50 Divorce FAQs

As you contemplate divorce, so many questions may come up. We have compiled a list of some of the most frequently asked questions, along with short, informative answers. If you need additional information, please consult with an attorney, a Certified Divorce Financial Analyst, a CPA, a Divorce Coach, or a mental health therapist, as appropriate. Additional resources are referenced at the end of the article. Without further delay, let’s dig in.

1. What is a no-fault divorce?

A no-fault divorce is a kind of divorce where the spouse filing for divorce doesn't have to prove any fault on the part of the other spouse. In most states, the only requirement is to state that the couple cannot get along anymore – often phrased as "irreconcilable differences" or "incompatibility."

2. What is a fault divorce?

In a fault divorce, one spouse alleges that the other's wrongdoing caused the marriage to end. Common reasons include adultery, cruelty, or desertion. However, fault divorces are less common today as no-fault laws have become widespread.

3. How long does a divorce process take?

The duration of the divorce process varies greatly and depends on the complexity of the case, whether it's contested or uncontested, and how busy the courts are. Generally, an uncontested divorce might take several months, while a contested divorce can take a year or longer.

4. Do I need a lawyer for a divorce?

While it's possible to file for divorce without a lawyer, it's often advisable to seek legal counsel, especially if there are significant assets, children, or if the divorce is contested.

5. How is child custody decided?

Child custody is typically decided based on the child's best interest. Courts consider various factors including the child's age, health, emotional ties with parents, and parents' ability to provide a stable environment. Parental behavior, including any history of abuse or neglect, is also a significant factor.

6. How is property divided in a divorce?

Property division varies by state. Some states follow community property laws, meaning all marital property is divided equally. Others follow equitable distribution, where assets are split fairly, but not necessarily equally. Factors such as the length of the marriage, each spouse's contribution to the marital estate, and each spouse's economic circumstances are considered.

7. What is alimony?

Alimony, or spousal support, is a financial provision one spouse pays to the other during the separation process and/or following the divorce. It's intended to allow both spouses to maintain a relatively equal standard of living post-divorce.

8. How is alimony determined?

The court considers several factors, including the length of the marriage, each spouse's earning capacity, the standard of living during the marriage, each spouse's age and health, and the receiving spouse's need for support.

9. Can alimony be changed after divorce?

Yes, in most cases, either spouse can request a change in alimony if there's a significant change in circumstances, like job loss, retirement, or remarriage of the receiving spouse.

10. How is child support determined?

Child support is typically determined by state guidelines that take into account the income of both parents, the number of children, and the custody arrangement.

11. Can child support be modified?

Yes, child support orders can typically be modified if there is a substantial change in circumstances, such as a change in income or the needs of the child.

12. What's the difference between legal separation and divorce?

A legal separation allows a couple to live apart while still being legally married, whereas a divorce legally ends the marriage. Some couples choose legal separation due to religious beliefs, the desire to maintain insurance benefits, or the hope of eventual reconciliation.

13. What is mediation in divorce?

Mediation is a process in which a neutral third party, called a mediator, helps the couple negotiate and agree on divorce issues such as property division.

14. What is a collaborative divorce?

Collaborative divorce is a process where both spouses and their lawyers commit to resolving all issues of the divorce without going to court. This usually involves open communication, information sharing, and mutual problem-solving.

15. What happens if we can't agree on terms during mediation or collaborative divorce?

If you can't agree during mediation or collaborative divorce, you may have to go to court where a judge will make decisions on your behalf. The process becomes a contested divorce.

16. How can I protect my rights during a divorce?

The best way to protect your rights during a divorce is to hire a knowledgeable and experienced divorce attorney who can guide you through the process and advocate on your behalf.

17. Can a divorce decree be changed?

Yes, some parts of a divorce decree can be modified after the divorce. This typically includes child custody, child support, and alimony, but generally not property division.

18. What are the impacts of divorce on taxes?

Divorce can significantly impact taxes, including your filing status, tax exemptions for children, and tax deductions. Alimony payments used to be tax-deductible for the paying spouse and taxable income for the receiving spouse, but as of 2019, this is no longer the case for new divorce decrees.

19. Can we decide on our own divorce terms?

Yes, you can. If you and your spouse can agree on all terms, this is known as an uncontested divorce. It's faster, less stressful, and less costly than a contested divorce.

20. What's the difference between marital and separate property?

Marital property includes all assets acquired during the marriage, regardless of who earned or purchased them. Separate property includes assets owned before the marriage, inheritances, and gifts received individually during the marriage. Rules vary by state.

21. Who gets the house in a divorce?

Who gets the house isn't automatically determined. The court will consider factors like who primarily cared for the home, who's better able to maintain it, and the best interests of any children. Alternatively, the couple might agree to sell the house and split the proceeds.

22. What if my spouse refuses to sign the divorce papers?

If your spouse refuses to sign, you may be able to proceed with a default divorce. The court assumes that your spouse agrees to the divorce if they don't respond within a certain time frame.

23. How does domestic abuse affect a divorce?

Domestic abuse can significantly impact divorce proceedings, particularly when it comes to child custody decisions. Courts prioritize the safety of the child and may deny or limit custody or visitation to an abusive parent.

24. Do we have to go to court to get a divorce?

Not necessarily. If you and your spouse can agree on all issues, you might avoid going to court entirely. Even if you can't agree initially, alternatives like mediation or collaborative divorce could help you avoid court.

25. What is a Parenting Plan?

A Parenting Plan is a document that details how you and your ex-spouse will continue to care and provide for your children after you separate or divorce. It covers aspects such as living arrangements, education, healthcare, and holidays.

26. What is alimony/spousal support and how is it determined?

Alimony or spousal support is a payment one spouse makes to the other for a certain period after a divorce. It's determined based on factors like the length of the marriage, each spouse's income and earning potential, the standard of living during the marriage, and each spouse's physical and emotional health.

27. What is child support and how is it calculated?

Child support is a payment made by one parent to the other to help cover the costs of raising a child. It's calculated based on both parents' incomes, the number of children, the children's living arrangements, and special needs or expenses.

28. How is child custody decided?

Child custody is typically decided based on the child's best interests. This may include factors like the child's age, health, emotional ties to each parent, parents' living situations, and any history of abuse or neglect.

29. How are retirement assets divided in a divorce?

Retirement assets like pensions, 401(k)s, and IRAs can be divided in a divorce. The method depends on your state's laws, the type of retirement account, and the specifics of your situation.

30. What is a Certified Divorce Financial Analyst (CDFA)?

A CDFA is a professional who helps individuals navigate the financial complexities of divorce. They provide valuable expertise on topics like asset division, tax implications, and future financial planning.

31. What's a prenuptial or postnuptial agreement and how can it affect a divorce?

A prenuptial or postnuptial agreement is a legal contract that determines how assets and liabilities will be divided in a divorce. If valid, it can greatly influence the outcome of the divorce.

32. Can I get a divorce if my spouse is missing or refuses to participate?

Yes, you can still get a divorce if your spouse is missing or refuses to participate, though the process may be more complicated. You may be able to proceed with a default or uncontested divorce.

33. How do I choose a divorce attorney?

When choosing a divorce attorney, consider their experience, knowledge, communication style, fees, and your comfort level with them. Personal referrals, online directories, and bar associations can be good resources.

34. What happens to our debt in a divorce?

Like assets, debts incurred during the marriage are typically divided between the spouses in a divorce. The specifics can depend on whether you live in a community property or equitable distribution state.

35. What is a marital settlement agreement?

A marital settlement agreement is a written agreement entered into by a couple when they divorce. It outlines the terms of the divorce, including asset division, child custody, child support, and alimony.

36. How does infidelity affect a divorce?

In most states, infidelity doesn't directly impact asset division or alimony in a divorce because they're no-fault states. However, it can indirectly affect these areas and significantly influence child custody decisions.

37. How can I prepare for divorce?

To prepare for divorce, gather financial documents, establish a budget, familiarize yourself with your assets and debts, consider your children's needs, and seek legal advice.

38. What is a legal separation?

A legal separation is a court-ordered arrangement where a couple remains legally married but lives apart. It may include provisions for child custody, child support, and alimony.

39. Can I deny my spouse a divorce?

In most jurisdictions, you can't deny your spouse a divorce if they want one. If you refuse to participate in the divorce process, the court may grant a default divorce.

40. How is property divided in a divorce?

Property division in a divorce depends on your state's laws. Community property states divide marital property equally, while equitable distribution states divide property based on fairness, which may not always be an equal split.

41. What is a parenting plan and why is it important?

A parenting plan is a document that outlines how you and your ex-spouse will continue to care and provide for your children after your divorce. It is important because it provides consistency and structure for your children and can help prevent disputes about childcare responsibilities.

42. Do I need to go to court for a divorce?

Not all divorces require a court hearing. If you and your spouse can agree on all terms of the divorce, you might be able to complete the process through paperwork alone. However, a judge must still approve the divorce.

43. Can I change my name back to my maiden name during the divorce process?

Yes, you can typically request to revert to your maiden name during the divorce process. This is often included as part of the divorce decree.

44. What if we reconcile and want to stop the divorce process?

If you and your spouse reconcile during the divorce process, you can typically file a request to dismiss the divorce proceedings with the court.

45. What is mediation and how does it work in a divorce?

Mediation is a method of dispute resolution where a neutral third party (the mediator) helps you and your spouse negotiate and resolve issues. In a divorce, it can be a less contentious and more cost-effective way of agreeing on terms like asset division, child custody, and alimony.

46. What does it mean to serve divorce papers and why is it necessary?

Serving divorce papers is the process of officially delivering the divorce documents to your spouse. It is necessary to give your spouse notice that you are seeking a divorce and to start the legal process.

47. How do I respond to divorce papers?

After being served with divorce papers, you typically respond by filing an answer with the court. In your answer, you can agree with the statements in the divorce petition, dispute them, or state that you do not have enough information to agree or disagree.

48. What happens at a divorce hearing?

At a divorce hearing, the judge may review your divorce petition, ask you and your spouse questions about your marriage and separation, and make rulings on issues like asset division, child custody, and alimony.

49. What if my spouse and I can't agree on the terms of our divorce?

If you and your spouse can't agree on the terms of your divorce, you may go through a contested divorce. This involves a court hearing or trial where a judge will make the decisions.

50. What happens after the divorce is finalized?

After the divorce is finalized, you and your ex-spouse are legally single and must adhere to the terms set out in the divorce decree, including asset division, child custody arrangements, and payment of child or spousal support. You are free to remarry if you wish.