The Divorce Process: From Separation to Final Judgment | Pease & Associates law firm (2023)

by the FreeAdvice team

The divorce process can begin with a separation, which can be informal or by court order. Separation by court order is calledlegal separation.

A person can also choose to waive the period of separation and file for divorce immediately. Separation can have several meanings in the pre-divorce context.

Some states have laws that allow for legal separation, while others recognize separation solely on the grounds that the couple lives in separate or "separate and separate" homes. Some states do not recognize separation as a state.

separation agreements

A separation agreement is sometimes the first step in the divorce process and usually comes into play when a couple needs to meet the state's waiting period requirement before filing for divorce. This waiting period can range from a few months to a year.

While some states do not have a waiting period requirement, this requirement is important because it ensures that frivolous divorces are not filed and that the couple has ample time to consider their divorce decision.

Separation to avoid debt liability

Separation agreements can also break up a marriage's financial relationship, meaning that all debts, income, and assets acquired after separation are the sole responsibility of the spouse. This is especially important in community ownership states, where each spouse's income is jointly owned by both spouses. During a divorce settlement, a period of separation can be used as proof that the financial relationship has ended.

temporary separation

A couple may also choose to temporarily separate as a way of trying to resolve issues in their marriage. Also, some couples choose separation over divorce as a state of their own, usually for religious or insurance reasons.

In states that do not recognize separation as a state, the couple will need to file a divorce petition to initiate any required waiting period or obtain a temporary economic dissolution order that precedes the divorce settlement. Temporary orders are discussed later.

FileApetition

To start the formal divorce process, one of the spouses will file a divorce application, often called a "Letter of Demand" or "Complaint of Dissolution of Marriage". has an area to list the family members involved, the assets in question and whether the property is separate or common, or marital or non-marital.

Reasons for divorce

The petition will also ask the spouse to state the reasons. All states have grounds available for a no-fault dissolution, and some states will have grounds for a fault-based divorce.

A no-fault divorce is the most commonly used type, as many states no longer have a fault-based option. At the same time, most states did not allow a couple to file a lawsuit to dissolve their marriage unless one party was at fault.

However, legislators soon realized that it was unnecessary for the state to require a show of guilt in a divorce, and that a required show of fault often led to the wrongful dissolution of property. Thus, no-fault divorce was born and is now the dominant law in the US.

fault based file

While all states now have no-fault options, in some states it is still possible to file a petition alleging that the other spouse was at fault for the marriage ending.

One spouse may choose to plead the other's guilt, as some state laws have a shorter waiting period for final sentencing. However, even states that provide guilty grounds generally do not use guilt in deciding the division of assets, with the exception of spousal abuse grounds. Also, proof of guilt can cause delays in the case, so be sure to check with your state law or attorney before considering this option.

Choose where to present

Once the petition is completed, it must be filed in a court of law in the state where one of the spouses resides. It doesn't matter if you were married in the state where you are filing, only one spouse is required to live there.

There are generally applicable deposit fees that must also be paid at the time of deposit.

process service

After the petition is filed with the court, it must be given to the other spouse. Calledprocess serviceand this means that the spouse must receive and sign a copy of the divorce application. Different states have different requirements for how the process service must be performed, so you should check with your attorney or court.

Most states will allow you to hire a professional process server to perform the service, which is especially helpful if the other spouse cannot be reached or if the spouse refuses to sign the papers.

After receiving notice, the spouse can choose to file a response to the petition or can choose to do nothing. If they choose to file a response, they can choose to respond or disagree with any issue raised in the petition, or they can sign a voluntary appearance document that simply acknowledges that they agree with the other spouse.

If they decide not to respond, the other spouse can file a default suit, which upholds the divorce filing.

Establish a temporary order

Another important step in the divorce process is a temporary order. Once the divorce order has been filed and served, one or both spouses may choose to schedule a temporary injunction hearing. A temporary order temporarily resolves issues that cannot wait until the final divorce decree, such as child custody, child visitation, child support, and issues of division of assets and debts.

It is not necessary to obtain this order after filing for divorce or dissolution of marriage, but as the divorce process can take months or even years, an order is useful for resolving issues that spouses have difficulty resolving on their own.

Automatic Restriction Orders

In most states, certain financial and child-related restraining orders are automatically entered when the divorce petition is filed. These restraining orders may prohibit both spouses from leaving the state with their child or children, selling any assets, or recklessly spending any community or joint property until the date of final dissolution. However, a temporary order hearing will address other financial or child-related details that are not included in these basic restraining orders.

Assets and Debt Distribution Division

Much of the distribution of assets and debts that occurs during the divorce process depends both on the system the state uses to divide assets and on whether the assets are classified as marital or non-marital assets. Some states are community owned states and some are separate owned states.

Marital property is property shared by both spouses, and non-marital property is property owned by one or the other. Generally speaking, more property gained and acquired during marriage is classified as joint property in common property states than in separately owned states.

However, the equitable distribution law in separate property states allows a court to distribute the separate property to both spouses so that the division is fair at the end of the divorce proceedings.

Mix of assets and marital and non-marital debts

All marital assets and marital debts will generally be divided equally unless one of the spouses has mixed non-marital funds with assets or debts. An example of non-marital funds would be an inheritance or funds acquired before marriage.

Blending occurs when one spouse uses non-marital funds to purchase an asset and the marital funds are used to improve it or pay off any outstanding debt. In that case, ownership is merged and the spouse who contributed the non-marital funds may be entitled to a refund or some other arrangement may be made.

personal property

Personal assets are divided according to the personal preferences of the spouses. Spouses can divide personal assets as they see fit. It can be helpful to make a list when dividing personal effects to designate who would like which item.

Sometimes, when personal property has a significant monetary value or when spouses are unable to reach an agreement for other reasons, it can be helpful to involve a mediator to help the parties reach an agreement. In general, the court does not want to be bothered with petty disputes about furniture and kitchen appliances.

Responsibility for marital debt

Generally speaking, creditors can go to either spouse for all debts incurred during the marriage, regardless of who was the acquiring spouse. However, as with marital property, debt division can become more complicated when non-marital property is used to obtain a loan and marital property is used to make the loan payment.

For example, if a wife took out a car loan shortly before marriage (non-marital ownership) and her husband split the loan payments after marriage (marital ownership), at the time of divorce this would be a mixed debt and would have to be divided as such.

Resolution of child custody issues

The most important thing for parents to discover during the dissolution process is how they will continue to raise their children.

It is generally best for all parties involved for parents to resolve child custody issues on their own or through negotiation or mediation with their attorneys. Some states call this a parental plan and no longer use terms like custody and visitation.

There are many issues that must be addressed in child custody decisions. These topics include where the children will live, how much time they will spend with each parent, where they will vacation, and which parent will make important decisions about the children.

One or both parents can make legal decisions, such as where children go to school and what medical care or medicine they receive. Parents must also resolve questions about their children's religious upbringing and activities.

Types of Custody Agreements

If the parents cannot agree on the custody decisions, they can file a custody petition with the court. Under most state laws, child custody falls into four main types, includingsole physical custody,joint physical custody,exclusive legal custody, youjoint legal custody.

Physical custody refers to where the children will live or spend most of their time. In unilateral physical custody, children live with one parent and the other parent usually has visitation rights.

Joint physical custody is when children divide their time more or less equally between the two parents' homes. Legal custody refers to legal decisions made about children, such as decisions about health, welfare and education.

Another way a court can qualify a custody agreement is by alternating or divided custody. This arrangement basically means that both parents have joint physical and legal custody of the children.

Alimony for children and spouse

Spousal and child support may be distributed or awarded to either spouse and will be based primarily on the length of the marriage, the time needed to raise the custodial spouse, the income and earning potential of the spouses, and other assets Spouse support laws vary greatly from state to state, therefore, consult a lawyer to determine local laws.

Child support is most often awarded when one parent has stopped working or earning potential to raise children during the marriage. However, child support can also be granted in other situations.

Considerations when awarding spousal support

The court will take into account the age and health of the spouses, what each spouse brought into the marriage, as well as whether there was any martial misconduct such as infidelity or domestic violence. Child support can be awarded permanently, for a specified period of time, for a period that allows the spouse receiving the support to become self-supporting, or in a lump sum.

Child Support Awards

After divorce or dissolution, both parents are still responsible for child support. Divorcing parents must decide how they will share child care expenses. There are several factors to consider when deciding this, such as the parents' income and assets and whether one parent has primary responsibilities for the children.

Alimony can also have tax consequences. In many states, child support is mandatory and awarded according to a set formula that takes into account many factors, including parents' income, assets, number of children, and more.

Child support is usually for minor children, but a court can order a parent to continue paying child support into adulthood if the child is in school or is disabled or dependent.

Alimony for spouses and children can also be adjusted based on the circumstances of the former spouses. If there is an increase in income, job loss, or high medical costs for a child, the parties may apply to the court that issued the original child or spousal support order to request an adjustment to reflect that change in circumstances. .

Finalizing the Divorce Agreement: Negotiation, Mediation, and Judgment

During the divorce process, one of the hardest parts to get through is coming to an agreement on how to divide assets, debts, and determine spousal and child support. However, this agreement is required and must be signed by both spouses before the judge pronounces the final divorce decree. Because the divorce process is fraught with emotional issues, many spouses choose to negotiate the final settlement through their attorneys.

Negotiation

Trading usually starts with the discovery process. The discovery process is a process of asking specific questions about property and debt, called interrogations and admissions requests, and requests for paperwork and other documents, called document production requests.

Through the discovery process, all financial information is obtained from both parties and the attorneys meet on behalf of their client to try to reach a final agreement. Each party can notify the other of the discovery, and both parties are legally obligated to respond and produce what they can. Failure to do so could mean hefty fines from the court.

Mediation

If the parties' attorneys are unable to reach a final agreement on their own, the parties may choose to use a mediator. A mediator is a neutral third party who has no interest in the divorce process and can give an impartial opinion on what the final settlement should look like.

Rehearsal

Finally, if negotiations through these avenues fail, the parties can always choose to fight at trial. Divorces are generally not adjudicated before a jury, but spouses will have the opportunity to tell a judge their side of the story. In turn, the judge will make the final decision on the division of assets, debts, and any unresolved decisions on child custody, child support, or child support.

Litigation at trial can be costly and time-consuming, and parties are forced to do what the judge orders. Most of the time, neither party is satisfied with many of the judge's decisions. It is usually much more favorable for both parties if they reach an agreement.

Final Judgment of Dissolution

The divorce process ends with the final judgment of dissolution. The final judgment is the final court order that legally ends the marriage. The final judgment may contain legally binding orders on other issues such as child custody, child support, visitation, child support, division of assets and how the division of assets will be conducted. You can also restore the premarital name for one or both spouses.

Often, one of the parties is required to prepare the final order, which may incorporate part of the marital agreement, if one has been reached. When the final judgment is signed by the judge, the divorce is final.

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