Does one have to go to court to obtain a divorce?
A court of law is the only way in which one can obtain a divorce decree, dissolution,
legal separation, nullity, or other form of terminating a marriage. Each jurisdiction
has established its own body of law by which this procedure is accomplished to give
it full legal effect. The various states have enacted statutes, which govern the
procedures by which this is done. Other than the termination of the marital estate
the court also has jurisdiction to resolve the other issues which are intertwined
in the existing marriage which include but are not limited to, custody and visitation
rights, division of property of the marital estate, spousal support, child support,
restraining orders, etc.
What is involved in starting the process for a divorce or dissolution?
The first step would be the filing of a properly executed petition with the
appropriate court. The court must have what is called subject-matter jurisdiction
that would entail satisfying the requirements of residency or domicile within the
state and county dictated by the statute. This can be as little as six weeks or
as long as three to six months. Without this threshold requirement being met the
court would not have the jurisdiction to hear the matter and execute an order or
decree of divorce, or dissolution, or like orders terminating the marital state.
How long does the process take to obtain a divorce or dissolution?
The time period involved is dependent upon the law of the state and could be
as short as six weeks and can extend to six months depending upon the jurisdiction
involved. If there are contested issues involved, it can be several years before
the court may resolve all of the issues involved. The decree of divorce has full
effect as soon as the judge signs it.
What is a divorce?
A divorce is the legal termination of marriage. All states require a spouse
to identify a legal reason for requesting a divorce when filing the divorce papers
with the court. These reasons given are referred to as the grounds for divorce.
What is a legal separation?
Legal separation is a legal status conferred by a court, where the parties
remain married, but the court sets the rights and liabilities of the parties with
respect to child custody, support, visitation, alimony, property and debts. The
process of legal separation is sometimes called separate maintenance. A decree of
separate maintenance cannot later be converted to a divorce decree. If parties in
a legal separation later desire a divorce, they must file a new divorce action.
What is dissolution?
The act of terminating a marriage, but the term does not apply to an annulment.
Dissolutions are subject to the laws of the states that provide for them. State
law governs the procedures for the termination of the marriage and the distribution
of marital assets, custody, and visitation and support issues.
What about the divorce kits and preprinted forms that are available?
Family law is a complex area of the law that is not well served by simplistic
forms that do not address all of the issues and areas concerned if the individual
is not well versed or has not consulted with appropriate legal counsel to review
the facts and problems of each individual case. The lasting effects of decisions
made in haste without proper advice would militate against the use of such forms.
What is an annulment?
An annulment is a method of voiding the contract of marriage. If an annulment
is granted, the result is that the parties are treated as if the marriage never
occurred. An annulment can only be granted if the initial marriage contract suffers
from a defect in the contract formation. Such defects include an underage party
without parental consent, a party lacking the mental capacity to understand the
marriage contract or fraud in the inducement of the marriage contract. An annulment
can only be granted to the innocent party, or the party that suffers from the defect.
What kind of documents will be needed to put together what the court will need to
decide all of the issues involved?
List of Documents
Address Book Names, addresses and telephone numbers will help your lawyer prepare
subpoenas for documents, depositions and court appearances. Don’t forget mystery
numbers, i.e., those without names, or just initials. Identify them with the criss-cross
directory. Look for the following professionals, friends, and businesses: accountants–personal,
business, and your spouse’s family bankers–personal and business, including trust
officers and your spouse’s family banker; bookkeepers–for further documents; computer
consultants–they know how and where data is hidden; computer on-line services–obtain
his password to access information; computer message center and voice mail codes;
financial planners friends–those close enough to be trusted with money; insurance
agents–including life, annuity, casualty, and key man insurance; investment Advisor
lawyers; mailing services–such as Mail Boxes Etc.; mini-storage and office record
storage; physicians ;stock brokers ;telephone answering services ; telephone long
distance companies ;therapists ;travel agents–personal and business; Federal and
State Tax Returns for Past Years of the marriage, prior years if obtainable; Individual
tax returns (Form 1040) (Form 1040X, for amendments).
Include all filed schedules for both individual and businesses involved. Supporting
documentation: W-2s, 1099s, etc.
Look at Schedule B (Interest and Dividends). You can identify accounts, and the
approximate amount on deposit Interest from foreign bank accounts appears at the
very bottom of Schedule B.
Look for refunds and/or deficiencies. If you believe that the document produced
is a forgery, have your lawyer insist that your spouse signs Form 4506. The IRS
will photocopy the actual return filed.
Partnership tax returns (Form 1065) Look for net operating loss adjustments. Gift
and estate tax returns. Has your spouse made or received any gifts? Has s/he inherited any property?
Business Records, Financial Statements and Credit Card Invoices