Alimony - Payments made to a
separated or divorced spouse as required by a divorce decree or separation agreement. Also called Spousal Support
Resolution (ADR) - Ways of making decisions and resolving disputes, other
than litigation (contested hearings); includes Collaborative Practice, mediation,
parenting coordination, arbitration, and neutral evaluation.
Annulment - Like a divorce,
an annulment is a court procedure that dissolves a marriage. But, unlike a
divorce, an annulment treats the marriage as though it never happened. For some
people, divorce carries a stigma, and they would prefer to have their marriage
annulled. Others prefer an annulment because it may be easier to remarry in
their church if they go through an annulment rather than a divorce. There are
two types of annulment: civil annulment (by the state government) and religious
annulment (by a church).
annulments take place after marriages of a very short duration -- a few weeks
or months -- so there are usually no assets or debts to divide, or children for
whom custody, visitation, and child support are a concern. When a long-term
marriage is annulled, however, most states have provisions for dividing property
and debts, as well as determining child custody, child visitation,
child support, and alimony. Children of an annulled marriage are
not considered illegitimate.
– Usually the first appearance in court by the parties and their attorneys
after a complaint and answer are filed. See Divorce Process: Advance Case
- There are many different and complex causes and reasons for divorce, each of
them specific to that particular couple’s marital relationship, their
individual experiences and personal problems. None of them may seem ‘common’ to
the people going through a divorce, of course, but many of the reasons recur
enough to warrant the term. Research done on the causes of divorce reveals
of communication is one of the leading causes of divorce. A marriage is on the
rocks when the lines of communication fail. You can’t have an effective
relationship if either one of you won’t discuss your feelings, can’t talk about
your mutual or personal issues, will keep your resentments simmering under
wraps, and expect your partner to guess what the whole problem is about.
often happen because people rarely discuss their expectations in detail prior
to marriage, are less willing to work on their marriages afterwards, and would
like quick solutions rather than having to resolve issues. People have gotten
divorced for trivial reasons like snoring.
who come from divorced homes are more likely to get divorced than people who
come from happily married households. Divorce seems less like a big deal if you
have seen your parents go through with it.
who get married between the ages of 23-27 are more likely to stay together than
people who get married in their teens.
who cohabit before marriage have higher rates of divorce than people who didn’t
cohabit before marriage.
many cases, quite a few of the problems that cause divorce have existed in the
couple’s relationship long before they got married. The problems were either
not acknowledged or were ignored in the fond hope that marriage might offer a
miraculous panacea. And, guess what, it doesn’t. Nobody can make you feel
better about yourself and you can’t change and save anybody. As someone wise
once said, it takes two wholes to make a marriage, not two halves.
refers to rights regarding a child. There are two different types of custody – legal
custody and physical custody – and there are also different
variations of custody - sole custody and joint custody. The most common
form of custody is Joint Legal Custody. This is where the
children live with one parent (residential custodian) while the other parent
has visitation rights. With Joint Legal Custody, both parents make the
decisions on behalf of the children concerning health, education, religion, and
- An experienced, licensed therapist with specific education and training in
the expected behaviors, stages, challenges and tasks of the development of a
child. They work with the child (ren) to address specific emotional and
practical day-to-day needs as they relate to the divorce process. The Child
Representative also helps in designing the parenting plans that specifically
address the defined needs of the child (ren) as they go through the
restructuring of the family.
set amount of money paid by the non-custodial parent to help support their
children after a divorce. The money is paid through a state agency to the
Child Visitation - Child visitation,
often pursuant to a parenting plan, can take a variety of forms or schedules;
two of the most common are reasonable visitation, which leaves it up to the
parents to specify dates and times, and scheduled visitation, which is a fixed
schedule. Visitation arrangements normally include some if not all of the
following basic provisions:
1. Alternate weekend
visitation with the non-custodial parent, including "three-day
2. Mid-week visitation
with the non-custodial parent
3. Sharing of the child
during periods of school recess - winter, spring and summer (often split 50-50)
4. New Year`s Eve,
Easter, Rosh Hashanah, Yom Kippur, Thanksgiving, and Christmas are the kinds of
holidays spent with one parent one year, the other parent the next
5. Mother`s Day is spent
with the mother, Father`s Day with the father
6. Parents alternate
years on the child`s birthday
7. Open and frequent
telephone contact by the parent who does not have physical custody of the child
8. Exchange of a few
days of visitation here and there, as mutually agreed, without the need for a
modification of the court order
situations would potentially require the other parent to take temporary
physical custody of the child.
- Grounds for civil annulment vary slightly from state to state. Generally, an
annulment requires that at least one of the following reasons exists:
For example, if a spouse lied about her capacity to have children, that she had
reached the age of consent, or that she was not married to someone else, an
annulment could be granted.
Concealment. For example, if a
spouse concealed an addiction to alcohol or drugs, a felony conviction,
children from a prior relationship, a sexually transmitted disease, or
impotency, an annulment might be granted.
or inability to consummate the marriage. Refusal or inability of a spouse to have
sexual intercourse with the other spouse can be grounds for an annulment.
Misunderstanding. For example, if one
person wanted children and the other did not, an annulment might be granted.
- An individual trained in the practice of Collaborative Law to aid
couples in the dissolution (divorce) process. The Attorney addresses the legal
issues that a couple faces in seeking a divorce. Through problem-solving
negotiations that do not include adversarial techniques or tactics, the
attorney advises clients concerning applicable law and its effect on them and
helps them draft agreements in the spirit of cooperation.
– See Collaborative Practice; Collaborative Law.
Collaborative Divorce is based on Collaborative Practice principles and the
commitment to resolve all disputes out of court. The Collaborative Divorce Team
may include other professionals in addition to attorneys, such as coaches,
child specialists and financial specialists.
- See Collaborative Attorney; Financial Counselor; Financial
Planner/Financial Advisor/Estate Planner; Child Specialist; Divorce
Coach; Marriage and Family Therapist.
Family Law – See
Collaborative Law. Family Law is the area of law that deals with
separation, divorce, child custody, and division of marital assets.
– Collaborative Law describes the legal component of Collaborative Practice,
made up of the spouses or parties and their attorneys. It consists of two
clients and their respective attorneys working together toward the sole goal of
reaching an efficient, fair, comprehensive settlement of all issues. All
negotiations take place in “four-way” settlement meetings that both clients and
both lawyers attend. The lawyers cannot go to court or threaten to go to
court. Settlement is the only agenda. If either client goes to court,
both collaborative lawyers are disqualified from further participation.
Each client has built-in legal advice and advocacy during negotiations, and
each lawyer’s job includes guiding the client toward reasonable
resolutions. The legal advice is an integral part of the process, but all
the decisions are made by the clients. The lawyers generally prepare and
process all papers required for the divorce.
mediation is a style of mediation where two or more people
are encouraged to work toward resolution in a transparent and peaceful manner.
The goal is to support the parties to unfold the issues and create fair
agreements that will stand the test of time.
- An out of court process for resolving disputes respectfully. A non-adversarial
approach, it utilizes specially-trained lawyers, and sometimes other
professionals, to help the spouses negotiate a mutually acceptable settlement
without using the court to decide any issues. In Collaborative Practice,
core elements form the parties’ contractual commitments, which are to:
a mutually acceptable settlement without having courts decide issues.
open communication and information sharing.
shared solutions acknowledging the highest priorities of all.
Practice can also apply to disputes involving employment law, probate law,
construction law, real property law, and other civil law where continuing
relationships exist after the conflict has been resolved. In
Collaborative Practice, the lawyers and parties sign an agreement aligning
everyone’s interests in resolution. It specifically states that the
Collaborative attorneys and other professional team members are disqualified
from participating in litigation if the Collaborative process ends without
reaching an agreement.
Collaborative Process - The Collaborative Process uses
informal discussions and conferences attended by both parties and their
attorneys (four-way meetings) to settle all issues. The Collaborative
Process relies on an atmosphere of honesty, cooperation, integrity, and
professionalism. It requires that both parties, with the assistance of their
attorneys, provide all pertinent documents and information relating to the
issues to be settled, and that they work together toward a shared resolution.
In the event that experts are necessary, it encourages the use of jointly
retained neutral experts.
- A Collaborative team is the combination of professionals that the couple
chooses to work with to resolve their dispute. It can be simply the couple and
their Collaborative lawyers. In addition to Collaborative lawyers, the couple
can choose to include a neutral financial professional (financial counselor),
a divorce coach, a child specialist, or other specialists they
believe would be helpful. The "Collaborative team" guides and
supports the couple as problem-solvers, not as adversaries.
Contested Divorce – A contested
divorce is one in which the husband and wife cannot come to an agreement on one
or several issues related to the termination of their marriage. Where the
partners cannot come to an agreement, even with the aid of their respective
counsels, the couple must then take their issue(s) to a court to be
– In a conventional divorce, parties rely upon the court system and judges to
resolve their disputes. Unfortunately, in a conventional divorce spouses often
come to view each other as adversaries, and the divorce may be a battleground.
The resulting conflicts take an immense toll on emotions—especially the
Coach – See Divorce
Custody – see Child Custody
Agreement - The
purpose of the custody agreement is to reach an understanding on how to raise
and care for the child with both parents sharing in the responsibilities and
maintaining involvement in the day-to-day life of the child. For the custody
agreement to work it is essential that both parents be flexible. Every attempt
should be made to encourage and respect the relationship of the child and the
other parent. Parents should keep in mind that they are getting the divorce;
they are not divorcing their children. If parents can`t come to an agreement on
custody, then they will need to be prepared for a custody battle.
– A custody battle puts the child(ren) right smack in the middle of the
spouses’ battle. Spouses must consider why they are fighting for custody: is it
fighting for custody or fighting so that the other spouse doesn’t
have custody? Is it in the best interest of the child(ren)? If proceeding
in a custody battle or dispute, here’s what to expect when the court intervenes:
court will take into consideration the best interest of the child when making
the court feels that neither parent is acting in the best interest of the child
a guardian ad litem may be appointed to help in making decisions
on the behalf of the child.
on the age of the children, their wishes may or may not be taken into
consideration. Some states strongly take into consideration the wishes of the
children depending on their age; some states do not consider the child`s wishes
at all, without regard to age.
the situation is so obvious that one parent should have custodial rights over
the other (such as in drug abuse or physical abuse) a court-ordered independent
evaluation will probably be ordered. The evaluation is usually done by a court-appointed
mental health professional such as a psychologist or a social worker. A
thorough evaluation can include the following: interviews with all the parties
involved (individually and possibly with the parent and child together);
psychological testing of both parents and the child; review of school records
and or conversations with teachers; review of medical records and developmental
history; review of legal records, such as the papers filed regarding the
divorce, any possible domestic disputes and any criminal records of either
party involved. Be prepared for the evaluation to take at least four to six
weeks if not longer. Be prepared for a time-consuming and costly battle.
– See Custody Battle.
– Meaning “to end” or “dissolve”. Often used interchangeably with the word
“divorce” as in “dissolution of marriage”. See Divorce.
Divorce - Divorce is a
legislatively created, judicially administered process that legally terminates
a marriage no longer considered viable by one or both of the spouses. Divorce
is also known as dissolution of marriage. Traditionally, divorce was fault-based.
In other words, there was an "innocent or injured" party and a party
that had done "wrong" with the "innocent" party being able
to obtain relief or a divorce. This system was adversarial in nature. Even if
both parties wanted a divorce, one party had to allege wrongdoing by the other.
In the 1970s this system was reformed and a "no-fault" system was put
The divorce certificate contains basic information about the husband and wife,
and the date and place the marriage ended.
– A Divorce coach is a skilled professional, trained to
manage a wide variety of emotions and issues that arise during divorce.
Collaborative Divorce Coaches are all licensed mental health professionals (for
example, psychologists, social workers, marriage and family therapists). Each
Coach is experienced in the area of divorce and each Coach receives specialized
training in Collaborative Divorce and the Collaborative process. Divorce
coaching is not legal advice and not therapy. Divorce coaching is not about
placing blame, finding fault or dealing with the past.
– See Divorce Support.
– See Family Court.
Divorce Decree – A court’s formal
order granting a termination of marriage. If a divorce case goes to
trial and the judge issues a judgment, the judgment is confirmed when the
decree is signed and dated by the judge and court clerk.
– A divorce starts with state-specific divorce papers or forms. Each state has
unique divorce laws, which means the filing procedure and the divorce
paperwork will vary from state-to-state. Sometimes the difference is
significant and other times it will only vary slightly. The divorce forms are
typically formatted differently but also have unique titles, like a Divorce
Complaint rather than a Petition for Divorce or a Judgment rather than a
Decree. Sometimes a filing spouse is referred to as the Petitioner and other
states it is the Plaintiff. If the spouses can agree on the terms of divorce,
including grounds for divorce, division of marital property, etc. then they may
be able to expedite the process by filing a formal settlement agreement with
the court. If they cannot agree on some or all of the terms of the divorce,
then they will have to file the appropriate documents with the court so that a
hearing can be held to resolve the issues.
Divorce Law(s) - Divorce (or
Dissolution of Marriage) is primarily governed by state-specific divorce laws.
This means that what may be applicable in one state may not be in the next, so
it is imperative to focus on the divorce laws for the state in which one is
filing. Divorce laws may be very similar from one state to the next with
regard to issues like spousal support, child custody, and
property division, but issues like the filing procedures, document titles,
child support, divorce grounds, and residency requirements can vary
Lawyer – See
Family Law Attorney
Divorce Litigation – Litigation is a legal term
meaning ‘carrying out a lawsuit.’ The word `litigation` comes from the Latin
word `litigatus` meaning `to dispute, quarrel, strive". In a divorce, litigation
can be very destructive to the parties and their children. The advantages of
Collaborative Practice over traditional divorce litigation include:
collaborative process is generally less costly and time-consuming than
Client Involvement: The clients are a vital part of the settlement team and
have a greater sense of involvement in the decision making which affects their
client is supported by their lawyer and coach in a manner that still allows the
attorneys to work collaboratively with one another in resolving issues.
process is much less fear and anxiety producing than utilizing Court
proceedings or the threat of such proceedings. Everyone can focus on settlement
without the imminent threat of "going to Court".
The Collaborative process creates a positive climate that produces a more
satisfactory outcome for both parties. The possibility actually exists for
participants to create a climate that facilitates "win-win"
Speed: The speed of the
collaborative process is governed by the parties rather than court calendars.
process encourages creative solutions in resolving issues.
Clients in Charge: The non-adversarial nature of the collaborative process
shifts decision making into the hands of the clients where it belongs, rather
than into the hands of a third party (the court).
– Final order made by a court in a divorce case. On taking effect, a
divorce order legally ends a marriage.
– See Divorce Process.
Divorce Process - The actual divorce
process is controlled by the participants. Many people do not realize that not
all divorces must end in a contested courtroom proceeding. Generally, once a
couple has embarked on a contested divorce process, the types of proceedings
from State to State are similar, but not identical. It is important for the
couple to consult with a lawyer in the State
where they reside about the specific process. The length of a case may depend
on the state and county that the case is filed in. It often depends on how
crowded the court docket may be and often may take a year or more. The Divorce
Process may include the following stages: Jurisdiction, Summons
& Petition, Answer & Counter Petition, Temporary
Hearings, Mediation, Co-Parenting Classes, Advance Case
Review, Discovery, Experts, Settlement, Settlement
Process: Jurisdiction - Before a divorce is filed, a determination must be made
where the matter will be heard. Different states have different rules for
bestowing jurisdiction. In many states, a party must have lived in that state
for 180 days prior to filing. If there are two possible jurisdictions, it may
benefit the party filing to serve the Divorce documents first to choose
jurisdiction in their state. That is the primary benefit of serving and filing
first. There is little benefit to serving and filing first other than to prepare
in advance and to choose the jurisdiction.
Process: Summons - The
Summons is a document announcing that a divorce or legal separation action is
being commenced. In some states, that document also indicates that from that
point forward neither party may dispose of marital assets, change insurance
coverage or modify any other significant holdings except for the necessities of
- The Petition has two parts. The first part is a statement of facts which sets
out basic facts such as the identities of the parties, whether they have
children and what assets they may hold. The second part of the Petition seeks
relief such as an award of custody, spousal maintenance or child support and a
division of assets and debts. The Petition is often tailored to seek the
maximum relief. It is a positioning paper that will often seek as much relief
as the proponent could possibly seek.
Process: Answer & Counter Petition – In the divorce process, the opposing party
has thirty (30) days in most states to submit an answer to the divorce
petition. The Answer is very simply the opposing party’s statement of facts and
request for relief. Often the service of an Answer is waived. This is often
done to save the parties the cost of an additional filing fee should the matter
be settled. However, if a waiver or extension is not granted by the opposing
party and an answer is not filed within thirty (30) Days, the original party
may seek a default. A default means that the original moving party may request
the relief requested in their petition without opposition. Late answers are
often accepted since Courts prefer determining cases on their merits rather
than by default.
Process: Temporary Hearing - A temporary hearing may also be called a Pendente
Lite Hearing. Such hearings may be scheduled by either party by filing a
Motion supported by an affidavit. Temporary/Pendente Lite hearings are designed
to resolve issues while the divorce is pending such as who will have:
support and/or maintenance
the parties are going to reside pending the resolution of the case
from harassment and domestic violence
against financial improprieties
– Many courts require the parties to attempt to mediate their disputes
before the matter is submitted to the Court. One exception to this rule may be
where domestic abuse has occurred. Mediation may occur between the parties of
with attorneys present.
Mediation means that the parties visit with a qualified neutral who will
attempt to get them to resolve their differences. In mediation, the neutral is
not an advocate and will not provide legal advice. Most discussions that occur
in mediation are not admissible in Court under the public policy consideration
that favors a free exchange of information between the parties to help them
resolve their differences.
Process: Co-Parenting Classes - Many states have adopted a policy that
requires parents to attend co-parenting classes where children are involved.
The goal is to teach parents how to minimize the impact on children involved in
a divorce. In most cases, the parents need not attend together. Some states
also require that children of a certain age attend a class to teach them the
skills to deal with divorcing parents.
Advance Case Review – Many states have a hearing that is called an advance case
review or early case resolution meeting or Case Management
Conference. In such a hearing, the parties meet with the Judge assigned to the
case or a referee to discuss the issues, or what discovery may be necessary.
This is the parties’ first chance to resolve the case or portion of the case.
Process: Discovery - Discovery
refers to the "investigation" phase of the divorce process. It is
primarily dedicated to identifying the contested issues, a determination of
assets, income and debt of the parties. This exchange of information can be
conducted informally with the parties agreeing to freely exchange the
information or, formally, through the submission of formal documents that
require answers under oath.
Process: Experts - Experts
are often employed to determine certain facts. Those experts may be jointly
agreed upon by the parties, which can save on the cost of having individual
experts testify at trial. However, where that is not possible, each side may
hire an expert to contest an issue and require their testimony at trial. Common
planners to determine future economic circumstances
evaluators to value businesses
estate appraisers to value real estate
property appraiser to value furnishings and other assets (generally an
auctioneer experienced in home goods)
evaluator to determine earning capacity
to testify to mental health issues
– A divorce or legal separation case may be resolved at any time the parties
come to an agreement on the issues. In such cases, the parties would sign a Marital
Settlement Agreement or some other form of stipulation resolving their
issues. This can occur right up to the point of trial.
Conference/Pretrial - Settlement or pretrial conferences are scheduled
by the Court. In such conferences, the Court may require each party to submit a
pretrial statement of the case and issues. In such hearings, the Judge will
meet with the lawyers and/or parties to discuss the issues and to make
Process: Trial - If
the spouses are unable to settle the case, it will go to trial. Some states
have a trial by jury. Other states have a trial by Judge. At trial each party
tells their story to the judge. It is told through testimony, the testimony of
other witnesses, and documents called exhibits. At trial, the moving party
(usually called the petitioner or plaintiff) presents their case first. They
call their witnesses who are subject to cross-examination by the opposing
party. When the plaintiff or petitioner rests their case, the Respondent or
Defendant presents their own case with witnesses and evidence, each subject to
cross examination by the opposing party.
– Recovering from a divorce and the ending of a close relationship
is not easy. There’s an adjustment process after a divorce; and there are many
resources available to help along the way. See Divorce Support.
- Divorce rights involve many aspects of the divorce process and can vary from
state to state. Divorce rights primarily involve each party’s right to divorce,
to property distribution and child custody rights. Divorce rights have changed
significantly throughout history and are still in flux today. Divorce rights
are often best protected and maximized with the help of a trained professional
family law attorney. These experts can help people discover what their divorce
rights are based on their specific circumstances and the laws that govern
divorce in their state of residence.
– Divorce is one of life’s most difficult experiences. To find help and healing
for the hurt of separation and divorce, there are many sources of support,
Collaborative Team guiding and supporting you through the divorce process
for children of separating or divorcing parents
dedicated to supporting divorcing couples and restructuring families
through online forums and resources
Counseling; Marriage and Family Therapy
books, stories about and by divorcing/divorced couples
See Marriage and Family Therapist.
Visitation - see
- The effects of divorce can change virtually every aspect of people’s lives,
including where they live, with whom they live, their standard of living, their
emotional happiness, their assets and liabilities, time spent with children and
other family, and so much more. Some effects of divorce can be positive, such
as ending an unhappy or even abusive relationship. Other effects of divorce can
be detrimental to personal well-being.
Effects of Divorce on
- Divorce affects children differently, depending on their gender, age and
stage of development. Their world, their security and their stability seems to
fall apart when their parents divorce. Following are universal responses that
researchers have found among children of divorce.
worry that their parents don`t love them anymore and they feel abandoned.
They feel like the parent who left has divorced them too.
feel powerless and helpless because they can`t get their parents back
together. They can`t speed up or slow down the process.
feel angry although they may not express their anger.
often feel they are at fault. They may believe something they did or said
caused a parent to leave.
grieve. Divorce is a loss in the lives of children and parents. They
experience a grieving process very similar to mourning a death.
experience conflicts of loyalty.
out behavior ranges from very mild behavior, such as difficulty sleeping,
to extremely destructive behavior, such as suicide, drug abuse, or
behaviors may include problems in school, nervous habits, repetitive
physical behaviors, and regressive behaviors such as bed-wetting, fears,
and use of comfort items. Children may become clingy and whiny and they
may need greater understanding of their moods and behavior. They have a
greater need to be nurtured.
may think they have to "take care" of their parents. Giving up
one`s childhood to care for emotionally troubled parents is a widespread
characteristic in children of divorce.
behaviors are common for children experiencing divorce. There is a false
assumption that children are "naturally resilient" and can
"get through" a divorce with little or no impact on their lives.
Instead, they need support systems and individuals to help during the
legal court convened to
decide matters and make orders in relation to family law, such as
termination of marriage and custody of children.
Family Law - An area of
the law that deals with family-related issues
and domestic relations
including, but not limited to:
- the nature of marriage, civil unions, and
- issues arising during marriage,
including spousal abuse, legitimacy, adoption, surrogacy, child abuse, and child abduction
- the termination of the
relationship and ancillary matters including divorce, annulment, property settlements,
alimony, and parental responsibility
orders (in the United States, child custody and
visitation, child support
– A lawyer practicing in the area of Family Law.
- This professional acts as a neutral party who assists both spouses in
gathering all the financial information about the couple or family in a
supportive and nurturing environment. Each client is encouraged to assist in
financial disclosure and documentation of the income, expenses, assets, and
debts of the family. The essential shift is from a data focus to a system
focus, whereby the financial counselor listens and then helps the clients
understand the overall picture created by their particular family`s financial
situation. The knowledge gained by the clients through the data collection and
documentation can aid each partner in achieving the financial settlement he/she
Financial Planner/Financial Advisor/Estate Planner - Certified
professionals who work in the field of accounting, insurance, or investments.
They advise clients on how to invest their money to get the best return on
their dollar based on their own tolerance for risk. They can facilitate
retirement planning, long-term financial investment and life insurance needs.
– The Collaborative Process is conducted through a series of four-way
meetings with both parties and their Collaborative attorneys. The
sessions are intended to produce an honest exchange of information and
expression of needs and expectations. The well-being of any child(ren) is
especially addressed. Mutual problem-solving by all the parties leads to the
final divorce or marital settlement agreement. When additional professionals
are added to the Collaborative Team, these sessions may become five-way
or six-way meetings.
Grounds for Divorce - Some people don`t
want to wait out the period of separation required by their state`s law for a
no fault divorce. And in some states, a spouse who proves the other`s fault may
receive a greater share of the marital property or more alimony. The
traditional fault grounds are:
(inflicting unnecessary emotional or physical pain) -- this is the most
frequently used ground
for a specified length of time
in prison for a set number of years, and
inability to engage in sexual intercourse, if it was not disclosed before
ad litem are often appointed in divorce cases or in
parenting time disputes to represent the interests of the minor children. The
kinds of people appointed as a guardian ad litem vary by state, ranging from volunteers to social workers to attorneys to others
with the appropriate qualifications. The two divorcing parents are usually
responsible for paying the fees of the guardian ad litem, even though
the guardian ad litem is not responsible to them at all. In some states,
government pays the fee of that attorney. The guardian ad litem`s
only job is to represent the minor children`s best interests.
to File for Divorce
- The following are all necessary in order to complete a no-fault divorce:
spouses agree to end the marriage and comply with the requirements for a
Marital Settlement Agreement is completed. See Marital Settlement
Financial Statement from both parties is completed
Petition or Complaint is completed along with the Consent, Appearance and
Custody Jurisdiction Form
Judgment or Decree
legal documents must be signed in front of a notary public. The documents
must then be filed with the County Clerk’s office. The Court will then
arrange for a court date.
parties comply with the Separation Agreement; for example, with respect to
division of all property, i.e. all titles and deeds are signed over to the
person who files the papers attends the court hearing. The judge may
briefly question the person filing for divorce. The judge will then state
his/her findings and advise you as to the final steps to be taken.
Negotiation – Also
called “interest-based bargaining” or "win-win bargaining," interest-based
negotiation is a negotiation strategy
in which parties collaborate to find a "win-win" solution
to their dispute. This strategy focuses on developing mutually beneficial
agreements based on the interests of the disputants. Interests include the needs, desires,
concerns, and fears important to
each side. Interest-based negotiation is important because it usually produces
more satisfactory outcomes for the parties involved than does positional bargaining.
- Parents who don`t live together have joint custody (also called shared
custody) when they share the decision-making responsibilities for, and/or
physical control and custody of, their children. Joint custody can exist if the
parents are divorced, separated, or no longer cohabiting, or even if they never
lived together. Joint custody may be:
physical custody (where the children spend a significant portion of time
with each parent), or
legal and physical custody.
is common for couples who share physical custody to also share legal custody,
but not necessarily the other way around.
- refers to the right as a parent to make decisions about a child’s health,
well-being and education. A parent with legal custody can make decisions about
schooling, religion, and medical care, for example. In many states, courts
regularly award joint legal custody, which means that the decision making is
shared by both parents.
Document Assistant (LDA) – See Paralegal.
- A Marital Settlement Agreement is a written document that outlines the
divorcing spouses’ rights and agreements regarding property, support and children.
All forms are signed by both spouses and witnessed by a notary public. The
issues that must be resolved by the spouses and outlined in the Marital
Settlement Agreement include:
of assets and other property
of debt and monies owed to creditors
child support, custody
a no-fault divorce, the judge will not decide any of these issues for you.
These issues are solved voluntarily between the spouses.
Therapist - A licensed mental health professional (Marriage and Family
Therapist, Psychologist or Social Worker) trained in the assessment and
treatment of emotional, personality and or relationship difficulties. The
therapist may function to help a person move through the transitions of the
divorce process. A therapist can help individuals when they are facing emotions
that may be overwhelming and interfering with day-to-day functioning. The
therapist may also assist a client dealing with underlying core issues that are
being triggered and surfacing due to being in the dissolution process.
Mediation - A method of
resolving disputes, in which a trained, neutral person (the mediator)
helps the parties work out the solution for themselves. The mediator
cannot give either party legal advice or be an advocate for either side. If
there are lawyers for each party, they may or may not be present at the
mediation sessions, but if they are not present, then the parties can consult
them between mediation sessions. When there’s an agreement, the mediator may
prepare a draft of the settlement terms for review and editing by both parties
and their lawyers. If mediation doesn’t result in a settlement, the parties may
choose to use their counsel in litigation, if this is what they and their
lawyers have agreed.
Mediator - A neutral,
impartial person who is trained in negotiation, conflict resolution and
communication skills. The mediator does not represent any party or take sides,
nor does he/she act as an attorney, judge, coach or therapist. He/she explains
the mediation process to the parties, and assists divorcing couples to clarify
issues, concerns, interests, needs and values. The mediator brings in and works
with various professionals as needs arise.
Military Divorce - Military divorce is
defined as a divorce where one of the parties (the "service member")
is active duty military, reserve or guard, or retired military. This is not a
"legal" term that is recognized within the context of the law, but a
lay term used to describe a divorce where one of the parties is a service
member (regardless of the member`s status). Being a service couple does not
exempt the parties from the same requirements that civilian couples must meet
when filing for divorce. However, military service creates unique issues when
it comes to divorce because certain rules apply in military divorces that are
different from civilian divorces. Among the differences are:
with military rules and regulations
service upon an active duty spouse
or residence requirements for filing
of the military pension
Military divorces are governed by a
combination of federal and state law. Military pension and certain emergency
child support orders are dictated by federal law. State laws dictate the
handling of all other matters pertaining to a military divorce.
No Court Divorce –Also called
no-court divorce, non-court divorce, or divorce without court, no court divorce
refers to the collaborative approach to divorce. See also Collaborative
Divorce; Collaborative Practice; Collaborative Process. Rather
than turning the decision-making power over to a judge, control of the
collaborative solution is kept with the people directly involved in the
dispute. All of the parties
consent in writing to be part of a respectful process that leads to an
out-of-court resolution. The
clients retain the power to create a resolution that fits their particular
needs and priorities. The focus is on constructive problem-solving rather than
adversarial bargaining and court-imposed solutions. Benefits of no court
the needs of children
going to court
control of the process with the individuals
for open communication
a problem-solving approach
and addresses interests and concerns of all
divorce with dignity
individuals for new lives
- "No fault" divorce describes any divorce where the spouse suing for
divorce does not have to prove that the other spouse did something wrong. All
states allow divorces regardless of who is at "fault." To get a no
fault divorce, one spouse must simply state a reason recognized by the state.
In most states, it`s enough to declare that the couple cannot get along (this
goes by such names as "incompatibility," "irreconcilable
differences" or "irremediable breakdown of the marriage"). In
nearly a dozen states, however, the couple must live apart for a period of
months or even years in order to obtain a no fault divorce.
Paralegal - (Also known as a
Legal Document Assistant or LDA) - An individual who helps a couple represent
themselves in the dissolution of their marriage in a simple, uncontested
divorce situation. An LDA will do all the processing of the paperwork
throughout the divorce process. If a couple chooses to go through the mediation
or collaborative process, the LDA can also file the appropriate forms to
complete the divorce.
- refers to the right as a parent to have the child living in his or her home.
states will award joint physical custody to both parents when the child spends
significant amounts of time with both parents. Joint physical custody works
best if parents live relatively near to each other, as it lessens the stress on
children and allows them to maintain a somewhat normal routine. Where the
child lives primarily with one parent and has visitation with the other,
generally the parent with whom the child primarily lives will have sole
physical custody, with visitation to the other parent.
Bargaining - This
type of negotiation strategy is based on fixed, opposing viewpoints (positions)
and tends to result in compromise or no
agreement at all (impasse). Often, compromises do not efficiently satisfy the
true interests of the disputants. Instead, compromises simply split the
difference between the two positions, giving each side half of what they want.
Creative, integrative solutions achieved through interest-based negotiation
or interest-based bargaining, on the other hand, can potentially give everyone
all of what they want.
referred to as a “premarital agreement”, this is a legal document that dictates
how property and debt will be split should the parties decide to divorce at
some future time.
- Literally means "do it yourself." This term is often used in mediation
and collaborative law to designate that clients have determined to
represent themselves. For example, when filing papers through a Legal Document
Assistant, clients sometimes file "Pro Per."
Pro se means "for self." In the court context, pro se
litigants are individuals who represent themselves rather than being
represented by lawyers. In most states, individuals and lawyers file forms in
court called "appearances." The appearance forms advise the court who
will be representing the parties so the court can communicate with the
individuals or their representatives. Lawyers cannot appear in court or sign
court documents on behalf of clients unless an appearance form has been filed.
In the collaborative practice model, the parties file pro se
appearance forms and their individual lawyers assist them with the paper work
and filing. This facilitates an essential term of the collaborative divorce;
namely, that the collaborative lawyers will be replaced by adversarial lawyers
if the collaborative process cannot achieve resolution. The adversarial lawyers
will then file their appearances in court and proceed to litigate the case.
– see Causes of Divorce
Annulment - Within
the Roman Catholic Church, a couple may obtain a religious annulment after
obtaining a civil divorce, so that one or both people may remarry, within the
church or anywhere else, and have the second union recognized by the church.
The grounds for annulments in the Catholic Church are different than for civil
Separation – The terms “divorce”
and “separation’ are often incorrectly used interchangeably. A separation is
when marriage partners sever their relationship with the intent of ending the
marriage. Separation does not have much legal effect in and of itself.
When a couple lives apart for a test period, to decide whether or not to
separate permanently, it`s called a trial separation. Even if the spouses don`t
get back together, the assets they accumulate and debts they incur during the
trial period are usually considered marital property. This type of separation
is usually not legally recognized, but is instead a specific period in a
Spouses who no longer reside in the same dwelling are said to be living
apart. In some states, living apart without intending to reunite changes
the spouses` property rights. For example, some states consider property
accumulated and debts incurred while living apart to be the separate
property or debt of the person who accumulated or incurred it. In other
states, property is joint unless and until a divorce complaint is filed in
court. Also in some states, couples must live apart for a certain period
of time before they are permitted to file for a no-fault divorce.
When a couple decides to permanently split up, it`s often called a
permanent separation. It may follow a trial separation, or may begin
immediately when the couple starts living apart. In most states, all
assets received and most debts incurred after permanent separation are the
separate property or responsibility of the spouse incurring them. However,
debts that happen after separation and before divorce are usually joint
debts if they are incurred for certain necessities, such as to provide for
the children or maintain the marital home. Again, a couple`s decision to
permanently separate may not be considered a legal one unless one party
files for legal separation instead of divorce.
A legal separation results when the parties separate and a court rules on
the division of property, alimony, child support, custody, and visitation
-- but does not grant a divorce. This isn`t very common, but there are
situations where spouses don`t want to divorce for religious, financial,
or personal reasons, but do want the certainty of a court order that says
they`re separated and addresses all the same issues that would be decided
in a divorce.
money awarded for support of the spouse and children under these circumstances
is often called separate maintenance (as opposed to alimony and child support).
In some states, separate maintenance can be obtained with a motion pendente lite,
or a motion "pending the litigation." Usually a lawyer files this
motion. These motions set the tone for what may be awarded in a future divorce
Custody – see
- One parent can have either sole legal custody or sole physical custody of a
child. Courts generally won`t hesitate to award sole physical custody to one
parent if the other parent is deemed unfit -- for example, because of alcohol
or drug dependency, a new partner who is unfit, or charges of child abuse or
neglect. However, in most states, courts are moving away from awarding sole
custody to one parent and toward enlarging the role a divorced father plays in
his children`s lives. Even where courts do award sole physical custody, the
parties often still share joint legal custody, and the noncustodial parent
enjoys a generous visitation schedule. In that situation, the parents would
make joint decisions about the child`s upbringing, but one parent would be
deemed the primary physical caretaker, while the other parent would have
called “alimony” and “spousal maintenance”, this term refers to money
paid to one spouse by another to help the lesser-earning spouse maintain a
certain standard of living. Spousal support is most common in situations where
one spouse makes considerably more than the other.
- See Divorce Temporary Hearing
- An uncontested divorce is one in which all issues have been agreed upon by
the parties. The parties reduce their agreement to writing and it is presented
to a Judge at the final hearing. An uncontested divorce can be achieved by the
parties working on their own or through mediators and collaborative
lawyers as well as lawyers working in the traditional context. Often, cases
which are contested on one or more issues end up being uncontested when the
parties settle after a period of adversarial litigation. In fact, the vast
majority of divorce cases are settled by agreement. But what occurs in the
course of litigation prior to the settlement can be damaging to the family
relationships and resources.
- In the zealous advocacy model, lawyers are taught to argue for the best
result they can get for a client, without regard to how it effects or damages
others. The adversary system is revered as an "engine" for
discovering the truth. In theory, if each adversarial attorney pushes as hard
as he can for his client, the truth will rise from the fray and justice will
result. This model may be necessary and effective in criminal law cases, for
instance, but in family law cases, zealous advocacy can escalate hostilities
and the family can be injured as a result.