Legal Issues Surrounding Divorce

There are two types of divorce: absolute and limited. Absolute, or “divorce a vinculo matu monii”, is the judicial termination of a marriage based on marital misconduct or other statutory causes after the wedding ceremony—such as adultery. After the divorce, both parties are deemed single again. Limited, or “divorce a mensa et thoro” is a separation decree, where the marriage is not fully terminated, and the couple still retain their civil status as married.

There are seven steps in having a divorce. While the process varies from couple to couple, depending on the situation of both parties, there are some essential procedures in filing for a divorce. One thing is certain, however: divorcing couples who are mature enough to agree on certain issues makes for a smoother divorce.

First, one party must file a petition for divorce. Even if both parties agree on a divorce, one must file the petition, which states the ground for divorce. There is such a thing as “no fault” grounds, which simply states that the relationship is no longer viable (such as “irreconcilable differences”). While many states allow this, some states still consider ground faults, such as adultery.

A temporary order is the next step. This is for claiming temporary financial support, child support, of custody. This is granted a few days after filing, and remains in effect until a formal court hearing. One should file for this ASAP.

A service of process is then required. This is to prove that the petition has reached the other party as well. A response is then needed from the other party. He or she must file a response to the petition, and is allowed to either dispute the grounds or defend himself or herself from them. Disagreements on custody or property division should also be filed with the response.

A negotiation for the division of property and custody comes next. The court usually lets the couple and their respective lawyers handle this, but if they cannot agree on anything, the court has to decide for them. Children are usually the responsibility of social workers, whom the court calls in to check on the living conditions of each spouse if it is fit for the children. A trial then ensues, to smooth out issues the couple couldn’t resolve by themselves.

Finally, an order of resolution is given, which ends the marriage and contains the division of property and debts. If the couple has negotiated these issues themselves, they can write their own order of resolution and submit it to court. If it meets the requirements, the judge approves it.



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