PROCESS: Part 3 (4min)

The divorce process

No legal training required

The practical 1st steps USA + UK

Divorce is often considered to be too easy. My experience is that it is the exact opposite. By the time most people see a Family Lawyer, they have often been through a lot of agonising, and sometimes the relationship has become acrimonious.

Key Facts about divorce in the USA:

• Divorce laws vary in every state.
• In some states, like Utah, separating from your spouse can be a quick affair. In others, like California, divorce can be drawn out for months.
• In Texas, many courts in the state won’t finalize a divorce while a wife is pregnant.

Jurisdiction

In the United States, the Federal Government does not have the authority to issue a divorce. The state has the only authority over accepting marriage and issuing a divorce. This creates the question of which state can you get divorced in? All states have rules for jurisdiction, which is typically how long the person filing the divorce has lived in the state. Most states require the person filing for a divorce to be a physical resident of the state for at least six months. Some states require twelve months and some states, like Nevada, only require six weeks. Without proper jurisdiction, a state cannot issue a divorce.

Grounds for divorce

Though divorce laws vary between jurisdiction, there are two basic approaches to divorce: fault-based and no-fault. Fault grounds, when available, are sometimes still sought. This may be done where it reduces the waiting period otherwise required, or possibly in hopes of affecting decisions related to a divorce, such as child custody, child support, alimony, and so on. A court may still take into account the behaviour of the parties when dividing property, debts, evaluating custody, and support. States vary in the admissibility of such evidence for those decisions.

P.R.E.P. The Voyage: PROCESS – The Divorce Process – No legal training required (4min)

No-fault divorce

Under a no-fault divorce system, the dissolution of a marriage does not require an allegation or proof of fault of either party. Only three states (Mississippi, South Dakota and Tennessee) require mutual consent (in Tennessee it is needed only in certain circumstances) for a no-fault divorce to be granted.  No-fault grounds for divorce include incompatibility, irreconcilable differences, and irremediable breakdown of the marriage.

The UK finally has no-fault divorce (since April 2022) and California is already not expecting couples to say bad things about each other just to allow the divorce process to go ahead.

P.R.E.P. The Voyage: PROCESS – The Divorce Process – No legal training required (4min)

At-fault divorce

Fault divorces used to be the only way to break a marriage, and people who had differences, but did not qualify as “at fault”, only had the option to separate (and were prevented from legally remarrying).

However, there are ways (defences) to prevent a fault divorce: Collusion, Condonation, Connivance, Provocation and Recrimination.

A defence is expensive, and not usually practical as eventually most divorces are granted.

Key Facts about divorce in the UK:

There is one ground for divorce, (and dissolution of a Civil Partnership) in the UK  – and it is that the marriage, or civil partnership, has irretrievably broken down.

And importantly, if one person wants to divorce, that’s it – the other person cannot contest it.

You will be able to see what the current system is through a simple google search in your country – and through reading the petition forms and support material.

A Common Mistake

Rather than simply issuing a Petition and it landing on the doormat without warning to the non-petitioning spouse; unless there is a very good reason for not doing so, contact should be made with the other spouse in advance to let them know it’s on the way. Some couples fill out the Petition form together with the help of a mediator.

A draft of the Petition should be prepared, and sent to them for consideration before it is issued at Court; and if necessary, some negotiation about the wording of it (particularly in relation to a behaviour Petition) can take place.

These steps should also prevent a Petition being defended and therefore additional emotional and financial cost being placed upon the family. Having a Petition contested is not a great start to the process and can really slow things up, cause additional stress and cost for everyone concerned. So taking time to prepare your spouse if they still have their ‘head in the sand’ is worthwhile.

However I have come across several clients who had already spent around £2,000 on arguing over what went on the petition form, backwards and forwards via expensive legal letters. This is insane and should be avoided at all costs!