What Kinds of Divorce Are There?

By Victoria McGrath

Divorce cases include fault and no-fault divorces, contested and uncontested divorces, and summary dissolution and simplified divorces. The types of divorce cases vary from state to state, based on each state's divorce laws. For example, some states allow spouses to file for an uncontested divorce together, with a joint petition and settlement agreement; while other states do not allow joint petition divorces at all. Most states encourage uncontested divorces to proceed as collaborative divorces, mediated divorces or arbitrated divorces.

Fault and No-Fault Divorces

All states allow some type of no-fault divorce, where the court hears a divorce case without a determination of who is at fault for causing the divorce. Some states allow a fault-based divorce, where the court determines who is at fault for the termination of the marriage. In no-fault cases, the court refuses to hear issues of wrong-doing, such as adultery, mental cruelty or spousal abuse. However, in fault cases, a court considers these types of faults, and their negative impact on the marriage. If a spouse commits adultery and abandons his commitment to the marriage, the court can take these facts into consideration. Some states use a bifurcated divorce system, where they first resolve the dissolution of the marriage and later resolve property division and child custody issues at a separate hearing.

Contested and Uncontested Divorces

All divorce cases start off as either contested or uncontested. They can also change from contested to uncontested during the divorce proceedings, if spouses fail to resolve pertinent issues in the divorce. An uncontested divorce means that both spouses agree to proceed with the divorce in a collaborative manner. In an uncontested divorce, couples often settle unresolved issues outside of court and submit a settlement agreement outlining their resolutions. In a contested divorce, spouses disagree on the divorce. Spouses often disagree on fault, property division, child custody and spousal support. If these issues can be resolved in mediation, the case can move from a contested to an uncontested divorce case.

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Summary Dissolutions and Simplified Divorces

Many states offer some form of a simplified divorce, also know as a summary dissolution. A simplified divorce refers to less complicated divorce cases that may be expedited through the court. These fast-tack type of divorce cases, often include shorter marriages, with limited assets, minimal outstanding debt, no children and no real property. Each state determines what type of marriage qualifies for a simplified divorce. Some states consider the length of the marriage, the amount of assets and whether the couple has any dependent children.

Default and True Default Divorces

Default cases refer to cases in which a party failed to appear before the court at a critical hearing on the divorce. The judge often orders a default judgment in the divorce, when one party shows up for the final hearing and the other party fails to show. If both parties fail to show, the court potentially takes the divorce off the court schedule without a ruling on the divorce. In default cases, the other party may have complied with some court rules and signed a settlement agreement, but failed to finalize the divorce. In a true default, the other party often fails to respond entirely and never submits any documents to the court. In extreme cases, a spouse can seek a divorce by publication, if a missing spouse can not even be found to receive the divorce papers.

Collaborative and Mediated Divorces

Both uncontested and simplified divorces often proceed as collaborative divorces, or mediated divorces, where both spouses work together to resolve all the issues in the divorce before they go to court. Some lawyers and their law firms specialize in collaborative divorces. These collaborative lawyers often use family law mediators and private judges to arbitrate divorces outside of court. Some couples elect to use a legal document service provider to complete their divorce paper work and represent themselves in a collaborative divorce. Courts often provide court mediators to help resolve child custody, visitation schedules, child support and spousal support details.

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What Happens If Divorce Papers Go Unsigned?

During the divorce process, the court and individual spouses’ attorneys ask both parties to sign agreements, petitions and affidavits. If one spouse refuses to sign the divorce papers, it is still possible for the divorce to proceed. Such refusals usually slow down the divorce process and may lead to additional hearings, trials or mediation sessions, but will not preclude the couple from ending the marriage.

Does the Plaintiff Have to Show Up in a Divorce?

State laws regarding divorce often differ significantly. Further, rules on who must attend hearings vary based on the nature of the individual case. In some jurisdictions, the plaintiff, or party who is filing for divorce, does not need to attend the final hearing provided the couple agrees on the terms of the divorce. In other states, the plaintiff must attend but not his or her spouse. In some cases, both spouses must attend the final hearing.

Procedures for Divorce by Mutual Consent

The quickest and easiest divorce is a divorce where both parties agree to everything before ever setting foot inside a courtroom, i.e. a divorce by mutual consent. When there is nothing to fight about, the court only needs to sign off on the agreement the parties already made regarding property division, spousal and child support, and child visitation.

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