws vary from state to state.