What Is Divorce Law?

Use these links to jump to different sections:

• What Is Divorce Law?
• Are There Alternatives to Divorce Court?
• How Are Parenting Plans and Custody Decided?
• Who Pays Spousal Support?
• How Are Assets and Property Divided in a Divorce?
• How Much Does a Divorce Attorney Cost, and Who Pays Attorney’s Fees?
• Find the Right Attorney for Your Needs
• Divorce Attorney FAQs

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 or spousal support 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.

What Is Divorce Law?

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 have a waiting period between legal separation and obtaining 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 cases 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.

Are There Alternatives to Divorce Court?

While you 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. If you would like to make your own determinations about the terms of the divorce, including child custody, child support, property division, and alimony arrangements, it may be wise to try alternative dispute resolution (ADR).

Mediation

Mediation is a common type of ADR. 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 create a personalized solution outside the formal judicial framework.

Collaborative Divorce

No neutral third party guides 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.

How Are Parenting Plans and Custody Decided?

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. Parents may want to consider living arrangements, vacations, health care, extracurriculars, and education when making parenting agreements. 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:

Legal Custody

Courts often award joint legal custody to parents. Parents with legal custody of their children have the legal right to make long-term parental decisions, including education, religion, and medical care. When there is joint legal custody, parents must consider each other’s wishes and include each other in the decision-making process.

Physical Custody

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.

Who Pays Spousal Support?

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 can 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.

1. Temporary

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 can set up a support plan without court intervention.

2. Rehabilitative

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.

3. Permanent

Permanent spousal support is increasingly rare. When courts award permanent support, it is usually in situations where one spouse cannot work due to disability or when the parties are past retirement age. Permanent spousal support is not available in every state.

4. Reimbursement

Reimbursement support repays one spouse for economic sacrifices that increased the other spouse’s earning potential. This is commonly seen when one spouse worked to put the other through an academic program. They may have made financial sacrifices during this time, expecting both spouses to benefit from a higher standard of living.

5. Lump Sum

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.

How Are Assets and Property Divided in a Divorce?

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:

• Inheritances;
• Gifts one spouse received;
• Personal injury judgments;
• Property one spouse owned before the marriage;
• Property a spouse acquired during the marriage that was never used for the other spouse’s benefit.

Community Property

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 agreement is valid, it will likely control the division of property.

Equitable Distribution

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, if one spouse has more difficulty earning an income after the divorce, a family court judge might give them a larger share of the marital property.

Spouses can work out the division of their property without court intervention. However, if they cannot agree, 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

How Much Does a Divorce Attorney Cost, and Who Pays Attorney’s Fees?

In some practice areas, 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 Sapulpa, 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. Another factor is how the judge controls the docket, sets deadlines, and expects things to be done. If there’s less control and governance there, that can also contribute to fees, 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, Bundy comments, “In a case where there’s substantial property available, and everybody acts reasonably, then it’s probably going to be that you each pay your own attorney’s fees.”

Find the Right Attorney for Your Needs

A lawyer can be particularly helpful in divorce 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 and can help you evaluate whether you and your spouse can collaborate effectively and reach a divorce settlement agreement together. 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.

Visit the Super Lawyers directory to find an experienced divorce lawyer in your area.

Divorce Attorney FAQs

Here are some frequently asked questions when meeting with a divorce lawyer for the first time:

How can I prepare for divorce?

Preparation is key to a smooth legal process. It’s helpful to reflect on your priorities for a divorce upfront, including the outcomes you want to achieve and areas of negotiation and compromise. Gather important documents and maintain open communication with your attorney, who will be able to walk you through the process.

How will my assets be divided?

How assets will be divided in a divorce depends on state law and factors such as each spouse’s contributions to the marriage, earning potential, future needs, and more. Property division is often one of the more contentious and complicated factors of divorce and one that you’ll want expert legal advice on.

How is custody determined?

Child custody is one of the biggest concerns in a divorce involving parents. When approving a custody arrangement, courts are guided by the child’s best interests. They may consider factors such as the child’s relationship with each parent, each parent’s ability to provide a stable environment, and the child’s preferences. Parents may craft a custody agreement with the help of their lawyers and have the plan approved by court order. If not, the judge will make a final custody determination in the divorce decree. An attorney can walk you through the key components of a custody agreement and discuss its pros and cons compared to a parenting plan.

Will I have to pay alimony?

Whether you’ll have to pay alimony (commonly known as spousal support or spousal maintenance) depends on factors such as the duration of the marriage, spousal income and earning potential, and the standard of living during the marriage. Courts may award temporary or permanent alimony depending on factors such as each spouse’s financial need, contributions, and the ability to financially self-support. An attorney can walk you through your state’s spousal support requirements and timeframes.