DIVORCE LAWS (Divorce Information)
Definition of divorce
Divorce, is the termination of a marriage between a man and a woman, by the judgment of a court of competent
jurisdiction.
Divorce is a
complicated matter, it does not only affect the spouses or their
property rights, it involves child custody as well as child support. A divorce generally begins with a divorce petition. Most states have both fault and no fault
divorce, however in some states, only no fault divorce is
recognized. Typically the court resolves all issues between
the parties, such as division of marital property, child custody, and spousal and child support.
It leaves both people free to marry again. But neither
party may treat the other as sole until after a decree of divorce
has been made. The decree of divorce must be made while both parties
are living, otherwise, if one or both spouses died before the decree
of divorce is made final, then it is as if no divorce has taken
place, and all rights and privileges acquired by reason of marriage
are restored.
Basically there are
two (2) types of support
that can be obtained in divorce
proceedings:
What are the types
of divorce?
• Absolute divorce
Absolute divorce ("divorce a vinculo matrimonii") is a judicial termination of a marriage based on marital misconduct or other statutory cause arising after the marriage ceremony. As a result of an absolute divorce both parties' status becomes single again. Both
"fault" and
no-fault divorce belong to this category.
• Limited
divorce
Limited divorce ("divorce a mensa et thoro"). The consequences of limited divorces vary from state to state. Typically, a limited divorce is commonly referred to as a separation decree; the right to cohabitation is terminated but the marriage is
undissolved and the status of the parties is not altered.
How do I get a divorce?
The divorce process varies from state to state. What procedures
are available and how long the process lasts is unique to each
state’s court system. All states have residency requirements that
must be complied with by a spouse before he or she can file a
petition there, the duration of which ranges from one month to one
year, depending on the state.
Once you have decided to get a
divorce, a number of procedures must be followed for the courts to
actually grant the divorce. This includes filling out forms, filing
documents with the court and possibly going before a judge to
resolve contested issues between you and your spouse.
What is a divorce petition?
The divorce petition is a document that contains information about you and your spouse including the grounds for the divorce and whether you and your spouse have a marriage contract. It may also include claims under the Family Law Act relating to questions of property including equalization of net family property, who will have custody of children, and who will live in the family home. It may also include claims for spousal and child support. Your divorce petition is the document that the judge eventually hears and considers in order to make a formal order giving you and your spouse a divorce. A divorce petition can be filled out and filed by just one spouse or by both spouses. Spouses will normally only file together if they both agree on things such as how to split family property, who gets custody of the children and how much child and spousal support will be paid.
Where do I file the divorce petition?
Divorce actions are filed in the circuit
court. Preferred venues are the county where you last lived as
husband and wife or where the defendant in the action lives. The purpose of the complaint is to let the courts be aware of the request for divorce,
as well as to legally inform the other spouse of the action taken by
petitioner (the spouse seeking divorce). After receiving the
petition, the respondent (the other spouse), will file an answer of agreement or disagreement. At this time separation starts and the
petitioner will file Pretrial Orders or formal motions concerning living arrangements, finances, temporary custody and visitation.
What basic information must the divorce petition contain?
Your divorce petition must contain the following:
1. Date and location in which marriage took place
2. The residence of both spouses
3. The names and birth-dates of each child
4. Reason for declaring a divorce, (must be grounds permitted in your state)
5. A list of claims
What must I do if my spouse files a divorce petition?
If your spouse files for a divorce, you will be served with a divorce
petition, and are expected to file a response with the court within
twenty (20) days. If you don't know how to do this the best person
to ask for assistance and advice would be your lawyer. If you fail
to respond within the 20 day period it can lead to serious
consequences, and the court may proceed with the divorce ex parte (without you) and give your spouse everything they asked for in the petition.
What is meant by uncontested divorce?
Uncontested divorce means that there is a general agreement
between you and your spouse regarding the divorce, that neither one
of you is against it, and both of you agree as regards the division
of your marital property, custody of your children, as well as any
support payments. In other words you won't have to fight it out in
court to get your divorce. All you have to do is file all of your
documents with the court, wait for the judge to sign your divorce
papers and return them to you through mail. In general, an
uncontested divorce will proceed through the system more quickly, be
much less complicated, and less of a financial burden.
What is meant by contested divorce?
A contested divorce is one in which you and your spouse cannot agree, either about getting divorced or about the terms of the divorce, such as the division of assets, allocation of debts, alimony, child support, or the custody of children.
If there are things that you and your spouse cannot agree on, you may eventually have to go to court to resolve these issues and to get your divorce. In some cases there can be many court hearings, called "motions", to resolve temporary issues about custody of children, child support and spousal support. There may also be a trial to make a final decision on any issues that have not been agreed on.
When is a divorce final?
Once a judge has signed your divorce papers there is a one month waiting period before your divorce becomes final. This waiting period gives you and your spouse a chance to cancel the divorce if you decide to get back together.
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