Your Comprehensive Guide to Divorce Options
In an uncontested divorce, both spouses want the divorce and can reach a settlement on all issues independently. Even in an uncontested divorce, you must still file in court.
Divorce, or marital dissolution, varies depending on your state and specific situation. Proper legal advice comes from an experienced family law attorney or a divorce attorney who listens to the specifics of your situation.
Divorcing couples should expect to come to a fair and equitable settlement agreement no matter their divorce option. There are many ways to get from A to Z in a divorce.
This article provides general information and easy-to-understand definitions for all types of divorce.
Some states regulate when an uncontested divorce applies. In general, you and your spouse can't have the following:
- Financial issues or disagreements
- Child custody or alimony disputes
- Disputes on the divorce terms
When an Uncontested Divorce Becomes Contested
An amicable divorce can become "contested" when the two people cannot agree on terms. To solve the problem, you need to choose the right option.
- Collaborative Divorce
No-Fault or Fault Divorce
In time past, one spouse had to show the other spouse was "at fault" before they could get a divorce. Grounds for divorce included:
- Insanity or incompetence
- “Impotence" or inability to consummate the marriage
Today, the “fault divorce" exists, but it is mainly used by family law judges when considering child support, alimony, or annulment.
California introduced the no-fault divorce in 1970. Either spouse may petition for a divorce based on “irreconcilable differences." Some states want a trial separation period, pre-divorce counseling, or a waiting period before granting a divorce.
Alternate Dispute Resolution (ADR) Methods
Alternative dispute resolution (ADR) is the term used to describe out-of-court settlement options, including mediation, arbitration, or collaborative family law. ADR is helpful when children are involved or the parties are mostly in agreement but need a little help to complete the proceedings. The advantage of ADR methods is that the parties can decide on the terms of their divorce agreement themselves. The judge will not make decisions for them.
Divorce Mediation (Instead of Going to Court)
Mediation uses a neutral third-party mediator to help couples talk through divorce issues. Choosing mediation does not waive your right to court. Some jurisdictions require mediation for all divorces. Even if you and your spouse agree to the divorce, mediation is a good way to spot issues you have overlooked. No divorce will allow you to avoid the court system altogether. A judge must approve the agreement in all states, but they won't try to change it.
Arbitration is like mediation because it is an out-of-court process involving a neutral third party. The main difference is that the third party, the arbitrator, renders a decision, either binding or non-binding. Arbitration is much less common in family law matters than it is in other types of civil matters.
Arbitration can be helpful in dissolutions involving real estate or community property businesses that need a binding decision.
Collaborative Divorce Process
In collaborative divorce, the parties and their attorneys conduct “litigation" without going to court. All parties sign an agreement to conduct the divorce process fairly and reasonably without resorting to litigation.
For example, one part of the divorce process involves an exchange of documents and answers to questions called “interrogatories." This can become contentious in litigation, and attorneys may exchange demands and motions to compel the other party to obey the discovery requests. In collaborative divorce, the parties agree to complete answers, provide the documents, and submit everything on time without resorting to court orders and hearings.
Divorce Litigation (When You Need to Go to Court)
Even with alternative dispute resolution methods, many people prefer to have the judge make the final order for them. Litigation may seem “final" or more authoritative than ADR to some people. Litigation is also more expensive and may be more time-consuming.
Litigation in divorce is like any other court case. You and your spouse will have your own attorneys, and your attorney will present evidence on your behalf. You must testify, and the opposing counsel will cross-examine you.
Litigation is necessary when the parties cannot or will not agree on any facts in their case and cannot cooperate with each other in providing documents and information to each other and the court. In these cases, a judge must often order them to comply to keep the case moving.
You will need an attorney specializing in family law or divorce law to get the best outcome. They should know your state laws and grounds for divorce and child custody. There are different ways you can seek legal representation.
"Limited Scope" Representation
Often called unbundled legal services, limited-scope legal representation means you pick and choose the divorce services you want from an attorney. You can pay a flat fee for things like drafting a divorce decree, filing paperwork with the court, or appearing in court with you. You would need to handle the rest of the tasks in the divorce process yourself.
If you and your spouse agree on most facts in your divorce and only want an attorney to review your divorce agreement before filing, this is an inexpensive way to seek representation. Or maybe you have a complicated child custody matter and want someone to go to court with you on that matter but nothing else.
You should check with your attorney to see if they offer this representation or service. Many firms only offer traditional representation.
An actual do-it-yourself divorce, or "self-help divorce," means you will research, fill out the forms, and gather relevant evidence yourself. All jurisdictions will let you file for divorce and represent yourself in court from beginning to end, though it is not recommended.
This process is time-consuming and risky if you miss a step or make a mistake. If you feel you have a firm grasp of divorce settlements in your state, it can save you money. DIY divorces are best for couples who can reach an agreement quickly and only need to file the divorce papers and have the divorce decree signed by the judge.
A DIY divorce is popular for divorce cases since you avoid expensive attorney's fees. However, many married couples still decide to work with a lawyer in at least some capacity. A hybrid approach lets you handle much of the process independently and have an attorney step in for court dates or when needed.
Seeking Child Custody or Child Support in a Divorce
If you have children, your divorce becomes more complicated. It is not advisable to handle your divorce alone if you have minor children. Family court judges must put the best interest of the children first. The court will ignore any agreements or plans you and your spouse make if it feels it is not in the best interest of the children.
Things that must be considered in a child custody case include:
- Child support. The incomes of both parents are considered, as well as how much time the child will spend with each parent according to the parenting plan. Parties cannot waive or avoid child support.
- Visitation schedule (also known as "access"). Unless there is a compelling reason for it to be different, the court will make parenting time as close to 50/50 as possible. There is no longer a “maternal presumption" for giving children to the mother, except for nursing infants. Visitation must include travel and vacation time.
- Legal and physical custody. Parents have a presumptive right to make joint educational, medical, and religious decisions for their children unless there is a compelling reason otherwise.
Seeking Alimony (Spousal Support) in a Divorce
You and your spouse can negotiate spousal support and try to agree on your own. If you cannot agree, your state may have laws on the amount one spouse can be expected to pay. Many states limit spousal support except in long-term marriages.
Legal Separation (Instead of Divorce)
A legal separation means a couple is separated but still legally married. Some couples choose to separate temporarily, while others use it as a long-term solution. It can be an alternative to divorce for people whose religions or personal beliefs do not allow for divorce.
Legal separation is similar to divorce. Parties can agree on child custody, child support and visitation, marital property division, and spousal support. Property acquired during legal separation is separate property.
A separation agreement has requirements similar to a divorce agreement. Once a separation agreement has been issued, a court order is required to restore the couple to married status.
Virtual or Online Divorce
This option grew in popularity due to the COVID-19 pandemic. It has existed for years for military members, overseas residents, and other unique circumstances.
In some states, you need to appear in person to sign paperwork and handle a divorce. But most states offer eSigning or allow your divorce lawyer to act as your proxy. Divorce proceedings can feel normal with video or phone communications and electronic methods to sign and transfer documents.
Annulment (Proving Your Marriage Was Not Legal)
Seeking an annulment will dissolve the marriage only if it meets your state's requirements. Annulments are rare, but they can happen if you married someone that was mentally ill at the time, for fraud, or a number of other reasons.
How All Your Divorce Options Fit Together
The divorce options on this page can feel like a lot of information with minor differences. A family law attorney can help you understand the best option for you depending on your family's needs, your assets, and the relationship you have with your ex-spouse.
This chart can help you understand which option could be right for you:
Do My Spouse and I Both Want a Divorce?
Is There a Fault-Based Reason To Separate (Such as Domestic Violence)?
Do I Just Want This Over With or Do I Want the Judgment in My Favor?
|Resolve Divorce Quickly
|Fight for Your Side
Do I Want the Cheapest Divorce Possible?
An attorney can answer your questions and advise you on the right option for you. There are many factors to consider, and divorce cases can abruptly change during the process.
Educate yourself on your options, and consider how an attorney can help guide you.
Can I Solve This on My Own or Do I Need an Attorney?
- You may not need an attorney for a simple divorce with uncontested issues
- Legal advice is critical to protect your interests in a contested divorce
- Divorce lawyers can help secure fair custody/visitation, support, and property division
An attorney is a skilled advocate during negotiations and court proceedings. Many attorneys offer free consultations.
Don't Forget About Estate Planning
Divorce is an ideal time to review your beneficiary designations on life insurance, bank accounts, and retirement accounts. You need to change your estate planning forms to reflect any new choices about your personal representative and beneficiaries. You can change your power of attorney if you named your ex-spouse as your agent. Also, change your health care directive to remove them from making your health care decisions.