The conventional portrayal of divorce on the silver screen and TV is usually marked by contention over serious matters like child custody and deciding who gets what when all is said and done – not to mention emotions running high, sometimes with dramatic events unfolding because of those emotions – but in reality, that form of divorce, legally known as a contested divorce, isn’t necessarily the norm. There are actually several different types of divorce, some very different from the stereotypical contested type. After all, divorce isn’t a one-size-fits-all affair, and the type of divorce a couple chooses depends on the particulars of their situation:
- Are they willing to work together to come to an agreement on issues that may be hotly contested otherwise?
- Do they have valuable assets to divide up or are children involved?
- Why is the marriage coming to an end in the first place?
The answers to these questions can help guide divorcing spouses to the type of proceedings that best fits their unique situation. Today, many alternatives seek to keep the case out of the courtroom and resolve conflict in a cooperative way if possible.
The following are the most common types of divorce:
Fault and no-fault divorce
Not too many decades ago, the burden fell on the spouse seeking the divorce to prove wrongdoing on the part of the other in order to justify the divorce. Common reasons included adultery, extreme cruelty, abandonment and abuse. While all states have done away with making the practice of proving fault mandatory in favor of a no-fault approach that acknowledges that both parties contributed to the breakdown of the marriage, three states still require that fault be proven if the couple entered into a “covenant” marriage – Arizona, Arkansas and Louisiana – and some states provide the “fault” option in addition to the no-fault one. However, no-fault divorces are now standard practice, particularly for couples who don’t anticipate a lot of fallout over matters like asset division.
The opposite of the stereotypical contested divorce, an uncontested divorce relies on both spouses working together to hammer out the terms. Essentially, the process involves both filing separate paperwork with the court before going their separate ways peacefully. Because everything is squared away at the outset, there is no need for hearings, settlement negotiations or other court procedures.
When a divorcing couple wants to resolve contentious issues outside the court but can’t come to an agreement on their own, they may resort to arbitration, in which a private judge known as an arbitrator weighs both sides’ accounts of the facts of the case as a neutral third party and then makes a ruling just as a judge would in court.
Another common choice for couples who can’t agree on the finer points of the divorce but want to stay out of the court, mediation is similar to arbitration in that it also involves a neutral third party who listens to both spouses’ sides of the story. However, unlike in arbitration, the mediator does not make any decisions for the couple but facilitates communication between them instead so that they can arrive at an agreement that can then be used by the judge to craft the final divorce judgment.
Also known as collaborative law or collaborative practice, a collaborative divorce is another means of resolving contention between a divorcing couple without bringing the court into the picture. This form of divorce is similar to arbitration and mediation, but instead of using a neutral third party to spur communication or make a judgment for the couple, it involves both spouses retaining their own legal counsel, an attorney with a special focus on collaborative law. Before beginning the process, both spouses sign an agreement stating that they will work together to come to an agreement. If they fail, both attorneys will withdraw from the case, and both spouses will have to start from square one, so this agreement can be an effective incentive to work together.
Essentially a divorce in absentia, this type of divorce occurs when one spouse files and the other doesn’t respond – usually because he or she cannot be found. The divorce is granted “by default” and without the need for the non-responsive spouse to appear before the court at all.
A summary – or “simple” – divorce is intended to streamline the process for couples who are most likely to be in a position to cooperate; that is, they lack substantial assets, have no children and weren’t married for very long. Many states impose a monetary threshold for the amount of assets and debts that the couple can have and require that no children or significant real property be present although exceptions can be made in some jurisdictions with the proper documentation. In a summary divorce, both spouses usually only need to fill out and file a few forms to complete the process.
The conventional “heated” divorce, this well-known type involves both spouses retaining separate attorneys and taking contentious issues before the court for the judge to decide. The formal process typically involves hearings, settlement negotiations and even a trial in some cases. This form of divorce may be necessary when both spouses have a high net worth, considerable assets and liabilities, and a lot at stake in the proceedings.
In the increasing number of states that allow same-sex marriage as well as in several other states, same-sex couples now have legal recourse to end their marriages, domestic partnerships or civil unions formally, using the same forms and proceedings as heterosexual married couples.