Q: What is a divorce?

A: Also referred to as a "dissolution of marriage", a divorce is a ruling by a court that a valid marriage no longer exists. Once the divorce has been finalized, both parties are free to remarry and division of property and arrangements for child custody and support are provided.

Q: Are most divorces contested?

A: No. While divorces may be emotionally debatable, most divorces (probably more than 95 percent) do not end up in a contested trial. During the divorce an attorney will usually help both parties to negotiate and settle such things as property division, spousal support, and child custody between themselves. In some situations parties are able to reach an agreement by mediation, with a trained mediator who tries to help each party identify and accommodate common interests. The parties then present their negotiated or mediated agreement to a judge. If both parties believe the agreement to be fair, approval can be virtually automatic.

Often times parties are unable to agree about property, support, and child custody. In this situation, they may ask the court to decide one or more of the contested matters. One spouse may sue the other for divorce, claiming certain faults or offenses by the defendant. However, over the years this has become far less common. Most divorces today are no-fault divorces.

Q: What are the grounds for obtaining a divorce based on fault?

A: States that allow fault-based divorce vary somewhat on the allowable grounds. Many states permit divorce for the following reasons: adultery, physical cruelty, mental cruelty, attempted murder, desertion, habitual drunkenness, use of addictive drugs, insanity, impotency, and infection of one's spouse with venereal disease.

Q: What is a no-fault divorce?

A: A divorce in which neither person blames the other for the marriage not working out is a no-fault divorce. This type of divorce does not require any accusations, nor is there a need to prove "guilt." Two common grounds for a no-fault divorce are "irreconcilable differences" or "irretrievable breakdown." As each term implies, the marriage is understood to be over, but the court and the legal documents do not try to assign blame. Another common basis for no-fault divorce is the circumstance where each party is living separate and apart for a given period of time, such as for six months or a year, with the intention that the separation is permanent.

Q: Why does the law provide for no-fault divorces?

A: No-fault divorces are considered a more compassionate and sensible way to end a marriage. Spouses who are divorcing usually are suffering enough without adding more fuel to the emotional fires by trying to prove who did what to whom. Human relationships are complex and it is difficult to prove that a marriage broke down solely because of what one person did. The laws of no-fault divorce recognize this very principle. However, some critics of no-fault divorces are concerned that an economically dependent spouse may not be adequately protected when it is comparatively easy for the other spouse to obtain a divorce. It is best to speak with an associate from Bradshaw & Associates, P.C. to discuss your options before proceeding with a divorce.

Q: How, if at all, does the use of fault grounds affect other aspects of the divorce?

A: That depends on the state. In certain states, fault may be taken into consideration in deciding property and spousal support, even if the divorce is granted on no-fault grounds. For instance, in some states fault will be considered if it directly results in the waste or dissipation of marital assets. In many states, the fault of a party in causing a collapse of the marriage is not supposed to be an issue in dividing property or deciding spousal support. In other states, however, a spouse who commits adultery may not be able to receive spousal support. In custody cases, the marital fault of a party usually is not supposed to be considered unless that fault caused a harmful impact on the child. Having a discrete extramarital affair normally would not be a major factor in deciding custody, unless the affair or series of affairs placed the child in stressful situations, only then could it be a factor in deciding custody.

Q: May a couple get a divorce without lawyers?

A: Most states permit do-it-yourself divorces, but they are usually not recommended. The complexities of property division and taxes may make it advisable for both parties to have legal and financial expert for advice. Consult a Bradshaw & Associates attorney today for a free initial consultation.