Q: What is a divorce?
A: A divorce–referred to in some states as a "dissolution of marriage"–is a decree by a court that a valid marriage no longer exists. It leaves both parties free to remarry. It usually provides for division of property and makes arrangements for child custody and support.
Q: Are most divorces contested?
A: No. Although divorces may be emotionally contentious, most divorces (probably more than 95 percent) do not end up in a contested trial. Usually the parties negotiate and settle such things as property division, spousal support, and child custody between themselves, probably with attorneys’ help. Sometimes parties reach an agreement by mediation, with a trained mediator who tries to help husband and wife identify and accommodate common interests. The parties then present their negotiated or mediated agreement to a judge. Approval is virtually automatic if the agreement is fair.
If parties are unable to agree about property, support, and child custody, they may ask the court to decide one or more of those matters. One spouse may sue the other for divorce, alleging certain faults or offenses by the defendant. But this has become far less common than it once was. Most divorces now are no-fault divorces.
Q: What are grounds for obtaining a divorce based on fault?
A: States that allow fault-based divorce vary somewhat on the allowable grounds. Many states permit divorce for adultery, physical cruelty, mental cruelty, attempted murder, desertion, habitual drunkenness, use of addictive drugs, insanity, impotency, and infection of one’s spouse with venereal disease. Spouses in the mood for revenge probably could come up with a multi-count complaint.
Q: What is a no-fault divorce?
A: It is a divorce in which neither person blames the other for breakdown of the marriage. There are no accusations, no need to prove "guilt." A common basis for a no-fault divorce is "irreconcilable difference" or "irretrievable breakdown." As those terms imply, the marriage is considered to be over, but the court and the legal documents do not try to assign blame. Another common basis for no-fault divorce is the parties living separate and apart for a given period of time, such as for six months or a year, with the intent that the separation be permanent.
Q: Why does the law provide for no-fault divorces?
A: No-fault divorces are considered a more humane and realistic way to end a marriage. Husbands and wives who are divorcing usually are suffering enough without adding more fuel to the emotional fires by trying to prove who did what to whom. The laws of no-fault divorce recognize that human relationships are complex and that it is difficult to prove that a marriage broke down solely because of what one person did. However, some critics of no-fault divorces are concerned that an economically dependent spouse may not be adequately protected when it is comparatively easy for the other spouse to obtain a divorce.
All states have some form of no-fault divorce, but most states also retain fault-based grounds as an alternative way of obtaining a divorce. Some spouses want the emotional release of proving fault by their mates. Courts are not a very good forum for such personal issues, and the accuser is usually less satisfied than he or she expected to be.
Q: Will use of fault grounds affect other aspects of the divorce?
A: That depends on the state. In some states, fault may be taken into consideration in deciding property and spousal support, even if the divorce is granted on no-fault grounds. For example, in some states fault will be considered if it directly causes waste or dissipation of marital assets. In many states, the fault of a party in causing a breakdown of the marriage is not supposed to be a factor in dividing property or deciding spousal support. In other states, however, a spouse who commits adultery may not be able to receive spousal support. In custody cases, the marital fault of a party usually is not supposed to be considered unless that fault caused a harmful impact on the child. For example, a discrete extramarital affair normally would not be a major factor in deciding custody. But an affair or series of affairs that placed the child in stressful situations could be a factor in deciding custody.
Q: May a couple get a divorce without lawyers?
A: Most states permit do-it-yourself divorces. But the complexities of property division and taxes may make it advisable for both parties to have expert legal and financial advice.