Justia Legal Resources: Divorce Law Center

Someone considering a divorce may wonder what to expect from the process. The Divorce Law Center at Justia outlines some general answers to questions that may arise, helping to inform and empower its readers.

Approximate Read Time: 4 Minutes

Ending a marriage can cause stress to each spouse. They may feel anxious about how the process will turn out and what their future will look like. This is especially true if the marriage has lasted for a long time, or if a couple has young children or complex assets. Although there is no substitute for advice from an attorney, the Divorce Law Center in the Justia Legal Guides offers a starting point for anyone who wants to learn more about the legal issues involved. Below are examples of common questions to which it provides some basic answers.

What Does a Premarital Agreement Do?

Although a premarital agreement is not very romantic, it can reduce uncertainty in a potential divorce by outlining the property rights of each spouse. It also can provide for the allocation of debts in a divorce, among other financial issues. However, a premarital agreement cannot address issues related to children from the marriage, such as child custody and child support. A couple should be aware that an agreement must meet certain requirements to be enforceable.

How Is Legal Separation Different From Divorce?

A legal separation does not formally end a marriage, as a divorce does, so each spouse cannot remarry a new partner. Otherwise, it largely resembles the process of a divorce, requiring the resolution of issues such as child custody, child and spousal support, and property division. The same rules and standards generally apply as in a divorce. Legal separation may appeal to a couple for religious reasons, or for financial reasons like potential access to health insurance.

Can I Get a Divorce Without Proving Fault?

Every state offers a form of no-fault divorce, and some states no longer even offer a fault divorce. A spouse thus does not need to prove that the other spouse did something wrong that caused the marriage to fail, such as domestic violence, adultery, or abandonment. Sometimes a no-fault divorce involves a “waiting period” during which the spouses must live apart before they can get a divorce. (This should not be confused with a legal separation.)

Why Might It Be Better To Get an Uncontested Divorce?

An uncontested divorce means that the spouses agree on all the major issues in the divorce. This process tends to be faster and cheaper than a contested divorce, in which a judge will resolve the disputed matters. An uncontested divorce also can give the spouses more control over their future, rather than leaving important decisions up to a judge who does not know them. If the spouses cannot agree on certain issues at the outset, they may still reach a settlement as the process continues, potentially with the help of mediators or attorneys. Justia provides a 50-state survey on laws and forms involving uncontested divorce.

What Happens to the Kids in a Divorce?

The parents ideally will work out a parenting plan to submit to the court for approval, but a judge will determine child custody based on the best interests of a child if the parents cannot agree. This traditionally has consisted of two components: physical custody and legal custody. (Some states now use terms such as parenting time and parental responsibilities.) Physical custody involves the right to live with a child, while legal custody involves the right to make major decisions about their upbringing. Physical and legal custody each may be shared jointly between the parents or awarded solely to one parent.

What Happens to a Pet in a Divorce?

Many people see their pets as beloved family members. However, the law has traditionally viewed a pet as property. This means that the pet likely will be allocated to one spouse in a divorce. (If a spouse acquired the pet before the marriage, the pet probably will stay with them.) However, courts in some states have started to devise “pet custody” or visitation arrangements, or consider the “best interests of the pet” in a manner that echoes child custody decisions. The spouses also can negotiate an agreement that allows each of them to spend time with a pet.

What Is the Difference Between Marital and Separate Property?

Marital property usually involves assets that were acquired during the marriage, while separate property usually involves assets that one spouse acquired before the marriage. The distinction is not always so crisp, though. Certain types of assets acquired by one spouse during the marriage, such as gifts and inheritances, may be considered the separate property of that spouse. Some states also allow the spouses to agree to classify property as separate. When separate property is commingled (mixed) with marital property, complex disputes may arise during the property division process.

Will the Marital Property Get Split 50/50?

Most states use a form of property division called equitable distribution, which means that marital assets are divided in a way that is fair but not necessarily equal. The remaining states, which include California and Texas, are community property states. This means that the spouses jointly hold most property acquired during the marriage. While some of these states essentially require a 50/50 split of community property, others do not. Justia provides a 50-state survey that explains how courts divide property in each state.

What Happens to the Family Home in a Divorce?

Real estate purchased during the marriage is generally subject to division in a divorce. The simplest solution may be selling the property and dividing the proceeds. Or one spouse may want to buy out the other spouse’s interest in the home. This may make sense if children will primarily live with one spouse, or if the real estate market does not favor sellers. Some spouses may choose to continue co-owning the home, although this will leave each spouse responsible for the entirety of the mortgage and may cause other financial headaches.

How Do I Get a Divorce Judgment Changed?

A spouse may be able to modify a divorce judgment if a significant change in circumstances occurs. However, this largely applies to child custody and child or spousal support. Courts rarely modify property division, except in extreme situations. If an ex-spouse feels that they need a change to custody or support, they can try to persuade the other ex-spouse to agree. A court probably will approve a change in this case. Otherwise, a judge will need to decide whether the new circumstances warrant a change, which may be temporary or permanent.

Final Thoughts

Divorce laws contain many subtle but potentially impactful nuances. These make it vital to consult a divorce lawyer when a marriage seems likely to end. They can provide guidance tailored to a person’s particular concerns. In the meantime, the Divorce Law Center in the Justia Legal Guides sketches some of the main issues that spouses may encounter, as well as some possible ways to resolve them. It furthers Justia’s mission of making the law free and accessible for all.

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