Understanding the Different Types of Divorce

Divorce vs. Separation

• property and debt division
• child custody
• child support, and
• alimony (also called spousal support or maintenance).

A divorcing couple can reach an agreement on their own, with the help of a mediator, or through their individual attorneys. Once they resolve all of their issues, they can memorialize their agreements in a divorce settlement agreement. Once it's been reviewed and signed, it's submitted to a court for review. If the judge approves the agreement, it is then incorporated into a divorce judgment and final decree.

If the couple can't agree, they will end up in court, asking a judge to make decisions for them.

A separation, on the other hand, does not terminate a marriage. A trial separation is when a couple decides to live separate and apart for a period of time, to see if they can work out their issues or prefer to permanently separate or divorce.

A legal separation, which is allowed in most states, is a formal, legal procedure, that is similar in all ways to a divorce, except that at the end of the legal separation process, the couple is still married, and the spouses cannot remarry unless they obtain a divorce.

Fault vs. No-Fault Divorce

Some states still allow spouses to file for divorce based on one spouse's marital misconduct (or fault) which caused the breakdown of the marriage. In a fault divorce, the reason for the divorce becomes an important issue. One spouse will claim—and must prove—that the other spouse’s marital misconduct caused the divorce. Fault grounds vary by state, but the most common include adultery, addiction, abandonment, and abuse.

Fault divorces typically cause more stress and animosity between the spouses. They are also more expensive and take longer to resolve because of the added requirement to prove the misconduct in court. It's best to speak to a local family law attorney before you file to determine whether there is any benefit to pursing a fault divorce in your case.

All states today offer a form of no-fault divorce, which means the spouses aren’t allowed to allege a fault-based ground as the reason for the divorce. In no-fault states, courts aren't interested in the reasons for the divorce. Spouses only have to state that they have “irreconcilable differences” or have experienced an "irretrievable breakdown of the marriage." This simply means you and your spouse can’t get along anymore, and there’s no possibility of reconciling. In some states, you can obtain a divorce based on separation for a specific period of time, without alleging fault.

Some info about how divorce relates to child custody, child support, alimony, and property division.

What Is an Uncontested Divorce?

Generally speaking, in an uncontested divorce both spouses agree to the divorce and how to resolve all of their divorce-related issues.

Specifically, though, some states offer uncontested divorce procedures that are an expedited way to dissolve a marriage. The name and requirements for this type of divorce varies from state to state. Couples will have to meet all of their state's requirement to qualify.

For example, in California, divorcing couples can request a “summary dissolution," which is an expedited divorce process, but only if they meet all of the following:

• the grounds for divorce must be irreconcilable differences
• the couple must not have any minor children, with neither spouse being pregnant
• there are less than five years between the date of marriage and separation
• neither spouse has any real property
• there are no debts of more than $6,000, besides car notes
• the couple’s marital assets are worth less than $45,000, not including cars
• neither spouse owns separate property worth more than $45,000
• the couples has signed a settlement agreement dividing all assets and debts
• the spouses have signed all documents to transfer any assets and debts according to the settlement agreement, and
• alimony is not an issue in the divorce.

Many couples can complete their own uncontested divorce, but it’s usually a good idea to check with a local family law attorney to make sure you meet the requirements before filing. You may also want to ask an attorney to review your settlement agreement as well.

What is Contested Divorce

When couples can't agree on all of their issues, they will have a contested divorce, which will typically take longer to resolve and may cost more in court costs and attorney's fees. As state above, the most common issues in a divorce include child custody and support, alimony (or spousal support), and the division of property or debt.

Each state has specific laws on how each of these issues should be decided. If you and your spouse can't reach a mutual agreement, then a judge will make these decisions based on state law after a hearing or divorce trial.

If you have questions, you should contact a local family law attorney for advice.