If you and your spouse are splitting up, you might be wondering about your legal options. Is there a difference between "absolute divorce" and plain-vanilla divorce? What are the requirements for absolute divorce? Are there other legal ways to untangle a couple's financial affairs and parenting duties? Read on for answers.
The laws in some states use different terms—including "dissolution of marriage" and "absolute divorce"—to mean basically the same thing as plain old divorce: a legal proceeding that will permanently end a marriage, along with all of the rights and privileges that come with marriage. Once a judge finalizes an absolute divorce, both spouses are free to remarry.
You might also hear the terms "contested divorce" and "uncontested divorce." These don't refer to the effect of divorce—the legal end of the marriage—but rather to the process of getting there. In an uncontested divorce, the spouses have worked out a settlement agreement on the issues in their divorce rather than having a judge make the decisions for them. The agreement must at least include provisions for dividing the couple's property and debts, alimony, and—if they have minor children—custody, parenting arrangements, and child support.
Without an agreement, couples will need to go through the process of getting a contested divorce—which can be expensive, time consuming, and stressful. If you want the advantages of an uncontested divorce but are having trouble resolving your differences, divorce mediation could help you work through the stumbling blocks and come up with solutions.
Although the laws on divorce are quite different from state to state, there are basically three sets of requirements for getting a divorce: residency requirements, having an acceptable reason for divorce, and going through the proper legal steps. (You can find details on these requirements in our state articles on filing for divorce.)
State laws have residency requirements for divorce to prevent people from filing for divorce in a state where they haven't been living, just so they can take advantage of the laws in that state. These requirements also make it more likely that the legal proceedings will be in courts that are accessible to both spouses.
Depending on the state, the amount of time you must have lived there before filing for divorce typically ranges from three months (in Colorado) to six months (in California, Texas, and Florida). In some states, the residency requirement depends on the circumstances, including where you were married and where the reason for your divorce happened.
Whenever you file for divorce, you must state the reason you want to end your marriage—and that reason must be one of the "grounds" for divorce allowed in your state. Historically, these grounds were based on a spouse's misconduct (or fault), like adultery or desertion. But all state laws now include some variation of no-fault divorce, such a "irreconcilable differences," "irretrievable breakdown of the marriage," or separation for a certain amount of time. And several states allow only no-fault divorce grounds.
If you want a divorce for a no-fault reason, you generally only have to check the appropriate box on your divorce papers, without providing proof. But some states (like Wisconsin) will require that you testify under oath about the breakdown in your marriage, and if your spouse disagrees, you might have to meet further requirements, such as a lengthy separation, before you can get divorced.
The divorce process involves a number of legal steps, starting with filing the initial divorce papers (usually a petition or complaint, along with various other forms) and paying a filing fee. If you have a lawyer, your attorney will take care of all the paperwork and filing for you. But depending on your situation—particularly if you have an uncontested divorce—you might be able to handle it by yourself, or you can get help with the paperwork from an online divorce service.
Generally, the spouse who starts the process will have to serve the divorce documents on the other spouse, who will have a certain amount of time to file an answer. In some states, you may skip these steps after filing for an uncontested divorce, when you've included the written settlement agreement signed by both spouses.
At this point, the legal steps will depend on whether you have a contested or uncontested divorce, as well as the laws in your state and the particular circumstances in your case. For instance, you might be required to exchange detailed information about your finances, take a parenting class, or participate in mediation of certain disputes (especially unresolved disagreements about child custody). With contested divorces, you'll go through the legal "discovery" process for gathering evidence, such as custody evaluations or real estate appraisals, and you might have several intermediate court hearings on issues like requests for temporary support or custody orders.
Generally, the process will end with a final hearing—either a trial on any unresolved issues or a brief hearing when the judge will review your settlement agreement and ask you a few questions. But in some states, you might not have to attend a final hearing for an uncontested divorce. Instead, the judge will simply review your agreement and other paperwork, then will sign your final divorce decree if everything is in order.
Many states have a mandatory waiting period before the judge may finalize your divorce, even when your case is uncontested. (Learn more about divorce procedures and laws in all 50 states.)
Most couples don't decide to end their marriage without first thinking about other options. Typically, they've already tried to repair the damaged relationship with individual therapy, couples counseling, or even a trial separation. If you've tried to work things out with your spouse and haven't been successful, but you're still not ready to jump on the divorce track, you may have other options.
Many states offer couples the option to file for a legal separation, which is sometimes called "limited divorce" or "divorce from bed and board." These different terms refer to a legal status that doesn't end the marriage (and doesn't allow either spouse to remarry) but allows judges to issue orders dealing with child custody, child support, alimony, and property division. Couples may also sign a separation agreement to settle these issues for themselves.
Although limited divorce or legal separation is uncommon, it's still available for couples who need it. For example, if you and your spouse practice a religion that prohibits divorce, legal separation or limited divorce may be your preferred option for living separate and apart, while continuing to be faithful to your church. For other couples, an absolute divorce may simply be too permanent of an option, but they still want to disentangle their legal and financial obligations. If you aren't sure which option is right for you, it may be time to speak with a qualified family lawyer.