10 Divorce FAQ – Frequently Asked Questions About Divorce

10 Divorce FAQ – Frequently Asked Questions About Divorce

by Edward A. Haman, Esq., February 2015

Below are answers to some of the most frequently asked questions about divorce. The answers are general in nature, and are designed to help you understand the divorce law and process. The law in your particular state, and the individual circumstances of your case, may vary, and may affect the results in your case. For more information about alimony, child custody and child support, including how alimony and child support are determined, and whether your spouse can prevent you from seeing your children, see 9 Divorce FAQ – Frequently Asked Questions About Alimony, Child Custody and Child Support. Continue reading for 10 common divorce FAQs.

1. What is no-fault divorce?

Traditionally, the only way to get a divorce was to prove that your spouse had done something that was officially recognized as a justification for divorce. In other words, your spouse had to be at fault in breaking up the marriage. The most common reasons were adultery, spouse abuse, being sentenced to prison for a felony, and insanity. This made it difficult to get a divorce, and a lot of time, effort, and money was spent proving that the other party was at fault. All states and the District of Columbia have passed no-fault divorce laws to allow a divorce simply because at least one of the parties no longer wishes to be married.

2. What is an uncontested divorce?

An uncontested divorce is one in which there is no opposition to what is requested in the complaint or petition, or in which both parties agree to the divorce and the terms of the settlement of all issues (property and debt division, alimony, and child custody and support). A case where there is full agreement and participation is sometimes called a consent divorce.

3. What are the procedures for a divorce?

How to file for divorce is a process begun by filing a document with the court that is called a Complaint or a Petition, depending upon the state in which you live. Some states call the procedure a divorce, and some call it a dissolution of marriage. A copy of the Complaint is served on (or officially delivered to) your spouse, usually by the sheriff’s office or process server. This may not be necessary in some cases, where you and your spouse are in agreement. Your spouse will be given a certain number of days to respond to the Complaint. How the case proceeds from there will depend upon how your spouse responds. You and your spouse may reach an agreement, your spouse may file a response (either agreeing to what you’ve requested in the Complaint or contesting it), or may not reply at all. Other documents may also need to be filed, mostly commonly financial statements. Things can become quite complicated in a contested case, with numerous documents being filed, and one or more formal court hearings.

4. How much does it cost to get divorced?

There are both fixed costs and variable divorce costs. The fixed costs are filing fees paid to the court, and fees paid to have legal papers served on your spouse. These costs vary from state to state, but typically are in the range of $200 to $500. Variable costs include fees for document preparation and legal representation by an attorney. The attorney’s fees can vary immensely, depending upon the complexity of the case, and the degree to which any issues are contested. Extra costs may also come into play if the court orders mediation of disputed issues, or if it becomes necessary to hire a financial analyst due to complex property issues.

5. How long does it take to get a divorce?

There are several factors that may affect the amount of time needed to get a divorce. Some of these are legal requirements, which vary by state.

  • Residency requirements. This is the length of time one or both parties must be a resident of the state. Residency requirements range from no time at all to one year.
  • Separation requirements. In many states, you and your spouse must be living separately for a certain length of time before you may obtain a divorce. Separation requirements range from none at all to three years.
  • Waiting periods. Some states require that a certain amount of time passes between filing for divorce and either scheduling a court hearing or entering a final judgment. Waiting periods range from none to 90 days.
  • Other requirements. Some states may require mediation of issues in dispute, marriage counseling, or a parent education class relating to how divorce affects children. In addition to legal requirements, there are also other factors that may affect the amount of time it takes, such as how long it takes to have your spouse served with divorce papers, the extent to which your case is contested, and the court’s docket backlog.

6. My state requires me to be separated from my spouse for a long period of time before I can file for divorce. Is there any way to shorten the time?

Some states have separation requirements of 12, 18—or even 24 months. If you don’t want to wait to file, you will need to use one of the fault-based grounds that are allowed in your state. However, you will then need to prove the grounds, which will make the process more complicated, and may not save you any time in the long run.

Another option would be to move to a state with no waiting period; however, you may need to be a resident of the new state for a certain period of time before you can file. Most states have residency requirements of 3, 6, 12 or even 24 months. States with no minimum residency period and no waiting period are Alaska, South Dakota, and Washington. The next best are Idaho and Nevada with six-week residency requirements.

7. What if I can’t locate my spouse?

If you don’t know the whereabouts of your spouse, you may still get a divorce. You will need to take certain steps to attempt to locate your spouse, and to notify him or her that you have filed for divorce. Typically, attempting to locate your spouse will involve things like checking the telephone listing where you live and where your spouse is last known to have lived, asking friends and relatives if they know where your spouse might be, checking with the post office where he or she last lived to see if there is a forwarding address, checking property records to see if he or she owns property, checking with state records for driver’s license or vehicle registrations, and checking with the last known employer or landlord. If you still can’t locate your spouse, there is a procedure called service by publication, in which you obtain the court’s permission to publish a notice of the divorce in a newspaper. Once this is done, you may proceed with the divorce case. You will be able to get divorced and be awarded custody of any children; however, you may not be able to get full resolution of property division, alimony or child support until your spouse is personally served with court papers.

8. Will I have to go to court?

In most states, even for an uncontested or simplified divorce procedure, you will need to attend some type of hearing before a judge (or other official acting like a judge, such as a hearing officer, referee, magistrate, etc.). This may be in the judge’s office or in a courtroom. You may only be required to attend, or both you and your spouse may be required to attend. You may need to bring a witness to testify that you meet the residency requirement. Generally, for a case where you and your spouse have signed a settlement agreement, the hearing will take less than 30 minutes, and will be mostly for the purpose of satisfying the judge that all of the paperwork is in order, that all required notices have been given, and that any residency requirement has been satisfied. For a contested case, at least one rather extensive formal court hearing will be required.

9. What is a collaborative divorce?

Collaborative divorce is a form of alternative dispute resolution, which is in some ways similar to mediation. Each party hires a lawyer. The role of a collaborative lawyer is to attempt to reach a marital settlement agreement. There may be a third lawyer who acts as a facilitator (similar to a mediator). Any lawyer who serves as a collaborative lawyer for a party is prohibited from representing that party in court if an agreement is not reached. A few states have passed a collaborative law statute, and a few states are allowing the collaborative procedure informally. This process may save money if an agreement is reached. If an agreement is not reached, it may increase the cost of a divorce (as will mediation or arbitration).

10. What is a covenant marriage?

The covenant marriage is a relatively new creation in three states (Arizona, Arkansas and Louisiana). It came into being largely due to efforts of conservative Christians, who disagree with the modern trend toward no-fault divorce. In order to enter into a covenant marriage, the couple must go to premarital counseling, then sign a document called a Declaration of Intent. In the Declaration of Intent, the parties promise to disclose anything they believe may jeopardize their marriage relationship, and to preserve their marriage if problems arise. The parties also agree that they may not use the state’s no-fault divorce law, and may only obtain a divorce if one party commits adultery, domestic violence or a felony that result in jail time. However, a party to a covenant marriage may still obtain a no-fault divorce in another state that does not recognize covenant marriage.

Whether you are going through a simple or complicated divorce, LegalZoom can help. If you and your spouse agree on the major issues, you can file an uncontested divorce. Or for more complex matters, consult with an attorney through the LegalZoom personal legal plan.