The process of a couple divorcing is not something that happens quickly, overnight. In the vast majority of states in America, there are a number of steps that a couple is required to go through in order to be able to dissolve their marriage. Each of these various steps will be listed below so that, if you are going through the process, you will have a better understanding of what exactly is involved.
Separation
Prior to any divorce, there is typically some time where the couple is actually separated, usually living separately from one another. This is something that a couple can decide to do by themselves or they can go down a more formal route of asking the legal system to acknowledge their separation. No matter what route a couple goes down to separate from one another, it is important to be aware that this is something that is completely different from a divorce. Whilst separations can be temporary, when a couple becomes divorced from one another, this represents the permanent dissolution of a marriage.
Depending on where exactly in the USA a couple is located, they may be required to separate from one another before being allowed to start the process of getting divorced. There are a handful of states where it is not necessary for couples to be separated prior to applying for a divorce. That being said, as soon as one spouse files for divorce, then the natural consequence of this is often separation anyway. Each and every state throughout the country has its own interpretation of exactly what separation is. For instance, in some states, it is a requirement that the couple live in different properties, whereas in others it allows them to still live in the same house, but requires them to not engage in any sort of sexual activity with one another.
Trial separation
Every relationship out there will always have its good bits and its bad bits – the ups and downs. Where a couple agrees between themselves that they want to take a break from being together, but where there is still the chance that they may eventually get back together after this, then there is the option to partake in a trial separation. During this process, it can be helpful for a couple to attend some sort of counseling therapy in order to help with the issues that the couple clearly has.
As far as trial separations are involved, the legal system does not get involved with them. For this reason, both of the spouses need to agree on the decision to separate. Usually, during the process of a trial separation, the marital property law that is applicable in the local state remains in place. This means that anything that either spouse purchases during the time that they are separated is still considered to be marital property, thus it belongs to both of the spouses.
Where a trial separation lasts longer than one month, then it is usually the case that a couple will put together some sort of terms regarding the separation in order to avoid any confusion and so that the expectations of it are clearly spelled out from the very start of the trial separation period. For instance, couples may make note of how long they will be separated, how children will be looked after (if applicable), who will be responsible for paying for the household bills, when each spouse will be able to see their children (if applicable), if a bank account will be shared, and any other points that are deemed to be important.
Legal separation
In certain states in America, those couples that do not end up getting back together after a trial separation, but are not at the point where they want to file for a divorce, are able to seek legal separation via the courts. This is typically the route that couples go down when the act of getting divorced is something that is not prohibited by their religion or where a couple wants to remain married in order to be covered by their health care, for tax purposes or because they share certain social benefits. However, this is not something that is offered in every one of the 50 states. Where this service is available to couples, the process of becoming legally separated is actually very similar to that of becoming divorced; the only difference being the final outcome – with a legal separation, the couple still remains married. In order for a legal separation to happen, both of the spouses must agree to file for the separation. If for whatever reason one of the spouses decides to file for a divorce instead, then the legal system will proceed with this filing instead.
For those couples that live in a state that does not offer legal separation, then they may be able to apply for permanent separation by going through a written, formal settlement agreement with one another. This will handle all of the main issues in the marriage, such as things like the following:
- How debt and property is divided
- Spousal support (alimony)
- Child support and custody
Any couple that is unsure as to whether or not legal separation is allowed in the state that they live in, they should speak with an experienced Separation & Divorce Attorney in Lincolnton here.
Filing for divorce
If it has come to the stage with a couple or even a single spouse that divorce is the necessary step to take, then in order to do this, a specific legal process must first be initiated. Prior to filing any paperwork, it is important to check with the court in order to determine if it is a requirement in the state for a couple to already be living separately before being able to file for divorce. If divorce is filed too quickly, there is the very real risk that it is rejected by the court and the process needs to be started all over again from the very beginning.
The spouse that is responsible for filing the divorce is required to submit a divorce petition to their local court. This is also sometimes referred to as a complaint about the purpose of dissolving a marriage. Doing this will start the divorce case off. This divorce petition includes the following things:
- A request relating to the division of property, custody of children (if applicable), alimony, and/or child support.
- The reason for wanting to seek a divorce.
- Information about any children that the couple has together.
- The personal information of both of the two spouses (social security number, address, name).
After completing this divorce petition, it must then be submitted to the local court with any other paperwork that is required for the process. The fee for filing for divorce must also be paid at this point. For those couples of spouses that cannot afford the cost to file for a divorce, there is the option to apply for a waiver of this filing fee. Where this is approved by a judge, then there is no requirement for the filing fee to be paid.
Grounds for filing for divorce
When it comes to a divorce, there are two different types – a fault-based divorce and a no-fault-based divorce. Where one of the spouses has not done something wrong, this is considered to be a no-fault divorce. This usually occurs because of differences that are not reconcilable or because the marriage is broken beyond all repair. In some certain states in America, couples or spouses are able to use separation for a certain period of time as reasonable grounds for filing for a divorce. Although this is not deemed as a classic reason for a no-fault divorce, it does have some similarity in that it does not involve any allegations being made about wrongdoing by the other spouse.
All states allow for no-fault divorces or for divorces based on the grounds of previously being separated for a specific amount of time. These types of divorces are much less time-consuming and much cheaper than fault-based divorces.
Some states in America allow for spouses to go down the fault-based divorce route. With this type of divorce, one of the spouses makes an allegation against the other one regarding an act of wrongdoing and this is what made the couple break up. Sometimes this route is taken by one spouse in the hope that it influences any decisions that are made regarding spousal support and property division in their favor.
In those states where this type of divorce is permitted, the most common reasons why fault-based divorces are filed is physical abuse, abandonment, drug abuse, alcohol abuse, and adultery. In order to file for fault divorce, the spouse making the allegation must be able to prove what they are saying in a court of law. This is why this process can take so long and why it is more expensive than a no-fault divorce.
