Back to Blog

my-alt

The Different Types of Divorce

    

People often think of the divorce process as "one size fits all". However, there are a number of different types of divorce processes.  The method that a couple chooses is typically influenced by how well they can reach agreement in the dissolution of their marriage.  Alimony, child support, custody, co-parenting and community property are the main issues that need to be negotiated and resolved.

What types of divorce are there?

Types of Divorce, Option #1: Uncontested Divorce

Benefits: Affordable, fast, amicable, does not require a divorce lawyer.

Negatives: Does not work if both parties cannot reach agreement on their own.

In an uncontested divorce, a couple is able to amicably negotiate the material terms of the divorce and do not need the court to divide assets or make determinations for them about spousal or child support or custody. This type of divorce is an example of collaborative law, wherein divorcing couples negotiate the terms of their marital settlement agreement without the threat of court litigation.

Sometimes referred to as a "friendly divorce", uncontested divorce is an attractive option for a number of reason, such as time, cost, control and privacy. Online uncontested divorce is a good option for couples who can work together and agree on the terms of their marital settlement.

Uncontested divorce is far less expensive than a traditional litigated divorce and does not require attorneys or court appearances. With the exception of summary dissolution of marriage, this is the cheapest way to get divorced.

Pro Tip: The Ten Steps in Uncontested Divorce

photo-1440186170739-681f007fc4d1

Types of Divorce, Option #2: Contested Divorce

Benefits: Allows a judge to negotiate the marital settlement agreement, suited for divorcing couples that cannot agree on child custody, support and community property.

Negatives: Expensive, time consuming, stressful, often becomes contentious when a divorce lawyer and judge are involved.

In a contested divorce, one or both spouses disagree about important terms of the divorce, including the division of community property, alimony and child support payments, custody or co-parenting. Contested divorce requires that both spouses be represented by divorce attorneys in mediation, and is typically much more expensive than uncontested divorce.

Contested divorce in the United States costs an average of $15,000, and can greatly exceed this amount if the proceedings become contentious.

Pro Tip: How much does divorce cost?

Types of Divorce, Option #3: At-Fault Divorce

Benefits: Allows couples to explain their grievances in court and publicly justify their grounds for divorce.

Negatives: Not available in most US states, requires the spouse who has committed a perceived "wrong doing" to contribute more financially.

Fault divorces involve one or both spouses seeking to get divorced because of a perceived wrong doing in the marriage. Depending on the state you live in and the specific circumstances surrounding your separation, a judge may find one party at fault or neither of the parties at fault in the situation. Knowing the difference between the two is important before seeking an online divorce.

Fault divorces are rarely utilized, with most states no longer recognizing their validity.

In the states that do recognize them, such as New York, a spouse can request that a divorce be granted based on an offense that they feel the other spouse has committed. One spouse files for divorce for based on an identifiable “fault” of the other person.

If one spouse is successfully able to prove the fault of the other, this can prompt the judge to allocate a larger portion of the community property and/or alimony or child support payments to the spouse that did not commit the fault.

What qualifies as a fault? Some of the most common reasons include:

  • Adultery: the person looking to apply fault must supply documented evidence of adulterous activity, which many include videotapes, phone calls and text messages.
  • Spousal abandonment for a particular length of time: this means one of the spouses has left the home where they reside with no intention of returning. If they left without the consent of the filing party and remained absent continuously, this would be considered abandonment of the marriage.
  • Prison Time.
  • Mental Illness.
  • Absence of sexual intercourse in the relationship.
  • Emotional or physical pain that was inflicted by the other spouse: this applies to cases of domestic violence or abuse inflicted by the other person.

For the states that have fault divorce as part of their legal system, this type of divorce does not require the two parties to live apart for any length of time. If the case is successful and the other party is found at fault, the person held without fault is sometimes rewarded a larger percentage of marital property (possessions acquired while the two people were married) and/or additional financial support, which is appealing to some people.

The downside to filing for a fault divorce is that the other party can object to the fault claims. These defenses can drag out the mediation further. Another downside to a fault divorce is how costly it is and how much time it requires. Divorce proceedings like these can go on for months, even years, costing both parties a lot of money in legal advice, fees and other expenses.

Pro Tip: How long does divorce take?

photo-1520261456177-6ec5aac5dbd2

Types of Divorce, Option #4: No Fault Divorce

Benefits: Allows a spouse to file for divorce even if their partner is not in agreement, does not require a divorce lawyer, does not require a spouse to prove the fault of their partner as grounds for divorce, retains privacy in a relationship because grievances are not explained in court.

Negatives: Spouses cannot be financially penalized if they have committed some wrongdoing in the marriage, such as extramarital affairs or abuse.

The introduction of no fault divorces in the 70s and 80s caused seismic changes in the world of family law. This edict allows a court to grant divorce without the petitioner or plaintiff (person filing for divorce) needing to prove the fault of the respondent or defendant (person responding to the divorce).  A "fault" or wrongdoing could be considered having an extra-marital affair, inflicting emotional abuse or secretly incurring debt that the other spouse did not agree to.

California was the first US state to allow no fault divorces in 1969. [wikipedia] Prior to no-fault divorces, the petitioner had to go to great lengths to prove wrong doing on the part of their spouse.  In cases where the fault could not be clearly proven, the divorce proceedings could be stopped by the court. This was especially problematic in cases of emotional or physical abuse by one spouse.

Stephanie Coontz, a professor of history at Evergreen State College, states that "once you permit the courts to determine when a person's desire to leave is legitimate, you open the way to arbitrary decisions about what is or should be tolerable in a relationship, made by people who have no stake in the actual lives being lived."

The most common reasons for no fault divorce are “irreconcilable differences” or “irreparable breakdown of the marriage.” Essentially, these are complicated ways of saying the two people do not get along anymore and no longer wish to be married or in a relationship with each other. One or both of them believe the problems they have are beyond repair and cannot peacefully coexist and live with one another any longer.

The benefits of no fault divorce include:

  • Spouses cannot be financially penalized for extramarital affairs or sexual activities. Therefore, if your spouse cheats on you, you could still be legally required to pay spousal support to your partner and give them half of your assets, depending on your situation.
  • One spouse cannot object to the filing, as the court will see that opposition itself as an irreconcilable difference. In the years proceeding no-fault divorces, a spouse could block a divorce if they raised an objection that the court agreed with.
  • This type of divorce avoids the costly blame-game type mediation that would occur if a fault divorce was sought instead.
  • Prevents divorcing couples from having to go into great detail about private details of their marriage

All states in the US recognize no fault divorces, and some states require that the couple live apart for a specified period of time before one of the spouses can formally file for a divorce. These living apart rules are in place because it's thought that if a couple spends some time living apart, there’s a chance they could work it out and reconcile. Always be sure to check with the laws of your state before you decide to file for a divorce without a divorce attorney. The more knowledge you have about the process, the better off you will be in the long run. 

On the other hand, no fault divorces do not allow people to share circumstances and facts that led to the breakdown of the marriage, and this can be an important psychological process for some people. If it's important for you to feel as though your voice has been heard and validated by a third party, you might opt for a no-fault divorce while sharing your story with a family therapist or counselor that specializes in divorce.

Types of Divorce, Option #5: Limited Divorce

Benefits: Ideal for spouses that need time to organize matters such as community property and child custody.

Negatives: Not considered a legal divorce, therefore spouses cannot remarry and all financial and custody claims are unresolved.

This type of divorce is not as common, and is not available in every US state. It is comparable to a legal separation and is ordered by the court when a couple needs extra time to resolve their financial and legal issues.

Limited divorce it is not a final decree of divorce.

Limited divorce is a legal action monitored by the court. Therefore, spouses cannot remarry while issues such as community property and custody are still pending and until the court issues the final divorce. Spouses can negotiate their marital agreement during a limited divorce, until the court determines they have negotiated a deal that qualifies for the full, absolute divorce decree.

The following legal mandates apply to a limited divorce:

  • Spouse cannot remarry while the limited divorce order is in place.
  • Community property claims and negotiations are still pending.
  • Decisions regarding child custody, support payments and community property are temporary until the final divorce decree is issue by the court.
  • If the court rejects a limited divorce case, the spouses would revert to being legally married.
  • The court determines which spouse is at fault, if applicable.

photo-1530204765653-b5b5ac7607d7

Types of Divorce, Option #6: Summary Dissolution

Benefits: Inexpensive, fast.

Negatives: Only available to couples with no children and limited assets, and debts.

Summary Dissolution is an easier way to end a marriage than regular divorce and is a form of collaborative law. Similar to uncontested divorce, this type of dissolution requires a couple to work together, and possibly with a team of professionals if required, to legally terminate their marriage while avoiding court mandated mediation. The process requires less paperwork and can usually be done in less time than traditional divorce. This type of dissolution is best for couples who do not have children, are not pregnant during the time of separation, and do not have significant debt or community property. Similar to uncontested divorce cases, summary dissolution, or simple divorces, can also be done without representation of a family law attorney.

Other requirements that must be fulfilled to qualify for a summary dissolution include:

  • Neither spouse has interest in or owns real estate.
  • Neither spouse has accumulated more than a specified amount of debt since the date of marriage - requirements can vary state by state. For example, in California the limit is $5,000 and in Oregon it is $15,000. (Vehicle loans are excluded)
  • Neither spouse has accumulated more than $25,000 – $35,000 in assets since the date of marriage - the exact amount is determined by the filing state. (Cars are excluded)
  • Both parties will never request spousal support or child support.
  • Both parties agree to execute a Joint Petition and pay the court filing fees, if required by their county.
  • Both parties must sign an agreement to split community property before the Joint Petition is signed.
  • One or both spouse must fulfill the residency requirements in their state. Requirements will vary from state to state.  For example, in California at least one spouse must live in a the state for a minimum of 6 months, and 
  • Neither party is requesting a temporary court order, such as a restraining or protective order.

 

Comments