Getting Divorced

The ins and outs of ending a marriage.

A divorce is a judgment by a court that ends a marriage and redefines the relationship of the former husband and wife. In some cases, where the couple has been married for a short period of time and where there are no children, the relationship will simplyend, and the parties will each go their own way. But when the marriage has been of longer duration, when there are conflicts about how to distribute property acquired during the marriage, and especially when there are minor children to support, the end of the marriage doesn't mean the end of all contact between the former husband and wife. In fact, if the children are very young, a relationship between ex-spouses can continue for many years after a divorce is granted.

Until the 1970s, the law made it extremely difficult to end a marriage. Divorces were granted only when one spouse or the other was guilty of what's known as "marital misconduct," such as physical cruelty, abandonment or adultery. As a result, obtaining a divorce was an embarrassing and traumatic experience, and many couples remained in loveless marriages out of fear of the scandal that would result from making the accusations necessary to obtain a divorce.

While no one would suggest that divorce today is an easy or inconsequential experience, states have changed their divorce laws significantly during the past quarter century in ways that tend to lessen the trauma of divorce. Today, every state and the District of Columbia have enacted what are known as "no-fault" divorce laws.

These laws no longer require proof of marital misconduct by one spouse or the other. Now, in order to obtain a no-fault divorce, a court must find that a couple's marriage is irretrievably broken, that the couple is incompatible, or that it suffers from irreconcilable differences. In some states, a divorce may be granted by showing that the couple have lived apart for a specified period of time.

Although these no-fault divorce laws no longer require that the spouse seeking the divorce show misconduct by the other spouse, in about two-thirds of the states a petition for divorce may still to be based on grounds of misconduct. In these states, courts can consider a spouse's misconduct when deciding issues such as child custody, visitation and alimony payments.

No-fault divorce is sometimes confused with uncontested divorce, but the two are not the same. In an uncontested divorce husband and wife have no disagreement about ending the marriage, and agree with each other about how to divide marital property, who will pay spousal and child support (and how much), and the issues of child custody and visitation. In a no-fault divorce, any or all of these issues could be a source of conflict between the parties which must be decided through negotiation or the imposition of a decision by the court.

Although the exact procedures for obtaining a divorce vary somewhat from state to state, the basic steps in obtaining a divorce are essentially the same just about everywhere.

To begin the divorce proceeding, a petition is filed by one of the spouses requesting that a divorce be granted. Not surprisingly, the spouse who files the petition is referred to as "the petitioner." The petition states the grounds on which the divorce is sought. It may ask the court to award a specified amount of alimony (also called spousal support, or maintenance). If there are children, the petition may include a proposed custody and visitation arrangement. It must also state why this particular court has jurisdiction over the divorce.

A court's jurisdiction is its legal authority to hear a particular case. In divorce proceedings, jurisdiction is primarily based on the state and county in which one or both of the spouses reside. Most states require that you be a resident of the state for a specified period of time before filing the petition.

The court will then issue a summons and a copy of the petition to the other spouse (called "the respondent"), which serves as notice that the divorce petition has been filed and gives the respondent a chance to answer the petition. Failing to file an answer will allow the divorce to proceed uncontested.

If both spouses agree about all the issues surrounding their divorce, they can file a copy of their separation agreement at this point to expedite the divorce process. By filing the answer and the separation agreement, the respondent agrees to accept the court's jurisdiction, and asks the court to approve the settlement and grant the divorce. If the court finds that the settlement is acceptable, it will grant a divorce.

If areas of disagreement still exist, the next step after the respondent's answer is a process called discovery. In this step, each side in the divorce assembles evidence regarding the issue or issues in debate. This can be a relatively informal process, or one which takes the form of interrogatories, depositions, and subpoenas, as each side tries to make the best case for its position. After discovery, settlement negotiations will be held in an attempt to arrive at an agreement acceptable to both husband and wife.

If an agreement is reached, a court hearing is held. The settlement is reviewed, and if the court finds it to be fair, the divorce will be granted. If there's no agreement, the court will conduct a trial on the disputed issues and decide the outcome under the guidelines of state law. Ultimately, the divorce will be granted. The court will issue a final decree, or judgment of divorce, and in some states a divorce certificate will be filed with a state agency, such as the Office of Vital Records. At this point, the marriage is officially ended.