Are You Filing for Divorce?

Divorce is a legal process that ends a marriage between two people. Each state has its own unique laws and procedures related to divorce, including residency requirements. Generally, there are two main types of divorce recognized by most states: no-fault divorce and fault-based divorce.

No-Fault Divorce

A no-fault divorce does not require either spouse to prove any wrongdoing or fault for the court to grant the divorce. In some states, simply stating that the couple no longer wishes to be married or can’t get along is enough to obtain a divorce. However, other states may require the couple to live separately for a certain period before they can file for divorce.

Common reasons for seeking a no-fault divorce include incompatibility, irreconcilable differences, or an irreparable breakdown of the marriage. All of these reasons essentially mean that the couple cannot get along and wish to end their legal relationship.

Fault Divorce

Fault-based divorces occur when the person filing for divorce can provide a specific reason why their spouse is responsible for the failure of their marriage, proving that the other spouse is at fault. Several traditional grounds for fault divorce include:

Cruelty, Such as Physical Abuse

Cruelty in the context of a fault-based divorce can encompass various forms of abuse, including physical, emotional, or psychological mistreatment. Physical abuse, for instance, might involve a spouse hitting, slapping, punching, or causing physical harm to the other spouse. Emotional or psychological abuse may consist of constant belittling, manipulation, or excessive control, causing significant emotional distress to the victim.

In a scenario where a husband repeatedly physically assaults his wife, leaving her with bruises and injuries, the wife could file for a fault-based divorce on the grounds of cruelty. If the wife can provide evidence of the abuse, such as medical records or witness statements, the court may grant the divorce based on the husband’s cruel behavior.

Adultery

Adultery occurs when one spouse engages in a voluntary sexual relationship with someone other than their spouse while still married. To file for a fault-based divorce on the grounds of adultery, the innocent spouse must provide evidence to prove the infidelity occurred.

For example, a wife discovers her husband has been having an affair with a coworker for several months. The wife gathers evidence, such as text messages, emails, and photographs, to prove her husband’s adultery. She can then file for a fault-based divorce, citing adultery as the grounds for the dissolution of the marriage.

Desertion

Desertion, or abandonment, occurs when one spouse leaves the marital home without the intention of returning, without the consent of the other spouse, and without a justifiable reason. The length of time required for desertion varies by state but usually ranges from one to three years.

If a husband leaves his wife and children without warning or explanation and does not return for over two years, the wife could file for a fault-based divorce on the grounds of desertion. She would need to prove that her husband left without her consent, had no intention of returning, and that the required time period had passed.

Confinement in Prison for a Number of Years

Some states allow for fault-based divorce if one spouse is convicted of a crime and sentenced to imprisonment for a specific length of time, which varies by state. In such cases, the innocent spouse can file for a fault-based divorce based on the imprisoned spouse’s incarceration.

For example, a wife is convicted of embezzlement and sentenced to five years in prison. Given the lengthy sentence, her husband can file for a fault-based divorce, citing her confinement in prison as the grounds for ending the marriage.

Inability to Consummate the Marriage

Inability to consummate the marriage refers to the situation where one spouse is physically unable to engage in sexual intercourse, rendering the couple incapable of fulfilling a fundamental aspect of marriage. This ground for divorce is relatively rare, but some states still recognize it as a valid reason for a fault-based divorce.

In a hypothetical scenario, a couple gets married, but the husband discovers that he suffers from a medical condition that prevents him from engaging in sexual relations. Despite attempts at treatment, the condition persists. In this situation, the wife can file for a fault-based divorce on the grounds of her husband’s inability to consummate the marriage. She must provide medical evidence or expert testimony to substantiate her claim.

Why File for a Fault Divorce Rather than a No-Fault?

There are several reasons why someone might file for a fault divorce rather than a no-fault divorce. One reason is that it may eliminate the mandatory separation period required for no-fault divorces. Additionally, some states may award a larger share of marital property or alimony to the spouse who can prove the other spouse is at fault.

Some states, like California and Florida, do not allow fault divorces. Only no-fault divorces may be granted in these states, even if a spouse has violated traditional grounds for a fault divorce.

What is a Divorce Decree?

A divorce decree is an official judgment issued by the court that provides legal evidence that the marriage has been officially terminated. This decree typically contains specific information about alimony or spousal support, property division, child custody, visitation, and child support.

Divorce decrees are final and legally binding, but they can be modified by the court in the future. Modifications may be granted based on changes in each spouse’s circumstances, such as relocation or significant changes in employment or income.

What are Some Issues Related to Filing for Divorce?

Even simple divorce cases can involve numerous legal issues. Many of these issues stem from the need to evaluate both the marital estate and each spouse’s separate estate. Disputes often arise over the classification and division of property, such as determining which property is considered marital property. In many cases, the divorcing couple can reach an agreement on their own regarding property and debt division.

However, if no agreement can be reached, the court must step in and apply relevant laws to resolve the dispute. Property division is determined by state law and falls into two categories: community property states and equitable distribution property states.

Another issue to consider when filing for divorce is hidden assets. Spouses have a legal duty to disclose all information about assets, financial accounts, and properties. Hidden assets have been intentionally concealed or transferred so the other spouse cannot claim them. Child custody and visitation, spousal support, and tax implications are other common divorce-related issues.

How are Divorce Disputes Resolved?

Divorce disputes can be resolved in several ways, including:

• Mediation: Mediation involves negotiations about child custody and support, division of assets, and alimony between the divorcing couple and a neutral mediator. Mediation is often more cooperative and may be court-ordered.
• Informal Negotiations: Informal negotiations occur when the divorcing spouses reach an agreement on their own without the help of an impartial third party. This agreement is then written and submitted to the court for approval. An example would be when one spouse agrees that the other spouse should retain ownership of the house, eliminating the need to resolve any dispute regarding that property.

Mediation and informal negotiations may not always be possible when the spouses cannot collaborate and cooperate. In such cases, a formal lawsuit may be necessary to resolve unresolved issues.

Should I Hire an Attorney for Help with a Divorce Filing?

Divorce proceedings can involve several complex issues, even in simpler cases. As a result, if you are filing for divorce, it is advisable to consult with a skilled and knowledgeable divorce lawyer in your area.

An experienced divorce lawyer will help you identify any legal issues that may arise in your case and assist you in resolving those issues.