Deciding to pursue divorce is one of the most difficult and emotional decisions you will ever make, particularly if you have children. Divorce also involves business and legal questions that must be resolved. An experienced family law attorney will help you to understand the basic issues and use a rational perspective to approach the process.
Grounds for Divorce
Traditionally, every state required a person filing for divorce to prove “grounds” or some type of spousal fault in order to obtain a divorce. Today, the majority of states allow at least one form of “no-fault” divorce, which does not require proof of fault. If no-fault divorce is available in your state, either member of the couple may obtain a divorce, even if the other party does not consent to the divorce.
Other states still require that you give a legal reason for getting a divorce. These are called fault-based divorces. Those states requiring a showing of fault have statutes that specifically outline the different types of conduct that must be proved in order to get a fault-based divorce. Some of the more common types of fault that may be alleged include adultery, mental illness, conviction of a felony, abandonment, drug abuse, cruelty, impotency and bigamy. Some courts consider fault to determine the amount of spousal support owed by one spouse to the other.
In some states both fault and no-fault divorce grounds are available. An experienced family law attorney can help you determine whether you should pursue a fault based or no-fault divorce.
Alimony, Spousal Support & Maintenance
Alimony, also known as spousal support or maintenance, is financial support paid by one spouse to another. Each state determines alimony differently so it is important to consult with an attorney in your state to determine what factors the court considers when deciding if, how much, and to whom alimony will be paid.
There are essentially three types of alimony: permanent, restitutional and rehabilitative. Permanent alimony is an allowance for support and maintenance (such as food, clothing, housing and other necessities) of a spouse. When a party requests permanent alimony, they must establish that they have a need for support and that their spouse has sufficient means and abilities to provide for part or all of the need. Restitutional and rehabilitative alimony are paid for a shorter period of time and most likely provides less than the standard of living during the marriage. Rehabilitative alimony is designed to provide the means necessary to enable a spouse to refresh or enhance job skills necessary to become self-sufficient and provide financial support while the spouse is obtaining necessary training.
The types of factors the courts consider vary from state to state. In fault-based states the respective fault of the parties may be considered in awarding alimony. Other factors include the length of the marriage, each party’s financial condition, age, health, education and employment opportunities. Of all the issues needed to be resolved to complete the termination of marriage, alimony and property division are often the most difficult issues to negotiate successfully.
Division of Property
The division of property between the spouses is one of the most difficult issues to resolve at the termination of a marriage. Each state has adopted one of two basic systems for distributing property: “Equitable Distribution” (sometimes called a “separate property” system or “common law” system) or “Community Property.” Regardless of the system used, each state has its own rules for dividing marital property. States differ as to how marital or non-marital, community, or separate is defined. States also use different rules to decide how the property should be distributed. This is a complicated area of family law, where you need the advice and assistance of a family law attorney familiar with the family law and procedure in your particular state.
Generally, states that use the Community Property system classify all the property as either community property or separate property. Community property is owned equally by the spouses and divided equally (50/50) at divorce. The owner spouse keeps separate property. The community property states are: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin.
States using the equitable distribution system consider all the assets and earnings accumulated during the marriage to be marital property and divide them equitably at divorce. Equitable does not mean equal. The courts attempt to reach a fair distribution and consider many factors to make that determination.
Reaching the decision to end a marriage is enormously difficult. Once you do make the decision, it is in your best interest to approach the divorce process from a rational, business-like perspective, which is extraordinarily difficult given the emotional issues you must also cope with. Working with an attorney who is experienced in family law will help you get through the process with less stress.
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