Just like every relationship is different, every divorce is different as well. That’s why there’s not a “one size fits all” approach to how a couple can go through the divorce process. You see, there are several different types of divorce – and each option has advantages and disadvantages.
The divorce process that you choose can have a major impact on how your divorce unfolds. That’s why it’s important to have a thorough understanding of your options.
Let’s jump in.
- Why the Type of Divorce Matters
- The difference between a No-Fault and Fault-Based divorce
- Uncontested vs Contested Divorce
- The Types of Divorce
- Summary Divorce
- Default Divorce
- Legal Separation
Why the Type of Divorce Matters
In fact, once you’ve made the decision to get a divorce, the single most important decision you make is the type of divorce you will go through. Making the right decision is the best way to save you the most time and money, instead of choosing wrong, starting the process, and then having to start over if your initial efforts fail.
Deciding which process to choose will be driven by a number of factors.
Many people start by looking at the financial implications of a divorce. This is critical and must be taken into account before you decide on anything, but there is another side you must pay attention to as well.
If you can manage your emotions and have an acceptable amount of trust between you and your spouse, then your efforts will be more expedited than if you have unchecked emotions that can lead to resentment and bitterness, producing a long and protracted court battle than will drain your pocketbook and your emotional resources.
Another consideration is if children are involved. While you have some degree of control over what happens in a divorce, children do not. If you can agree to keep your disputes to a minimum instead of waging an all-out war, then there is less likely to be emotional and psychological damage inflicted on your children.
Remaining civil with your spouse will have an impact on custody and parenting time. Keep in mind that children are sponges as well. They will see, hear and observe everything that goes on, so it is vital to do what you can to minimize friction before, during and after a divorce takes place.
The good news is that children are resilient and while divorce under any circumstances can be hard on them, they usually find a way to heal, especially in the absence of a lot of conflict.
Another consideration is that you must decide how much conflict that you can bear. Sometimes, it’s easier to drop the gloves, work in the spirit of cooperation, compromise and find solutions. Once you understand that divorce is as much of an emotional process as it as a financial process, you will be able to figure out what your goals are and what you want your life to look like going forward.
Understand that divorce is traumatic and that you will suffer feelings of grief and loss, much in the same way you would experience someone’s death. Shame and guilt may also come into play, making it more difficult to reach logical decisions, because they are often transformed into anger or blame.
This can cause you to make rash and unrealistic requests that could lead to more conflict or a detrimental settlement that you will regret later on.
Your emotional quotient will also have an impact on relationships with your friends, siblings, work, and social life as well. The stress of a divorce will impact you and could interfere with you leading your best life in all parts of your life.
It’s fair to say that your emotional state will play an integral part on the financial aspects of your divorce. Keeping your emotions in check will be difficult, but if you take a look at the big picture, it may be the wisest move for you, your children and your bottom line.
Fault and No-Fault Divorce
A no-fault divorce is the most simple and straightforward way to document the reason for getting a divorce. Rather than go into details, a petitioner only needs to cite “irreconcilable differences” as the reason for the divorce.
Some states use alternate language that a marriage is “irretrievably broken” instead. In either case, no proof is required that the other spouse did anything wrong.
All states allow no-fault divorces.
A fault-based divorce means that a petitioner has cited a specific reason why they are getting a divorce.
In addition to no-fault divorces, some states allow fault-based divorces that can include a variety of reasons such as adultery, cruelty, verbal and physical abuse, spousal abandonment, insanity, drug abuse, confinement in prison or other similar grounds. Fault-based reasons will vary from state to state in those jurisdictions that allow it.
Fault-based divorces generally require a higher burden of proof, but the reason spouses sometimes choose to go this route is to gain a possible advantage in the settlement process.
For example, if a spouse can cite and prove that drug abuse or domestic violence was present in a marriage, then this will most likely have an impact on custody and visitation. While courts prefer that both parents be actively and regularly involved in a child’s life, the overriding concern in all cases is doing what is in the child’s best interests.
This could mean a complete denial of parental rights or limited and supervised access for as long as there is a perceived danger.
In states where a fault-based divorce is allowed, judges are either given wide leeway in deciding how much a fault-based ground will impact a settlement or they are bound by law to consider the impact of the fault when determining a final settlement agreement.
Uncontested vs. Contested Divorce
Before you can decide on the exact type of divorce you want to go through, you must get a general sense of which solution will work best for you. The first big question you need to answer will be driven in part by your specific circumstances, your relationship with your spouse, financial implications, and your mindset regarding the ability to strike a compromise.
An uncontested divorce works when a couple can agree to work together and find ways to compromise with each other, instead of instilling the divorce process with hate and conflict.
This is far and away the best way for couples to separate and peacefully go their own way.
When both sides can agree on all elements of the divorce, spouses file paperwork that will be reviewed by the court. If the court approves, depending on the state where you live, there will either be a brief hearing or no hearing at all, no need for attorneys to get involved, and assuming that the court approves of the settlement agreement, there will be no delays.
It is the quickest and least expensive of all divorce options.
In a contested divorce, spouses are not able to reach agreement on key issues such as alimony, child custody, a division of assets and more. There is a high degree of animosity and a lack of trust between the two parties.
These types of cases cost the most to settle, take the longest time and inflict the most emotional damage on both sides. Several hearings, motions, a trial, a lengthy discovery process, subpoenas and delays may play a front and center role as a contested divorce moves forward.
A contested divorce takes the longest, is generally the costliest and the most emotionally draining.
It may also be the route many people choose to follow if they are involved in a divorce where the spouses are trying to deal with considerable assets, business ownership interests and other high net worth issues.
Alternative Dispute Resolution
There is a middle ground between an uncontested and contested divorce. Known as Alternative Dispute Resolution, there are a number of other options that couples can pursue if they can’t quite come to agreeable settlement terms on their own, but also don’t want to wage a full-blown legal battle.
Both parties will try to settle their differences out of court with the help of trained professionals to guide them through mediation or a collaborative divorce process. Each of these are similar in that they attempt to find a compromise, but each one goes about that task in a slightly different way.
The Different Types of Divorce
Once you have taken all of the factors surrounding your marriage into consideration, it’s time to decide exactly what kind of process you will pursue. It’s important to note that this decision is not set in stone, meaning if your circumstances change, you can also change the nature of how your divorce will proceed.
Here are specific options you can pursue, from the least expensive and contentious to the most difficult and complex:
1. Do-It-Yourself Divorce
To avoid legal fees, some couples are able to represent themselves throughout the divorce process. This works best in an uncontested divorce, where couples can agree on all the issues and are able to craft a final settlement on their own.
Depending on the state, it may be possible to go through the entire process without ever appearing in court or appearing only for a brief hearing in front of a judge who will review the settlement and sign off on a final decree.
Costs are minimal. You will only have to pay a filing fee and possibly a fee to have papers served on your spouse. In cases where you can prove that paying fees would be a hardship, you may even be able to request that the court waive the fees completely.
Because there is virtually no involvement by outside entities, you can control the design and the timing of the divorce, especially if you are able to communicate regularly and in a civil manner with your spouse.
In some states, you can complete and submit paperwork online. A few states will even allow the entire process to take place online, although this is not common.
There are several resources that can assist you if you decide to go this route. Court personnel cannot give you legal advice, but they can help you by making sure forms are filled out correctly and answering other questions of a general nature.
You can also access a number of resources online or by purchasing a do-it-yourself divorce book. In some cases, non-profit organizations also provide legal assistance to help you as well. Be sure to ask at the courthouse early in the process what resources are available.
The drawbacks of self-representation are that you will be held to the same standards by the courts as those who retain legal help. You may also not completely understand all the financial and tax consequences of your final settlement, which could cost you dearly down the road.
Correcting mistakes may not be possible, or if you are able to do so, it could create added expenses and delays. Also, unless you are particularly skilled at crafting agreements, you could wind up with a final settlement that may not be as thorough or as protective of your interests as you want or need it to be.
However, many people do choose this route and end up with good results.
2. Online Divorce
This is similar to a do-it-yourself divorce, but the big difference is that you use an online divorce service to simplify the process and do the heavy lifting.
Most of these services have a similar process. You verify your eligibility, answer some questions online, then sign and file your completed divorce forms with your local court.
While many services are sensitive to the unique laws of each state, some may not be. So, if your paperwork is not completed properly, even if you’ve been offered a money-back guarantee by the provider, you’ll still need to come up with another way to file for your divorce, either by modifying your forms or seeking additional professional help.
Costs for this type of process will vary but expect to pay anywhere from $200 to $2000. You’ll still need to pay filing and court-related fees as well.
This option is even faster and easier than a do-it-yourself divorce. One of the other benefits is that some online divorce services will walk you through the questions with helpful explanations of the legal jargon.
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3. Divorce Mediation
When you and your spouse cannot agree on one or more issues, it may be possible to retain the services of a mediator who can facilitate communication, whether your disagreements are big and numerous or small and a single sticking point.
A mediator is a neutral third party who will listen to both spouses and then suggest solutions in the hopes of reaching agreement on all points. The goal is to find consensus and present a final agreement to a judge who will use it as part of the final divorce decree.
A mediator will attempt to open line up a dialog but will not make any decisions for a husband or wife. The goal is to help a husband and wife define the issues, guide and analyze what the problems areas are, generate choices and then, help spouses negotiate a resolution.
The mediator’s job is to facilitate finding a resolution, not to give legal or other advice. A mediator will advocate for both sides as well as any children involved in the marriage.
Mediation allows you to go at a pace you are comfortable with and you will be able to change your mind on issues as the process progresses. It could take a little as a few weeks, or extend to several months, depending on the issues and the level of comfort by each party.
The mediator will also play a role in drafting a final agreement that will be customized to your needs and easy to understand because it will be written in plain English by a trained and skilled professional.
Divorce mediation is private, confidential and voluntary, and spouses retain control of the process throughout. This gives spouses much more control instead of having their case ruled upon by a judge or an arbitrator.
More control means that both sides are more likely to be happy with the outcome. In addition, this form of divorce is always less expensive and quicker than litigation. Generally, costs will range between $5,000 to $10,000 or more, depending on the amount of work that needs to be done. In many cases, the fee is split between the two parties.
Mediation may not be appropriate if there’s domestic violence, if one party is incredibly rigid, or if one party isn’t willing to actively participate by doing their homework or showing up to meetings.
4. Collaborative Divorce
As the name suggests, collaborative divorce is also about trying to find compromise to create a mutually agreed upon settlement, but the mechanics of collaborative divorce are a bit different.
In a collaborative divorce, both spouses retain an attorney who is trained in collaborative law to represent them. Laws vary from state to state, but spouses are generally required to sign a collaborative law participation agreement that clearly defines the rules that must be followed.
Just like mediation, there is an agreement to work in the spirit of conflict resolution and compromise. Spouses and their attorneys hold a number of meetings where all four parties are in the session. In addition, each spouse will meet individually with their attorney to define the issues and develop a negotiation strategy.
In many cases, other experts may also be retained by the couple, such as a certified divorce financial planner, accountant, asset appraiser, pension specialist, career planner, or child and family mental health professionals.
One of the biggest downsides to collaboration is that if the settlement efforts fail, the collaborative attorneys will have to withdraw from the case and the couple will need to retain different legal representation and start all over again.
These attorneys cannot represent the spouses in a contested court proceeding. This means one of the downsides of collaborative divorce is that spouses can incur significant legal fees and not have anything to show for it.
As with other forms of mediation, the ultimate goal is to produce a final settlement agreement that a court will approve as part of the divorce decree.
Collaborative divorce is still less expensive than a fully litigated divorce, but with multiple parties involved, scheduling meetings can take longer and there is no guarantee that any concrete results or actions will ultimately be a part of the outcome.
Litigation is the traditional approach to getting a divorce. It is the default process if you and your spouse can’t agree on one of the other divorce options.
With litigation, you and your spouse are each represented by a divorce attorney who advocates on your behalf. Unlike uncontested or alternative dispute resolutions, in litigation, the actions are driven primarily by attorneys
If you aren’t able to reach an agreement after exchanging settlement proposals and participating in settlement conferences, then your case will proceed to trial.
Although about 95% of litigated cases settle, the process can be contentious, emotionally exhausting and will increase animosity because it typically fosters a win/lose mindset. Needless to say, this can have a profound effect on children who are part of this type of divorce process.
There are three types of divorce litigation:
Negotiated Settlement. Attorneys will engage in a back-and-forth process as a means to strike an agreement between the two parties. A negotiated settlement may take place if couples cannot reach agreement, but still want to avoid the emotional and financial costs of going to court.
It is also a way to keep their settlement terms confidential and out of the public record. Most negotiated settlements offer more flexibility than either arbitration or a trial and it also means that spouses are not necessarily bound by strict interpretations of state laws which would be the case with other forms of litigation.
Arbitration. When couples can’t reach agreement on sticking points but still want to resolve issues outside of the court, a private judge called an arbitrator will listen to both sides as a neutral third party and then rule on the divorce just like a judge would do in court.
Both sides choose and agree on the arbitrator, define the issues that need to be resolved and then present their case at a mutually agreed upon time and place. After hearing testimony, the arbitrator will then rule on those issues and render a decision. In most cases, the arbitrator’s decision is binding and cannot be appealed.
Arbitration is sometimes an option for couples after mediation or collaborative divorce efforts have failed. If there are specific issues, then the couple can choose an arbitrator with specific experience in the areas that need to be addressed
Using an arbitrator allows a divorce to remain confidential. It also avoids the time and expense that a trial would create.
Trial. In a trial, a judge will make rulings based on applicable state law. The judge has the final say and his or her decisions are legal and binding.
The obvious downsides of a trial are that it is expensive and can take a long time before a final decision is rendered, sometimes a year or more depending on the complexity of the issues, the backlog of the court and the availability of all the parties. Delays are not uncommon.
In a trial, both sides are also giving up their rights to have a say in the final outcome to some degree in favor of a stranger who will apply the law instead of what may be in the couple’s overall best interests. Divorce trials are also a public matter, meaning that anyone can attend, stripping away privacy which may be a concern for some couples.
Co-mediation is essentially the same as mediation, except instead of retaining a single third-party mediator, couples will retain a team of two or more neutral professionals to help resolve issues. The team may consist of an attorney-mediator, Certified Divorce Financial Analyst (CDFA), and a mental health professional.
Generally, the attorney-mediator and CDFA work hand-in-hand on the financial issues to help reach an agreement on property division and support. The divorcing couple usually works separately with the mental health professional to develop a parenting plan. If they reach impasse or need more legal information, the parties may meet with the attorney mediator and mental health professional together.
The goals and the processes are the same as in mediation, but co-mediation offers some distinct advantages as well.
By retaining more than one professional, the spouses can benefit from a greater degree of specialized expertise. This can help drive specific parts of the conversation forward with more authority and at a quicker pace.
Co-mediation may also work better where there is a higher level of animosity between the spouses, but they are still committed to working together. In other words, there is a bigger buffer to help smooth out any possible rough spots in the mediation process.
This format also creates more checks and balances. While bias should not be a part of the mediation process, at times it may creep into the conversation. Having additional professionals as part of the process can reduce the likelihood this will take place.
Of course, the downside of co-mediation is that with more professional help on board, costs will go up. You will need to consider the trade-off and how much your comfort level will increase vs. the amount you will spend for that return.
How is Dissolution Different from Divorce?
The meaning and differences between a dissolution and divorce will vary from state to state. In some states, such as Connecticut, a dissolution of marriage is the state’s legal term for divorce.
In other states, a dissolution of marriage is quite different from a divorce.
For example, in Ohio, a divorce complaint must allege at least one legal ground for divorce, including reasons such as adultery, habitual drunkenness, bigamy, extreme cruelty or several other possible reasons.
However, a couple can file a joint petition for a dissolution of marriage where they both request the court to terminate the union after they have prepared and submitted a separation agreement both have agreed to prior to filing.
This means all issues such as a division of assets, debts, child custody, child support and others have already been decided.
The grounds for the dissolution of the marriage are not an issue like they are for a divorce. This is considered as an uncontested divorce in many jurisdictions and the grounds for the divorce are cited as “irreconcilable differences” versus getting a divorce where a specific fault is cited.
In California, the standards are different. Married couples can seek a summary dissolution if they meet residency requirements, have been married for less than five years, have no children together who were born or adopted before or during the marriage, do not own any part of land or buildings or rent any land or buildings (excluding a primary residence), do not owe more than $6,000 in marital debts, and have less than $41,000 of qualifying community property.
Aside from much less conflict, the main advantage of the dissolution process is that it reduces a majority of the time and expense that would otherwise be incurred with a divorce.
Check with the laws of your state to see if dissolution is a legal option or if it merely another name for the divorce process.
Most states offer some form of a summary divorce, which is a simpler and more streamlined version of a traditional divorce.
While specific laws will vary, in general a summary divorce (also sometimes referred to as a simplified divorce) will mean less paperwork, less time, and fewer or no court appearances.
You may be eligible for a summary divorce if:
- You have been married for a fairly short period of time (5-8 years max)
- You have no minor children who were either born or adopted while married (a few states may allow a summary divorce even if children are part of the equation, as long a support issues are worked out and clearly defined).
- You do not have significant real property or personal property. The cap on the dollar amount will vary from state to state and can be anywhere from $25,000 to $40,000 in most instances.
- Both spouses agree to give up rights to spousal support.
Because the issues are simpler, the divorce settlement is easier to reach, and the unwinding process is much less intense. In fact, many times a lawyer may not even be needed to complete the process.
California is one state that allows for summary divorces (officially called a summary dissolution). To get an idea of what is involved, you can review Form FL-810 that will cover all the important topics you will need to understand. You can also check with the courts in your state to get specific information about summary divorces that will apply to you.
When one spouse or the other does not comply with the court’s rules, either by failing to appear at appointed hearings or a trial or does not follow through with completing specific legal orders or filing paperwork, a judge may have the option of granting the other spouse a default divorce.
This can also happen if, after diligent attempts, the other spouse cannot be found, and those attempts have been documented and presented to the court.
Laws and circumstances will vary from state to state, but after a complaint is filed and an attempt has been made to serve papers on a spouse, there is a specific time frame that the spouse must reply to the complaint. It may be as little as 20 days or as much as 45 days or longer.
If there is no response during that period, then the petitioner may be able to file a Motion for Default (it may be called by a slightly different from state to state) and the judge may decide to grant that motion. In effect, this allows a divorce to be finalized without the participation of one of the spouses.
It is critical to respond to an initial complaint, or you may see the judge grant the petitioner all the terms that were requested in the original petition. In some states, when children are involved, judges are reluctant to grant a default divorce because child custody and support needs to be determined by the best interests of the child and not a parent who is in default.
Judges do not like to grant divorces based on defaults, so if a respondent can meet a standard for excusable neglect or made a demonstrated attempt to obtain relief from default by working with an attorney and submitting proper documentation, then a default may be set aside.
Many states will grant annulments to marriage which means the marriage is null and void, as if it never actually happened.
Some states do not grant annulments and are others are reluctant to grant annulments and rarely do so. In all cases, to meet the standard for the granting of annulment, there are strict requirements that must be met, and the case is almost always litigated in front of a judge.
Some common grounds for annulment include:
- Pre-marital concealment of pregnancy by another man
- Fraudulent intent to cohabit
- Fraudulent concealment of a sexually transmitted disease
- Other valid fraudulent reasons
- Underage marriage
- Duress or coercion
- Impotency or denial of sexual rights
Specific grounds will vary by state.
Some people choose this option for religious reasons. For example, Catholics who get a divorce may be denied certain religious rights, and any future marriages will not be recognized because the church will still consider that person to be married.
Married couples can end their marriages a number of different ways, but in some cases, they may choose legal separation as an option instead of divorce.
Legal separation means that a couple still remains married, but through court action, many of the issues in the marriage are resolved, loosening the bonds of the marriage.
It’s important to note that although there are times when spouses physically separate when one spouse moves out of the home, this is not the same as legal separation. Legal separation requires the execution of a court document that is legally binding and signed by both spouses.
A legal separation provides a couple the option of living independently from each other both physically and financially. It requires that issues like a division of assets, child custody and support, and spousal maintenance be decided as if a marriage were actually being dissolved
In many cases, legal separation provides a much-needed time out that allows two people to try and resolve their issues in a less combative environment. Stepping away can often times bring added perspective about what a couple will lose in a marriage and possibly give them time to heal from the issues that caused their marriage to come under stress.
Spouses may also choose legal separation for religious reasons. Some religions do not look favorably upon divorce and staying married though legally separated puts less pressure on a couple who might otherwise be in conflict with their church and religious beliefs.
There are also financial benefits as well, such as being able to keep health insurance, or by continuing to file as a married couple on tax returns.
If a person is not a U.S. citizen, and they get a divorce, they run the risk of deportation. But with a legal separation, a noncitizen can still stay in the country even if they don’t live with their spouse.
Laws regarding legal separation vary from state to state, and if this is a potential option for you, it’s best to contact your county courthouse to get the particulars.
Being organized and pulling together a lot of information is the next step you’ll need to take when moving ahead with a divorce. Depending on your situation, there may a lot of materials you will have to gather but doing the difficult work of pulling this information together on the front end means you will have a smoother experience as you move through your particular set of circumstances.
It’s best to gather documents and information this before you formally ask for divorce, since some spouses have been known to hide asset information, especially if a divorce threatens to turn ugly.
Make sure all your personal information is current and accurate and then pull together information about your stock, bond and mutual fund assets, real estate and mortgages, bank accounts, credit cards, retirement accounts, tax returns, business tax returns, personal property, business interests, details on any lawsuits you may be involved in, and other related financial information that will be used to divide assets between you and your spouse later on.
Also make a list of your monthly expenses since that will be used to determine possible alimony or child support amounts.
In addition, you should try to get copies of birth certificates and social security information for you and your children, any pre- or post-nuptial agreements, copies of any prior divorce judgments, life and health insurance policies, and any immigration or naturalization documents.
It’s is recommended that you get three to five years of these records if you can, and possibly longer if you were married for many years.
This is just a basic overview of the types of things you’ll need. For a more complete understanding of the information you’ll need, check out our Ultimate Divorce Checklist.
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