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Types of divorce
Though divorce laws vary from state to state,
there are two basic approaches to divorce:
fault based and no-fault based. However, even
in some jurisdictions that do not require a
party to claim fault of their partner, a court
may still take into account the behavior of the
parties when dividing property, debts,
evaluating custody, and support. Laws vary as
to the waiting period before a divorce is
effective. Also, residency requirements vary.
However, issues of division of property are
typically determined by the law of the state in
which the property is located.
* No-fault divorce -Under a no-fault
divorce system, the dissolution of a marriage
does not require an allegation or proof of
fault of either party. The application can be
made by either party or by both parties
jointly. Forty-nine states of the United States
have adopted no-fault divorce laws, with
grounds for divorce including incompatibility,
irreconcilable differences, and irremediable
breakdown of the marriage.
* At-fault divorce - In the United
States, only New York State still requires
fault for a divorce. Under New York divorce law
only if both parties notarize a separation
agreement and live separately for one year, can
a judge convert it into a divorce.
* Summary divorce -A summary (or simple)
divorce, available in some jurisdictions, is
used when spouses meet certain eligibility
requirements, or can agree on key issues
beforehand. Among the factors that may be
considered are:
* Short marriage (less than 5 years)
* No children (or, in some states, when the
spouses have resolved custody and set child
support payments for children of the
marriage)
* Minimal or no real property (no mortgage)
* Marital property is under a threshold (around
$35,000 not including vehicles)
* Each spouse's personal property is under a
threshold (typically the same as marital
property).
How to handle your divorce case
* Be honest with your divorce attorney –
Your lawyer is there to help you. Your
communication with your lawyer is privileged,
meaning your attorney cannot tell others about
it, except in certain child abuse scenarios. No
matter how embarrassing, it is important to
tell your lawyer everything. If you
don’t, your case may be hurt at trial
because the other lawyer knows facts you
haven’t told your lawyer.
* Be honest with the court - If you go to
trial, the result is directly affected by your
credibility. Not only is lying to the court a
crime, but your lawyer may have a duty to stop
the proceeding and tell the court if he or she
knows you are misrepresenting facts. If there
are areas of your case that are sensitive, work
with your lawyer on what you are going to say,
but don’t misrepresent.
* Don’t involve the kids in the process-
If your case involves a custody dispute,
nothing will anger the court faster than
involving your kids in the dispute. Don’t
use them as pawns in the battle against your
spouse.
* Don’t hide or fail to produce documents
-You have an absolute right to see your
spouse’s financial documents. Your spouse
has an absolute right to see your financial
documents. The court can force you to produce
records, and order that you pay your
spouse’s lawyer fees incurred in getting
the records. Good clients and good lawyers
produce documents quickly and voluntarily.
* Get legal advice before you settle your
divorce case - Divorce can be unpleasant and
emotionally painful. One reaction is to try to
get it over quickly. Do not give into the urge
to be done with the case before you have a full
understanding of the assets and what a fair
distribution looks like. Do not settle
prematurely, before your attorney explains your
legal rights.
* Try to resolve the case outside of court -
Good lawyers and reasonable people settle most
divorce cases without a trial. Many clients
benefit from mediation, either through the
county courthouse or through a private
mediator. You should always consult with your
lawyer during the process to make sure you are
getting a fair result. Settling also means you
choose the outcome rather than have a judge
impose an outcome on you. Parties that settle
are generally happier long term, and have less
ongoing conflict.
* Hire an attorney if your divorce case is
contested - Many judges dislike unrepresented
parties. Even experienced divorce lawyers hire
experienced divorce lawyers for an objective
opinion. If you disagree over property or
custody, and your spouse has a lawyer, seek
representation.
Uncontested Divorce vs. Contested
Divorce
Approximately 90% of divorces are uncontested.
What this means is that the parties involved
are able to settle their differences without
even going to trial.
* Uncontested divorces -In an
uncontested divorce, the spouses reach mutual
agreement on relevant issues like alimony,
child custody, child support, and asset
division. The court doesn’t get involved
because the two parties manage to settle all
their issues without litigation. Because of
this, uncontested divorces usually save
significant time and money compared to
contested divorces. Your attorney will draft or
review all the settlement agreements, to be
sure that they accurately reflect the agreement
between you and your spouse.
* Contested divorces -By contrast, two
spouses go through a contested divorce process
when they’re unable to reach an agreement
on issues, even after trying alternatives like
mediation. When this happens, the divorce case
then goes before the court, where the judge (or
jury) makes the final decision on each
issue.
Whether your divorce is contested or
uncontested, it is advisable to consult with an
experienced divorce lawyer, who can make sure
that you are rights are protected and that you
are treated fairly. Please fill out the
"Legal Help Request Form" above to get the
legal help that you need. Our service is
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