Every state offers married couples the option for divorce. Before you and your spouse decide which legal path to take, it’s important to understand what absolute divorce is, and what the court requires before you can file.
An absolute divorce permanently ends your marriage and any rights and privileges that come with it, like a spouse’s right to inherit the other’s estate. Once the court finalizes your absolute divorce, both spouses are free to remarry, but a judge can only grant an absolute divorce if the couple meets their state’s divorce requirements.
It’s no surprise that divorce isn’t a natural process. Ending your marriage and asking the court for help dividing your assets and permanently altering your marital status can be emotionally-challenging, time-consuming, and frustrating. To make divorce slightly less exhausting, all states have some variation of no-fault divorce, meaning you don’t have to prove that your spouse committed some wrongdoing that caused the marriage to end. Every location has its specific grounds for a no-fault, absolute divorce, so you’ll need to confer with an attorney before proceeding. Typically, if you can demonstrate that you and your spouse are experiencing irreconcilable differences, are incompatible, or have separated for a specific amount of time, you’ll be successful in your request for a divorce.
If you don’t meet the no-fault requirements, or you’d like to proceed with a fault-based divorce, you may have a more difficult legal journey. Unlike no-fault divorce, not every state offers married couples the option to file for a fault-based divorce. In the jurisdictions that allow fault divorce, the grounds vary from abuse and abandonment to adultery and drug abuse.
In addition to the requirement that spouses identify a ground for divorce, most states also require couples to meet a residency requirement before filing for divorce. Residency requirements prevent couples from “judge shopping” to find a judge that may favor you more than your spouse and lets the court know that it has the jurisdiction to hear your case. For example, couples requesting a no-fault divorce in Michigan (fault divorce isn’t an option), must demonstrate that they have lived in the state for a minimum of 180 days and in the county where they file for at least 10 days before submitting the request to the local court (MCL §552.9.)
The divorce process begins when one spouse, the plaintiff, files legal paperwork (petition or complaint) for divorce with the local court. Your request must include necessary information, such as your name, date of marriage and separation, whether there are children, and whether there is marital property. Additionally, you must specify the grounds for divorce and demonstrate that you meet the state’s residency requirement.
After you file your paperwork, you’ll need to serve your spouse the petition. Service is a fancy way of saying that you need to provide a copy of the legal documents to your spouse through personal service or some other approved method, like certified mail or newspaper publication. Once you serve your spouse, the court will give you a schedule with a variety of dates for your case. Many states have a mandatory waiting period, which means the court cannot finalize your divorce until a set period of time has elapsed. You’ll want to utilize this time to try and resolve your divorce-related issues with your spouse.
Some couples can reduce divorce drama (along with cutting costs and time in court) by using alternative dispute resolution, like mediation. Unlike what you see on television, not every divorce is a contentious fight. Although emotions tend to run high during any legal battle, if you and your spouse can communicate, you can make the process less about fighting and more about settling your issues to meet a common goal of ending your legal relationship.
You’ll need to work together to determine how to divide your marital assets and debt, who will become the children’s primary custodial parent, and decide the amount of financial support one or both spouses will pay. If you can’t agree on all of these issues, you’ll need to go to court, and ask the judge to decide for you.
Despite what we see on television, most couples don’t decide to end their marriage without first thinking about other options. Typically, spouses seeking divorce have already attempted 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.
Some states offer couples the option to file for a limited divorce—sometimes called divorce from bed and board or legal separation. Limited divorce is like an absolute divorce because it allows the court to determine property division, custody and child support, and alimony, but in the end, the couple remains married, and neither can remarry until filing for an absolute divorce.
Although limited divorce 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 be too permanent of an option, and a limited divorce allows couples to reconcile at any time, which is beneficial if you’re on the fence about divorce.
If you’re considering absolute divorce or would like to know your options, contact an experienced family law attorney in your area.