Divorce

All states recognize some form of no-fault divorce. A no fault divorce can be granted on grounds such as irretrievable breakdown of the marriage, irreconcilable differences, incompatibility, or after a period of separation, depending on the state. Neither party is hold responsible for the failure of the marriage. On the other hand, in fault divorces, one party is asking for a divorce because they claim the other party did something wrong that justifies ending the marriage. Grounds for fault divorce include adultery, cruelty, abandonment, mental illness, and criminal conviction.

Types of divorce

Despite this, in some countries the courts will seldom apply principles of fault, but might willingly hold a party liable for a breach of a fiduciary duty to his or her spouse. Grounds for divorce differs from state to state in the U.S. Some states have no fault divorce; some states require a declaration of fault on the part of one partner or both; Some state allow either method.

In most jurisdictions, a divorce must be certified or ordered by a Judge by a court of law to come into effect. The terms of the divorce are determined by the courts, though they may take into account prenuptial agreements or post-nuptial agreements, or simply ratify terms that the spouses may have agreed to privately this is not true in the United States, where agreements related to the marriage typically have to be rendered in writing to be enforceable. In absence of agreement, a contested divorce may be stressful to the spouses.

In some other countries, when the spouses agree to divorce and to the terms of the divorce, it can be certified by a non-judiciary administrative entity. The effect of a divorce is that both parties are free to marry again.

Contested divorce

Contested divorces mean that one of several issues are required to be heard by a judge at trial level—this is more expensive, and the parties will have to pay for a lawyer’s time and preparation. In such a divorce the spouses are not able to agree on issues for instance child custody and division of marital assets. In such situations, the litigation process takes longer to conclude. The judge controls the outcome of the case.Less adversarial approaches to divorce settlements have recently emerged, such as mediation and collaborative divorce settlement, which negotiate mutually acceptable resolution to conflicts. This principle in the United States is called ‘Alternative Dispute Resolution’ and has gained popularity.

At-fault divorce

Fault-based divorces can be contested; evaluation of offenses may involve allegations of working together to get the divorce, or approving the offense, tricking someone into committing an offense or provocation by the other party. Contested fault divorces can be expensive, and not usually practical as eventually most divorces are granted. Comparative rectitude is a doctrine used to determine which spouse is more at fault when both spouses are guilty of breaches.

The grounds for a divorce which a party could raise and need to prove included ‘desertion,’ ‘abandonment,’ ‘cruelty,’ or ‘adultery.’ The requirement of proving a ground was revised (and withdrawn) by the terms of ‘no-fault’ statutes, which became popular in the United Kingdom, Australia, the United States, Canada, South Africa, and New Zealand in the late 1960s and early 1970s. In ‘no-fault’ jurisdictions, a simple, general allegation of ‘irreconcilable differences,’ or ‘irretrievable break-down’ with respect to the marriage relationship, sufficed to establish the end of the marriage.

No-fault divorce

Some states have a no-fault divorce system, which requires no allegation or proof of fault by either party. The barest of assertions suffice. In other jurisdictions requiring irreconcilable differences, the mere allegation that the marriage has been irreparable by these differences is enoughto grant a divorce. Courts will not inquire into facts. A yes is enough, even if the other party vehemently says no.

The application can be made by either party or by both parties jointly.

In jurisdictions that do not require allegations or proof of fault in divorce proceedings, courts still take into account the parties when dividing property, debts, evaluating custody, and support—these are facts that almost always have considerable weight in fault proceedings. In custody cases, courts consider factors that  appear like fault based issues, however are related to protection of the children. Examples are not limited to one or both parent’s substance abuse, history of violence, cruelty, instability, neglect or endangerment.

Summary divorce

A summary divorce, is used when spouses meet certain eligibility requirements, or can agree on key issues beforehand.

Key factors:

  • Short marriage (less than 5 years)
  • No children (or, in some states, when the spouses have resolved custody and set child support payments for children of the marriage)
  • Minimal or no real property
  • Marital property is under a threshold (around $35,000 not including vehicles)
  • Each spouse’s personal property is under a threshold (typically the same as marital property)

Uncontested divorce

It is estimated that upwards of 95% of divorces in the U.S. are “uncontested”, because the two parties are able to come to an agreement about the property, children, and support issues. When the parties can agree and present the court with a fair and equitable agreement, approval of the divorce is almost guaranteed. If the two parties cannot come to an agreement, the court will decide how to split property and deal with the custody of their children.

Annulment

The cause of action for annulment in New York State is generally fraud. Fraud generally means the intentional deception of the Plaintiff by the Defendant in order to induce the Plaintiff to marry. The misrepresentation must be substantial, and the Plaintiff’s consent to the marriage predicated on the Defendant’s statement. The perpetration of the fraud prior to the marriage, and the discovery of the fraud subsequent to the marriage must be proven by a witness or other outside proof, even if the Defendant admits guilt. The time limit is three years. This does not run from the date of the marriage, but the date the fraud was discovered, or could have been discovered.