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.
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.
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.
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.
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 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.
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.
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.
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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Why would someone drag out a divorce? ›
There are several potential reasons why a spouse may drag out the divorce process. Anger is often a key motivation, as is revenge. Even if your spouse knows the marriage is over, they may want to “get back” at you. Assets may also be the reason they are dragging their feet.What are the disadvantages of a legal separation? ›
The Cons of a Legal Separation
Disadvantages of legal separation include: The inability to legally remarry; Extra cost if you later decide to divorce; and. Lack of a no-fault option.
However, because legal separations are reversible, there is no time limit to how long spouses can be legally separated. Legal separations don't expire. This gives spouses as much time as they need to figure out if they want to stay married or get divorced.What are the disadvantages of legal separation in California? ›
Some of the potential cons of legal separation in California are: Since your marriage is still intact in the eyes of the law, you cannot remarry while you are legally separated. You will have to get divorced before you can marry someone else.What is the longest time a divorce can take? ›
What is the longest my divorce can take? A. There is no set time that a divorce must be completed by. However, if a judge notices that a divorce has been sitting in the system for close to a year, a hearing will likely be set to try and finalize any outstanding issues.What do narcissists do when you divorce them? ›
A narcissist will expect to get special treatment and to be able to control everything in the divorce, even the judge. They also don't like to lose, so they will file motions and fight hard to win, even over trivial matters that aren't worth the attorney fees.What should you not do during separation? ›
Refusing to agree contact arrangements with the children or not attending the family home for agreed contact with the children. Not turning up to pre-arranged Relate or counselling sessions or telling your partner that they are a waste of time before you give the sessions a chance.What are the dangers of separation? ›
Parent-child separation has long-term effects on child well-being, even if there is subsequent reunification. After being separated, reunited children can experience difficulty with emotional attachment to their parents, self-esteem, and physical and psychological health.What happens if you separate but never divorce? ›
Under a legal separation, the couple lives apart, but their marriage remains intact in the eyes of the law. Thus, you would typically not be permitted to remarry while you are legally separated, since you are not officially divorced.Can you date while separated in California? ›
Although dating before your divorce is final is considered adultery, the courts do not consider that when deciding to grant the divorce. This means that spousal support is not affected due to one of the spouses already being in another relationship.
What is the 10 year rule in divorce California? ›
For marriages less than ten years, support will last half the length of the marriage. For marriages more than 10 years, there's no assumption about what's reasonable.What is the first thing to do when separating? ›
- Treat your co-parent as you would treat a business partner. ...
- Don't make any significant changes. ...
- Discuss the various options for pathways to an amicable divorce. ...
- Choose your family mediator and/or lawyer. ...
- See a counselor and/or doctor. ...
- Wait to start a new relationship.
If the process for the legal separation is still underway, either spouse can file an amended petition to change the process from a separation to a divorce. If, after the legal separation has gone into effect and you want to then get a divorce, you can still file an amended petition with the court.Does legal separation affect taxes? ›
When someone becomes divorced or separated, they usually need to file a new Form W-4 with their employer to claim the proper withholding. If they receive alimony, they may have to make estimated tax payments.Does California view separation as divorce? ›
Legal Separation Does Not End Your Marriage
However, if the legal separation goes to judgment, then you will have to file a new case for divorce and pay the first appearance fee again. Legal separation is also different than a California divorce because: A legal separation will not change your marital status.
Even after you meet any residency requirement, the court still needs some processing time to finalize your divorce. Other states are faster than others at this. Alaska is notoriously fast at finalizing a divorce. Alaska, Nevada, and South Dakota can usually finalize a divorce in just under two months.How long can a spouse drag out a divorce in California? ›
Divorce has no deadline, which means your spouse can drag out your California divorce for months or years on end, depending on your specific circumstances. Divorces can and do go smoothly when both spouses want the divorce or at least are willing to work together to complete the process as soon as possible.Will a judge see through a narcissist? ›
Therefore, a narcissistic spouse will not want to be exposed in front of a judge. When confronted with facts, the person will likely allow their true nature to come out. A judge can see firsthand the combative, abusive, and controlling nature of the narcissistic parent.How do you trigger narcissistic rage in court? ›
You can trigger narcissistic rage by putting the narcissist in a position of looking bad. Narcissists do not take criticism well. Gather witnesses who have seen your narcissistic ex behaving badly. This could include family, friends, co-works, teachers.How do you outsmart a narcissist in a divorce? ›
- Organize Your Plans Before Doing Anything. ...
- Keep Copies of Everything. ...
- Aim to Stay Calm & Cool. ...
- Stay Connected to Support. ...
- Avoid Badmouthing. ...
- Secure a Strong and Successful Lawyer. ...
- Set and Implement Healthy Boundaries. ...
- Review Your Digital Boundaries.
Who pays the bills in a separation? ›
While a Divorce is pending who pays the bills? Our answer is, whomever historically paid them before the divorce started. If you paid the mortgage, and car payments while she paid the utilities, you should continue. At least until you have a court order stating otherwise.What is the 7 separation rule? ›
By studying billions of electronic messages, they worked out that any two strangers are, on average, distanced by precisely 6.6 degrees of separation. In other words, putting fractions to one side, you are linked by a string of seven or fewer acquaintances to Madonna, the Dalai Lama and the Queen.What are the stages you go through after separation? ›
I have also noted that client's have shown five distinct emotional stages – denial, anger, bargaining, depression and acceptance. Whilst this may not be true for everyone, certain feelings and behaviours can often resonate to identify these stages.Who suffers the most in a separation? ›
While there's no argument that everyone endures the pain of divorce in one way or another, many people may be surprised to hear that, according to research, men have a much more difficult time with a split than women.What is separation trauma? ›
Children who develop posttraumatic responses to separation from a caregiver present clinically similar. to children who have childhood traumatic grief, a condition that occurs when the circumstances related. to the death impinge on the grieving process.Is separation good to save a marriage? ›
If a temporary separation is done in the right way and for the right reasons, and there are clear agreements, it can help couples gain perspective on their relationship and actually strengthen it.How long is too long to be separated? ›
Ideally, psychologists recommend that a trial separation last no more than three to six months. The longer you spend apart from your spouse, the harder it will be for you to get back together.How often do divorce separations end? ›
Statistically, 80% of couples who enter a marital separation end up divorcing. And, on average, they remain separated for three years before finalizing their divorce. On the other hand, 10% of those who separate end up reuniting, on average within two years.Am I still married after 10 years of separation? ›
If you have had a legal separation in place for a decade, the only step left may be terminating the marriage itself. Odds are other issues related to your marriage likely were dealt with earlier during the legal separation proceedings. Oftentimes, this will make a subsequent divorce case easier to conclude.What is the 5 year rule for divorce in California? ›
So, if a couple split after say, 9.5 years, but their divorce didn't finalize until the 10-year mark, the judge may order that spousal support be paid for 5 years (half the length of the marriage, which is common), instead of having it last indefinitely as in the case of a marriage that lasted at least 10 years.
Is it okay to date while divorce is pending? ›
While there is no law stating that you can't enter into a new relationship while your divorce is ongoing, most divorce attorneys will prefer their clients either wait until their divorce is final or be discreet about a new relationship while the divorce is ongoing, especially when children are involved.Can I start dating if I am legally separated? ›
Can you date while separated? Yes. If you're ready to, you are free to date other people while separated. Your separation agreement is critical though because if the timing of the relationship comes into question during your divorce your relationship may be considered as an affair or adultery.How many years do you have to be married to get alimony in California? ›
There is no specific marriage duration to get alimony in California. The good news is there is no specific minimum duration before a spouse may receive alimony.What is the longest a divorce can take in California? ›
At the maximum, a single divorce case can take 5 years, because the petition expires after 5 years. If you have not gotten the divorce finalized within the 5-year period, you will actually need to start over and file for divorce again.Can ex wife claim my pension years after divorce in California? ›
In California, all types of retirement benefits are considered community property, which allows CalPERS benefits to be divided upon a dissolution of marriage or registered domestic partnership or legal separation.What is the highest alimony payment? ›
- Amy Irving & Steven Spielberg — $100 million.
- Kevin Costner & Cindy Silva — $80 million. ...
- Kenny & Marianne Rogers — $60 million. ...
- James Cameron & Linda Hamilton — (more than) $50 million. ...
- Michael & Diandra Douglas — $45 million. ...
- Ted Danson & Casey Coates — $30 million. ...
Legally, couples will be allowed to live separately with two other primary benefits: Separation of finances. Managing the custody and support of any children. Possible retainment health and life insurance benefits.Is separating before divorce a good idea? ›
A divorce attorney may recommend separation before divorce to give couples time to negotiate such terms within their divorce. The decision to end a marriage is often painful and emotional, especially when children are involved so time can be a party's best asset.What is a final step for a divorce in California? ›
To finish your divorce or legal separation, you must turn in a set of final forms. If you have any court orders or an agreement, you submit those as well. The court will review these forms to be sure nothing is missing and no mistakes on the forms. If not, the judge will sign the final form (the judgment).What are the stages of divorce in California? ›
- Part 1: Start a divorce case. One spouse (or domestic partner) files papers to start the case and officially lets the other spouse know. ...
- Part 2: Share financial information. ...
- Part 3: Make decisions. ...
- Part 4: Finalize the divorce.
How long does it take to finalize a divorce in California? ›
From start to finish, the divorce process in the Golden State can take at least six months – even if both parties agree to the dissolution immediately. This length of time is due to California's divorce requirements and mandatory six-month waiting period.Does the IRS know when you get divorced? ›
In essence, the Judge is legally required to report these facts to the IRS for a tax audit. After a divorce, the IRS has three years to audit your finances during the marriage.Can I file single if I am married but separated? ›
If tax law considers you "unmarried" because you got a decree of separation maintenance prior to December 31, you can file with "single" or "head of household" status. "Head of household" requires you to have a dependent and pay at least half of the expenses needed to maintain a home for yourself and the dependent.Can my husband claim me on his taxes if we are separated? ›
Dependents: When you're separated but not legally separated or divorced, you and your spouse can claim your dependent(s) on one joint tax return or file separate returns with the married filing separately status and have one child claimed per return.Why does a narcissist drag out a divorce? ›
By dragging out the divorce, the narcissist can keep their ex-partner in a state of limbo and prevent them from moving on with their lives. Prolonging the divorce allows the narcissist to maintain control over their ex-partner and continue to extract emotional and financial resources from them.Do narcissists threaten divorce? ›
Once affirmed, they begin the attack on their spouse. Verbal berating, name calling, threats of divorce, gaslighting, guilt-tripping, and bullying are common first line attacks. This tactic almost always works in the beginning as the spouse dejectedly returns back to the narcissist to try the relationships again.Do narcissists initiate divorce? ›
Narcissists are simply preoccupied with their own needs
For all of these reasons, narcissists do not initiate divorce. They are simply preoccupied with their own needs, and as a result, they completely ignore the state of the marriage or their partner's needs.
Narcissists are notorious for having extreme reactions, and the way they respond to divorce can be apocalyptic. Even if the narcissist wanted the divorce, the fact that the marriage ended tarnishes their image and makes them feel shame.What tactics do narcissists use in divorce? ›
Here are some of the most common divorce tactics that people with narcissistic personality disorder use: Steering the conversation to irrelevant, insignificant details while pushing core problems aside. Delaying hearings, not showing up, trying you to give in prematurely. Verbal abusive scar tactics.How to win divorce against narcissist? ›
- Organize Your Plans Before Doing Anything. ...
- Keep Copies of Everything. ...
- Aim to Stay Calm & Cool. ...
- Stay Connected to Support. ...
- Avoid Badmouthing. ...
- Secure a Strong and Successful Lawyer. ...
- Set and Implement Healthy Boundaries. ...
- Review Your Digital Boundaries.
How do narcissist treat their wives? ›
Narcissists are misogynists. They hold women in contempt, they loathe and fear them. They seek to torment and frustrate them (either by debasing them sexually – or by withholding sex from them). They harbor ambiguous feelings towards the sexual act.Do narcissists lie in court? ›
Narcissists will lie about matters that are not material and are inconsequential to the case just to anger their opponent. This is technically not perjury unless the lie is relevant to the outcome.Why divorcing a narcissist is so painful? ›
Narcissists can easily tell lies and in some cases will do everything they can to remove any people you may care about from your life. Therefore, when you go through a separation or divorce, it can feel like quite a lonely time.How do you prove narcissistic abuse in court? ›
Request that they write a “witness statement” that outlines what they experienced and that they sign it to confirm that it's true. Witnesses may not know you well, but they're important for a court case because they provide first-hand details about how a narcissist disrespected you.What to say to a narcissist to shut them down permanently? ›
- 1. “ ...
- “I Can't Control How You Feel About Me” ...
- “I Hear What You're Saying” ...
- “I'm Sorry You Feel That Way” ...
- “Everything Is Okay” ...
- “We Both Have a Right to Our Own Opinions” ...
- “I Can Accept How You Feel” ...
- “I Don't Like How You're Speaking to Me so I Will not Engage”
Some people get married to narcissists and stay with them for years, while others leave or are left after a few weeks or months. As long as the narcissist is getting their needs met by their partner or the partner does not find a way to leave, the relationship will continue.