Divorce is painful in all its forms, but unilateral divorce can be especially difficult. Unilateral divorce means one spouse decides to terminate the marriage without the consent of the other. This is possible whether a spouse files a no-fault divorce—meaning neither party is responsible for the marriage coming to an end or an at-fault divorce that assigns blame, such as adultery or abuse. No-fault divorce, which is usually attributed to irreconcilable differences, is available to spouses who file either a unilateral divorce (without the spouse’s consent) or a consensual divorce (with the spouse’s consent).
How to React
If your spouse or your spouse’s lawyer presents you with divorce papers unexpectedly, you may feel shocked, angry, and betrayed. However, it’s important to stay calm as the divorce proceedings begin.
• Don’t play the blame game in either direction. The natural response once the divorce papers enter your hands is to point the finger at your spouse or beat yourself up about what you did wrong. But it’s important to forgive in both directions as you begin this difficult process. This is likely to make it easier to face your spouse throughout the process.
• Strive to surround yourself with like-minded people who support you and lift you up as you go through your divorce. It’s not healthy to continue associating closely with people who want to drag you down.
• Take a step back when you start to feel overwhelmed. Your stress level will run high during your unilateral divorce, so allow yourself to take a break when things get too difficult. Make some tea, meditate, pray, do breathing exercises, or engage in whatever activity relaxes you the most. After this self-care, you should feel better prepared to proceed.
If you are the one served with divorce papers, you take on the role of respondent. You are required to give an “answer” to the divorce petition with the option of also submitting a “counterclaim” stating your own request for a divorce on whatever grounds you deem appropriate. The court typically allows 20 to 30 days for you to respond with your answer and counterclaim. Known as the protected period, this is the time to contact Ascent Law Firm lawyer and discuss what you want to do next. If the protected period runs out, the court can move forward with or without you.
You may not even receive notification of the hearing date and could forfeit a lot of your rights in the case. While it’s possible to file an answer after the protected period expires, it’s best not to wait if you want to make sure you’re notified of all the proceedings in the case so you can present your side to the court.
Determine Your Next Steps
With the help of Ascent Law Firm lawyer, you can feel confident about how to proceed. In general, here is what’s required:
• File an answer form and counterclaim within the protected period explaining whether you agree to the divorce and what you want out of the proceedings. You can respond after the protected period expires, but you run the risk of the court acting without your knowledge.
• File a financial statement with your lawyer’s help.
• If you have underage children, you should submit a proposed parenting plan at the recommendation of your lawyer.
• Wait to receive notification about a court hearing and attend it with your lawyer.
What You Need to Know Before Getting a Divorce
In some circumstances, getting divorced can be relatively easy, particularly if the spouses don’t have many assets and don’t have children. But divorce always involves lots of rules and paperwork, and often much emotion and negotiation. Whether you and your spouse agree about how to divide your assets and share parenting responsibilities or are completely at ends on all issues, you’ll need to know these basics to get your divorce started right.
Every state requires couples to meet some requirements before a court can grant a petition (request) for divorce.
As long as you follow the state’s marriage license rules, you can get married in any state—even if you don’t live there. The requirements for ending a marriage, though, are not as relaxed. Instead, you must meet a state’s residency requirements before you can file for divorce in its courts. Most states require the filing spouse to live in the state for at least three months before filing a divorce petition. Some states, though, require only that the filing spouse lives in the state at the time of filing and plans to remain in the state for a certain amount of time. Before you file for divorce, check the laws of the state where you plan to file to make sure you meet any residency requirements.
Your state might not allow a judge to finalize your divorce until a certain period of time (a “waiting period”) has passed. You’ll want to find out if your state has a required waiting period before you file so that you’ll have an accurate estimate of how long it will take for the court to finalize your divorce.
Some courts require married couples to live “separate and apart” either before they can file for divorce or before the judge can finalize the divorce. Most states, though (especially no-fault divorce states), don’t require spouses to separate. It’s best to find out about any separation requirements as soon as possible—if you don’t meet your state’s separation requirement, a court might reject your divorce petition or put your case on hold.
Grounds for Divorce
Divorce laws vary from state to state. But one rule in all states is that you must provide the court in your petition with a reason (“grounds”) for why you want a divorce. Grounds for divorce fall into two categories: “no-fault” and “fault-based.”
Every state gives divorcing couples the option of filing a “no-fault” divorce. (In some states, a no-fault divorce is the only option.) In a no-fault divorce, neither spouse has to prove that the actions of the other caused the end of the marriage. Rather, only one spouse must claim that the marriage is over and there’s no chance of reconciliation. In many states, the reason given for a no-fault marriage is that the couple has “irreconcilable differences” or that there’s been an “irretrievable breakdown of the marriage.” Most couples choose to pursue a no-fault divorce. No-fault divorces are less complicated and less contentious than fault-based divorces: Because you don’t have to prove your spouse did something wrong, there’s typically less anxiety and tension during the divorce process. Not having to accuse your spouse of wrongdoing is especially helpful when you have children who might be affected by the proceedings. Also, when you don’t have to fight about fault, the divorce might move more quickly.
And, less arguing almost always means lower legal fees.
If you file for a fault-based divorce, you must prove that your spouse did something that caused the marriage to end. Grounds for fault-based divorce often include adultery, extreme cruelty (physical or mental), and desertion.
Because fault-based divorces can be so contentious (and expensive), most divorcing couples will opt for a no-fault divorce. However, if your state considers fault when dividing marital property or assessing the need for alimony, filing a fault-based divorce might be a good option. If you think you might file a fault-based divorce (or if your spouse has filed one already), consider consulting with an attorney—pursuing a fault-based divorce can be a lot more complicated (and more difficult to win) than a no-fault divorce.
The Issues in a Divorce
Before a divorce is finalized, a number of issues regarding the marriage must be decided. The couple can negotiate and reach agreement on their own, or a judge can decide the issues and order a resolution in the final divorce decree.
In most divorces, couples will have to divide property and debts. The general rule is that family courts divide a couple’s marital property—property they acquired and debts they incurred during the marriage. How a court divides marital property depends on whether you live in an “equitable distribution” state or a “community property” state.
Most states follow the principle of equitable distribution. This means that the court will divide the marital property between you and your spouse based on the facts of your case. Whatever the judge feels is fair in your particular set of circumstances will determine how the judge distributes the property. Equitable distribution doesn’t guarantee that each spouse will get an equal amount.
In a community property state, the court will divide all marital assets—called “community property” equally between the spouses, unless there’s some reason to divide the property in another way. Community property usually includes:
• all property acquired by either spouse during the marriage, regardless of whose name the property is in
• each spouse’s income during marriage, and
• debts incurred by either spouse during marriage.
In both equitable distribution states and community property states, some assets are considered the “separate property” of one of the spouses. Separate property usually includes any assets owned before the marriage, as well as some types of property acquired during the marriage, such as gifts and inheritances. If an item is your separate property, you will be able to keep it after the divorce.
Separate property can be turned into community property, though. If you “commingle” (mix) separate property with community property during the marriage, the separate property will probably lose its protected status, and will divided as community property during the divorce. To avoid this result, keep your separate property in an individual account and keep records of all transactions involving your separate assets.
Alimony (also known as “spousal support” and “maintenance”) is a one-time or repeating payment made by one spouse to the other after the divorce. After considering factors such as the spouses’ income and earning capacity, most courts award alimony for a limited duration. For example, one type of limited spousal support is called “rehabilitative” alimony. Judges will award rehabilitative alimony for a period of time they believe will allow a spouse to become self-sufficient. The award might last as long as it takes for the supported spouse to find work or learn skills that will allow the individual to be more employable.
Another type of short-term spousal support is “reimbursement” alimony, often awarded in short marriages where one spouse contributed to the other’s pursuit of a college or graduate school degree. The theory is that contributing spouses deserve to be repaid for the sacrifices they made to further the other spouse’s education or career. When divorcing spouses have been married for a long time—anywhere from 10 to 20 or more years, depending on your state—a court might award the supported spouse “permanent” or “lifetime” alimony. This type of award is made in extreme cases where it’s likely that one of the spouses will never be able to be financially independent from the other.
Child Custody and Parenting Time (Visitation)
In deciding child custody and parenting time issues, judges evaluate what is in the “best interests of the child.” As long as it’s in the child’s best interests, most courts craft child custody orders to ensure that both parents remain actively involved in the child’s life. In an ideal situation, a judge will award “joint legal custody” to the parents. This means that both parents have a say in important decisions about topics such as education, religious upbringing, and non-emergency medical treatment. If joint legal custody is not in the child’s best interests, though, the judge might award “sole legal custody” to only one parent.
Joint legal custody doesn’t necessarily mean that the parents will have “joint physical custody.” For any number of reasons, joint physical custody might not be possible. In that case, the judge will award physical custody to one parent (“sole physical custody”), but normally provide the other parent with a parenting time (“visitation”) schedule.
Both parents are responsible for financially supporting their children. All states use child support guidelines to calculate how much money a parent must contribute. Most states’ guidelines specify that each parent’s income and the amount of time the parent spends with the child must be considered in the support calculations. The amount of child support awarded can also be affected by other related factors, such as a child’s medical needs (like health insurance and medical bills not covered by insurance) and the costs of extracurricular activities.
Can You Get a Divorce Without Going to Court?
Your divorce is not final until a judge signs a written judgment of divorce (“divorce decree”). Even though a judge must issue the final divorce decree, there’s no requirement that you fight out (“litigate”) your issues in court.
Here are some possible alternatives.
When a divorcing couple can work together and reach agreement on all the issues in their divorce, they might be able to file an uncontested divorce. Uncontested divorces are simpler, faster ways to end your marriage than battling it out in court. Every state has its own procedures for how to file an uncontested divorce. In addition to being less contentious and faster, uncontested divorces are often far less expensive than litigated ones. Rather than hire a lawyer, many spouses choose to DIY their uncontested divorce or use an online service to assist them.
In a mediated divorce, a neutral third party (called a “mediator”) helps both spouses work together to reach an agreement about the issues in their divorce. Mediators never make decisions for the couple; rather, they might suggest possible resolutions. If mediation is successful, the spouses and the mediator can write up a marital settlement agreement to present to a judge. If the judge approves the settlement agreement, the judge will incorporate it into a final divorce decree.
Mediation has many advantages over litigation: it’s often much faster, less expensive, and it helps foster future communication between the spouses. For many, it’s also much more convenient and allows the spouses to have greater control over the timing of the divorce. Many mediators and services even offer spouses the option to conduct their divorce mediation online.
Mediation is an excellent option for spouses who are willing to work together to reach a compromise and who can negotiate honestly and on a level playing field. Mediation is not a good option when there is current or threatened domestic violence or when one spouse is unwilling to cooperate.
Hire an Experienced Divorce Lawyer in Utah
At Ascent Law Firm, we are here to answer any questions you may have about how to handle or execute the process of divorce. We understand it is a complicated, unfamiliar process and want you to feel confident that your legal team has your best interests at heart.
Contact us now to schedule a divorce consultation in Utah.
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