What is Divorce Law?
Issues that may arise at the end of your marriageBy Super Lawyers staff | Reviewed by Canaan Suitt, J.D. | Last updated on January 27, 2023
Use these links to jump to different sections:
- Divorce Law Overview
- Alternatives to Court
- Parenting Plans and Custody
- Spousal Support
- Dividing Assets and Property
- Common Questions for a Divorce Attorney
While all married couples hope their marriage will last forever, the reality is that many marriages don’t. If you and your spouse have decided to get a divorce, there are many legal issues you will need to consider. You will need to discuss who the kids will live with, who the house will go to, whether alimony will be involved, and whether it will end in court proceedings.
The answers to your divorce questions will vary based on where you live and how long you have been married. The following overview will give you a general understanding of divorce law to help you discuss your situation with a lawyer.
Divorce Law Overview
Divorce is the legal ending of a marriage. You may hear people referring to divorce as a dissolution of marriage. In the past, divorcing couples had to identify the party at fault for the divorce. While fault divorces are still available in some states, every state now recognizes “no-fault” divorces. The grounds for a no-fault divorce are usually called “irreconcilable differences.” Depending on state law, you may need to undergo a waiting period after legal separation before you can obtain a final divorce.
In some situations, you may decide to seek an annulment. An annulment is a court order that declares that a marriage is invalid. When an annulment occurs, it is as if the marriage never happened. Annulments are most common for very brief marriages. Further, state laws only permit annulments under specific conditions. An annulment might be available In instances of fraud, bigamy, mental incapacity, and others. Due to these conditions, annulments are much less common than divorces.
The details of your case will vary based on where you live, how much property you have and whether you have children. An attorney can help you work through your divorce proceedings and give you legal advice specific to your state of residence.
Alternatives to Court
While you do need a judge to sign off on your divorce decree, you don’t necessarily have to go through court hearings. Most married couples split up through uncontested divorces. With an uncontested divorce, spouses can use alternative dispute resolution methods. These methods allow them to create the terms of the divorce settlement themselves. If you would like to make your own determinations about child custody, child support, property division, and alimony arrangements, it would be wise to try alternative dispute resolution.
If you choose mediation, you and your spouse will hire a neutral third party to facilitate a discussion to resolve the issues in your divorce. Mediation allows a divorcing couple to reach a resolution based on their situation and children’s needs. This allows the couple to work outside the formal judicial framework to create a personalized solution.
There is no neutral third party to guide a divorcing couple in a collaborative divorce. Instead, the couple works through the divorce together. The couple’s attorneys do not work against each other. Instead, they work with the couple to encourage agreement. However, if either party decides to end the collaborative process and go to divorce court, both parties will have to hire new lawyers.
Parenting Plans and Custody
A parenting plan is a child custody arrangement that parents create through negotiation. If the parents cannot agree, a judge can create one during the divorce process. When making parenting agreements, parents may want to consider living arrangements, vacations, health care, extracurriculars, and education. Parents should also think about their ability to communicate and work together to create a parenting plan that works for everyone involved. There are two types of custody your parenting plan will need to address:
Courts often award joint legal custody to parents. Parents who have legal custody of their children have the legal right to make long-term parental decisions for their children, including education, religion, and medical care. When there is joint legal custody, parents will need to consider each other’s wishes and include each other in the decision-making process.
A parent with physical custody is responsible for the day-to-day care of their minor children. Children will almost always live with the parent who has physical custody. It’s common for courts to grant one parent primary custody and give the other child visitation rights—sometimes called ‘parenting time.’ Family courts aim to create custody arrangements that are in the best interests of the children. Courts may feel that keeping children in one home provides them with a more stable living situation. If you work out a parenting plan with your spouse, you will likely want to address parenting time, shared holidays, and school breaks in it.
Spousal support is a form of financial support that one spouse pays to another after separation or divorce. Traditionally, a husband paid spousal support or alimony to the wife. But that is not necessarily the case anymore. Now, the breadwinning spouse often pays spousal support—regardless of gender.
Courts do not award spousal support in every case. Many former spouses are able to meet their needs without financial assistance. When courts do award spousal support, it can be on a permanent or a temporary basis, depending on the receiving spouse’s needs. The types of spousal support are as follows.
Temporary spousal support is designed to help one spouse support themselves while the divorce is pending. It may continue for a predetermined period of time after that. If you and your spouse can agree, you may be able to set up a support plan without court intervention.
Rehabilitative support helps a spouse become self-sufficient by undergoing education or training. With rehabilitative support, there are regular reviews of the receiver’s progress. These reviews help to determine whether continued support is necessary.
Permanent spousal support is increasingly rare. When courts award permanent support, it is usually in situations where one spouse is unable to work due to disability or when the parties are past retirement age. Permanent spousal support is not available in every state.
Reimbursement support repays one spouse for economic sacrifices that increased the earning potential for the other spouse. This is commonly seen where one spouse worked to put the other spouse through a graduate program. They may have made financial sacrifices during this time, expecting that both spouses would benefit from a higher standard of living down the road.
Sometimes one spouse may receive a single lump-sum payment instead of property or other valuables. The paying spouse will generally not have to pay any additional spousal support in these situations.
Dividing Assets and Property
The process for dividing your assets and property will vary depending on whether the property is marital or separate and whether you live in a community-property state or an equitable-division state.
Marital property, or marital assets, include everything you earned or bought during your marriage. This includes joint bank accounts and whatever you paid for out of those accounts. Both spouses own these marital assets. By contrast, separate property belongs to only one spouse.
Depending on your state’s laws, separate property may include:
- Property one spouse owned before the marriage
- Gifts one spouse received
- Property a spouse acquired during the marriage that was never used for the benefit of the other spouse
- Personal injury judgments
A minority of states are community property states. In community property states, marital property is subject to a 50/50 split in a divorce. Couples can modify the distribution of marital property in a written contract executed before or during the marriage. Assuming any existing prenuptial or postnuptial agreement is valid, it will likely control the division of property.
Most states are equitable distribution or common law property states. In these states, marital property is divided based on the needs of each spouse, which means it is not always a 50-50 split. For example, suppose one spouse has a more challenging time earning an income after the divorce. In that case, a family court judge might give them a larger share of the marital property.
Spouses have an opportunity to work out the division of their property without court intervention. However, if they cannot reach an agreement, the court will determine the distribution. When making a final determination, a court will consider factors such as:
- The duration of the marriage
- The amount each spouse contributed to the marital property
- The spouses’ liabilities or debts
- The terms of a prenuptial agreement (if any)
- Each spouse’s non-monetary contributions to the marriage
- The value of each spouse’s separate property
Common Questions for a Divorce Attorney
Below are some common questions you might want to consider when meeting with an attorney.
- How should I prepare for divorce?
- How will my assets be divided?
- How is custody determined?
- How is child support determined?
- Will I have to pay alimony?
Finding the Right Attorney for Your Needs
A skilled attorney can help you achieve a favorable outcome in your divorce. It’s essential to find an attorney you like and trust to walk you through the legal process. To do so, search the Super Lawyers directory, using the search box to find a lawyer based on your legal issue or location.
Why Should I Talk to a Lawyer?
A lawyer can be particularly helpful in a divorce case because they can act as a go-between for you and your spouse. An experienced divorce lawyer will be familiar with the ins and outs of various approaches to the process, including available custody and support arrangements in your state. Your lawyer can also help you evaluate whether you and your spouse will be able to collaborate effectively and reach a divorce settlement agreement together.
A lawyer will anticipate potential problems with your case and advise you on approaching them. They may even be able to help you avoid potential problems altogether. Further, your lawyer will keep track of deadlines and filing fees associated with divorce forms. Additionally, they can file all the necessary divorce papers so that you can worry about one less thing.
How Much is a Divorce Attorney and Who Pays Attorney Fees?
In some legal specialties, lawyers charge a flat fee or collect a percentage of the judgment (a contingency fee). However, divorce lawyers typically charge by the hour. So, it can be hard to know how much a lawyer’s services will cost you.
“The difficult thing about assessing the expense of the case is that there are factors beyond the attorney and the client’s control that impact attorney fees,” says Aaron D. Bundy, a family law attorney in Tulsa, Oklahoma. “One is the behavior of the other side. You can be reasonable, but the other side can behave in a way that drastically impacts your expenses. A smaller component of that is the way the judge controls the docket and sets deadlines and expects things to be done. If there’s less control and governance there, that can contribute to fees as well, and it may be beyond the lawyer’s control.”
When you first meet with an attorney, you should ask how their fees work and whether they can provide an estimate for their services. As for who pays what in a divorce, consider Aaron Bundy’s perspective. He commented that “in a case where there’s substantial property available, and everybody acts reasonably, then it’s probably going to be you each pay your own attorney fees.”
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