Divorce Information: Breaking Up is Hard to Do

Know It Yourself…Do-It-Yourself Divorce?

• Legally ending a marriage comes down to pitting the interests of one person against those of another within a set of unique rules. Though the processes and procedures of assigning “fault,” separating property, and deciding custody can be relatively short, the ramifications are long-term!
  
• This article is intended to give you an overview of the process of divorce while simultaneously convincing you not to go at it alone.
  
• If you want a nice introduction to the official language of the divorce, go to “Divorce Vocabulary: When there is nothing left to say and how to say it.”

The information here is meant to orient you to the divorce process, to let you know what you can expect. It in no way implies that you can handle a divorce on your own. In many cases, it Is advised for you to seek the assistance of a qualified local attorney to protect your rights.

Divorce, sometimes called a dissolution of marriage (and less formally known as “un-marriage,” or simply “splitsville”), is a court order terminating a valid marriage. After a divorce, the marriage no longer exists. An annulment, on the other hand, states that a marriage was invalid at the time it happened.

Divorce actions are almost always filed in a couple’s state of residence. Preferred venues are the county where the couple last lived as husband and wife or where the defendant in the action currently lives. However, some states allow the issue to be addressed in other venues or court jurisdictions, an option generally only available when the divorce proceedings are simple, and no children or support is involved. (Note: This conditional bit of information honestly demonstrates why it would be foolish to attempt to bring a divorce case from start to finish without the help of a qualified divorce attorney. If you do not know where you can and cannot file for divorce, you certainly cannot navigate the inevitable complexities.)

A divorce is usually concerned with resolving issues of extraction from the marriage: how to divide property; how to structure child custody and visitation; determining spousal and/or child support, etc. Though they should definitely be made part of a legally binding decree (known as either a divorce decree or settlement) signed by the court, these issues do not necessarily have to be worked out by the court. In fact, you will learn that if divorcing spouses cooperatively work matters out, the results can make life a whole lot easier and divorce less emotionally and financially draining. Of course, divorce and related issues are not trivial matters. That’s why when we refer to “divorcing spouses cooperatively work[ing] matters out,” we mean the spouses and their legal counsel, Competent counsel will be familiar with the unique laws, procedures, and trends of the state in which the divorce is filed, as well as out-of-state matters that may impact the divorce proceedings in their entirety.

Additional information:

Divorce Information: Grounds for Divorce
  Common-Law Marriages, Yes; Common-Law Divorces, No
  Divorce Information: Should I Get a Divorce Lawyer?

ON YOUR OWN

1. If you plan to file without legal representation—by using an online divorce kit or by purchasing divorce forms—you should first educate yourself about the divorce laws and case law of your state. Case laws will help you determine how courts (even particular judges) tend to rule and what issues may be raised during the divorce proceedings. Most states (and indeed local family courts) have web sites that contain downloadable pamphlets or booklets on how to file a divorce on your own. Some sophisticated court-run web sites even mention particular cases (see http://www.courtinfo.ca.gov/opinions/continue.htm). Books and self-help guides (written by or in consultation with attorneys) discuss your rights with respect to marital and separate property, child custody, and spousal support or alimony.

   Moreover, hundreds if not thousands of free or low-cost community resources are available to you. Such groups or services include your state bar association (which may host seminars or offer free recorded phone information on family law issues), family law clinics (which often include law students working with you under the mentorship of an attorney), local legal aid or court-sponsored clinics (again, which may include law students and mentoring attorneys). One important point to note: Check with your insurance company’s policies and resources—you may be eligible for free initial consultations with an attorney.

2. Time your divorce as best you can. Just as the ring of “location, location, location,” is critical in a business operation, you might want to consider NOT filing prematurely if you will be the recipient of Social Security benefits (retirement and survivor benefits) as a former spouse. You must have been married for at least ten years and been divorced for two years, and be at least 62 years of age. So, if you have been married 9 years, you might want to wait it out for another year to collect. You can still download your forms or research divorce kits—just be sure to research the timing of your filing, too.

   If you have existing health problems, and you rely on your spouse’s health insurance, you may want to reconsider or postpone filing. Once divorced, you will be on your own. Alternatively, you might be able to include a COBRA provision in your final decree.

3. Choose your state. Before you can file for divorce, you must meet the residency requirements of the state in which you file. Determine where you will be filing before purchasing divorce forms specific to a municipality. Each state has its own time requirements to qualify a person as a resident. If you want a quick exit and do not meet the residency requirements of your state, choose another state. In Alaska, there is no residency time limit; just apply when you arrive. In Nevada, you can file after six weeks of residency. In Kansas, it is 60 days. In other states, it may be longer.

   If your state has fault-ground laws, move to a state with “no-fault” divorce laws and a short waiting period.

   Lastly, if moving is an option, pick a state that “gives you the most”—that maximizes your recovery. For example, if spousal support/alimony is at the top of your list, move to a state that is more generous in alimony matters and establish residency there. Texas judges rarely give it to you. Check out the particular state’s laws and local norms on the requisites for support. For more information on alimony, click on our Alimony content.

   If moving outside the state is not an option, try another county in your state. How judges rule in one part of the state may be different from the ones in your area.

4. If you and your spouse have arrived at a negotiated settlement agreement, have a family law attorney review your papers before filing them with the court. Make sure that they are in compliance with the state’s requirements.

5. If you have been through the ringer with the soon-to-be ex and have reached an impasse on one or more key issues, try mediation, arbitration or comparative law. If you are still deadlocked using these procedures, take it to the judge. At that juncture, it will be in his or her hands.

   Be sure to consider the negative impacts of litigation:

   • Start by figuring out how much taking your case to court will cost you in dollars and cents. Factor in court costs, your time away from work, traveling, filing fees, service and other expenses. Your pocketbook takes a serious hit every day in court (think “lotsa” money). So ask yourself if the potential gains are worth it.
     
   • It also makes sense to factor in the judge. The judge is not happy to see you and hear the merits of your argument. He or she does not relish divorce responsibilities. His or her role is to make a decision—and those decisions may ultimately leave everyone unhappy.
     
   • Ordinarily a divorce proceeding is in open court. Your case is heard in front of strangers. In states where fault grounds must be used, if the soon-to-be ex is hell bent on making your life miserable, he or she has the forum to present evidence and testimony of potentially embarrassing and intimate details of your marital life.
     
   • As much as you want an immediate decision, it is not likely to happen within your time frame. A case inches along through the divorce process, ending with a judge who may or may not announce his decision immediately.
     
   • Finally, consider that it is often preferable for informed parties—you and your spouse—to craft the settlement agreement, rather than a third party new to, well, new to the party. Even though a judge is practiced at making such decisions, he or she is ultimately a stranger in a black robe. You know much more about your own needs than the judge who will shape the divorce decree if you do not.
     
6. If divorce is not an option, look at a permanent legal separation. You will still have to work out much of the same fundamental issues as a divorcing couple before a separation is finalized.