Couples considering filing for divorce are not alone. Some studies report that in the United States over 50 percent of first marriages end in divorce, and around 43 percent of all marital unions are ultimately dissolved. To go along with those grim divorce statistics, the average estimated length of an average divorce proceeding, divorce attorneys say, can be up to a year long. Divorce is not only a painful and difficult decision, but one that is often drawn out to boot. Divorce law is a state law issue, so the rules vary from state to state. However, there are many factors in common, and we’ll look at some in this blog. There is even an option for a “no fault divorce.”

So, what makes it legal? What is a legal divorce?

Residency Requirements

In order to file for divorce in any given state, and make it a legal divorce whether it’s a no fault divorce or an at fault divorce, you must meet that state’s residency requirements, and they’re different from state to state. Most state residency requirements have common rules, such as either you or your spouse must live in the state in which you file for divorce. It is not enough that you were married in the state or that you lived there at one time in the past. And, in some states, the person filing for divorce must be a resident of the state. In most cases state residency laws require that the person claiming residency to have lived in the state for more than a year. If you live in one state and file for divorce there, but your spouse lives in another state, there could be a  hitch. Under that scenario, your spouse either must consent to divorce in that state, be served (divorce papers) in that state, or have some official contact with the state, like a vacation home or business there. If, however, your spouse has nothing to do with the state, will not consent to divorce in that jurisdiction, and cannot be served in the state, then you may need to file elsewhere, like in the state your spouse lives. It is also possible to qualify to file for divorce in more than one state. Do some research and file for a legal divorce in the state with favorable divorce laws, including the available grounds for divorce, how the state divides marital property, and how it awards alimony and child custody. All these are considerations for filing for a legal divorce.

Do I Need a Reason to File for Divorce?

The short answer to this question is no. In the early days of divorce litigation, some cause, or grounds had to be given before a marriage could be dissolved. Modern divorce law introduced the concept of the “no fault”  divorce, where neither party is held to blame. In the past, couples had to have a compelling reason reason (such as adultery or abuse) to file for divorce. Today, courts do not necessarily blame one party for the divorce, which is why there has been a shift to no-fault divorce.  On August 15, 2010, Governor David Paterson signed no fault divorce into law in New York state, making no fault divorce an option in all fifty states.

Great information is available on our web site.

Is divorce REALLY what I want?

You’ve hit a rough patch. Maybe it’s one in a series of rough patches. You’re ready to throw up your hands and throw in the towel and call it quits. “This marriage isn’t working anymore,” you think. “I want out.” So the logical first step is to look for a good divorce attorney and make the legal plans to move ahead. It’s time to get a divorce. Or is it?

Before you bring out the legal eagles, maybe you should first consider the bird in hand. You’re upset. You’re angry and fed up. You should really stop and think and ask yourself – honestly – if ending your marriage is what you want. Is there any hope at all of saving your marriage? Is counseling an option? Once the divorce ball gets rolling, it’s very hard to stop. Once you head down that road, it’s hard to change course. A divorce is forever.

Divorce is a life-altering proposition. Think long and hard before you act.

Damn the Torpedoes

Now that you’ve exhausted all possible alternatives, you’ve decided to go ahead. What are the steps involved in a common divorce?

The first thing to do is clear your mind. Put your emotions aside for the moment. Divorces are mentally taxing. It’s best if you can step away from your feelings of hurt, anger, betrayal and hopelessness long enough to focus on the big picture. El photo grande. But what is that?  At the core of it, a divorce is about a legal separation of your finances and making sure your children – if any – are taken care of. It’s all about laying a foundation for all of your lives in the aftermath.

Man the lifeboats

Get all your papers in order before seeing a divorce attorney (unless you’re in an urgent situation, like an abusive relationship). Careful financial planning is essential to a successful divorce. Gather up copies of your your income tax records, bank statements, brokerage and investment accounts, savings and retirement plan details, real estate  property evaluations and other documents like these. Also, get a handle on your debt. How much do you owe? Your spouse? Together? How will that get payed off?

Give a wide berth

Separate from your spouse if you haven’t already. In many states you are required to live apart for a certain specified amount of time before can obtain a divorce. Check out resources on our website, DivorceAttorneyHome, to find what laws apply in your state. You may also find this information on your state government’s website, like The State of Texas or The State of California, for example.

Find the right ship’s captain

Find a divorce attorney with a proven track record in divorce court. A good divorce attorney is imperative at this stage of the game, and it’s important to ask the right questions from the beginning, too. Important answers to get are:

1. How much experience do you have in family law in this state?
2. What steps are involved in the divorce process?
3. How will you charge me? What is your fee structure based on?
4. How will we keep in touch throughout the proceedings? Email? By phone? Fax? Text?
5. How long will this divorce process take?
6. Also, ask your divorce attorney if they recommend divorce mediation. If things can be settled outside the courtroom, costs will be less and you’re likely to have a better and more amicable relationship with your spouse when it’s time to drop anchor on your new life.

My spouse is at war, but I want a divorce

Many states have some type of residency requirement in a divorce procedure, laws that require living in a certain state or county for a certain period of time before the procedure can begin. But what happens when one spouse is on active duty in the military and deployed overseas? What is the procedure for divorce in the military for active duty military personnel? What if they are unable to respond to a stateside spouse’s filing of divorce papers because they are on active duty in the heat of the action in Iraq, Afghanistan or other deployment zones? How can stateside attorneys impose tight deadlines on these servicemen and servicewomen engaged in fighting for their country’s interests abroad?

Congressional assistance

The state of California was the first to implement the “no-fault” divorce. Under this statute, if a married person wishes to seek a divorce, they may. Today, a divorce in California is granted on the grounds of “irreconcilable differences.” Irreconcilable differences are any grounds that the court determines to be substantial reasons for the marriage not to continue.

Before 1970 and the application of California statute 2310, divorces had to be on specific grounds such as adultery or physical and/or mental cruelty. The statute removed these requirements and laws for divorce – in California called a dissolution of marriage – were eased. California divorce law declares the “matrimonial contract broken” and the separation is finalized.

Another California statute dealing with irreconcilable differences is statute no. 2334, where if it appears that there is a “reasonable possibility of a reconciliation,” the court will continue the divorce proceeding (grant a continuance) for up to 30 days. After the continuance ends, the court may enter a judgment of divorce on the motion of either spouse.

Also, a California marriage may be dissolved on the grounds of “incurable insanity.” This can only happen, however, if the husband or the wife can prove – through competent testimony by a medical doctor or psychiatrist – that the spouse was incurably insane at the time the petition for divorce was filed.

California divorce law also makes provisions for legal separation and/or nullity. But, nullity – which declares the marriage invalid – is very difficult to prove in court.  Legal separation is much easier to obtain in California than a nullity, and can be appropriate for people that don’t want a divorce for religious reasons. Legal separation is used to divide the couple’s property and to provide for child support and spousal support where the husband and wife wish to live separately but remain married. This can prove to be advantageous in situations where a divorce would cause one of the spouses to lose medical insurance, veteran’s benefits, or social security benefits, for example. To be legally separated under California divorce law, both parties must “intend that the marriage be over” and must “act consistent with that intent.”

Every divorce case filed in the state of California must declare the grounds by which the divorce is to be granted. The grounds for divorce must be supported with evidence or testimony, otherwise the court may dismiss the case.

Before filing for divorce in California, one spouse must meet the state’s residency requirements. They must have lived in California for a minimum of six months, and one spouse must have lived in the county the divorce petition is being files for at least three months.

Under California divorce law, there is no waiting period for filing for divorce, as long as one spouse meets the state’s residency requirements. California does, however, require a couple to wait six months after filing the divorce petition before going forward with the rest of divorce. This is commonly referred to as a “cooling off period.” Once the divorce is finalized, though, neither spouse has to wait before remarrying.

Every divorce case that is filed in the state of Texas must declare the grounds in which the divorce is to be granted. In order to proceed, the grounds for divorce must be backed up by evidence or testimony from witnesses, otherwise the court may dismiss the case. Filing the Petition for Divorce with the court is the first step. Through this document, the filing spouse will request the court to terminate the marriage under certain specified grounds.

In Texas there are two basic kinds of divorce cases: fault-based grounds and no-fault based grounds.

In a no-fault based grounds for divorce case, the court may grant a divorce without regard to fault if the marriage has “become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation.” In other words, the spouses have agreed that they just can’t live together anymore, the marriage is beyond repair and they are unwilling to go further to resolve their differences. They agree that splitting up is the best option, and they agree outside of court on issues like division of property and child care and support.

Fault-based cases in Texas can be filed for the following reasons:

1. CRUELTY

The court may grant a divorce in favor of one spouse if the other spouse is guilty of “cruel treatment” toward the complaining spouse that makes living together further impossible. Cruelty can take the form of mental or physical, either one making a spouse’s life unbearable in the marriage.

2. ADULTERY

Divorce may be granted in Texas if one spouse has been unfaithful to the other by having a physical relationship outside the marriage. The two main areas where adultery can affect how a divorce is settled are the division of property and child custody. If the adultery occurred around the child, it could result in reduced visitation rights for the adulterous parent. Also, being found to have committed adultery in your marriage could result in the loss of up to 60 percent of the common property, according to Texas legal experts.

3. CONVICTION OF FELONY.

A Texas divorce court may grant a divorce, if during the marriage the other spouse,  has been convicted of a felony; has been imprisoned for at least one year in the State Penitentiary, a Federal Penitentiary, or another state penitentiary and has not been pardoned by the state for their crime. It’s important to note, however, the court may not grant a divorce under these grounds if the spouse was convicted on the testimony of the other spouse.

4. ABANDONMENT

Under these grounds a divorce may be granted  if the other spouse left the complaining spouse “with the intention of abandonment,” and remained away for at least one year. Abandonment is defined by the intention to leave and never come back. If a spouse leaves the home for safety or emotional reasons during a divorce, this does not constitute abandonment. If a spouse leaves the home and the state they are likely to lose their rights to custody, experienced lawyers say.

5. LIVING APART

The court may grant a divorce in favor of either spouse if they have lived apart “without cohabitation” for at least three years. This means a complete and total separation; living in different homes with no time spent together in that time frame.

6. CONFINEMENT IN MENTAL HOSPITAL

In Texas, the court may grant a divorce if – at the time the Petition for Divorce is filed –  the other spouse has been confined in a state mental hospital or private mental hospital, as defined in Section 571.003 of the Texas Health and Safety Code, in Texas or another state for at least three years; and “it appears that the hospitalized spouse’s mental disorder is of such a degree and nature that adjustment is unlikely or that, if adjustment occurs, a relapse is probable.” (Texas Code – Family Code – Chapters: 6.001-6.007)

Every state has its own laws and guidelines for couples seeking a divorce. What are the rules and provisions in the state of Texas? Although there are both fault and no-fault divorces in that state, we’ll look at how no-fault divorce works in this blog.

According to the Texas Family Law code, a no-fault divorce will be granted “in circumstances when the marriage has become insupportable because of discord or conflict of personalities…and prevents any reasonable expectation of reconciliation.” Another term for this is “irreconcilable differences.” Texas no-fault divorce laws state that the marriage has become “insupportable due to conflict between the parties and that there is no reasonable expectation of reconciliation” as one of its main grounds for divorce. In other words, the couple simply can no longer get along.

The state of Texas allows both fault and no-fault grounds for a divorce. Fault-based grounds for divorce include adultery, mental and physical abuse and cruelty, conviction of a felony, abandonment, a couple living apart for at least three years, and confinement to a mental hospital for at least three years. In a no-fault divorce, however, the court will not assign blame to either party for the divorce. Any couple filing for a no-fault divorce in Texas should complete the Original Petition for Divorce and the Summons Form. Couples with children must complete several additional forms. If both spouses agree to the terms of the divorce, including child custody, living arrangements, support payments and the like, they can complete a divorce settlement agreement, stating all the agreed upon terms of the divorce.

Texas law requires that the petitioner (the spouse filing the papers) or the respondent (the other spouse) has lived in the state of Texas for at least six months, as well as in the county where they are filing for divorce for a minimum of 90 days. Both of these requirements must be met before filing for the divorce. This means if one of the spouses has moved to another country after the separation, they previously lived in Texas for half a year and in their new country at least half that.

Even if both spouses are on board with wanting a divorce, it cannot happen overnight. In Texas, parties must wait at least 60 days between the filing of their divorce suit and finalizing the divorce. Only if one spouse has been convicted of a criminal offense like domestic violence or where a restraining order or protective order issued by the court can this cooling off period can be waived.

In most Texas no-fault divorces, the spouses attempt to settle the matter of property division themselves, outside the court. This saves a lot of their time and money. Texas is a community property state, meaning property acquired between the parties during the course of the marriage are split up into two halves, and there’s also an attempt to divide the property so that no injustice is done to either of them.

In a Texas no-fault divorce, child custody and visitation rights are usually settled among the spouses to spare the children from bitter court battles. Sometimes, they may be asked to participate in custody mediation. Throughout the process, the “best interests of the children” are given top priority.

You don’t hate your husband. Your husband doesn’t hate you. Things, however, just haven’t worked out in your marriage. There are differences you should have seen as hurdles in the beginning, but they didn’t manifest until the honeymoon was over. Maybe it’s time to seek a no-fault divorce. 

A no fault divorce happens when a couple want to end their marriage. One spouse has clearly not wronged the other, but the union has broken down. There has been no adultery, no abuse, financial impropriety or other traditional divorce grounds. When a marriage breaks down simply because the parties no longer wish to be married anymore, a no fault divorce may take place. This has become a common form of divorce in the United States and most states recognize no fault divorce grounds as a legitimate reason to end a marriage. Courts may refer to this as “divorce on the basis of irreconcilable differences”, meaning the couple just can’t – or don’t want to try and fix it anymore, and have decided it’s best to split. That’s the basis of a no-fault divorce.

No fault divorce rules eliminate the requirement that there must be a specific reason for the divorce. All 50 states now allow no-fault divorces, recognizing that people sometimes grow apart. Sometimes there are complex personal reasons for no longer wishing to be married. Plus, it is widely agreed by legal professionals and professional counselors that reducing conflict in a divorce – regardless of fault – is a healthier scenario for both spouses and prevents unnecessary trauma and emotional turmoil for other family members, friends, and – especially – for children of the marriage.

The exact requirements for a no fault divorce vary by state, but in many states the couple only has to file papers and live apart for a certain set period of time. In other cases in other jurisdictions, couples seeking a no-fault divorce may also need to go through a process of becoming legally separated before you may file for a no fault divorce. If children were born during the marriage, some states require that parents take a class on the effect of divorce on children to prepare both the parents and their kids for this life-changing event.

The no-fault divorce  process usually begins with one spouse filing a divorce petition in the court where they live. Before preparing and filing the divorce the spouses meet with divorce attorneys, and, after examining financial records and information, they draft a plan for distribution of the assets (property, real estate holdings, car, savings, etc.) between the spouses. A spouse will get a deadline to respond to the divorce petition, and during this time, one of the divorce attorneys usually requests temporary orders that hold until the divorce becomes finalized. The spouses may agree to the preliminary orders outright, or the court may hold a hearing.

Temporary orders may include orders regarding which parent has custody of the children, child visitation and support, and spousal support (alimony payments). Temporary orders also commonly address financial issues, and may include freezes on what the spouses may do with marital assets, who has control of the money and joint bank accounts, and which spouse may live in their home. The court may also put in place a restraining order if there is a history of domestic violence.

The next step in the no-fault divorce is to come to an agreement regarding property, child custody, and child support, through their lawyers or through divorce mediation. If the spouses just can’t agree on most issues, cases may end up in trial after all or being decided by a judge, and the no-fault option is lost.

You’ve seen the billboards. “Divorce $200.” Maybe, while web surfing, you’ve come across offers for $149 online divorces. Just download the form, fill it out, get your spouse to sign, and you’re done. Some even offer a money back guarantee. Can something as complicated as a divorce be that simple and “no fuss, no muss?”

It can be if you seek and uncontested divorce. 

So, what does that mean, “uncontested divorce?” Well, every divorce is pretty much founded on four main issues: Division of property (community and marital, obtained pre-marriage and post-marriage), division of debt (who owes what), child custody (where will they live, visitation rights) and payment of alimony and/or child support. While no divorce is truly “uncontested” – no disagreements – these disputes do not always have to be taken to court. An uncontested divorce is possible when the spouses can decide on the terms of the divorce without taking it to a divorce court trial. Obviously, uncontested divorces move much faster through the family court system and are cheaper that contested, contentious divorces.

If the spouses can come to agreement on the big four issues, chances are very good an uncontested divorce is possible.

Our advice to every couple seeking a divorce is to first attempt to work out mutual terms for the separation without going to court. If disputes can’t be worked out on on their own, there is the process of divorce mediation or arbitration, with or without attorney representation. Uncontested divorces save time and money by bypassing the lengthy litigation and divorce trial process. An uncontested divorce typically reduces hostility, allowing both parties to resume their lives more quickly and get on with life as an ex.

Although divorce mediation can save court time and money and help couples settle differences and plan for life after their divorce, it’s no magic bullet, and it’s not for everyone.

According to some studies, divorce mediation yields success in between 50 and 80 percent of cases, and couples save 30 to 40 percent of what it would cost for a traditional divorce, where everything is settled in court. The road to divorce is steep and difficult, so why wouldn’t you want to ease the pain and stress and get it over with as quickly as possible? For some cases, it just won’t work. Let’s examine why, and you can ask yourself which side of the fence you fall on.

Four reasons divorce mediation fails could be summed up by these “Bs”: Baggage, bravado, buttons and bravery.

1. Baggage

Successful divorce mediations are made by couples that are truly focused on their goals for the future. In a divorce, this is not easy, what with hurt feelings, loss of trust, love, respect, a desire for revenge for past wrongs, and most ofter, lingering anger. Divorce mediation can only be successful if both parties are able to put aside “irreconcilable” differences and are able to set their sights ahead (without lingering on the past and harboring old hurt). Basically, the more time concentrated on “getting even,” the longer it will take to get ahead. For some couples there is simply too much animosity to overcome.

2. Bravado

It is said pride always comes before a fall. A monumental mistake in divorce mediation is entering the process with your mind focused solely on what YOU want to gain. You must really soul-search and think deeply and honestly about what your ex would want and what’s important to them to build a life after divorce.

Going through a divorce and finding many points of contention? Are there some details that just can’t seem to be agreed upon? Do you find it difficult to have a conversation with your spouse – much less a civil one when discussing the end of your marriage? If so, maybe you need a referee. Or a divorce mediator.

Divorce mediation is a tool appropriate for most people who are divorcing or have family disagreements resulting from a divorce. Most marriages are at the point of divorce because of those conflicts and communication issues that have brought them to the brink. Sometimes it’s helpful to bring in an impartial third party –the divorce mediator – to help settle those differences.  The divorce mediators are skilled in helping the couple negotiate amicably, despite these types of issues. The couple must be committed  to the divorce mediation process and be willing to put aside personal differences for the sake of smoothing the process.

In divorce mediation, a couple works with a neutral third party divorce mediator, or sometimes, a team of two neutral third party divorce mediators, to help them make the difficult and unpleasant decisions that go along in a divorce. The couple meets with the divorce mediator over a period of weeks, or months if needed, to gather facts, discuss goals, brainstorm options and choose solutions.
While the divorce mediator guides this process, the divorcing couple makes the final decision.

A divorce mediator will step in to offer possible solutions to the couple’s issues if the parties can’t find the answers on their own. Some divorce mediators, especially those with legal backgrounds, or attorney mediators, will lend insight about how it may go in divorce court, but the couple is generally free reject the divorce mediator’s suggestion. One exception is when the solution the couple chooses, in the opinion of the divorce mediator, is so far from normal legal divorce statues that the divorce mediator believes a judge will not accept the proposed agreement. It would then be a disservice to the clients on the divorce mediators part to allow them to go to court with an agreement that they cannot adequately justify to a judge. This would be a waste of the divorce mediator’s client’s time, and money.

So, is divorce mediation right for you? If you can answer “yes” to questions like these, you are a very good candidate.

1. Are you concerned about the long-term well being of your children, and do you desire to be equal participants in raising them?
2. Do you believe your money is better spent on the family and the kids than teams of lawyers in a divorce court?
3. Are you able to honestly consider the implications of your decisions where your spouse is concerned? Do you want it to end well with the possibility of peaceful post-divorce coexistence?
4. Do you want to get through the divorce as painlessly as possible and move on with your life?
5. Are you less concerned about “seeking revenge” against your spouse than trying to prepare for a life as a divorced person?