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Introduction to Ways to Dissolve a Marriage through Divorce
Even though wedding vows are meant to be till death does the couple part – that is just not always how a marriage works out. There are a lot of options for a married couple when the marriage is no longer functioning in the manner the couple imagined. Whether the couple does not get along, a spouse (or both) are cheating, or fraud is involved, the couple will have a few different routes to dissolve their marriage but divorce is the most common.
What is a Divorce?
A divorce is a decree from the court that terminates a marriage.[i] This is also known as a marital dissolution.[ii] A divorce decree sets out to establish the new responsibilities and duties owed between the soon to be ex-spouses.[iii] Historically, when a divorce was granted, there were not a lot of responsibilities to discuss. If a divorce were granted even fifty years ago, the wife would automatically receive custody of the marital children and the husband would be required to pay for those children and alimony to the wife.[iv] Today, this is not the case. Child custody is determined based off the best interests of the child, which in many cases may mean that dad will receive custody of the children. The court will also determine alimony, which again could go to husband or wife, depending on the financial circumstances of the marriage.
So, even though a couple divorces, there may still be a lot of financial and emotional responsibilities between the couple. When children are involved, the question of who those children will live with and who will pay child support becomes very important – as well as the topic of alimony. If there is a lot of property between the couple, the court will need to separate and allocate that property, and is done so based on the laws of that state. If the couple was only married for a brief while, there are no children involved and very little marital property, the divorce could go by more quickly and result in less responsibilities post divorce. Everything will depend on the facts for the particular marriage being dissolved.
Fault Based Divorce vs. No Fault Based Divorce
Even though we are free to marry whom ever we chose here in the United States, with some restrictions, some states still require some sort of fault to actually end a marriage. A fault based divorce means that the court will require the spouse asking for a divorce to show that the other spouse is at some fault as defined by the state.[v] While not many states do not require fault based divorced, like Arizona, some states still do require it, like Maryland. In the states that do require fault based grounds for divorce, here are some of the examples of what constitutes fault: cruelty (inflicting unnecessary emotional or physical pain) (this is the most common ground for fault based divorce, adultery, desertion for a specific amount of time, incarceration for a set number of years, or physical inability to engage in sexual intercourse (if it was not disclosed prior to the marriage).[vi]
Now, asking for a fault based divorce is not limited to just the states that require it. In states that do not require fault based divorce, a spouse may still ask for fault based divorce and there are a few benefits to doing so. First of all, some states require that the spouses go through a separation period before approving their petition for divorce.[vii] With a fault based divorce petition, the couple may be able to receive their divorce faster.[viii] Also, depending on the state, if a spouse seeks a fault based divorce, that spouse may receive more of the marital property and more alimony.[ix]
Considering how many different grounds for fault are available for spouses seeking that type of divorce, it is possible that both spouses are at fault. Both spouses may be cheating on one another, thus committing adultery, or both spouses may be cruel to one another. In those cases, it use to be the case that neither spouse would be eligible for a divorce and the court would dismiss the petition.[x] This is no longer a common practice in the divorce courts, but it could play a role in dividing up the marital property or deciding alimony.
Now, a no fault based divorce is a divorce where one spouse is seeking for a divorce and is not required to prove that the other spouse did anything wrong.[xi] Nearly all states currently allow for this type of divorce. It is important to note that the divorce seeking spouse still has to include a reason for the divorce, but they are no longer required to show fault.[xii] Instead, the divorce seeking spouse has to declare a more general reason for the divorce. The most commonly used reason is irreconcilable differences – which means the spouses just no longer get along.[xiii]
Even though many states do not require fault for a divorce, the courts will require that there is a waiting period before granting the divorce.[xiv] Generally, the court will require that the spouses live as if they were separated from anywhere between a few months to even over a year before the court will grant the divorce.[xv]
Ex Parte Divorce
Not just anyone can walk into a court and receive a divorce; the court has requirements before a divorce can be granted. Those requirements include that the spouses seeking the divorce by the court must be a resident of the state where the court presides.[xvi] The spouses must have been residents of that state for at least six months, and sometimes even a year, before they can file for a divorce in that state.[xvii] There are three states where there is no residency requirement, so as long as you live in the state when you file for divorce, you are okay. Those states are Alaska, South Dakota, and Washington.[xviii]
Even though it is traditional, and required in most states, for both spouses to go before the court to obtain a divorce, there are plenty of scenarios where one spouse goes before the court to obtain a divorce without the other spouse’s presence or even knowledge. One example of one spouse obtaining the divorce without the other spouse’s knowledge would be in cases of domestic abuse. The court traditionally only grants divorces to couples that live in the state where the court resides. When it comes to an ex parte divorce, meaning only one spouse is before the court, the court may grant a divorce to one spouse even though the other spouse lives in another state.[xix]
Now, an ex parte divorce will only legally grant the divorce – the court will not make any determinations for alimony, child custody, or child support. For spouses who have left the home because of domestic violence, becoming legally divorced from the abusive spouse may be the only thing the spouse is seeking anyways. The spouse seeking an ex parte divorce must show why the court they have petitioned should grant their divorce, and the reason must be compelling. The court cannot just grant a divorce because the spouse moved out of state and did not want to go back to their home state. Even if the petition seeking spouse has lived in that state for more than six months and the court could otherwise grant that spouse a divorce, the court will still consider the fact the other spouse does not live there and will require a compelling reason as to why that spouse cannot go back to the other state to obtain the divorce.
Objections to Divorce
In a no fault divorce state, a spouse is unable to make an objection to a divorce.[xx] In fact, it is often viewed that if one spouse objects to a marriage it just further proves that the spouses have irreconcilable differences.[xxi] In states where fault based divorce is still available, a spouse may make an objection to the divorce.[xxii] Objections, or defenses, to a divorce action are very time consuming and expensive, which is why they are rarely used. If a defense is used, it may be one of the following: condonation, which is someone’s approval for the other’s activities (a wife who does not object to a husband’s adultery), connivance, which is one spouse setting up a situation so that the other spouse commits a wrong doing (like adultery), provocation, one spouse inciting the other spouse to commit a certain act (if one spouse is suing the other for fault based on abandonment, the suspected spouse at fault may argue that the other spouse provoked that abandonment in some way), and collusion, which means that the couple is working together to mislead the judge (if the couple lives in a state where no fault is required, but a separation period is required, the couple may work together to say one spouse is at fault so they can skip the waiting period and divorce right away).[xxiii]
If a spouse seeks a fault based divorce in a state where fault based grounds are not required and the court approves of one of the objections to the divorce, the divorce will likely still be granted but the divorce will not be granted in favor of either spouse. As stated previously, if fault was found on part of one spouse, the court may grant the other spouse more of the marital property and more alimony – but if no fault is found, it is as if the court just went straight to a no fault divorce.
Conclusion to Ways to Dissolve a Marriage through Divorce
Even though nearly all marriages start out very blissful and exciting, many marriages end in divorce. In fact, in the United States, nearly half of all marriages will end in divorce – and that is not including marriages that are continued even though both spouses are unhappy. For couples that want to seek a legal remedy to their unhappiness, divorce is the most common form of dissolution of marriage and there are many ways to seek a divorce. There is a fault based divorce, no fault based divorce, and even an ex parte divorce. Depending on the circumstances of the divorce and the state the couple live in, any number of options will available to that couple.
[i] See Divorce Free Legal Dictionary (Accessed July 25, 2016) http://legal-dictionary.thefreedictionary.com/divorce
[v] See No Fault Divorce vs. Fault Divorce FAQ NOLO Legal Encyclopedia (Accessed July 25, 2016) http://www.nolo.com/legal-encyclopedia/no-fault-divorce-vs-fault-divorce-faq-29080-2.html
[xiv] See No Fault Divorce vs. Fault Divorce FAQ NOLO Legal Encyclopedia (Accessed July 25, 2016) http://www.nolo.com/legal-encyclopedia/no-fault-divorce-vs-fault-divorce-faq-29080-2.html
[xvi] See No Fault Divorce vs. Fault Divorce FAQ NOLO Legal Encyclopedia (Accessed July 25, 2016) http://www.nolo.com/legal-encyclopedia/no-fault-divorce-vs-fault-divorce-faq-29080-2.html
[xx] See No Fault Divorce vs. Fault Divorce FAQ NOLO Legal Encyclopedia (Accessed July 25, 2016) http://www.nolo.com/legal-encyclopedia/no-fault-divorce-vs-fault-divorce-faq-29080-2.html