Once it’s obvious that you both want to terminate your marriage, the next phase is to figure out how to get a divorce. You are going to need to decide if you:
- can deal with your own divorce through a DIY approach
- want to undergo mediation (with or without a lawyer) to resolve disputed matters, or
- are going to need to hire a lawyer for representing you through settlement and/or in court.
There are a couple of aspects to think about when choosing which divorce path is appropriate for you.
Is One of You Going to Pursue a Fault Divorce?
Spouses are required identify grounds for their divorce when they file their case. Every state and Washington DC enable spouses to file for divorce based on no-fault grounds, meaning no one is at fault for the failed marriage. Spouses can just cite “irreconcilable differences,” in which is sometimes called “irretrievable” or “irremediable breakdown of the marriage,” subject to where you reside. These conditions are in reference to the same basic concept—that the couple simply can no longer get along, there is no chance of a reunion, and the marriage is beyond repairing. There’s no need to determine and prove misconduct or bad behavior that was cause of the divorce. In many states, spouses can optionally base their divorce on a separation for a specific period of time.
In many states, spouses are still able to file for a fault-based divorce, meaning the grounds for divorce is that one spouse was involved in misbehavior that led to the break-up of the marriage. These vary by state, but the most common fault grounds include cheating, neglect, abuse, and addiction to alcohol and/or drugs. Fault cases usually take longer to resolve in court since you have to present admissible evidence and prove to a judge the misbehavior happened and that it was the cause of the divorce.
You should talk to a knowledgeable family law attorney near you prior to you filing for a fault-based divorce to determine if you fulfill the requirements, are able to prove your case, and if there is an advantage for seeking a fault divorce that might outweigh the extra legal and court costs, strain, and strife with your soon to be ex.
Has Your Soon to be Ex By Now Hired a Divorce Attorney?
When you get served with divorce papers by your spouse’s attorney, you should speak with an attorney sooner than later. Divorce and family law regulations vary by state, and unless you presently know your state’s laws and localized regulations, you are going to have a lot to learn and comprehend.
Family law is a dedicated field and a simple error on your documents could have life-long consequences or unintended ramifications. Since the risks are so high and personal in divorces, it’s wise to try and not take on a knowledgeable family law attorney. After your spouse has hired a lawyer, you need to hire one too, they can explain your rights and responsibilities, use comprehensive knowledge to advocate for you, and get the best possible outcome for you and your family.
Do You Both Have Minor Children With Each other and Agree on Custody and Child Support?
When parents that are getting divorced have children that are minors, they are going to have to make decisions concerning child custody, both legal and/or physical. Legal custody is in reference to the right to for making decisions about your child’s health, schooling, and well-being, whereas physical custody is in reference to where the child is going to live and if each of the parents are going to spend an equal time with the child or if one parent is going to be the primary parent.
Parents also must agree on child support matters, including who is going to pay, what the amount is going to be, and how often payments are going to be made. Each of these matters should be established using state instructions and are required to be in the best interests of the child
When parents can’t come to an agree on these matters, they are either going to have to go to mediation to attempt to reach an agreement or they are going to end up going to court and requesting a judge to decide for them.
Do You Both Agree on Spousal Maintenance?
Alimony (also referred to as spousal support or spousal maintenance subject to your location) are payments made from the higher-earning spouse to the lower-earning or un-employed spouse for a period of time.
There are a multitude of kinds of alimony, in which are planned to cover multitude things. For instance, temporary alimony is paid throughout the divorce proceedings so the lower-earning spouse can fulfill basic needs, such as food, living accommodations, and other costs. It concludes when the divorce case is finalized, and a judge will issue another alimony order.
Long-term or permanent alimony is contingent on longer marriages, whereas one spouse has the financial capacity to pay, and the other has a lower or no earning ability. It’s intended to enable the supported spouse to live as close to the marital lifestyle as feasible. The rules on establishing the amount and period of alimony differ between states, but if you and your ex can’t come to an agreement on this matter, it might be time to think about mediation or to talk to an attorney and go to court.
Do You Both Agree on How to Split Your Property and Debts?
Overall, in every state, the assets you and your spouse obtain throughout your marriage are deemed “marital property, in which are required to be divided in some sort of way between the both of you when you divorce.
In communal property states, marital property is referred to as community property and is divided down the middle—fifty-fifty. In states that have equitable distribution, marital property is split equitably, meaning it’s split in a way the court deems is fair, which is sometimes not fifty-fifty.
Marital debts are split in a likewise fashion, but there are exceptions when one spouse squandered away assets without approval or run up debts that weren’t beneficial for the family. For instance, when one spouse used marital capital to incur gambling debt or to go on trips and purchase gifts for an adulterous affair, a judge is going to typically delegate these debts to the “guilty” spouse and dictate that the “innocent” one be compensated.
When you and your spouse don’t have that much property or little debt to split or if you can agree on what accounts for marital property, what it’s worth, and how it needs to be divided, then you can most likely manage this aspect of the divorce on your own. If you can’t come to an agreement or believe you need assistance coming to one, you need get a hold of a mediator or connect with an attorney that can represent you in court.
Choosing if you Should DIY
If your case is somewhat straightforward—for example, you both don’t have significant assets or minor children with one another—and you both on the important matters, DIY is very possible.
If you both disagree concerning any of your divorce-associated matters, mediation could be a wise choice; it is able to even work when divorcing spouses disagree on significant matters. Sometimes spouses can work alongside a mediator and otherwise manage their case on their own. Sometimes, it a good idea for a spouse to also hire an attorney, that is able to work out of sight and help navigate them throughout the mediation process.
Collaborative divorce is one other option to the conventional divorce process. It’s somewhat like mediation in that the objective is to stay away from going to court, but the particular process is completely different. In a collaborative divorce, you and your spouse are required to both hire attorneys that are specifically trained in collaborative law, and you must commit to bypassing court. This process can be quite costly, so it’s important to do your homework and discover all you can about collaborative divorce prior to going down this road.
Obviously, in some cases, spouses discover that they have no other alternative but to hire attorneys and go through the traditional court process. For instance, it’s normally important for spouses that have endured domestic abuse to have an attorney advocate for them. Or, if you think that your spouse is actively concealing assets or squandering marital funds, you should get a hold of an attorney to safeguard your interests.
If you’re not sure about what course to take as you prepare to take on your divorce, don’t forget that you can speak to an attorney at any time without vowing to hire one.
Lina Guillen, A. (2021, July 1). Can I handle my own divorce or should I hire a lawyer? www.divorcenet.com. Retrieved January 13, 2022, from https://www.divorcenet.com/resources/can-i-handle-my-own-divorce-or-should-i-hire-a-lawyer.html
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