Legal Ease

Chances are you've heard horror stories about the divorce process from well-meaning friends and relatives. But before you start to worry about being "taken to the cleaners" or "left without a dime," it's important that you understand a few basic principles of divorce law.

By Diana Shepherd
Updated: August 31, 2014
Legal Separation/Divorce Process

The first thing to realize is that every divorce is unique -- just as every marriage is unique. Your individual circumstances, personalities, emotional state, and where you live all play a part in determining what "kind" of divorce you'll have: straightforward or complex; fast or slow; civilized or bitter. This article is not intended to provide legal advice -- you'll need to consult with a lawyer for answers to your specific questions. But knowing some of the "lingo" and what some of your options might be should help you to become a more informed participant in your own divorce -- and that's the first step to taking charge of your post-divorce future.

The first steps

The legal divorce process begins when one party (the "petitioner" or "plaintiff") serves a Summons upon the other party (the "respondant" or "defendant"), stating the Grounds upon which the divorce is sought, and a brief outline of what the plaintiff is seeking -- the divorce itself, as well as items such as division of properties, custody of the children, interim support, and legal fees. (For more information about the grounds for divorce in your state, please see "Ground Rules".) In the state of New York, you must file with the court before seving the Summons. The defendant is required to respond with a Notice of Appearance within 20 days in NY, 30 days in Illinois and California, and 35 days in New Jersey.

After the Summons, the Petition or Complaint is served, describing the factual basis for the divorce and specific relief being sought in more detail. Once served upon the defendant, he or she has 20 days (30 in CA) to respond. In the response, the defendant may admit or deny parts of your Petition, and may also issue a Counterpetition,

Counterclaim, or Response against you. If the respondant objects to the divorce itself, his or her lawyer can go to court to seek to dismiss your Petition on various legal points, such as insufficient grounds. If the judge rules for the respondant, you're back to square one. If you're a New York resident, "you may want to consider moving to a no-fault state, such as New Jersey or Connecticut," suggests Alton Abramowitz, an attorney with Cooperman Levitt Winikoff Lester & Newman in New York City, and president of the New York chapter of the American Academy of Matrimonial Lawyers (AAML). According to David Wildstein, an attorney with Wilentz Goldman & Spitzer in Woodbridge, NJ this type of situation would be rare. And, he adds, unless your spouse is a resident of the no-fault state, you'd also have to meet the residency requirement of that state. Assuming there's no objection to the divorce, or any objection is satisfied, the divorce proceeds to the Discovery stage. During Discovery, both parties exchange information on relevant issues such as custody, fault (if applicable), or grounds for the divorce. In most cases, the emphasis will be on financial matters.

No-Fault vs. Fault Divorce

With the exception of New York, most states grant "no-fault" divorces based on one or both parties telling the court that their marriage is over (the closest thing to a no-fault ground in New York is that a couple has lived separate and apart under a separation agreement for at least one year). No-fault divorce acknowledges that both husband and wife have contributed in some way to the breakdown of the marriage, so one party is no longer "punished" -- financially and otherwise -- for being solely to blame for the marriage's failure.

"The purpose of no-fault is to take the acrimony out of matrimony," says Herbert Glieberman, a charter member of the AAML, a divorce attorney at the Chicago-based law firm Herbert A. Glieberman & Associates. "One big advantage to no-fault is that parties don't have to waste time and money hiring private detectives in order to prove grounds. It reduces the need to litigate for days or weeks [about grounds], allowing couples to move on to important issues such as custody, visitation, child support, maintenance, and distribution of marital assets," he adds.

Critics such as A.J. Brand, founder of the Coalition for Financial Fairness, suggest that the adoption of no-fault grounds has increased the divorce rate and contributed to the feminization of poverty. "There used to be an economic consequence to being at fault," she points out. "A whole under-class has developed since no-fault came in: according to a 1990 census, there are 804,000 displaced homemakers in the US -- and about half of them were created by the divorce system." Brand thinks that women in particular are not making out well under the current system. "If a woman has been married for 25 or 30 years, and she stayed home to raise the kids and help her husband's career, she might now get only three to four years of 'rehabilitative maintenance' -- after which she's expected to be able to fend for herself. Since she's now in her 50s, and has no work record, she can look forward to earning a minimal amount at best."

But some experts argue that no-fault divorce actually protects the rights of individuals. According to Glieberman, the economic consequences of fault divorce in the past could be quite devastating. "If a woman committed adultery just one time, she could have wiped out all her claims to property and support," he states. Today, when a judge is making decisions about property and support, he or she takes many factors into considerations, such as:

  • how long the marriage lasted;
  • what the couple's ages are;
  • both parties' standard of living during the marriage;
  • what marketable skills each one has or could acquire;
  • the health of each party; any financial obligations to prior families;
  • the necessity of the custodial parent to stay at home with the children;
  • the contributions each one has made towards the marriage (through regular employment, homemaking, investments, etc.)

In certain situations, the judge may award permanent maintenance (ask your lawyer if you're eligible for such an award).

So rather than looking for which party has the biggest list of complaints against the other, the courts now try to create an equitable agreement based on what each spouse requires to be financially independent and off public assistance.

"If a woman stayed home for 20 years and was a good mother and homemaker, then she deserves as much as her CEO husband," says Glieberman. "And if she worked outside of the home as well, then she gets extra Brownie points: she's entitled to a disproportionately larger share of the assets than her husband is."

And for those who believe that a return to the fault system would reduce the incidence of marriage breakdown, New York's divorce statistics prove this assumption false. As the only state without true no-fault divorce, it should have the lowest divorce rate in the US if the hurdle of fault divorce really kept couples together. At a rate of 3.3 per 1,000 population, the New York divorce rate is slightly lower than the national average (4.6 per 1,000), but higher than many other states -- including Massachusetts (2.4), Connecticut (2.8), and New Jersey (3.0). So reinstating fault divorce doesn't seem to be the solution to keeping marriages intact.

Generally speaking, there's no advantage to filing for divorce using the fault (usually adultery, cruelty, or desertion) rather than the no-fault (living separate and apart) grounds; in terms of property or support awards, which ground you cite is immaterial. "The only time when fault might be relevant is during custody disputes," says Glieberman. For instance, if your spouse is abusive, a drug addict, or a criminal, filing for divorce on these grounds will help to ensure that you get custody of your children.

The Adversarial Divorce

The very word "adversarial" implies that each party considers the other to be an enemy; that there will be a "winner" and a "loser" at the end of the process. According to Margorie L. Engel and Diana D. Gould, co-authors of The Divorce Decisions Workbook, the two most popular female threats in an adversarial divorce are: "I'll take you to the cleaners!" and "I'll get the children, and you'll never see them!" The two most popular male threats are: "You'll get no money!" and "I'll take the children!" During a truly adversarial divorce, each spouse is looking out only for his or her own interests rather than trying to resolve their issues in a fair, balanced way. Everyone has heard of a "divorce from hell" in which the participants have spent years in litigation and ended up bankrupt rather than compromise on a single issue. Such divorces, however, really aren't the norm.

Contested vs. Uncontested Divorce

If the divorce suit is unopposed (or uncontested) by the defendant, the case moves forward and the final judgment is entered without the need for a trial. This doesn't mean that the issues were resolved easily or quickly, but it does mean that both parties were able to agree on custody, support, maintenance, and the division of assets and liabilities.

The petitioner attends court on the appointed day -- the spouse may also attend but is not required to be there -- and testifies as to the matters set forth in the Petition for the Dissolution of Marriage, and about any agreements already in effect (such as the Separation Agreement). If the judge finds everything in order, he or she will either sign a Judgment for Dissolution of Marriage immediately, or set a new date for you to return for the Judgment. A contested divorce must go

to trial before a judge. Basically, this happens when spouses are unable to agree on one or more important issues -- often relating to property or custody -- and they are asking the judge to make a decision for them. "This should be the last resort, because you're putting your fate in the hands of a busy judge," says Chicago divorce attorney Edward Stein. "You're stuck with whatever the judge decides. For instance, the judge may divide your property 50/50, but you may not get the 50% you want. And a judge may not look at the tax ramifications of his or her decision, so your settlement might end up costing you a lot of money."

Some of the most common reasons for contesting a divorce include:

  • The hopes of reconciliation. One spouse wants the marriage to continue for emotional, financial, social, or health reasons.
  • Revenge. One spouse is using this as an opportunity to hurt or annoy the other by dragging the divorce process out as long as possible.
  • Religious beliefs. One spouse's religion doesn't recognize or sanction divorce.

Even when the relationship between husband and wife is strained or "adversarial," contested divorces are a rarity in today's legal system. Although some experts believe that there are some emotional and psychological benefits to going to trial (such as psychological vindication and economic rewards if you "win"), most recognize that couples who end up in court ultimately lose sight of the long-term interests of the family unit, inflict additional pain on themselves and their children, and greatly increase their legal costs.

Mediation

If the thought of a long, bitter court battle doesn't turn you on, you might want to consider trying mediation. Mediation is growing in popularity as an alternative to the adversarial approach to divorce. Basically, mediators provide couples with professional guidance while giving them an opportunity to maximize their personal input into the divorce settlement.

Mediation can offer many advantages: because the settlement is reached voluntarily, and with the involvement of both parties, it's more likely to be carried out without the need for further litigation or enforcement. "Overall, the greatest advantage of mediation is the ability of the parties to retain control over the outcome of their divorce," says Jerald Kessler, president of the Mediation Council of Illinois and an attorney and mediator in private practice in Highland Park, IL. "The type of settlement that occurs in mediation is different than that arrived at through an adversarial divorce," he adds. "Crafted by the participants, the settlement is arrived at freely, rather than through a war of attrition. The end result is one that the parties have shaped themselves, and so there's a greater willingness to abide by the agreement." The non-adversarial nature of the process and the emphasis on cooperation are also more likely to reduce tension between the parties and encourage future cooperative behavior -- an important objective when children are involved.

According to Kessler, the best candidates for divorce mediation are couples who are willing to work together, who want to attack the problems they're facing rather than each other. "In general, they're able to separate their feelings of anger or rejection from the actual problem-solving tasks that need to be addressed."

If you want to try mediation, you should find a mediator and begin the process as soon as possible -- if you're already knee-deep in litigation, any kindly feelings you may have had for your ex will be long-gone and you'll be less willing to make the compromises that mediation will require for the good of the family. Even if your mediator is also a lawyer, each of you should still retain your own attorney to read and advise you of the implications of any proposed agreement before you sign it. In this case, the attorneys will be acting as consultants rather than active participants.

It may seem obvious, but for mediation to succeed, both parties must want closure to their marriage. Sometimes, the process can simply be delayed until this level of emotional readiness has been achieved. In situations in which there is ongoing domestic violence, however, mediation may not be an option.

Alternatives to Divorce

If you and your spouse don't want a divorce, but don't want to continue living together either, there are a couple of options that may be available to you depending on your circumstances.

In most states, a Legal Separation must be filed by the "innocent spouse" (for instance, your spouse moved out and you did nothing to cause it). According to Ed Sherman -- a family law attorney with Sherman, Williams and Lober in CA; the author of How To Do Your Own Divorce and How To Do Your Own Divorce in California; and co-founder of "Divorce Helpline" -- there are a few situations where a legal separation works better than divorce. Examples include: "...where sizable Social Security benefits, Veterans' benefits, retirement, or other benefits may be lost if there is a divorce, or where a spouse with an illness or disablity may be able to stay on the employed spouse's health insurance (call the plan to see if they allow this)," according to Sherman. A legal separation can last indefinitely -- as long as neither party wishes to proceed to divorce.

A legal separation can determine financial issues such as child support and maintenance, but doesn't generally divide the property. In most cases, it's a stepping stone to divorce; sometimes, however, it's a wake-up call to a complacent spouse. "I've had clients reconcile after filing for divorce," says Chicago divorce lawyer and mediator Kathryn Somers, adding that about 10% of her divorce cases end in reconciliation rather than divorce. "Sometimes, it's part of the reconciliation process." She believes that lawyers and mediators have a "moral and ethical obligation" to try to find out whether the marriage can be saved.

An Annulment or Nullity declares that the marriage never really existed in the first place. The circumstances under which you can file for this declaration of invalidity are very limited -- and irreconciliable differences is not one of them. This is a very complex area, and you'll definitely need a lawyer to help you prove your case. Generally speaking, the most common grounds for an annulment are:

  • One party lacked the capacity to consent to the marriage. For instance, one party lacked the mental capacity to consent, was so ill that he or she couldn't consent, had been plied with alcohol or drugs, or was forced or fraudulently induced to enter the marriage.
  • One party lacked the ability to consumate the marriage, and the other didn't know about it until after the marriage had taken place.
  • One party was a minor and the marriage took place without parental consent.
  • Bigamy. One party was still legally married to someone else when the marriage took place.
  • Consanguinty. The marriage is prohibited because of blood relationship (brother and sister, father and daughter, etc.)

"The grounds must be something extraordinary," asserts Somers. But there are reasons for trying to have your marriage annuled that go beyond religious or moral concerns. "Say you win the lottery the day after an impulsive marriage, and you decide you really hate your new spouse," she says. "If you get a divorce, the lottery winnings are considered marital property; but if you get an annulment, the money's all yours."

As you take your first steps towards legal separation or divorce, it's important to remember that each divorce is unique and there are many approaches to divorce available in the judicial system. With careful consideration, you're certain to find the professionals and the approach that are right for you.

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By Diana Shepherd| April 27, 2006
Categories:  Legal Issues

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