August 31, 2011

Divorce is the undoing of a marriage. In some states it is called a dissolution of marriage. No matter what the label, this is a way to formally end legal ties between a husband and a wife, and resolve other issues that may connect them, such as child custody, child support, property division, debt division, and spousal support. Divorces are granted by courts, and most of the laws regarding divorce are made by the states, rather than the federal government.

Divorces can be arranged by agreement of the couple, and when the couple cannot agree, a judge makes the decisions. In the majority of divorces, the couple reaches an agreement, the judge makes sure the agreement is fair, and the judge makes the couple’s agreement a part of a court order.

To obtain a divorce there must be a reason or “grounds” for the divorce. Early in the history of our country the grounds for divorce were very limited, often requiring proof of adultery. Current divorce law includes many more grounds, including physical cruelty and mental cruelty. Most states now also have grounds for divorce that are called “no fault.” To obtain a divorce using “no fault” grounds one may be required to show that the couple is living separately, the marriage has broken down, and there is little possibility that the marriage could be repaired.

Couples who divorce often have children in common. When these children are minors or have special needs, the divorce must address how the children will be cared for and how they will be supported financially. The arrangement of who will care for the children is called child custody. Custody can be further divided into physical custody and legal custody. Physical custody refers to who provides daily care for the child. Legal custody refers to who makes important decisions in the child’s life. In a divorce, one parent can get custody and the other parent can have visitation rights, or the parents can share custody. Shared custody is often called joint custody, but does usually involve a perfectly equal division of time spent with each parent. At one time, a presumption existed in favor of the mother retaining custody, but this is generally no longer the case.

Along with child custody come decisions about financial support of the child or children. There is an expectation that each parent will contribute to the financial support of the children. Most often the parent who does not live with the child full time will be required to provide more financial support. The parent who houses the child supports the child directly through housing, food, clothing, and similar expenses. There are many variations in how states calculate a parent’s responsibility for child support. Some states consider only the nonresident parent’s income while other states consider the income of both parents. Some states use a simple percentage of income to calculate the amount of support, while other states have more complex formulas. In each state there is an office, funded by the federal government, which can help people get and enforce child support orders.

Divorces also divide the things that a couple owns. Things like a home, automobiles, furniture, appliances, and clothing are distributed either by agreement or by a judge’s decision. Other nontangible things can also be divided. Retirement savings plans and business interests can be divided as well, and it is often difficult to estimate the value of these items. If parties cannot agree as to how to divide their possessions, the court can make the division, or the court could order a sale and have the proceeds divided. A small number of states use a system called “community property” in which the possessions are divided equally between the wife and husband. Most states’ laws require a judge to divide property in a way that is fair, which sometimes, but not always, means an even split.

Many couples who divorce have debts, and a divorce can help to resolve who is responsible for which debts. Dividing debts is different from dividing property because debts involve someone who is not a part of the marriage. It can be harder to separate from a credit card company than it is to separate from a spouse. A court can order one person to pay a particular bill, but if both people agree to be responsible for the debt originally, both people will still be responsible. This becomes important if the person who promised to pay a bill can no longer pay it, decides not to pay it, or tries to discharge the debt in bankruptcy. Protecting yourself in these situations can be tricky.

In some divorce cases one former spouse makes payment for the support of the other. This used to be called alimony, and is often called maintenance now. Maintenance payments are not based on gender, as they used to be in the past, so either spouse may have to support the other. Maintenance is more often a part of a divorce where the marriage has been long and where the parties do not have equal abilities to support themselves. Maintenance can be awarded on a permanent basis, or it can be for a specific time period. Maintenance is often limited in time when it is for the purpose of giving one spouse the opportunity to get an education that will increase that person’s ability to support herself or himself.

Divorce can be both a financial loss and an emotional loss. Living expenses will increase because the couple will maintain separate housing. At the same time expenses are increasing, income may decrease. Unless some kind of spousal support is awarded, each former spouse will take home his or her own paycheck, which may be less than that of the other. Emotionally, divorce can mean loss of support and companionship of the spouse, and even relationships with friends can be affected. People experiencing this kind of loss may be able to find a support group through a local social service agency.

Lawyers can provide important services to people who want a divorce. Lawyers can make sure that people who agree to a divorce understand how the agreement will affect them. Lawyers can also represent a spouse in negotiating an agreement, or in presenting a case to a judge for a decision. But lawyers can be expensive. Sometimes free legal assistance can be obtained through a local office of the Legal Services Corporation, or through other local agencies. Many people represent themselves in a divorce, but where there are complicated issues about children and finance, this should be a last resort.

Finally, divorce is only available to married people. While this may sound obvious, it affects a large number of people who establish a relationship without being married. Such people cannot use the process of divorce to help make decisions about which person should receive which belongings, and how children should be cared for. Other legal processes may be available, but those processes rarely cover the wide variety of issues that come up when people end relationships.

SEE ALSO: Adultery, Child custody, Cohabitation, Day care, Domestic partnership, Domestic violence, Marital status, Prenuptial agreement

Suggested Reading

  • The American Bar Association guide to family law: The complete and easy guide to the laws of marriage, parenthood, separation and divorce. (1996). New York: Times Books/Random House. Lyster, M. (1996). Building parenting agreements that work. Berkeley, CA: Nolo Press.
  • Mercer, D., & Pruett, M. K. (2001). Your divorce advisor: A lawyer and a psychologist guide you through the legal and emotional landscape of divorce. New York: Simon & Schuster. West, R. P. (1997). How to find the right divorce lawyer. Chicago: Contemporary Books.

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