The Legal Anatomy of the Divorce Process

What you should know in a nutshell

Going through a divorce can be a difficult and confusing time. For some women when a marriage is mutually over, the process of divorce can be relatively straightforward. For others with much at stake; children, money, property – the process can be a legal abyss. What you learn about the legal processes available to you may help you to make more informed choices on your path.

The chart below will give you an overview of the types of divorce that are available and when they work best. Following the chart, you will find examples to help clarify the process.

DISCLAIMER: ALWAYS CHECK YOUR STATE LAWS AND CONSULT A DIVORCE ATTORNEY AND/OR A FAMILY LAW ATTORNEY FOR LEGAL INFORMATION ON YOUR SPECIFIC SITUATION

TYPE OF DIVORCE CONSIDERATIONS LEVEL OF DIFFICULTY
No Fault Neither party declared at fault; irreconcilable differences. Easiest to obtain – Usually calls for a period of separation – Can be accomplished with online documents or parties can represent themselves before court (pro se)
Fault One spouse claims; not all states allow. Usually stressful and lengthy – Often necessitates attorneys and high costs – Injured spouse must prove fault
Uncontested Both parties work together to try to settle on terms. If agreement reached, likely no trial. Where children are involved, often use collaborative family attorneys. Easiest resolution – Can be accomplished with online documents or parties can represent themselves before court (pro se) – If issues are not resolved, can become contested (see below)
Contested Parties are uncivil; no potential for agreement on terms i.e. property, alimony, child custody, child support. Difficult and stressful; often with multiple issues – Lengthy process involves attorneys, discovery, settlement attempts, hearings and possible trial before a judge
Simplified or Summary Divorce No children; few or no assets; short term marriage. Fast track divorce with few issues to resolve
Arbitration Contentious issues that need resolution but parties want to resolve them out of court; Children can or can not be involved. Neutral third party arbitrator (usually a retired judge) weighs both sides and makes a ruling on issues – Ruling sent to the court for final orders on divorce and can be binding on both parties
Mediation Contentious issues that need resolution but parties want to resolve them out of court. Children can or can not be involved. Neutral third party mediator facilitates communication and issue resolution between parties but does not rule on issues – Parties bring resolution to judge for final orders on divorce
Collaborative Divorce Parties are civil and want to stay out of court; children involved. Each party obtains their own collaborative lawyer – Process is similar to arbitration and mediation where all work together to resolves issues to present to judge for final orders

Examples

Case 1. The Smiths have decided to divorce after two years of marriage. They have no children, rent an apartment in the city and have only $2000 in savings which they are willing to split. Their dog, Satchmo, is attached to Mr. Smith and the couple agree that he will keep the dog. This couple can file for a simplified or summary divorce in their state and may fill out online divorce documents (LegalZoom, Nolo ) to facilitate their divorce.

Case 2. The Posts are an angry couple who have come to the end of their fifteen year marriage. They have two children, a 10 year old boy and a 7 year old girl.

They are both working professionals and make upwards of $100,000 each. They have a combined bank account, both names are on the title to their $450,000 home, they have an art collection and they both want the children to live with them after the divorce. This will most likely be a contested divorce with adversarial parties fighting out every issue through their attorneys. If they live in one of a few states that allows a fault divorce, one party may “blame” the other with adultery or abuse, but most likely it will be a no-fault, contested divorce that will be overseen by the court.

Case 3. The Johnsons have been married for 10 years and have one 7 year old daughter. Although they feel their marriage is over, they nonetheless are still civil with one another and want the best for their child during and after the divorce. They have many shared assets but they both work and feel that the divorce will not change their standard of living. Initially their divorce is uncontested and they decide to use a collaborative law process. Each finds a collaborative law practitioner and over the next three months they work on terms of their divorce but unfortunately, cannot resolve who will be the custodial parent for their daughter. They now will need to find new lawyers as they have a contested divorce which will be mediated by the court.

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