Q: What is a legal divorce?
A: A divorce is a method of terminating a marriage contract between two individuals. From a legal standpoint, your divorce will give each person the legal right to marry someone else, it will legally divide the couple’s assets and debts, and determine the care and custody of their children. Each state addresses these issues differently, but there are some relatively uniform standards. Each state does have some type of “no fault” divorce laws that can significantly simplify the divorce process.
Q: What is a no fault divorce?
A: Traditionally, divorce was granted on the basis of some marital misconduct such as adultery or physical abuse. In these cases the “guilty” spouse was punished by getting a smaller share of the couple’s property or being denied custody of their children while the “innocent” spouse was rewarded for being faithful to the vows of marriage. In a no fault divorce, however, both parties agree that there is no “fault” involved in the grounds for divorce. Please note that states’ laws differ on the issue of fault or no fault divorce. Among the 50 states, a number provide no fault divorce as their residents’ only choice; residents of other states may pursue fault based or no fault divorce.
Q: What is a fault-based divorce?
A: A “fault” divorce is one in which one party blames the other for the failure of the marriage by citing a legal wrong. Grounds for fault can include adultery, physical or mental cruelty, desertion, alcohol or drug abuse, insanity, impotence or infecting the other spouse with a venereal disease. As noted above, please consider state guidelines regarding the types of divorce permitted in an individual state.
Q: What are the requirements for filing a petition for divorce?
A: The requirements for filing a petition for divorce vary for each state. There are residency and domicile requirements. That means one of the parties must have been a resident of the state for a specified period of time prior to the filing of the petition.
Q: What is a legal separation?
A: What is known in the common terms as a legal separation can involve a court order or agreement between the parties declaring that a couple will no longer live together, and that all the issues concerning the marriage have been resolved, such as issues related to children and distribution of property. It does not terminate the marriage or legal status of the couple as married. The spouses are not free to remarry.
Q: May the provisions in a Property Settlement Agreement be changed afterwards?
A: Generally, they cannot be changed unless there is a provision in the settlement agreement to do so, usually because of a substantial change of circumstances or fraud.
Q: How is property divided in a divorce?
A: While specifics differ from state to state, a majority of states use the equitable distribution of property approach to divide marital property. It is important to keep in mind that “equitable” does not mean equal. The goal of equitable distribution is to award each spouse a percentage of the total value of the assets. The laws in each state vary as to the factors it uses to determine the final property division. New Jersey, for examples uses the Equitable Distribution system which considers all the assets and earnings accumulated during marriage to be marital property and divide them fairly at divorce. There are other exceptions to this which are very fact-sensitive.
Q: What is the difference between maintenance and alimony?
A: Some states refer to alimony as maintenance or spousal support. Each word refers to the same concept – one spouse providing funds to the other, but each state has different rules to determine how much support is paid. Alimony (or maintenance or spousal support) can be awarded for an indefinite or definite period of time. Generally, courts consider the standard of living of the parties that was established during marriage, the circumstances of the case and of the parties, whether the party who is getting the award lacks sufficient property and income to provide for his/her reasonable needs and whether the party paying the maintenance has sufficient property and income to provide for the other’s reasonable needs. If you live in a fault-based state, some courts consider the fault of the parties when determining support.
Q: Do I need to hire an attorney?
A: It is not mandatory that you hire an attorney and you may represent yourself. However, you may be putting yourself at a serious disadvantage. Most divorces are not straightforward unless there are no marital assets, children or other joint issues. Given the complexity of the issues in even the average case, it is beneficial to employ the services of an attorney who is knowledgeable with the law in your state and experienced in the field.
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