Divorce, also known as dissolution of marriage, is the process of terminating a marriage or marital union. Divorce usually entails the canceling or reorganizing of the legal duties and responsibilities of marriage, thus dissolving the bonds of matrimony between a married couple under the rule of law of the particular country or state. Divorce laws vary considerably around the world, but in most countries, divorce requires the sanction of a court or other authority in a legal process, which may involve issues of distribution of property, child custody, alimony (spousal support), child visitation, access parenting time, child support, and division of debt.
Marriage may be seen as a contract, a status, or a combination of these. Where it is seen as a contract, the refusal or inability of one spouse to perform the obligations stipulated in the contract may constitute a ground for divorce for the other spouse.
Though divorce laws vary between jurisdictions, there are two basic approaches to divorce: fault-based and no-fault based. However, even in some jurisdictions that do not require a party to claim fault of their partner, a court may still take into account the behavior of the parties when dividing property, debts, evaluating custody, shared care arrangements, and support. In some jurisdictions, one spouse may be forced to pay the attorney’s fees of another spouse. Laws vary as to the waiting period before a divorce is effective. Also, residency requirements vary. Divorce laws are not static; they often change.
If you find some or all of the above information hard to understand and follow, we understand. As Mediators, we try to simplify the process and help you navigate through the experience with fewer misunderstandings and a lot less stress, time, and expense.
In some jurisdictions, the courts will seldom apply principles of fault, but might willingly hold a party liable for a breach of fiduciary duty.. Some states have no-fault divorce, some states require a declaration of fault on the part of one partner or both; some states allow either method.
In most jurisdictions, a divorce must be certified (or ordered by a Judge) by a court of law to come into effect. The terms of the divorce are usually determined by the courts, though they may take into account prenuptial agreements or post-nuptial agreements, or simply ratify terms that the spouses may have agreed to privately (this is not true in the United States, where agreements related to the marriage typically have to be rendered in writing to be enforceable). In absence of agreement, a contested divorce may be stressful to the spouses.
Contested divorce
Contested divorces mean that one of several issues are required to be heard by a judge at the trial level—this is more expensive, and the parties will have to pay for a lawyer’s time and preparation. In such a divorce the spouses are not able to agree on issues for instance child custody and division of marital assets. In such situations, the litigation process takes longer to conclude. The judge controls the outcome of the case. Less adversarial approaches to divorce settlements have recently emerged, such as mediation and collaborative divorce settlement, which negotiate a mutually acceptable resolution to conflicts. This principle in the United States is called ‘Alternative Dispute Resolution’ and has gained popularity.
This process (Mediation) is one of several areas that we specialize in. We are a Certified Corporation with Certified Mediators and in most cases we can quickly help you through a difficult and expensive situation. Talk to us and see if we can help.
No-fault divorce
Most Western jurisdictions have a no fault divorce system, which requires no allegation or proof of fault of either party.
Uncontested divorce
It is estimated that upwards of 95% of divorces in the U.S. are “uncontested” because the two parties are able to come to an agreement (either with or without lawyers/mediators/collaborative counsel) about the property, children, and support issues. When the parties can agree and present the court with a fair and equitable agreement, approval of the divorce is almost guaranteed. If the two parties cannot come to an agreement, they may ask the court to decide how to split property and deal with the custody of their children. Though this may be necessary, the courts would prefer parties to come to an agreement prior to entering court.
Where the issues are not complex and the parties are cooperative, a settlement often can be directly negotiated between them. In the majority of cases, forms are acquired from their respective state websites and a filing fee is paid to the state.
Again this is an area we can help you with. We can prepare the agreement for your approval and provide the necessary paperwork to be submitted to the courts,
Mediated divorce
Divorce mediation is an alternative to traditional divorce litigation. In a divorce mediation session, a mediator facilitates the discussion between the two parties by assisting with communication and providing information and suggestions to help resolve differences. At the end of the mediation process, the separating parties have typically developed a tailored divorce agreement that can be submitted to the court. Mediation can be conducted with the assistance of a facilitative or mediator without attorneys present at all. Divorce mediators may be professional mediators who are not attorneys, but who have training specifically in the area of family court matters. Divorce mediation can be significantly less costly, both financially and emotionally, than litigation. The adherence rate to mediated agreements is much higher than that of adherence to court orders. Mediated divorces have become a lot more popular, to the extent that many of the states have instituted a new law that will require divorcing couples to consider mediation before applying to court.