Chapter 1 Getting Oriented

• Library: Nolo's Essential Guide to Divorce (Nolo) (2020 Ed.)

CHAPTER 1 Getting Oriented

Taking the High Road

Separation or Divorce?

Trial Separation

Permanent Separation

Legal Separation

Annulment

Family Court

Kinds of Divorces

Summary Divorce

Uncontested Divorce

Default Divorce

Fault and No-Fault Divorce

Mediated Divorce

Collaborative Divorce

Arbitration or Private Judging

Contested Divorce

Marriage (and Divorce) for Same-Sex Couples

Property, Custody, and Support

Divvying Up Property

What Happens to the Children?

Spousal and Child Support

Getting Help From Experts

Whether you're thinking about getting a divorce or have already begun the process, you undoubtedly have a lot of questions. Will you have to hire a lawyer and go to court? What will happen to your house? Who will get custody of the children? How will you make ends meet?

On top of all these practical concerns, the end of a marriage is an intensely emotional time. No matter who makes the decision that it's over, both spouses are likely to experience enormous grief over the loss of a relationship that started out full of love and hope. You probably feel disoriented and possibly somewhat lost. You need to take care of yourself, and one way to do that is by learning about the legal and practical issues you're likely to face.

This chapter gives you an overview of the divorce process and answers common questions. It also defines some important words and concepts you'll need to understand as you wade into this unfamiliar territory. Once you have this information, your divorce should be easier, smoother, less frightening, and less costly.

Taking the High Road

As you go through your divorce, time after time you'll be faced with the same kind of choice: Give a little bit or stand firm on principle. Agree to send your kids for visitation early on a day your spouse is off work or hold to the visitation schedule as if any deviation would be fatal. Go with your spouse to a parent-teacher conference or insist on scheduling separate meetings. Offer an olive branch or fire off a scathing letter.

It may not seem true now, but the best thing you can do for yourself and your family is to take the high road as often as you can. That means trying to compromise. Consider the other person's feelings. Do what's best for your kids. Think about negotiating solutions that work for everyone, not just you. Whenever possible, don't create or escalate conflict.

You don't choose the high road just because it's morally superior to pettiness and vindictiveness. Experienced divorce lawyers and family therapists will tell you that the angriest people end up hurting their own interests and dragging out the pain by their refusal to give an inch. No question, it is very difficult to make reasoned decisions when you're in emotional turmoil. You may be very angry at your spouse; you may be deeply hurt by an affair or another betrayal; you probably feel that you can't get away from the situation quickly enough. And if your spouse is abusive or otherwise impossible to work with, you may know from experience that efforts at compromise will probably be wasted. But in the vast majority of situations, a little compromise goes a long way—and if you do choose the high road, then when you look back on this time, you will feel good about the choices you made.

You'll also feel good about having done right by your kids. The other thing that experts agree on is that although divorce is difficult and stressful for kids no matter what, the real harm comes from being subjected to conflict between parents. The longer that lasts, and the more severe it is, the worse it is for your children. If you truly want to shield your children from the pain of divorce, recognize that the more you take the high road with your spouse, the better job you'll do.

RESOURCE

Help in communicating with your spouse. Difficult Conversations: How to Discuss What Matters Most, by Douglas Stone, Bruce Patton, and Sheila Heen (Penguin), has practical advice about how to prepare for difficult talks and communicate successfully about hard topics.

Separation or Divorce?

Separation simply means that you are living apart from your spouse. A separation is not a divorce. You're still legally married until you get a judgment of divorce from a court. However, generally a separation does affect the financial responsibilities between you and your spouse before the divorce is final.

CAUTION

Look before you leave. In some states, moving away from your spouse can be grounds for a "fault" divorce, because if you initiated the separation and your spouse didn't want it, your spouse can say that you abandoned the marriage. While the issue of fault is much less important than it used to be, in some states, it can affect property division or support. See "Fault and No-Fault Divorce," below.

There are three kinds of separation. In most states, only one (legal separation) changes your legal status—but all three of them have the potential to affect your legal rights.

Types of Separation
Trial Separation	Living apart to decide whether to divorce. May or may not affect property rights, depending on length of separation, activities during separation, and on where you live.
Permanent Separation	Living apart with the intention to divorce. Property and income acquired, and debts incurred, after separation date are the separate property of the spouse who acquires them.
Legal Separation	Legal status different from being married and different from being divorced; includes distribution of property; spouses are not free to marry again.

Trial Separation

If you and your spouse need a break from the relationship, you may choose to live apart while you decide between divorce or reconciliation. While you're separated, the same legal rules apply as when you are married, in terms of ownership of property. For example, money you earn and property you buy are likely to still be considered jointly owned by you and your spouse, depending on your state's rules about property ownership. (See "Property, Custody, and Support," below.)

Take your time deciding ...
" I wish we had spent some time apart and thought about things for a while longer. I feel like we rushed into divorce even more than we rushed into marriage—once we started talking about it, it had a life of its own. Now we really miss each other. I don't know whether we could have made it work but I would have liked to try counseling instead of just going in for the divorce."
—Divorced military spouse

If you and your spouse are hoping to reconcile, it's a good idea to write an informal agreement about some issues that will surely come up. For example, you will need to decide whether or not you will continue to share a joint bank account or credit cards and how you'll budget your spending, which of you will stay in the family home, how expenses will be shared, and the like. If you have kids, you'll need to decide how and when each of you will spend time with them. A sample separation agreement is shown below.

If you both decide there's no going back, your trial separation turns into a permanent one. That's discussed next.

Permanent Separation

When you live apart from your spouse without intending to reconcile but you are not divorced, you are considered permanently separated. In some states, living apart can change property rights between spouses—if you don't intend to get back together, then assets and debts acquired during the separation belong only to the spouse who acquires them. Once you are permanently separated, you are no longer responsible for any debts that your spouse incurs. Similarly, you're no longer entitled to any share of property or income that your spouse acquires or earns.

Because it can significantly affect how your property and money are divided, the date of permanent separation is sometimes hotly contested in a divorce. For example, if your spouse left in a huff and spent a month

Sample Separation Agreement Cynthia and Howard Bean agree that we are going to live apart beginning on February 1, 20xx. We're not ending our marriage and we aren't contemplating divorce right now.
We will continue to share ownership of and access to our joint bank and credit card accounts, and we will both continue to deposit our paychecks into the joint checking account, which we will use to pay household expenses as usual. Cynthia will continue to pay the bills from our joint account.
Howard will live with his brother. Cynthia will stay in the house with the kids. Howard will come to the house to see the kids on the following schedule: every Tuesday, Thursday, and Friday, from 5:00 to 9:00 p.m., and all day every Sunday. He may see the kids more if we both agree. Cynthia can be present during the time that Howard is at the house, or not, at her option. Other than the scheduled visitation times, Howard won't come to the house unless we agree in advance.
This agreement is valid until July 31, 20xx. After that we'll decide to reconcile or to divorce, or will make a new agreement.
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sleeping on a friend's couch, but you didn't discuss divorce until the month had passed, and neither of you intended to divorce before then, the date of separation is somewhat questionable. If, during that month, your spouse received a big bonus at work, who it belongs to is also arguable.

If you move out of the house and don't expect any long-term reconciliation with your spouse, there may be legal consequences if the two of you go out or spend the night together just for old times' sake. If you do briefly reconcile, you risk changing the date of separation and becoming responsible for your spouse's financial actions during a period...