Divorce is a challenging reality of modern life, with rising rates across the United States. If you are considering ending your marriage, understanding the process in advance can be invaluable.
Residency Requirements for Divorce
You may file for divorce only in a state where you are a resident. Most states require a residency period, often six months to a year, before filing. If your spouse plans to file in another state, you may consider filing first in your state to avoid the expense of traveling for proceedings.
Changes to agreements involving alimony, child custody, or child support must be made in the state where the divorce was granted. While states recognize valid divorces granted elsewhere, they may challenge jurisdiction if the original state lacked authority over the couple.
Divorce Over 50: Unique Considerations
Divorce later in life can present unique challenges. Implications for retirement plans, health care, Social Security benefits, and family home ownership are common concerns. Consulting a divorce lawyer can help uncover potential issues and identify strategies for the best outcome.
Do You Need a Lawyer?
Hiring a lawyer has both advantages and disadvantages. A lawyer is often necessary if:
- Communication with your spouse is broken.
- Your spouse has a lawyer.
- There is a history of abuse.
For simpler divorces, such as those involving short-term marriages with no significant assets or children, handling the process without a lawyer can save money. However, in complex cases involving marital property, minor children, or significant income disparities, a lawyer can protect your rights and guide you through the process. Divorce lawyers can also facilitate collaborative divorces, reducing tension during an already stressful time.
Fault vs. No-Fault Divorces
No-Fault Divorces: No-fault divorces are the most common and require no proof of wrongdoing. Reasons such as “irreconcilable differences” or “incompatibility” suffice. Many states require a separation period before filing.
Fault Divorces: Fault divorces require proof of misconduct, such as:
- Cruelty (emotional or physical)
- Adultery
- Desertion
- Imprisonment
- Lack of sexual capacity
While fault divorces may lead to more favorable settlements for the innocent spouse, they can be contested, making the process more complicated and costly. Courts are generally reluctant to deny divorce requests to avoid forcing individuals to remain in unhappy marriages.
Separation vs. Divorce
Couples who wish to remain legally married for personal or financial reasons can opt for a legal separation. This involves court decisions on property division, alimony, child custody, and child support without granting a divorce. Unlike trial separations or living apart, a legal separation has legal effects and must be recognized by a court.
Key Differences:
- Trial Separation: Temporary and without legal impact; assets and debts during this period are marital property.
- Permanent Separation: Assets acquired during this period are not considered marital property unless legal separation is filed.
Divorce vs. Annulment
An annulment treats the marriage as though it never existed. It is granted for specific reasons, such as:
- Fraud
- Lack of consummation
- Incest
- Bigamy
- Mental impairment
- Coercion
- Marriage below the age of consent
Annulments are rare and often involve minimal property or custody decisions. However, children born in annulled marriages are considered legitimate.
Understanding your options and the legal implications of divorce, separation, or annulment is essential for making informed decisions. Consulting a qualified divorce lawyer can help you navigate these complexities and secure the best possible outcome.
Last reviewed October 2024