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While marriage is often considered a personal and romantic union, it is important to note that it is a legal institution. That means that the process of ending a marriage is not dissimilar to the dissolution of a business partnership.
A divorce takes place when a court declares that a marriage no longer exists, according to the American Bar Association. The ABA recommends getting a lawyer as the first step in the process because divorce does require a court process, which a lawyer can guide you through. If an individual elects to represent himself or herself, it will require more time and attention, though some states offer self-help guides, such as this guide for divorces in Los Angeles County.
Whether or not you hire an attorney, the next step is typically the same: make sure your decision is firm and goals are clear.
“First, are you sure you need a divorce?” says Raiford Dalton Palmer, managing partner of STG Divorce Law and author of “I Just Want This Done: How Smart, Successful People Get Divorced Without Losing Their Kids, Money, and Minds.”
Though Palmer says his first question often surprises clients, he wants them to understand that divorces can quickly become complex and expensive. “A simple cost/benefit analysis upfront at least clarifies goals and concerns and helps a person decide whether this really is worth it,” Palmer says.
Marriage laws are primarily regulated by states, so each state will have its own process and requirements. The best place to start is determining the state where your divorce will occur, which must be the home state of one or both spouses. If spouses reside in multiple states, choosing the state in which the divorce will occur can become a legal battle.
Once the state is determined, you will need to figure out its unique process. This is particularly important for laws regarding fault and no-fault divorce. The state will have unique requirements for what is needed from one or both parties to initiate the legal process.
For example in Illinois, which refers to divorces as dissolutions, spouses must be separated for six months (either within the same household or separate households) to have grounds for a dissolution. Otherwise, they will need to declare that all efforts have been made to preserve the marriage and that future attempts will not be “in the best interest of the family.”
Other states will have their own unique requirements, so determining state jurisdiction is important before taking your first legal step of filing for divorce. The ABA also notes that some states require everything to be resolved before a divorce is granted, while others allow you to enter a divorce order and then finalize issues such as custody later.
The division of assets is a large part of a divorce – even if you have a prenuptial agreement – so prepare to gather financial information. The ABA recommends canceling joint financial accounts or credit cards. Both people involved should also reconsider wills and assess the beneficiaries of life insurance policies.
“Every state has a set of rules by which the lawyers and the parties are supposed to exchange their financial information,” Palmer says. So make sure you understand what your state will require, from medical tax returns to a deed to the house.
If children are involved, they will also be a major aspect of divorce. The courts want custody arrangements to be what is in the best interest of the child. Court orders can be obtained to determine both legal and physical custody of your children, as well as schedules for special occasions like holidays.
Spousal support, often called alimony, is another consideration. This is a court-ordered payment from one former spouse to the other to help pay for expenses. It can be paid depending on an imbalance of income between the parties or to support the individual who takes custody of the children.
Each state will handle finances, assets, custody, alimony and other aspects of divorce differently. Some states try to simplify the process with what’s called a “pro se divorce” or “do it yourself divorce.” This is a simplified process with standard forms to fill out so you can serve a spouse with papers by certified mail, sheriff or process server.
Though all divorces involve the court system, the majority of divorces are settled without a trial. Disagreements are typically resolved outside of the walls of a courtroom through negotiation and an official agreement. If a decision cannot be reached amicably, however, the parties will have to go to trial in front of a judge.
“If things are agreeable, your time in front of the judge is going to be very limited,” says Megan L. Drury, an attorney in the family law department at Gimbel, Reilly, Guerin & Brown.
She reminds parents, in particular, to think holistically – keep in mind what is in the best interest of children, who are oftentimes already having a hard time during a divorce. Keeping things amicable and reasonable can help avoid a long and costly trial process.
“Think big picture,” Drury says. “Is this issue that you want to fight about all day long really going to matter in the end? Do you really want to be paying a lawyer $300 an hour to be fighting over who’s going to get what Christmas decorations?”
Palmer notes that some states have guidelines to keep divorces civil and streamlined through the court system. Illinois, for example, has what is called a collaborative divorce, where parties sign a contract agreeing to resolve the dispute according to collaborative principles and guidelines.
During the divorce process, which can take months or years, people may seek so-called “temporary orders.” These are essentially versions of the eventual agreement that will define financial considerations or child custody that will be in place until the official divorce guidelines are set. These can also help guide the process and boundaries between the two parties.
However, some get stuck in a rut of temporary orders getting renewed or shifted, instead of moving toward a final decision, Palmer says.
“People devolve into this battle and they feel good in the short term, like, ‘I’m getting back at the person.’ They feel like they’re fighting (and) they feel like they’re accomplishing something, but they’re really fooling themselves in a lot of ways,” Palmer says. “The one question I like to ask is, ‘Is this getting you more divorced? Will this motion get you closer to the goal of being done? Or are you just spinning your wheels?’”