Types of divorce

Though divorce laws vary among jurisdictions, there are two basic approaches to divorce: fault based and no-fault based. However, even in some jurisdictions that do not require a party to claim fault of their partner, a court may still take into account the behaviour of the parties when dividing property, debts, evaluating custody, and support.

Laws vary as to the waiting period before a divorce is effective. Also, residency requirements vary. However, issues of division of property are typically determined by the law of the jurisdiction in which the property is located.

No-fault divorce: Under a no-fault divorce system, divorce requires no allegation or proof of fault of either party. The barest of assertions suffice. For example, in countries that require "irretrievable breakdown", the mere assertion that the marriage has broken down will satisfy the judicial officer. In other jurisdictions requiring irreconcilable differences, the mere allegation that the marriage has been destroyed by these differences is enough for granting 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.

At-fault divorce: Prior to the late 1960s, nearly all countries that permitted divorce also required proof by one party that the other party had committed an act incompatible to the marriage. This was termed "grounds" for divorce (popularly called "fault") and was the only way to terminate a marriage. Most jurisdictions around the world still require such proof of fault. In the United States, no-fault divorce is now available in all 50 states.

Fault-based divorces can be contested; evaluation of offenses may involve allegations of collusion of the parties (working together to get the divorce), or condonation (approving the offense), connivance (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.

Summary divorce: A summary (or simple) divorce, available in some jurisdictions, 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 (no mortgage)

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 (either with or without lawyers/mediators/collaborative counsel) 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, they may ask the court to decide how to split property and deal with the custody of their children. Though this may be necessary, the courts would prefer parties come to an agreement prior to entering court.[citation needed]

Where the issues are not complex and the parties are cooperative, a settlement often can be directly negotiated between them. In the majority of cases, forms are acquired from their respective state websites and a filing fee is paid to the state.[4] Most U.S. states charge between $175 and $350 for a simple divorce filing.[5][6][7] Collaborative divorce and mediated divorce are considered uncontested divorces. In the United States, many state court systems are experiencing an increasing proportion of pro se (i.e., litigants represent themselves without a lawyer) in divorce cases.[8] In San Diego, for example, the number of divorce filings involving at least one self-representing litigant rose from 46% in 1992 to 77% in 2000, and in Florida from 66% in 1999 to 73% in 2001.[8] Urban courts in California report that approximately 80% of the new divorce filings are filed pro se.[9]

Collaborative divorce: Collaborative divorce is a method for divorcing couples to come to agreement on divorce issues. In a collaborative divorce, the parties negotiate an agreed resolution with the assistance of attorneys who are trained in the collaborative divorce process and in mediation, and often with the assistance of a neutral financial specialist and/or divorce coach(es). The parties are empowered to make their own decisions based on their own needs and interests, but with complete information and full professional support.

Mediated divorce: Divorce mediation is an alternative to traditional divorce litigation. In a divorce mediation session, a mediator facilitates the discussion between the two parties by assisting with communication and providing information and suggestions to help resolve differences. At the end of the mediation process, the separating parties have typically developed a tailored divorce agreement that can be submitted to the court. Mediation sessions can include either party's attorneys, a neutral attorney, or an attorney-mediator who can inform both parties of their legal rights, but does not provide advice to either, or can be conducted with the assistance of a facilitative or transformative mediator without attorneys present at all. Divorce mediators may be attorneys who have experience in divorce cases, or they may be professional mediators who are not attorneys, but who have training specifically in the area of family court matters. Divorce mediation can be significantly less costly, both financially and emotionally, than litigation. The adherence rate to mediated agreements is much higher than that of adherence to court orders.

Поиск по сайту: