Your Comprehensive Guide to Divorce Options
The divorce, or martial dissolution, process will vary depending on your state and the specific situation between you and your ex. The proper legal advice can only come from an experienced family law or divorce attorney who listens to your situation's specifics.
Divorcing couples should expect to come to a fair and equitable settlement agreement no matter what divorce option they use. However, there are many ways to get from A to Z in a divorce.
In this article, we provide resources to learn more and easy-to-understand definitions for all types of divorce.
An uncontested divorce means both spouses want the divorce and can reach a settlement on all issues on their own or with the help of a mediator. The court system is not needed, or needed very little. These divorces tend to be simpler and more amicable.
Some states regulate when an uncontested divorce applies, but generally, you and your spouse can't have:
- Any financial problems or disagreements
- Child custody or alimony disputes
- Disputes on the divorce terms
When an Uncontested Divorce Becomes Contested
A divorce that starts amicably can quickly become "contested" when the two people cannot agree on terms. To solve the problem, you will need to choose the right next option for you.
You can go to court (litigation), seek mediation or other dispute resolution (read more below), or continue negotiations until you and your ex can agree.
No-Fault or Fault Divorce
There are no states that require a spouse to show the other spouse is "at fault" before they can get a divorce. Some states still recognize grounds for a fault divorce, but they are becoming less common in most states.
Every state allows no-fault divorces, so your spouse cannot deny you a divorce. The decision can be made unilaterally. However, the court may require you to live separately or meet other conditions before they will grant a divorce.
Divorce Mediation (Instead of Going to Court)
Mediation uses a neutral third-party mediator to help both sides talk through the divorce issues. If both spouses agree on how to split marital assets, parenting time, what to do with the house, and other items, you can often avoid court. In all states, a judge needs to approve the agreement, but they typically won't try to change the agreement.
Choosing to use mediation does not sign your rights away to go to court. It can be a great place to start — some jurisdictions even require it — and if you cannot find an agreement during the mediation process, you can still pursue other options.
Divorce Litigation (When You Need to Go to Court)
Litigation is the legal term for going to court. Even if your divorce case seems amicable, you should always be prepared that litigation is a possibility. It is also good to have litigation in your back pocket even if you start with mediation or another option.
Overall, litigation means your attorney is ready to fight for what you want. They will take your case in front of a judge, present evidence, and appeal to the judge on your behalf.
Collaborative Divorce Process
In a collaborative divorce, the parties and their attorneys agree that if they cannot reach a settlement on all issues, the parties have to find new lawyers before going to court. This ensures everyone is totally committed to an out-of-court settlement without the option of court hanging overhead.
Collaborative divorce is known to be more gentle form of divorce and is especially helpful in cases involving parents who must continue to work together as they raise their children. The well-being of the parties, and their children, remains at the center of the process.
Arbitration is similar to mediation in that it is an out-of-court process that involves a neutral third party. The main difference is that the third party, the arbitrator, actually renders a decision, which is either binding or non-binding. Arbitration is much less common in family law matters than it is in other types of civil matters.
Alternate Dispute Resolution (ADR) Methods
Alternative dispute resolution (ADR) is the term that is used to describe out-of-court settlement options, including using mediation, arbitration, or collaborative family law.
"Limited Scope" Representation
Often called unbundled legal services, limited scope legal representation means you pick and choose the divorce services you want from an attorney. Some lawyers offer "unbundled" services where you can choose to pay a flat fee for things like the drafting of a divorce decree, filing paperwork with the court, or appearing in court with you. You would need to handle the rest of the tasks in the divorce process yourself.
This is often a less expensive way to get an attorney's help with your divorce. Ask your attorney in advance if this is an option since some firms only offer traditional representation.
A true do-it-yourself divorce, or "self-help divorce," means you will research, fill out the forms, and gather relevant evidence all on your own. All jurisdictions will let you file for divorce and represent yourself in court from beginning to end, though it is often not recommended.
This process is time-consuming and risky if you miss a step or make a mistake. But, if you feel you have a firm grasp of divorce settlements in your state, it can save you money.
A DIY divorce is becoming more popular for divorce cases, though many married couples still decide to work with a lawyer in at least some capacity. A hybrid approach lets you handle as much of the process on your own, and have an attorney step in when needed or for court dates.
Seeking Child Custody or Child Support in a Divorce
Children in your divorce will complicated matters and increase the stakes. You will need to come up with (and agree on) a custody arrangement and parenting plan.
Your income will be scrutinized to see how much child support you need to pay. However, in most states, the amount is determined by a formula.
Judges take divorce with minor children very seriously, so seeking legal counsel at some point in the process is advised. A family court will always put your children's needs first, and the court has the ultimate say in what is in your children's best interests. In many cases, it's the issue of child custody that becomes the most disputed and requires court intervention.
Seeking Alimony (Spousal Support) in a Divorce
You and your spouse can negotiate spousal support and try to come to an agreement on your own. If you cannot agree, your state may have laws on the amount one spouse can be expected to pay, but in most states it's up to the judge's discretion. It is common for exes not to agree on financial decisions, which is where a divorce lawyer, mediator, or judge may need to step in.
Legal Separation (Instead of Divorce)
A legal separation means a couple is separated but still legally married. Some couples choose to legally separate on a temporary basis, which others use it as a long term solution. It can be an alternative to divorce for people whose religions or personal beliefs do not allow for divorce.
The court needs to sign off an a legal separation, which determines the rights and duties of each party. The court can order (or the parties can agree to) child custody and visitation, child support, alimony, and property division as part of a legal separation, similar to in a divorce.
Virtual or Online Divorce
This option grew in popularity due to the COVID-19 pandemic, but it has existed for years for military members, overseas residents, and other unique circumstances.
In some states, you need to appear in person to sign paperwork and handle a divorce. But most states offer eSigning or allow your divorce lawyer to act as your proxy. Divorce proceedings can feel mostly normal with video or phone communications, and electronic methods to sign and transfer documents.
Annulment (Proving Your Marriage Was Not Legal)
Seeking an annulment will dissolve the marriage only if it meets the requirements for your state. Annulments are rare, but they can happen if you married someone that was mentally ill at the time, or for fraud, or a number of other reasons.
How All Your Divorce Options Fit Together
The divorce options on this page can feel like a lot of information with small differences. It is essential to understand that the best option for you will depend on your family's needs, your assets, and the relationship you have (or will have) with your ex-spouse.
This chart can help you understand which option could be right for you:
Do my spouse and I both want the divorce?
Is there a fault-based reason to separate (such as domestic violence)?
Do I just want this over with or do I want to win?
|Resolve Divorce Quickly||Fight for Your Side|
Do I want the cheapest divorce possible?
An attorney can answer your questions and advise on the right option for you. There are many factors to consider, and divorce cases can abruptly change during the process.
Educate yourself on your options, and consider the ways an attorney can help guide you.