When two people are legally married and reside in the United States, the only ways that their bonds of matrimony can be terminated are through death, annulment or divorce. The only way people can be granted an annulment or divorce is through a court of law. Some states might distinguish between a divorce and a dissolution of marriage, but the common denominator is that once a divorce decree or judgment for dissolution of marriage is entered, the parties are no longer married.
How is the divorce process commenced?
Since a person who wants out of a marriage is going to ask a court for a divorce, he or she must file a pleading called a complaint for divorce or a petition for dissolution of marriage with the court. That’s ordinarily served on the other party along with a summons. The summons advises the recipient that divorce proceedings have been filed, and that if he or she fails to file appropriate responsive documents by a specified date, a judgment by default might be entered. It also tells the spouse where to file his or her papers.
What if I can’t find my spouse?
If you’ve made due inquiry and diligent efforts, but you still can’t locate your spouse, you can file your affidavit as to those facts, and you can obtain service by publication. This is done by publishing appropriate notice of the proceeding for a consecutive number of weeks in a newspaper that’s regularly published in your county.
Personal service vs. publication notice
Assuming that you’re able have your spouse personally served, all aspects of divorce or dissolution can be decided. Those include but aren’t limited to:
- Property rights
- Child custody and visitation
- Child support
- Spousal support or alimony
If you’ve only published notice of the proceeding, the court doesn’t have personal jurisdiction over your spouse. The general rule with publication notice is that the court can only act on the marriage and grant a divorce. The other issues that are usually ruled upon when there’s personal service are reserved.
Fault and no-fault divorce
In distinguishing between a divorce and a dissolution of marriage, some states might want proof of fault for a divorce and no proof of fault for a dissolution. Fault might involve:
- Physical cruelty
- Severe and repeated mental cruelty
- Alcoholism or drug addiction
- Passing a sexually transmitted disease
If the case is a no-fault divorce, grounds aren’t required. The spouse filing for the divorce need only state facts to the effect that:
- Irreconcilable differences caused an irretrievable breakdown of the marriage
- The parties have lived separate and apart for a specified period of time
- Efforts at reconciliation have failed and will continue to fail
- The marriage of the parties is dead
If there was personal service, the testifying spouse need only testify as to grounds or irreconcilable differences and any marital settlement agreement of the parties. The judge will review it, and he or she will almost always approve it. Even oral settlements can be admissible. A judge might even enter the divorce decree or judgment for dissolution of marriage based on the pleadings and any other agreements without the movant’s presence, so long as his or her attorney appears.
None of this involves just filling in the blanks on some forms and getting a court date. The court will make rulings that can follow you for life. Talk with us if you’re thinking about a divorce. You’ll set straight answers, and we’ll protect rights that you never even knew that you had. Contact our NY divorce lawyers today!
Divorce lawyers are constantly being asked questions regarding divorce. One common question is what divorce actually is. Divorce is a fairly simple concept with a long, complex legal history. When a couple divorces, they are legally ending their marriage in the eyes of the court. Both parties in a divorced couple are free to live their own lives and remarry if they so choose.
To understand how divorce legally functions, it’s important to understand how marriage functions as well. As far as the court is concerned, marriage is a legally binding contract between two people. A divorce occurs when those people decide they wish to end this binding contract. As with most broken contracts, terms for the termination must be negotiated between both parties.
Couples who decide they don’t want to continue living together will often separate. Separation and divorce are not the same thing. A separation indicates that you are no longer committed to your spouse. Legally, though, you are still married to them. This means that you cannot legally remarry. There may also be implications about your financial status.
Legally married couples continue to have obligations to each other, regardless of whether they’ve ended their relationship. Divorce legally dissolves a marriage and frees spouses of their obligations to each other. There will sometimes be terms in the divorce that define new obligations, like child support and spousal support.
To get divorced, a couple must go through the legal process of filing paperwork, signing contracts, and filling out all other required documentation to prove they no longer want to be married.
Divorce is a topic with many associated terms that couples may want clarification on. One of these terms is legal separation. A legal separation is different from a divorce, but more legally binding than an informal separation.
With an informal separation, a couple decides to stop living together. They may make arrangements on their own regarding financial support and the division of assets. However, these decisions are not legally binding. One spouse can renege on their obligations without legal consequences.
A formal separation proceeding is very similar to a divorce. This is a legal process handled through the court. Both parties and their attorneys lay out terms for all relevant details of the marriage. This may include custody arrangements, financial support, and asset division. The main difference is that the marriage does not end when the separation is complete. The couple is still married, but they no longer share a life.
There are a few reasons couples may choose to separate rather than divorce. Some people have religious views that prevent a divorce. Others may not want to end their marriage because they still have hope of reconciliation.
In some states, a married couple is required to file a legal separation agreement before they can file for divorce. If you aren’t sure what legal procedures are required in your state, you should get in contact with an experienced divorce attorney who can explain your options.
Another common term regarding divorces is “no-fault divorce.” A no-fault divorce is the most common kind of divorce in today’s modern world. The other possible type of divorce is a “fault” divorce.
No-fault divorce proceedings are much simpler than fault divorces. The term means that no specific party was at fault for the marriage’s failure. Couples who file no-fault divorces don’t need any reasoning beyond “irreconcilable differences.” Some individuals prefer to get the reason for their divorce on paper and hold the other party accountable for wrongdoing. When this is the case, they’ll file a fault divorce instead.
It’s not difficult to file for divorce. However, the procedures do differ slightly from state to state. In addition, the process can often be time-consuming. This is especially true if your spouse wishes to contest the divorce or argue during negotiations. For a smooth divorce, it’s for both spouses to work constructively to come up with the terms for everyone.
No matter what state you live in, your divorce will involve a negotiation of your marital property. Your shared assets must be divided between the spouses. You’ll also need to allocate debts and determine other financial responsibilities. If you have children together, custody arrangements will also be part of the divorce agreement.
In almost every court, you and your spouse must make an effort to solve your marital issues before filing for divorce. A couple must provide proof that their marriage will not work anymore. Couples may go to counseling before they finally file for divorce.