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Family Law: Initiating a Divorce Action




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Initiating a Divorce Action

            Love can be everlasting or it can be fleeting. Not every marriage stands the test of time. For those couples who believe that they no longer can be married to one another, a divorce will absolutely terminate the marriage relationship.

            We will look at the divorce process. First, we will look at grounds for divorce. Second, we will differentiate a divorce from a legal separation, another common device used by couples. Finally, we will look at the proper steps that spouses must follow to ensure a valid divorce decree.

Justifications for Divorce

            Divorce laws in states across the country have evolved greatly in the last 75 years. Depending on where the married couple lives, the couple seeking a divorce may need to provide a justification for the divorce.

In all 50 states, a version of a “no-fault” divorce system operates. In a minority of states, a spouse can also justify a divorce by showing “fault.”

Fault-Based Divorce

            Traditionally, a spouse could only seek a divorce on fault-based grounds. Now, very few states require that a spouse provide fault grounds to gain a divorce.[1]

In these states, the fault-based grounds for divorce can be quite extensive. The most common fault-based grounds for divorce are:

·         Adultery

·         Abandonment for a certain amount of time

·         Physical cruelty and spousal abuse

·         Mental cruelty

·         Voluntary drug or alcohol addiction[2]

Other less common fault-based grounds for divorce can include impotence and a spouse infecting the other with a sexually transmitted disease.

            In the fault-based divorce system, a spouse not wanting to divorce can assert any of four defenses to the various fault-based grounds.[3] The first defense is connivance. This means that one spouse willingly consented to the other spouse’s misconduct. Connivance is typically asserted as a defense to divorces brought on grounds of adultery. The second defense is collusion. Collusion is defined as an agreement by the two spouses to falsely allege evidence of a marital offense that was not actually committed.[4] The third and most commonly-raised defense is condonation, meaning that one spouse forgives the other spouse’s marital offenses fully knowing that they took place.[5] The fourth, and least commonly-raised defense to fault-based grounds, is recrimination, meaning that both spouses are guilty of marital misconduct. Both spouses lack “clean hands” and if successfully raised, a court will dismiss the divorce action.

No-Fault Divorce

A divorce can cause animosity, anger, and emotional turmoil. The advent of no-fault divorces has decreased the potential for hostility between the divorcing spouses. This is because neither of the spouses needs to find a “cause” for the divorce. Under a no-fault divorce system, the divorce process has become less combative and more collaborative.[6]

Thanks to the Uniform Marriage and Divorce Act, no-fault divorce gained massive popularity across the United States, starting in the 1970s.[7] Unlike the fault-based divorce, which requires a party to clearly state why a divorce is needed, in the no-fault system, a party does not need to justify a divorce by proving the other party’s fault.  

To obtain a divorce in a no-fault divorce system, one party must show that the marriage is irretrievably broken or that there are irreconcilable differences between the two spouses. In addition to satisfying the irreconcilable differences element, some states require spouses to demonstrate that they have lived separate and apart for a certain period of time, such as six months or a year.[8] 

Most states allow a spouse to seek unilateral no-fault divorce. This means that the spouse seeking the divorce does not need to acquire consent from the other spouse prior to filing the complaint with the irretrievably broken justification for the divorce.

Distinguishing Legal Separation From Divorce

Another option for couples who seek to separate is a legal separation. Unlike a divorce, however, a legal separation DOES NOT terminate a marriage. A legal separation is a court order specifically enumerating the rights of each spouse in regard to property, spousal support, child support, and child custody.  After a court grants a legal separation, the two spouses are still legally married to one another and cannot remarry or indicate that they are single.

            A legal separation may be pursued for a variety of reasons. The first reason is because of one spouse’s religious tenets, which may not permit divorce. A second reason why a couple would pursue a legal separation is because after a legal separation, the two spouses remain entitled to the financial benefits of marriage, such as tax incentives and Social Security benefits.

Steps for Obtaining a Valid Divorce

            A number of steps must be followed in the process of seeking a valid divorce. Some states may have different procedural requirements. The purpose of this section is to delineate the essential process of divorce for both spouses, which consists of six steps: (1) establishing residency, (2) filing the complaint, (3) serving the other spouse, (4) compiling financial disclosures, (5) going to settlement or trial, and (6) receiving a judgment of dissolution.

Step 1: Establishing Residency

First, the party seeking the divorce must establish residency in the state where the divorce is sought. States have different durational residency requirements, but they can be as long as one year or as short as ninety days.[9] Once a spouse satisfies this residency requirement, he or she can move on to the next step.

Step 2: Filing the Complaint

Second, the spouse seeking the divorce must file a “Complaint for Dissolution of Marriage.” This complaint provides the justifications for the divorce. As mentioned above, the justifications can be based on irreconcilable differences or fault. At the same time that the complaint is filed in the proper court, the spouse seeking the divorce must pay the proper filing fees.

Step 3: Serving the Other Spouse

Third, the divorce papers must be served to the other spouse. The divorce papers include a copy of the complaint, a notice of the proceedings, and a form of acknowledgement of service. The service of process procedure differs depending on the state where a divorce is sought and a spouse must consult with an attorney to ensure that the proper steps are followed. Divorce papers can be delivered by mail if formal service of process is waived. If formal service of process isn’t waived, a process server or attorney can also serve the divorce papers.

Step 4: Compiling Financial Disclosures To Determine Property Division and Spousal Support

In this fourth step, each party will retain legal counsel to help prepare their financial disclosures. These financial disclosures are necessary to determine the division of property and spousal support award. In this step, the two spouses will consult with their attorneys and disclose their income and expenses, as well as their assets and debts. If the spouses entered into a prenuptial agreement prior to the commencement of the marriage, this step will largely be guided by the principles of that agreement. In the case that no agreement exists, the court will distribute the property depending on the approach adopted by the state.

To determine a spousal support award, the court will determine the amount using an amalgamation of factors including, but not limited to, duration of marriage, age and physical condition of the parties, and the financial resources of each party.

Step 5: Settlement OR Trial

            If both spouses are able to resolve their issues amicably, a judge will encourage both parties to settle instead of going to trial. By reviewing and discussing their financial disclosures through settlement, the parties can resolve their own conflicts in a more confidential manner. If the parties are able to reach solutions via settlement, they can also save time and legal fees.

            Should the parties not be able to resolve their issues amicably, the parties will go to trial. Divorce trials are typically held with a judge as the final decision-maker on how to divide the property and determine spousal support. The judge’s decision is based on the evidence presented at trial.

Step 6: Dissolution

            The final step in the divorce process is the judgment of dissolution. Unless any of the parties file an appeal, the judgment of dissolution becomes final and enforceable 30 days after the judge signs the judgment.

            An aggrieved spouse may contest a divorce decree by filing an appeal to a higher court.

A divorce can be mentally, emotionally, and financially draining and can have a prominent effect on one’s personal life. Although there is this potential for upheaval, the process for marriage termination in the United States has emerged to ensure clarity and structure.

 

Footnotes


[1] Homer H. Clark, Jr. & Ann Laquer Estin, Cases and Problems on Domestic Relations 656-59 (7th ed. 2005).

[2] Elizabeth Horowitz, The “Holey” Bonds of Matrimony: A Constitutional Challenge to Burdensome Divorce Laws, 8 U. Pa. J. Const. L. 877. (2006).

[3] John Gregory, Understanding Family Law, (2012).

[4] Peter Swisher, Family Law: Cases, Materials, and Problems, (2010).

[5] Herma Hill Kay, Equality and Difference: A Perspective on No-Fault Divorce and Its Aftermath, 56 U. Cin. L. Rev. 1, (1987).

[6] Pamela Laufer-Ukeles, Reconstructing Fault: The Case for Spousal Torts, 79 U. Cin. L. Rev. 207, (2010).

[7] Unif. Marriage & Divorce Act, 9 U.L.A. 91 (1979).

[8] South Carolina Code of Laws, Section 20-3-10, “Grounds for Divorce.”

[9] Rhonda Wasserman, Divorce and Domicile: Time To Sever The Knot, 39 Wm. & Mary L. Rev. 1, (1997).