|
|
|
Do
It Yourself Divorce - No Fault
Following is information for
people seeking to do their own divorce, which is also
known as a No Fault Divorce.
NO FAULT DIVORCE
Beyond the considerable emotional pain, the end of
a marriage is legally complex. This page reviews
alternatives to divorce and failing these, the
procedures for obtaining a divorce. Consult a lawyer
if your marriage is ending. You will need sound
professional advice to determine child custody,
financial support, and make a fair division of the
property of the marriage.
ALTERNATIVES TO DIVORCE
Depending on your circumstances, you may wish to
consider alternatives to divorce - marriage
counseling, annulment or separation. Many couples try
counseling from a marriage counselor, social worker or
psychotherapist as an alternative to divorce. Such
counselors are trained to help couples resolve
differences. The counselor may be able to help you and
your spouse learn communication skills and a better
understanding of one another to prevent your marriage
from failing. Marriage counseling can be useful when
couples find their problems have begun to affect their
compatibility with each other. Counseling may also
keep a relationship with your spouse from worsening
even if divorce is unavoidable.
An annulment is a court ruling that a marriage was
never legally valid. A marriage can only be annulled
if there was a serious defect at the time of the
marriage ceremony. In most states, marriages can be
annulled if one of the parties was under age at the
time of the marriage, if a spouse could not consummate
the marriage, if consent was obtained fraudulently, or
if the marriage was bigamous or incestuous.
If you and your spouse separate, it is best to enter
into a separation agreement or obtain a court order of
separation. A separation agreement is a contract
between you and your spouse that can provide for
spousal support, child custody, visitation rights, and
a division of the property acquired during the
marriage. The agreement can be enforced by courts if a
party does not comply. If the parties later divorce,
it may be included in the divorce judgment.
If the parties cannot agree to a separation agreement,
your lawyer may recommend that you obtain a court
ordered separation. This requires a lawsuit. The court
may decide issues of child custody, visitation rights,
support and property division as part of the
separation agreement, the annulment, or as we shall
see, in divorce.
GROUNDS FOR DIVORCE
Common grounds for a fault divorce are adultery,
bigamy, cruelty, desertion, incest and insanity.
Hawaii has adopted "no fault" divorce laws
that allow divorce without showing that one spouse was
at fault. A divorce can be obtained because of
incompatibility or irreconcilable differences or if
spouses live apart for a period of time.
DIVORCE PROCEDURE
Divorces may be uncontested or contested. An
uncontested divorce can be granted when the parties
agree on all issues such as child custody, support and
property division. It may involve the filing of papers
at the courthouse and, perhaps, a brief appearance
before a judge.
A contested divorce, where the parties cannot agree to
terms, resembles a standard lawsuit with a trial
before a judge.
In some states, mediation is part of divorce procedure
for spouses who cannot agree on the terms of a
divorce. Mediators are used in place of judges to
resolve disputes on matters like child custody,
visitation, and property settlements. You and your
spouse can meet with the mediator to discuss the
issues and work out an agreement acceptable to both of
you. Lawyers and judges are usually not present during
mediation sessions and formal legal procedures do not
apply. A judge will decide the issues if you are
unable to resolve them through mediation.
After the judge grants a divorce, you may have to wait
a short period before remarrying. The waiting period
ranges from one day to one year after the judge's
approval of the divorce depending on the state.
CHILD CUSTODY AND VISITATION
Child custody can be given exclusively to one spouse,
or you can share joint custody. In most cases, one
parent has sole custody and the children live with
that parent. The other parent usually has visitation
rights taking the children on weekends, holidays, or
vacations. In certain circumstances, the parties may
agree or the court may order joint physical custody
where the children spend time living with both parents
on a regular basis. Frequently, spouses share
responsibility for important decisions affecting their
children, such as choosing schools and medical
treatment.
If you are unable to agree on custody, the court will
award it based on considerations such as parental
fitness, the preferences of the children, and their
age and sex. A party who later wants a change in
custody must show that conditions have changed and
that a new arrangement is in the best interest of the
children.
SPOUSAL AND CHILD SUPPORT
Spousal support is called alimony or maintenance in
some states. Either you or your spouse may be entitle
to spousal support depending in your income and
property, your standard of living, your financial
needs, and the circumstances leading to the divorce.
If you and your spouse are unable to agree on support,
a judge will decide who should pay it, how mush is to
be paid, and how long it will continue. The judge may
award spousal support until the receiving spouse is
self supporting or until death or remarriage.
You and your spouse are both responsible for the
support of your children. If you cannot agree on child
support, the court will apportion the responsibility
based on custody, your incomes, financial resources
and other obligations.
In some cases, you and your spouse may go back to the
court in later years to ask the judge to increase or
reduce the spousal or child support. However, you must
be able to show that there has been a change in
financial resources or needs.
DIVIDING PROPERTY AND DEBTS
States have their own provisions for dividing property
at divorce. Many divide only property acquired during
the marriage; some states include property which a
spouse owned before the marriage or received as a gift
during the marriage. If you and your spouse are unable
to agree on who gets what, the court will divide the
property based on various factors. The court may
consider the contributions of each spouse to the
property, the contributions of each spouse to child
care and homemaking, the financial resources and needs
of each spouse, and the income and career potential of
each spouse. Your lawyer can help you obtain a fair
division of property and help you avoid overlooking
valuable assets such as pension rights.
TAX CONSIDERATIONS
A divorce has important tax consequences. Custody can
affect your taxes, including your right to claim head
of household status, dependent exemptions, and child
care credit. Support payments may be taxable or
deductible. The property division may also affect your
taxes. Your lawyer can advise you about the tax
aspects of divorce.
YOUR LAWYER
You should consult a lawyer if your marriage seems to
be ending. Your lawyer can advise you about your
rights to custody, property and support. Your lawyer
can also prepare a separation agreement, assure that
timely steps are taken to obtain a divorce and advise
you when unexpected problems arise. Your lawyer can
also seek protection if your spouse threatens to
assault or harass you, take your children in violation
of custody or visitation rights, or hide property
belonging to the marriage.
CONCLUSION
Divorce is emotionally and financially complex. It is
important to see a lawyer to protect your rights and
your fortune. Your lawyer may help you to save your
marriage be referring you to a marriage counselor. If
divorce is unavoidable, your lawyer can help you take
the steps to end the marriage and advise you about
obtaining custody of your children, support and a fair
division of property.
|