While it may seem that calling off a divorce is a rarity, it’s something that happens quite often. For couples thinking about divorce, who are still unsure, it’s important to remember that there are other options to consider.
OPTIONS OTHER THAN DIVORCE
There are three legal options for couples looking to end their marriage or domestic partnership: divorce, legal separation, and annulment.
With an annulment, the court rules that the marriage or domestic partnership is not legally valid due to reasons such as the following: Incest, fraud, or physical or mental incapacity, Marriage or domestic partnership was entered into by force, One of the spouses was already married or in a domestic partnership, One of the spouses was not of legal age to enter into marriage or domestic partnership Annulments are rare, and require an appearance before a judge.
Legal separation does not end a marriage or domestic partnership and parties are not allowed to remarry or enter a new domestic partnership. This is a good option for couples looking to separate their finances and property without divorcing. This is also a great step for couples that are still deciding if they want to formally end their marriage or see if they are able to reconcile.
If you and your spouse have decided to try legal separation instead of, or prior to getting a divorce, it’s important that you work with a divorce attorney to create a legal and binding separation agreement. This agreement will offer you legal protection should your spouse violate the agreement you have come to.
There are numerous things that should be contained in your separation agreement, including the following (if they apply):
Spousal Support -Who will be paying whom? How does this impact taxes?
Benefits – Legal separation allows you to retain certain benefits gained during a marriage, such as health insurance.
Home – Outline who will pay for the home mortgage, as well as the maintenance of the home, such as utilities and lawn care. You should clearly define who is able to live in the home.
Joint Accounts – This includes: joint checking, savings, and credit accounts. You might also choose to freeze these accounts or close them and open separate accounts. You should make it clear who pays what account.
Protection from Acquired Debt – A legal separation agreement should also outline any debt in order to shield you from being held responsible for debt acquired during the separation. Because laws vary by state you’ll want to work with an attorney when drafting this agreement. Once you have filed a legal separation, there are some next steps to take – and these might be more emotional than procedural.
LEGAL SEPARATION BEHAVIORS “TO-DO”
- Use this time to reflect on your marriage and how you are feeling regarding the process.
- Consider the emotional needs of any children that are involved.
- Remember legal separation is not the time to jump into a new relationship.
- Keep all communication open with your spouse. Try to be respectful in all forms of communication. This will mean less stress for you and any children involved.
- Set up a parenting plan that outlines regular visitation schedules. This should follow along with your child’s daily activities, such as school and any extra-curriculars.
- Follow every responsibility outlined in the legal separation agreement. This includes any child support payments or spousal support payments. Not doing so might mean court time or fines.
A divorce, also known as dissolution, legally ends a marriage or domestic partnership. Following a divorce, both parties are considered single, and thus free to enter a new marriage or domestic partnership. In California, there are two grounds for divorce: irreconcilable differences and incurable insanity. Two types of divorce are available in California: Summary Dissolution and Regular Dissolution. Summary Dissolution provides an easier way to handle divorce, as it only requires a few forms. You do not have to appear before a judge eithis. Summary Dissolution is only available to those who have been married or registered domestic partners less than five years, have no children together, and have few assets and debts. If a couple does not meet the requirements for Summary Dissolution they will need to file for Regular Dissolution.
THE STEPS OF THE DIVORCE PROCESS
The steps required for a divorce will be completely dependent on the relationship. A marriage that was short, did not involve children, where the spouse did not acquire property or debt together will obviously require less sorting out than a marriage that lasted 26 years, where the spouses bought a house and had three children. When there is less “accomplished” during the marriage, there is less to sort out during the divorce process. In shorter marriages, a couple is even able to obtain an expedited divorce. In fact, there are various forms of divorce available (of course, you will need to ensure your state laws regarding these types of divorce), including the following:
Summary Divorce: This is an expedited divorce procedure for couples who meet the following requirements: haven’t been married for very long (usually five years or less), don’t own much property, don’t have children, and don’t have significant joint debts. Both spouses must agree to the divorce and file court papers jointly. There is no need to go to trial with this form of divorce.
Uncontested Divorce: This is when both spouses agree to the terms of a divorce and file the court papers cooperatively. There is no need to go to trial with this form of divorce.
Default Divorce: This is when you file for divorce and your spouse doesn’t respond. A court is able to grant you a divorce even if your spouse did not participate. This is often what happens when spouses cannot be found. There are a number of rules regarding this form of divorce, so you will need to consult a family law attorney or your local divorce court system to obtain this form of divorce.
Fault and No-Fault Divorce. California is a “no-fault” state, and what this means is that rather than placing blame on a spouse, all you need to declare is that you and your spouse have “irreconcilable differences” or have suffered an “irremediable breakdown” of your relationship. In fault states, you are able to assign fault to a spouse – such as adultery. There are a number of rules regarding assigning “fault,” so you will need to consult a family law attorney or your local divorce court system.
Mediated Divorce. This is a very common process, during which a mediator serves as a neutral third party to help you and your spouse resolve the aspects of your divorce. A mediator does not make decisions, but rather helps the both of you come to an agreement on everything.
Collaborative Divorce. Collaborative divorce is a kind of hybrid between a standard divorce and a mediated divorce. You and your spouse both hire separate lawyers that are trained to work with each other to settle your case. This can also involved a larger team of a financial or tax or property adviser. Each spouse discloses all necessary information for fair negotiations, and then meets with each other and both lawyers to discuss settlement. In this form of divorce, if you are not able to settle and thus have to go to court, the original attorneys you have worked with with withdraw from the case and you’ll need to hire different attorneys to take your case to trial.
Arbitration. In arbitration, you and your spouse hire a private judge, called an arbitrator. The arbitrator makes the same judgments a judge would make. Both spouses must honor the arbitrator’s decisions as if a judge had made them.
Contested Divorce. This is when spouses are unable to decide on property or child custody, or any other aspect of a marriage. The decision will have to be made by a judge in court. You will need to go through settlement negotiation and hearings. If spouses are unable to resolve the case after that, a court trial is held to determine the aspects of the divorce. Regardless of if you want a divorce, want a legal separation, need an annulment, or decide to cancel a divorce like the Dempsey’s, it’s always advised that you work with a divorce attorney.
WORKING WITH A DIVORCE ATTORNEY
If you are facing a divorce, you should work with a divorce attorney that can take a look at your specific situation and give you advice based on it, rather than approach it with a one size fits all mindset. Your specific situation will be particular to you and your marriage and the way your life was set up during the marriage. This might mean major financial decisions regarding retirement funds, property, child support and custody, and alimony. A divorce attorney will work with you to help you decide how you want to tackle these elements of your marriage and divorce, while also providing guidance and support. They will be able to lead you through the process while keeping you from procrastination and caving into pressure. They’ll also be able to help ensure you meet all the required timelines while ensuring that you get a fair case and trial should you need to go to court. Lastly, they’ll be able to help you find the freedom and new life you are seeking – one that is entirely on your terms.
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