Nolo's Divorce Bundle
Nolo's Divorce Bundle
What is "no fault" divorce?
All states allow no fault divorce, which means the spouse asking for a divorce does not have to prove that the other spouse did something wrong.
To get a no fault divorce, one spouse must simply state a reason for the divorce that is recognized by the state. In most states, it's enough to declare that the couple cannot get along. Depending on the state, this may be called ("incompatibility," "irreconcilable differences," or "irremediable breakdown of the marriage.” In some states, however, the couple must live apart for a period of months or years before they can obtain a no fault divorce.
Where can I get a divorce?
Unless you’re in Alaska, South Dakota, or Washington, you must have been a resident of the state for a certain period of time to get a divorce there. Each state has its own rules, but many require that you live there for at least six months or a year before you can use the state’s courts to file for divorce. When you file, you must show that you have resided in the state for the required length of time.
What is collaborative divorce?
Collaborative divorce is a process in which divorcing spouses get lawyers’ help to reach an agreement about assets and children. Each spouse hires a lawyer who has been trained in collaborative techniques; they help the spouses negotiate the settlement agreement. Each spouse meets separately with his or her lawyer, and the spouses and attorneys all meet together to hammer out an agreement.
Everyone—spouses and lawyers—are committed to settling the case without fighting in court. That saves the spouses a huge amount of money, because a contested divorce typically costs each spouse tens of thousands of dollars. It also helps spouses preserve at least a civil relationship and reduces the stress on both the spouses and any children.
How do we split up our assets and debts at divorce?
It is common for divorcing couples to decide how to split their property and debts themselves or with the help of a divorce mediator. But if they can’t agree, they can ask the court to decide.
Courts follow state law in these matters. Each state seeks to divide assets fairly, regardless of whose name is on the title document. For example, a house that for some reason is just in one spouse’s name might still be considered an asset of both spouses at divorce. There are two basic ways to divide property at divorce:
- Community property. In Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin, all your property is classified as either community property (owned equally by both spouses) or the separate property of one spouse. Generally, community property is divided equally and each spouse keeps his or her separate property.
- Equitable distribution. In all other states, assets accumulated during the marriage are divided fairly (equitably, to use the legal term), which doesn’t always mean equally. In some states, a judge may order one spouse to use separate property to make the settlement fair to both spouses.
(Alaska combines the two systems. Couples can classify their property as community property if they wish, in which case it’s divided accordingly at divorce. If they don’t have community property, equitable distribution rules apply.)
Not every asset is divided, of course. Courts often simply give each spouse a percentage of the total value of the property. Each spouse gets personal items, assets, and debts whose value adds up to that percentage.
How do courts decide who gets custody of the children?
If parents can’t agree on a custody arrangement, the court must step in. When deciding custody, courts focus on the children, not the parents. Almost all states require courts to put the "best interests of the child" above all other considerations. The goal is to provide a stable environment, and one that will help the child maintain good relationships with both parents. With very young children, courts often award custody to the parent who has been the primary caregiver.
In practice, courts look at:
- the parent's ability to give the child basic needs: food, shelter, clothing, and medical care
- the child's age, sex, and mental and physical health
- the parent's mental and physical health
- the parent's lifestyle
- any history of child neglect or abuse
- emotional bonds between parent and child
- the child's living pattern (school, home, community, religious institution)
- the child's preference, for children who are 12 or older.
If one parent has sole custody, how much can the other parent see the child?
If a court awards physical custody to one parent, the other parent almost always is given the right to "reasonable" visitation. What’s reasonable, of course, depends on each family’s circumstances.
It’s always best if the parents can work out a visitation schedule and stick to it. To avoid problems, many courts require divorcing parents to work out a detailed visitation schedule or “parenting plan.” If there are problems—for example, if the custodial parent won’t let the other parent see the child, or the noncustodial parent habitually brings the child back hours late—then the court may need to step in.
How do courts calculate child support?
Every state has guidelines—which vary widely from state to state—that it uses to calculate child support. The guidelines take into account the parents' incomes and living expenses, but in some states judges have some flexibility when it comes to setting the exact amount. In other states, the amount generated by the state’s child support calculator is not likely to be changed significantly.
Guidelines generally take into account:
- the child’s basic needs, including food, shelter, health insurance
- any special needs of the child
- the custodial parent’s income and expenses
- the paying parent's ability to pay, and
- the child's standard of living when the parents were together.
To get a picture of each parent’s finances, courts often require each parent to fill out a financial disclosure statement, setting out monthly income and expenses.