Types of Divorce and Alternatives to Divorce

Learn more about the types of divorce available and the alternatives to it.

Contrary to popular belief, not everyone runs to the courthouse when their marriage is over. There is no one-size-fits-all approach to divorce. The process, time frame, and cost of every divorce depend greatly on the couple, how well they communicate, and whether they are willing to sacrifice to get to a final agreement. There are several paths to ending a marriage, including alternatives to traditional divorce.

No-Fault Versus Fault Divorce

There are two types of traditional divorce: no-fault and fault. A no-fault divorce means that a spouse asks the court to end a marriage without blaming either spouse for the breakup. All 50 states allow couples to utilize the no-fault divorce process (and several states only allow no-fault divorce.) Instead of listing a specific incident of marital misconduct, the filing spouse only needs to use the state's legal grounds for no-fault divorce as the reason for the divorce request. Every state has its own requirements, but generally, the options are:

  • irreconcilable differences
  • incompatibility, or
  • irretrievable breakdown.

In some states, you can request a divorce based on a separation for a certain period of time. While a divorce based on separation is not what most attorneys refer to as the classic "no-fault" divorce, it also allows the spouses to file for divorce without pointing fingers or claiming that one spouse caused the split.

The goal of a no-fault divorce is to allow a spouse who no longer wants to be married to get a divorce. In the past, only spouses who could prove specific misconduct was able to leave a marriage. Today, courts won't require you to stay married if you don't want to. Even if one of the spouses disagrees with the divorce, if you can demonstrate that you meet the state's no-fault requirements, the judge will grant your divorce.

A fault divorce requires the filing spouse to allege that the other spouse caused the divorce by engaging in specific conduct. Only a few states still allow spouses to choose the fault-based divorce process. Because one spouse must prove that the other spouse's misconduct caused the marriage to fail, fault divorces are more expensive and time-consuming than no-fault divorces.

Some couples choose the fault divorce process because it may allow them to get around the state's mandatory waiting period for divorce. Others choose this process because proving certain misconduct may affect the judge's final decision on custody, property division, and/or alimony (depending on the laws in the state you reside.)

While these vary from state to state, some of the most common fault grounds for divorce are:

  • adultery
  • abuse or cruelty
  • desertion
  • alcohol or drug abuse
  • impotency, or
  • abandonment.

Proving your fault divorce case isn't always a walk in the park, especially if your spouse raises a defense to the allegations. Although it's rare, a spouse may prevent a fault divorce by proving any of the following defenses:

  • condonation
  • connivance
  • provocation, or
  • collusion.

It's against public policy for courts to force you to stay married, so if you fail to prove your fault claim, the judge will usually proceed with the no-fault divorce process. Some judges may require you to pay your spouse's legal fees if you use the fault process frivolously.

Uncontested Divorce

An uncontested divorce means that both spouses agree to the divorce's legal grounds and all the divorce-related terms in it. An uncontested divorce requires both spouses to draft and sign a legally binding settlement agreement which tells the court the couple's plan for the following:

  • marital property division
  • marital debt allocation
  • child custody and child support
  • parenting time
  • spousal support, and
  • any other relevant terms.

The uncontested divorce process varies in each state. Some state have specific procedures that allow you to fast track an uncontested divorce if you meet all the requirements.

Most courts require the couple to file the documents and wait for the state's mandatory waiting period to expire before the judge can finalize the divorce. An uncontested divorce is one of the fastest ways to finalize a divorce because there's no need for a divorce trial.

Divorce Mediation

With divorce mediation, the couple meets with a neutral third-party who helps them resolve their divorce-related issues. Divorce mediators are usually family law attorney lawyers and are trained in the latest mediation techniques and requirements through the state. In some states, couples must attend mediation before the court will acts on the divorce case. In others, mediation is an alternative to a divorce trial but is only available to spouses who agree to use the process. Mediation is confidential, so neither spouse can use evidence from the meeting later during a trial.

The first step in mediation is to hire a mediator. You can ask your lawyer for recommendations, or you can call the local mediator network where you live for suggestions. If your state requires mediation, and a judge orders you to meet with a court-appointed mediator, you may not be able to choose the mediator, but the cost is usually low or free. For private mediation, the fee depends on the individual mediator. It's common for spouses to split the cost, but you should discuss payment before you agree to attend.

During your mediation sessions, the mediator will usually meet with both spouses (sometimes together and sometimes separately) to discuss the unresolved issues relating to the divorce. The mediator's goal is to facilitate a conversation between the spouses to reach an agreement and avoid going to court. If mediation is successful, the mediator will draft a settlement agreement for the spouses and lawyers to sign. Once you sign, you can present it to the judge and finalize your divorce.

If you don't agree (or only agree on some issues), you'll need to ask the judge to resolve the remaining issues for you. Unlike arbitration, a mediator does not have the power to decide the issues in divorce cases. So, if you don't like the terms in the proposed agreement, don't sign and head to court. Mediation only works if both spouses go into the meeting with good faith and effort to reach an agreement. Even if you only agree on some of the issues, it will save you time in court later.

Co-Mediation

Co-mediation is very similar to traditional mediation, except it involves multiple mediators, usually two, who can work together to resolve the couple's differences. Some co-mediations include a private mediator and a mental health expert on the team, and others may be two trained mediators. The idea behind co-mediation is that "two heads are better than one," and hopefully, those two experienced mediators can help the couple avoid a drawn-out divorce trial.

Co-mediation isn't as common as using a single mediator, and courts don't usually order couples to attend. However, if you have serious communication issues with your spouse, co-mediation may be a beneficial path for you to take. While the cost may be more than traditional mediation, it will still be less than a trial.

A note on domestic violence

If there's a history of domestic violence in your marriage, mediation and co-mediation may not be a good option. In most states, courts will not order a spouse to attend mediation with an abuser. If you choose to attend mediation, you should ask the mediator to keep you and your lawyer in a separate room from your spouse and request the mediator's plan to maintain control and safety during the session.

Collaborative Divorce

Collaborative divorce is another way to complete your divorce and it's best suited to couples who are willing to work together to resolve their issues without the court's help. Typically, the process begins with each spouse hiring an attorney who is specially trained in collaborative divorce. The attorneys and spouses will agree that the attorneys will withdraw from the case if the couple can't settle their issues, and the couple will have to start over from scratch. The idea behind collaborative divorce is that no one (spouses or attorneys) will benefit from going to trial, which motivates your to resolve your case together.

After each spouse meets with their attorney, the group will get together during a "four-way meeting" to discuss the case. Your attorneys may ask you to hire other professionals, such as financial or child custody experts, to bring in during the process. Your attorneys may also utilize mediation or co-mediation to help resolve your conflicts.

Collaborative divorce isn't for everyone, and you should only consider it if you're willing to give up the use of all court procedures, including divorce discovery, and negotiate all the terms of your divorce. Once you agree, your attorneys will present your final settlement agreement to the judge to finalize your divorce. As with any other alternative to a divorce trial, you can still ask the court for help deciding the unresolved issues if you don't agree.

Arbitration

Divorce arbitration isn't available in all states, but if you live in a state that allows it, and you can't reach a divorce settlement with your spouse, this option may be a better alternative than a divorce trial. Both spouses must agree to the arbitration process and select an arbitrator—usually an attorney or retired judge—to decide all unresolved issues.

Arbitration is not the same as mediation, where the mediator can only make suggestions and guide you and your spouse to an agreement. Because an arbitrator makes decisions, this process is more like a court proceeding.

Both sides will present their cases to the arbitrator in a less formal setting than a courtroom; usually a conference room or private office. Just like a judge, the arbitrator will evaluate all the evidence, rule on the case, and issue a binding order that both spouses must follow.

Arbitration is usually faster and less expensive (though not free) than a divorce trial, but more expensive than mediation or an uncontested divorce.

Default Divorce

The first step in starting a divorce case is for one spouse to file the divorce petition (the required legal paperwork) with the court. The filing spouse must deliver (serve) copies of the petition and a summons to the responding spouse.

Once the spouse is served, the clock begins ticking on your divorce waiting period. During the waiting period, the recipient spouse must respond by submitting an answer to the divorce petition and either admitting or denying the petition's allegations to the court and asking for whatever remedies are appropriate (such as custody, alimony, property).

If the recipient fails to respond during the allotted time frame (usually 21-28 days), the filing spouse can request a default divorce from the court. If you fail to answer the petition, you lose your chance to tell your side of the story to the judge.

A default divorce means that the court will grant the divorce and all of the remedies the filing spouse requested. As with any divorce, if there are minor children involved, the court will ensure that any custody or support arrangement meets the state's standards and protects the child's best interests before creating a final divorce judgment.

The court can not issue a default divorce until the state's mandatory divorce waiting period expires. However, a default divorce is usually much quicker than going through the traditional divorce process.

Summary Divorce

Available in some states, the summary divorce process is one that's available to couples who:

  • agree on all related issues
  • were married for a short time
  • do not have minor children from the marriage
  • without extensive marital property
  • have limited debt, and
  • do not have separate property issues.

The summary divorce process usually requires the couples to give up the right to spousal support after the divorce. In general, the summary divorce process is a simplified version of uncontested divorce and requires less paperwork, time in court, and money. After filing the petition for summary divorce, the couple should prepare a settlement agreement for the court. Once the judge reviews and signs it, your divorce is final.

Some states permit couples with children or property to use the summary divorce process, but its availability and rules vary by state.

Contested Divorce

A contested divorce is the type of divorce that everyone tries to avoid. The contested divorce process is there for anyone who disagrees with a spouse on any divorce-related issue. An uncontested divorce becomes contested the moment either spouse disagrees with any term of their proposed settlement agreement. When this happens, the spouses will have to ask a court to decide the issues for them.

Contested divorces are usually the most expensive path. Although the filing fees are the same for contested and uncontested divorces, the legal fees will stack up as soon as you hire an attorney.

In general, both spouses will need to hire independent attorneys. The attorneys will conduct divorce discovery—which is where each side formally requests documents or other evidence from the other—and will present that evidence during the divorce trial. Contested divorces often require spouses to testify in front of the judge, involve friends or family as witnesses, and require independent experts to resolve lingering issues.

Contested divorces can take years to resolve, and in the end, the judge will have the final say on any issue where the couple disagrees. If you can avoid fighting in a contested divorce, you will save time and money, and you'll likely save what's left of your relationship with your soon-to-be ex spouse (which is essential when you have minor children.)

Same-Sex Divorce

In 2015, the United States Supreme Court issued a historic ruling legalizing same-sex marriage throughout the country. (Obergefell v. Hodges, 576 U.S. 644.) Before this ruling, same-sex couples married in other countries or states where it was legal found it difficult to get a divorce. For example, if a couple married in California in 2013 wanted to divorce, the law required the couple to divorce in a state that recognized the marriage. Some states had stringent residency requirements, making it nearly impossible for the couple to end their legal marriage.

Since 2015, same-sex couples who marry in the United States (or in another country) can divorce in any state, as long as they meet that state's divorce requirements, including the residency requirement and waiting periods. Today, there is no difference between the legal process for same-sex divorce and opposite-sex divorce.

Alternatives to Divorce

For some couples, divorce isn't a path that either spouse wants to follow, even when the relationship is over. Fortunately, most states offer married couples several options for taking time apart, either temporarily or permanently, or the option to erase the marriage altogether.

Trial Separation

If you and your spouse are experiencing marital problems, but you're not ready to file for divorce, you can separate temporarily. A trial separation is when the couple chooses to live apart to attend couples' counseling, evaluate the relationship, learn how to live on one income, and/or as a trial run for divorce.

Courts aren't involved with trial separations. However, if the trial separation is going to last more than a month, then at the beginning of your time apart you and your spouse would benefit from putting your separation terms in writing. Common terms include:

  • the period of time you will spend apart
  • who will care for the children
  • which spouse is going to pay the bills
  • whether you're going to continue sharing a bank account, and
  • what you'll do if you can't reconcile (file for divorce or permanent separation.)

Legal Separation

If you reach the end of your trial separation and you are still not ready to reconcile or divorce, and you live in a state that recognizes it, you can file for a legal separation. Legal separation is available to couples who wish to end their relationship without legally terminating their marriage. Legal separation is most common among religious groups whose religion prohibits divorce. It's also beneficial to families where the spouses need to stay married to provide either spouse with health or other insurance benefits, tax deductions, or another benefit that would terminate upon a divorce.

A legal separation is similar to divorce in that the couple or the judge will decide divorce issues, like property division, child custody, child support, and alimony. However, in the end, you're still legally married. Couples can end a legal separation at any time (check your state laws) and either ask the court to terminate the separation or file for divorce.

Legal separation is not available in every state, so if you're interested in this, but unsure if the law allows it, check with an experienced family law attorney in your area.

Annulment

An annulment is a court process that declares a marriage invalid. An annulled marriage means that, in the eyes of the law, your marriage never existed. Annulments can be civil or religious but states only recognize civil annulments that go through the court process.

The first step in an annulment is to file a petition with your local court. You will need to list the specific reason for your request. While each state's legal grounds vary, the most common include:

  • force or fraud
  • bigamy
  • an underage spouse
  • incapacity
  • kinship, or
  • failure to consummate the marriage.

Once you file your case, the judge will examine the evidence and determine if you meet your state's annulment requirements. If you have minor children, the court will address child custody and child support during the process. Although an annulment effectively erases the marriage, it will not delegitimize any children you had when you were married. Additionally, if you file for an annulment, you waive your right to spousal support.

Divorce FAQs

What can I do instead of divorce?

First and foremost, you can talk with your spouse to determine if there's a chance you can save your marriage. Some couples benefit from counseling, whether individual or together. If you're not ready to file for divorce, but you need a break, you and your spouse can try a trial separation, where you voluntarily live apart from each other for a short time.

How do you separate without divorce?

Couples can choose to live separate and apart without court intervention at any time during their marriage. If you know your separation is not temporary, and you want to continue living separate and apart for the foreseeable future, you should enter into a separation agreement, where you and your spouse agree (in writing) on how you will handle child custody, child support, alimony (if any), property division, and all other financial issues. You may also want to file for a permanent legal separation if your state offers that.

Can you settle a divorce without a lawyer?

It depends. If you and your spouse are on the same page regarding all the terms of your divorce, you can draft an agreement to give to a court. If the court determines that the agreement meets your state requirements and is fair to both spouses, the judge will incorporate it into a final divorce judgment and issue a divorce decree terminating your marriage.

Although you don't need an attorney to divorce in the United States, it's always best to consult with an experienced family law attorney before you sign any legal documents for your divorce. An attorney will review any proposed settlement agreements and will ensure that the contracts protect your needs. The court will not require you to hire an attorney, but (in most situations) it will also not protect you if you voluntarily sign an agreement that ends up being unfair to you.

What if you can't afford a divorce?

Unless you hire an attorney, the only fees required in a divorce are the filing fees to the court. If you can't afford to pay, you can request a fee waiver from your court clerk. Once you complete the form and submit it to the judge, the judge will either approve or deny your request.

Alternatively, if you need a lawyer to defend your rights in a divorce and the court determines that your spouse can pay, the judge may require your spouse to pay your legal fees. The court can also direct you and your spouse to split court costs (filing fees) and legal fees in any way it deems fair.

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