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Whether to Divorce

Divorce is a serious and painful process. When it involves children, it often becomes worse for everyone. These articles will help married couples considering divorce make an informed decision.

The section includes information on options such as annulment and legal separation. It also includes some factors to consider before filing for divorce, and how to get started if you decide divorce is the right course of action. For basics on the divorce process, including a glossary of divorce terms, see the articles in this section.

What Divorce Does

A divorce legally ends a marriage and divides marital property. Property division takes one of two forms, community property or equitable division. In either state, the divorce will divide all marital property, including:

  • Insurance benefits: Spouses may have insurance coverage or health care even after a divorce.
  • Bank accounts: If there is a joint or marital account, the couple must divide it.
  • Real estate and other property: The family home and other property get divided equitably. State law establishes property rights.
  • Child custody: The most contentious part of divorce. Family law courts are where parents and judges work out child support, parenting plans, and health insurance for minor children.

If the couple cannot resolve their differences amicably, divorce proceedings are a formal way to order the parties to comply. A judge will make the determination of who receives the family home. Other decisions may include alimony or spousal support and visitation.

What Divorce Does Not Do

Divorce cannot resolve all family issues. A divorce decree cannot heal hurt feelings after adultery. It will not cure the confusion or resentment the children will feel seeing their parents separate. And it will not repay the years and money you both have sunk into the marriage.

All a divorce does is ensure that both parties go their separate ways with their rightful financial benefits after marriage.

Before a married couple makes the final decision to divorce, they should consider all their other options. Some states have restrictions on remarriage after divorce. In some places, you must wait a set period of time, at least six months, before you may remarry your former spouse. Get legal advice before taking the plunge.

Considering Whether to Divorce

The time when people had to live in a loveless, abusive, or adulterous marriage “for the children" is long past. Couples should consider carefully before deciding a few irritations are “irreconcilable differences" and divorcing. There are other alternatives to divorce.

Today, all states have a version of “no-fault divorce." This means that either party may file for divorce without proof of any flaws in the marriage. Even in a no-fault divorce, state laws vary on the requirements for divorce. Some of the requirements may include:

  • Marital counseling: Some states will order counseling before granting a divorce. This lets the couple discuss their problems with a therapist and talk about child custody and other issues with a third party.
  • Trial separation: In some states, couples must be living separate lives for a period of time before the divorce. You need to consult a divorce attorney about the time period. Most states will not grant a divorce if you and your spouse still live together.
  • Residency: You must live in the state where you are getting the divorce. It may be as brief as six weeks in Nevada or as long as two years in New York.

Other factors to consider in a divorce are allegations of abuse or domestic violence. In these cases, couples should seek legal advice immediately and not attempt to work things out alone. Separation may be the best alternative in these cases.

What Is Legal Separation?

Legal separation is an alternative for couples who are unable or unwilling to legally divorce. Some couples do not want to divorce because of their religious beliefs but cannot live together. Legal separation can be the answer.

In a legal separation, the parties go to family court and complete a separation agreement like a divorce agreement. They make child custody and child support arrangements just as in a divorce. Part of the settlement agreement requires them to live separately. However, legally they remain married. They cannot marry other people.

A separated couple can continue the process and get a divorce. If they want to resume living together, they need a court order ending the separation. You can learn more about legal separation in this article.

What Is an Annulment?

An annulment is a legal invalidation of a marriage. The parties in an annulment claim that their marriage did not exist by law.

Annulment is rare today, and the grounds for annulment are hard to prove. They include:

  • Fraud or misrepresentation: If one party lied about a material fact to enter the marriage, it could invalidate the marriage.
  • Mental incapacity: Both parties must be able to give knowing and voluntary consent to the marriage. Inability to consent because of age, mental illness or disease (such as Alzheimer's), or other mental disorder, may be grounds for annulment.
  • Duress or coercion: The “shotgun wedding" is a thing of the past. Both parties must give consent freely without fear or threat of force.
  • Incest: All states have incest laws prohibiting marriage between closely related individuals. These generally forbid marriage between couples closer than third cousins.
  • Bigamy: All individuals must be single at the time of entering into marriage.

Getting Legal Help

If you've read about divorce and still have questions, you should speak to an experienced local divorce lawyer. A good attorney will explain your legal rights and options so you can make an informed decision. Even if you and your spouse are in agreement and filing an uncontested divorce, you need an attorney to review your documents before filing. Engaging in self-help or a DIY divorce is seldom a good idea.

Learn About Whether to Divorce

  • What Divorce Can and Cannot Do for You: An overview of what divorce can and cannot do to resolve your family issues. Learn about the realities of divorce, including division of property disagreements, child custody disputes, and emotional issues.
  • A Divorce Timeline: A timeline of the divorce process from the filing of the divorce petition to the trial stage. Learn what to expect and when to expect it when you're facing divorce.
  • Annulment Overview: A look at marriage annulment law and process. Learn about the consequences of annulment and legal grounds, including mental illness, fraud, lack of consent, intoxication, inability to consummate the marriage, and more.
  • Legal Separation: Many couples separate before divorcing. Others choose a legal separation over a divorce, for financial reasons or otherwise. Learn more here.
  • Separation vs. Divorce: Legal separation can give spouses the space they need to work through their personal or financial issues. Learn about the advantages of legal separation and how it differs from divorce.
  • Divorce Glossary: In this section, you'll find a glossary of terms and phrases related to divorce and the divorce process, including legal custody, visitation, interrogatories, mediation, stipulation, equitable distribution, and much more.

Learn About Whether to Divorce

You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help

Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.

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Can I Solve This on My Own or Do I Need an Attorney?

  • Divorces are tough and a lawyer can seek the best outcome
  • A lawyer can help protect your children's interests
  • Divorce lawyers can secure alimony, visitation rights, and property division

Get tailored divorce advice and ask a lawyer questions. Many attorneys offer free consultations.


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