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When a married couple decides to legally separate, the couple undergoes divorce proceedings. “Absolute” divorce occurs when a couple decides to permanently separate, leaving neither party with legal obligations to the other after the divorce decree is entered. In a “Limited” divorce, a couple separates, and the persons are no longer required to cohabitate.

Grounds and Procedures

Divorce law falls under the broader category of family law; as such, divorces are handled in state courts. The usual grounds for divorce include cruel and inhuman treatment, abandonment, imprisonment for more than three years and acts of adultery. The party filing for a divorce will need to prove the grounds claimed. In states allowing “no-fault” grounds for divorce, neither spouse is required to prove any grounds against the other; irreconcilable differences is the only consideration necessary. In some cases, the spouses mutually want to separate and even consider seeking a lawyer together. The law, however, prohibits lawyers from representing both spouses.

Upon filing a divorce petition with the court clerk, a process server will deliver (serve) the court papers to the other party. Different means of serving papers for people who live in another state or whose whereabouts are unknown are available. The length of time between filing a petition and having a divorce decree granted is dependent on such factors as negotiations over assets and liabilities, as well as the waiting period required by the law.

Assets and Liabilities

State laws vary as in the regulations governing award and separation of a couple's real and personal property, as well as their obligations to each other and their child(ren) (if any).

In “community property” states, the courts recognize both spouses as owning a 50 percent interest in any assets acquired during the marriage (except for items obtained as gifts or inheritance.) This includes retirement benefits (such as an IRA, 401k or traditional pension), which will need to be divided between the two persons. If they were not married during the entire period of the retirement fund accumulation, the funds shall be distributed on a pro-rata basis. Likewise, debts are the responsibility of both parties.

If there are children in the marriage, the court will determine custody and visitation rights, as well as child support payments. (See “Custody and Visitation” Law on this Web site)

Spousal Maintenance (also referred to as “spousal support” or “alimony”) is usually an obligation decreed by the court. Although alimony was traditionally paid by a husband to a wife, modern scenarios may find a wife is the primary wage earner and/or the husband is unable to work; the court may decree the wife must make spousal support payments to the husband upon divorce. Factors the court will consider in determining the amount of spousal support to be paid will include such considerations, for example, as the age and earning ability of both spouses; the duration of the marriage; the standard of living established during the marriage; the separate financial resources of the spouses; and the cost of health insurance (or reduction in coverage) for the spouse seeking support.

Divorces, no matter the grounds, are stressful events with major emotional and financial impacts. Your choice of attorney may help in minimizing some of the stress and impact. If you have friends or relatives in your local area who have been divorced, they may be able to refer you to a lawyer appropriate for your situation. Whether you are the plaintiff or defendant in a divorce cause, be sure to choose a lawyer with the majority of his or her experience representing either plaintiffs or defendants, as is your situation.

By Kathleen Goolsby           

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