Click
here for frequently asked uncontested divorce questions
An
overview of divorce in the United States
In
the United States divorce, like marriage, is the province of
the state governments, not the federal government. Divorce
Laws vary from state to state, but no-fault divorce
on the grounds of "irreconcilable differences" is
now available in all states. However, in recent years many states,
including North
Carolina and New
York requires a one-year legal and physical separation
prior to a formal divorce decree. This legal requirement has
led to the creation of a separate, somewhat ambiguous category
of relationships - "separated". Once a more informal
term used by individuals, it has now become a legal category
designating someone who is neither married nor divorced.
Divorce
in the U.S. is a matter of state rather than federal law. In
recent years, however, more federal legislation has been enacted
affecting the rights and responsibilities of divorcing spouses.
For example, federal welfare reform mandated the creation of
child support guidelines in all 50 states in the 1980s. ERISA
includes provisions for the division of qualified retirement
accounts between divorcing spouses. The IRS
established rules on the deductibility of alimony, and federal
bankruptcy laws prohibit discharging in bankruptcy of alimony
and child support obligations. COBRA allows a divorced spouse
to obtain and maintain Health
Insurance. The laws of the state(s) of residence at
the time of divorce govern, not those of the location where
the couple was married. All states recognize divorces granted
by any other state. All states impose a minimum time of residence,
Nevada
currently being the shortest at 6 weeks.
Prior
to the latter decades of the 20th century, a spouse seeking
divorce had to show a cause such as cruelty, incurable mental
illness, or adultery. Even in such cases, a divorce was barred
in cases such as the suing spouse's procurement or connivance
(contributing to the fault, such as by arranging for adultery),
condonation (forgiving the fault either explicitly or by continuing
to cohabit after knowing of it), or recrimination (the suing
spouse also being guilty). By the 1960s, however, the use of
collusive or deceptive practices to bypass the fault system
had become ubiquitous, and there was widespread agreement that
something had to change. The no-fault
divorce "revolution" began in 1969 in California,
and was completed in 1985 (the last to fall was North
Dakota and New York is the last holdout). However, New
York does impose a mandatory separation period before a divorce
can be granted.
Typically,
a county court’s family division judges review petitions
for dissolution of marriages. The National
Association of Women Lawyers was instrumental in convincing
the American
Bar Association to help create a Family Law section
in many state courts, and pushed strongly for No-Fault
Divorce Law around 1960. In some states fault grounds
remain, but all states except New York now provide other grounds
as well, variously termed irreconcilable differences, irremediable
breakdown, loss of affection, or similar. For such grounds no
fault need be proven and little defense is possible. However,
most states require some waiting period, typically a 1 to 2
year separation. Some have argued that the lack of means to
contest a no-fault divorce makes a marriage contract the easiest
of all contracts to dissolve, and in very recent years some
have begun to favor moderate divorce reforms such as requiring
mutual consent for no-fault divorce. However, no such laws have
been passed as of this writing.
Fault
grounds, when available, are sometimes still sought. This may
be done where it reduces the waiting period otherwise required,
or possibly in hopes of affecting decisions related to a divorce,
such as child custody, child support, alimony, and so on. States
vary in the admissibility of such evidence for those decisions.
In any case, a no-fault divorce can be arranged far more easily,
although the terms of the divorce can be and often are contested
with respect to child-related matters and finances. Ultimately
most cases are settled by the parties before trial.
Mediation
is a growing way of resolving divorce issues. It tends to be
less adversarial (particularly important for any children),
allows the parties greater control and privacy, saves money,
and generally achieves similar outcomes to the normal adversarial
process. Also, courts will often approve a mediated settlement
quickly.
Similar
in concept, but with more support than mediation, is Collaborative
Law, where both sides are represented by attorneys but commit
to negotiating a settlement without engaging in litigation.
Because of the additional support of attorneys and expert neutrals
(such as financial specialists and coaches), the success rate
of a collaborative divorce is very high. In the rare event that
the collaborative divorce process ends without the parties reaching
a settlement, the collaborative lawyers become disqualified,
and are replaced by new counsel. The reasoning is that the collaborative
lawyers' sole interest will be to settle the case; and lawyers
who specialize in collaborative divorce will often have additional
training and skills to assist parties to settle.
Non-court
based dispute resolution approaches such as a simple uncontested
divorce may reduce the trauma of the divorce for all parties.
Some believe that mediation may not be appropriate for all relationships,
especially those that included physical or emotional abuse,
or an imbalance of power and knowledge about the parties' finances,
for example. Collaborative divorce, because of its additional
support for parties, is better equipped to handle relationships
with a history of abuse.
Hostile
litigated or contested divorces, in contrast, are expensive
both financially and emotionally, and can tend to poison any
future relationship the parents may have, which may be important
for future co-parenting. Fault grounds can be unpleasant enough
when true, and may sometimes be falsely alleged, as may anything
else that an unethical spouse can think of. In the 1990s, heated
debate arose over accusations of domestic violence and of child
sexual abuse arising in the course of hostile divorces. Some
found a rapid increase in such charges and in the percentage
of them eventually that were found baseless; others found there
to be no such problems. It is unlikely the truth will ever be
fully known.
States
vary in their rules for division of assets in a divorce. Some
states are "community property" states, others are
"equitable distribution" states, and others have elements
of both. Most "community property" states start with
the presumption that community assets will be divided equally,
whereas "equitable distribution" states presume fairness
may dictate more or less than half of the assets will be awarded
to one spouse or the other. Attempt is made to assure the welfare
of any minor children generally through their dependency. Thus,
the spouse given custody (or the spouse with the greater share
of residence time in the case of joint custody), may receive
assets to compensate their greater child-care expenses. Commonly,
assets acquired before marriage are considered individual, and
assets acquired after, marital. Depending on the state, an equitable
or equal division of assets is then sought.
Alimony,
also known as 'maintenance' or 'spousal support' is still being
granted in many cases, especially in longer term marriages.
Connecticut, for instance grants alimony in over 25% of cases.
Alimony is also likely in cases where a spouse has remedial
needs that must be met in order for the spouse to become fully
employable, for example that one spouse gave up career opportunities
or development in order to devote themselves to the family.
Permanent alimony becomes likelier in marriages that exceed
12 years.
A
decree of divorce
will generally not be granted until all questions regarding
child care and custody, division of property and assets, and
ongoing financial support are resolved. Since the mid 1990s,
a few states have enacted covenant marriage laws, which allow
couples to voluntarily make a divorce more difficult for themselves
to obtain than in the typical no-fault divorce action. For example,
couples who choose to undertake a covenant marriage may be required
to undergo counseling before a divorce can be granted, or to
submit their conflicts to mediation. In states lacking such
provisions, some couples sign contracts undertaking the same
obligations.
In
recent years, a few high-profile court cases have involved children
"divorcing" their parents, or being legally declared
emancipated minors. Perhaps the best known are those of actor
Macaulay Culkin and Olympic gymnast Dominique Moceanu. However,
these are not properly "divorce" cases, and different
laws apply.
Divorces obtained by US couples in a different country or jurisdiction:
Due to the complex divorce procedures required in many places,
especially including many states of the United States, some
people seek divorces from other jurisdictions that have easier
and quicker processes. Most of these places are commonly referred
to negatively as "divorce mills."
There
are four main reasons that people look to another jurisdiction
for a divorce:
New
York does not have a no-fault divorce, such as "irreconcilable
differences" as a legal cause for divorce, and fault is
required (often with strict legal requirements) or a separation
agreement in force for a year, such as New York State, thus
requiring one year from the time the legal separation went into
effect unless fault can be proven (possible in some cases just
by affidavit however, but the other spouse must not contest
the charges otherwise an often lengthy contested divorce is
required.)
Some
jurisdictions have complex and long residency requirements as
well as paperwork.
Many jurisdictions take a long time to issue a finalized divorce,
anywhere from 3 months to a year or even several in unique circumstances.
Finally,
some people are simply out to get around the financial hardship
of a divorce, and get a divorce from a jurisdiction that allows
fast uncontested divorces that offer little or no spousal support
to the defendant.
Divorces granted by other countries are generally recognized
by the United States as long as no person's rights were infringed
upon. The most notable in this situation is the notion of "due
process", which is required by the Constitution of the
United States and thus is not flexible. This means that the
spouse who is the defendant in the case must be notified of
the proceedings and be given a certain time frame to respond
to the allegations and state their case. This is only the case
in a contested divorce, as in an uncontested divorce both spouses
agree to the terms and sign off on the divorce; although in
almost any if not all of these jurisdiction only one spouse
is required to physically visit the country. While a contested
divorce where due process was not observed is likely to be ruled
invalid by a court in the United States if challenged, it is
not illegal, as matrimonial law is private law and not criminal
law, and is valid by default unless or until it is challenged
(usually in the state or country of residency of either spouse.)
Thus,
getting a contested divorce in another country is not likely
to achieve the goals of the spouse requesting it, and is possible
to even create a larger problem than before. An uncontested
divorce is likely to be upheld in a court of law however, regardless
of the general validity of contested divorces from these jurisdictions.
While a "quick" contested divorce is likely if challenged
to be declared invalid, it is, by case law, not considered bigamy
if you remarry as long as the obtainer believed the divorce
to be valid.
There
are 5 major jurisdictions people look towards for a divorce
in another state or country:
The
State of Nevada
Haiti
Mexico
The Dominican Republic
Guam
Haiti,
Mexico, and The Dominican Republic are fairly similar in this
regard. These countries people typically go to get an overnight/long
weekend divorce, or to get a quick and relatively painless contested
divorce (which are not valid unless due process has been observed.)
Quick
Divorce in the Dominican Republic is available to foreigners
or Dominican citizens residing abroad, when both spouses agree
to file this divorce before Dominican Courts. This procedure
is very simple and only requires the attendance of one of the
spouses during the hearing which takes usually less than half
an hour and you can leave Dominican Republic the same day in
the afternoon. It takes ten to fifteen days to obtain a divorce
decree.
The
parties should sign a settlement agreement revised by an attorney
in their jurisdiction in order to confirm it complies with spouses
local laws. This document should include spouses complete data,
a list of property, or statement of non-property, the statement
regarding minor children and support agreement, your desire
of divorcing before a Dominican Court and the authorization
of one of the spouses to the other to attend to hearing on her/his
behalf. The settlement agreement can be drafted by an attorney
in your jurisdiction. Both these documents settlement agreement
and power) must be signed by the parties before the Dominican
Consulate nearest to your jurisdiction. A detailed instruction
on legalization is to be provided to you when instructions to
proceed are received.
The
State of Nevada is commonly used for a few reasons. It only
requires a 6-week stay to meet the residency requirements, the
lowest in the United States. One easy way to demonstrate that
you have met this requirement is by having another resident
of Nevada simply sign an affidavit testifying to your residency
there. Nevada allows for "irreconcilable differences"
as a cause for divorce, the importance of which are mentioned
above. Also, it has an extensive and straightforward system
for marriage annulment, and attracts people who would prefer
an annulment (which declares the marriage wasn't valid in the
first place) than a divorce. One major reason this attracts
people is it allows for an easy bypassing of the mandatory 50/50
split in community property states, most notably the adjoining
State of California. Nevada, however, is also a community property
state and hence will follow similar rules in a divorce proceeding.
Guam
had (and still has some) very attractive reasons for obtaining
a divorce there. Guam is a territory of the United States. Because
Guam is a territory of the United States, its courts are United
States jurisdictional courts and the divorces it issues are
valid in all of the states in the US. Prior to January 1, 2006,
Guam allowed for an uncontested divorce without either spouse
visiting the territory at all. After being charged as a "divorce
mill", including by many in its own government, an agreement
was made with the lawyers and other lobbyists who did not want
to change the law to now require a 7-day stay in Guam (as opposed
to the much longer ones proposed) to obtain a divorce. Guam
allows for "irreconcilable differences" as a cause
for divorce, and Guam is much quicker to award a finalized divorce
than many US states, taking a few weeks at most. Before the
law was changed, it was a very attractive alternative for many
Americans, as it was also quite affordable. However, due to
its location in Southeast Asia, a trip there would be very expensive
and not a viable alternative for most Americans.
In
the case of disputed custody, almost all lawyers would strongly
advise you stay to the jurisdiction applicable to the dispute,
i.e. the country or state of you or your spouse's residence.
Even if not disputed, the spouse could later dispute it and
potentially invalidate another jurisdiction's ruling.
Frequently
asked divorce questions:
What is an Uncontested Divorce?
What is an Annulment of Marriage?
Do
I need a lawyer?
Where
can I find and download free printable online uncontested divorce
forms?
What
does the term Uncontested Divorce mean?
How
much will it cost to file for a divorce in family court?
Can
I get legal advice from this web site or employees of the court?
What
does Grounds For Divorce mean?
What
if I do not know where my spouse is living or how to contact
them?
What
can I do if my spouse is hurting or threatening me or my children?
What
happens with my health or life insurance benefits?
To
view divorce FAQ's specific to your state
click here:
What is an Uncontested Divorce?
An
uncontested
divorce is one in which the parties negotiate their
own settlement rather than going to trial and letting a judge
decide the divorce issues for them. Many people find that an
uncontested divorce or no fault divorce will benefit them for
several reasons. The divorce process seems to be faster and
less expensive. The parties maintain control over their future
by reaching their own decisions. The Court does not impose a
judgment on them after a trial. The parties are also better
able to maintain (or establish) a civil relationship if they
are not involved in protracted litigation with all of the positioning
and leverage that a contested divorce may invoke. The reduced
hostility makes it easier for divorced parents to raise children
together.
What is an Annulment of Marriage?
An
Annulment
is a way of terminating a marriage that is different from divorce
and separation. Annulment is the process of nullifying of a
marriage where the court declares that the marriage never took
place. In order to annul a marriage, the person seeking the
legal action must have sufficient grounds for annulment. What
follows is a list of a few of the requirements or grounds for
annulment which must be presented to the courts to terminate
a marriage in this way. Grounds for annulment typically involve
one party's lack of capacity for marriage or some type of fraud.
One ground for annulment is if one party had another living
husband or wife at the time of marriage. This is valid even
if the spouse knew about the other spouse prior to marriage.
In some cases a person may have been legally denied the right
to remarry, in which case this is sufficient grounds for annulment.
Do
I need a lawyer?
NO.
You do not need to hire a lawyer, but it is a good idea to retain
one if you and your spouse do not agree on the terms defined
in your Petition For Divorce or if your spouse has a lawyer.
If you are afraid for your safety or your children's safety,
or if you want help with your divorce even if you started the
divorce without a lawyer. Click here
to schedule a FREE consultation with
an attorney in your area about your divorce.
Every
divorce case is different, and specific laws vary from state
to state, but divorce cases generally follow one of two paths.
The parties may reach an agreement, submit that agreement to
the court in the form of a marriage settlement agreement for
approval, and receive a final divorce decree ending their marriage
and setting forth the terms of the divorce or dissolution of
marriage they’ve agreed upon. If the parties can’t
reach an agreement, the case will be scheduled for a contested
divorce hearing, where a judge will consider evidence like financial
records, witness testimony, and expert reports on issues like
valuation of property and custody arrangements.
Where
can I find and download free online divorce forms?
Register
with MyDivorceUSA.com
and get instant access to download free online state
specific divorce form papers and instructions. The
do it yourself divorce forms packets and kits with easy to understand
instructions found in our library are court approved and updated
regularly.
What
does Uncontested Divorce mean?
Uncontested
Divorce means your spouse has agreed with what you have asked
for in your Petition For Divorce, or your spouse is not fighting
your Petition For Divorce,
or your spouse does not answer your Petition For Divorce before
your court date.
How
much will it cost to file for a divorce?
When
you bring your Original Petition For Divorce to the court clerks
office for filing, you should expect to pay between $150.00
to $300.00 depending on your state and your county. You will
also need to have several forms notarized. A notary public will
charge between $5.00 and $10.00 to notarize a document. When
children are involved, other additional court expenses may arise
if the court orders DNA tests or drug screens. These tests typically
cost $125.00 for drug screens and $500.00 for DNA tests. If
the court orders you or your spouse to submit to these tests,
in most cases they will require you to take them the same day
you appear for your initial hearing. Also, most often when children
are involved in the divorce, the court will appoint an attorney
for the children. This is done to have a neutral opinion on
the children's best interests. The typical fee for the Ad Litem
attorney is around $500.00. You are expected to pay this fee
and any other court ordered expenses promptly to avoid the possibility
of putting your case in jeopardy. The court may not allow you
to wait until you get paid. Some judges may want to test to
see if you have a support group with enough resources to act
on behalf of the children in an emergency type situation. This
will be the case even if you are able to get the judge to agree
to an "inability to pay affidavit." This affidavit
is only for paying the court cost for filing your petition and
not the judges special orders. You will be required to pay for
court ordered drug tests, DNA tests, parenting classes, Ad Litem
legal fees, etc. if ordered to do so.
Can
I get legal advice from this web site or employees of the court?
NO.
Only lawyers can give you legal advice. No one at this site
or at court can tell you what to do about your divorce case.
This means you cannot ask us, the judge, court clerks or other
court staff for advice about your divorce case. If you do not
use a lawyer, make sure that you learn about your rights and
follow the steps outlined in your divorce instructions. Getting
a divorce can be very complicated. Even if you cannot afford
to hire a lawyer, you should try to speak with a lawyer in your
area about what to put in your Petition For Divorce. Some lawyers
will give you advice as you need it. This is called "unbundled
services". Other lawyers are only available if you retain
their services.
MyDivorceUSA.com
has partnered with TotalDivorce.com to offer a FREE divorce
attorney finder. Click here
to ask a local divorce attorney in your area to review your
divorce case. The service is free and with no obligation.
What
does Grounds For Divorce mean?
Grounds
for divorce is the term used to describe the reason(s) you are
seeking a divorce.
You can ask the court to grant you a divorce based on adultery,
cruelty, abandonment, your spouse has been convicted of a felony
offense and has been incarcerated. You have been living apart,
or your spouse has been committed to a mental institution with
little or no hope of recovery. These reasons are not all inclusive.
If you are uncertain as to what grounds for divorce you wish
to claim then you will want to consult with a licensed attorney
or your local legal aid office.
What
if I do not know where my spouse is living or how to contact
them?
You
do not need to know where your spouse is in order to get divorced.
However you will need to complete a few special divorce forms
which will prove to the court that you have done everything
within reason to try and locate your spouse.
What
can I do if my spouse is hurting or threatening me, my children
or family?
Every state has laws designed to protect victims of family violence
whether they are getting a divorce or not. If you have already
filed for a divorce, the court may grant you emergency orders
to protect you and the children involved in your divorce. If
you have not started the divorce process, you can apply for
a protective order if you fear that you or your children are
in danger. Your local woman's shelter, county attorney's office,
district attorney's office or your local legal aid office can
assist you in applying for a protective order. To locate the
office nearest you and to obtain information on the various
services they can offer please contact the National Hotline
For Domestic Violence at 1-800-799-SAFE.
What
is a protective order?
It
is a court order which protects you from someone who has been
violent or has threatened to be violent. The court takes this
subject very seriously.
How
can a protective order help me?
A
protective order can order the person for whom you are seeking
protection from:
•
Not to hurt or threaten to hurt you, your children
or your family.
•
Not to contact you or go near you, your children,
other family members, your home, where you work, or your children's
schools.
•
Not to have a gun or a license to carry a gun.
•
The
police can arrest you or your spouse for violating protection
orders.
How
much will it cost to file for a protective order?
Usually
nothing. There is not usually a fee for filing the application
for protection.
How
do I ask for a protective order?
Fill
out the protective order application forms available from our
library. Take two (2) copies of them to the county courthouse
in which you or the other person resides. If you have already
filed for divorce or you have a custody case pending against
the other person, you should file these forms in the same county
where you live or the court where you have filed your divorce
or custody case.
What
happens with my health or life insurance benefits?
Health
or life
insurance coverage may become an issue for you or your children
during or after a divorce. If you are concerned about your health
or life insurance coverage or you want to see what it will cost
you for reasonable insurance coverage, you will want to look
into the options available by shopping
for insurance coverage. Internet insurance quote
engines provide you the ability to compare multiple
insurance rates from trusted insurance providers by filling
out one short form. This makes the process of finding quality
insurance much faster and at the same time providing you with
many policies and coverage options to choose from. Most people
can get a quality insurance plan for less than they think. It
is even possible to save money over the rate you would have
to pay for health or life insurance through your employer. Health
insurance for yourself or your children could cost as little
as $65.00 per month. Quality life insurance coverage may cost
even less. Usually around $25.00 per month for $100,000 worth
of coverage.
You
can find out exactly what quality insurance coverage will cost
you by visiting DirectConnectInsurance.com
and requesting a free online quote.
Disclaimer:
Informational
Purposes Only...
This
web site is designed to give you general information. The information
on this web site is in no way intended to be legal advice. Legal
advice can only be obtained by a licensed attorney who has the
appropriate legal skills and knowledge related to your specific
circumstances.
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Advertising:
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time to time this web site may advertise the services of attorneys
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and should not be based solely on the advertisements listed
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this site does not constitute a recommendation of the attorney.
Before hiring an attorney you should investigate their reputation
and qualifications yourself. If you are in need of legal assistance,
click here to schedule a FREE
consultation with an attorney in your area about your divorce
case.
D. Moore - Houston, TX 
LowerMyBills.com 
