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Family & Relationships Uncontested? Contested? No Fault? A Guide to the Different Types of Divorce

23:16  04 february  2021
23:16  04 february  2021 Source:   fatherly.com

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Based on the depictions of it we see in popular culture — husbands and wives in suits, barking at one another from opposite ends of a glossy board- or courtroom — it’s easy to assume that there’s only one type of divorce: the volatile, scream-y  kind. While that is certainly the case in some divorce, it certainly doesn’t tell the whole story. There are several types of divorce, each of which makes sense for particular needs. For instance, some (contested divorce, collaborative divorce) are ideal for couples who are able to amicably separate. There are also different types of divorce that fit certain situations better than others.

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In short, if you are approaching divorce it’s important to be aware of the common types of divorce and what they entail. That way,  you can figure out what is best for your particular situation. As it is a little confusing (uncontested divorce? No-fault divorce? What’s the difference? Which one suits us best?), here is a look at seven common types.

What Is Uncontested Divorce?

For couples who are able to reach agreeable terms outside of a courtroom, this is the most uncomplicated method of parting ways.  “Also known as a simple divorce, an uncontested divorce takes place when there are no major disagreements between a couple parting ways regarding assets, alimony, spousal support, and distribution of property,” ,” says Jonathan Breeden, a Family Attorney in North Carolina. Because of this, it is often the cheapest and fastest means of divorce, with finalization happening in as little as 30 days.

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What does it entail? “Since the couple came to a mutual agreement, they have a less drawn out divorce process,” notes  Breeden. “First, either spouse may sign an Acceptance of Service form, followed by preparing a notarized separation agreement to officially begin the process.” One of the parties attends the hearing to obtain the final divorce order, and typically they’d obtain divorce judgment.

Important to note: There are no lawyers involved in the process and couples reach an agreement on their own. It’s often the most cost-effective form of divorce.

What Is Contested Divorce?

As its name implies, a contested divorce happens when a couple cannot agree on parting ways. This type of divorce, then, is much more complicated than an uncontested divorce, as it entails disagreements on everything including, per Breeden, assets, alimony, spousal support, and distribution of property.

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What does it entail? In a contested divorce situation, there is generally a lengthy court process involving hearings, subpoenas, a discovery process, and motion after motion. The process lasts up to 18 months and can be a very expensive undertaking, as well as an acrimonious and emotionally taxing one.

Important to note: “Contested divorces are complicated,” notes Family Law attorney Tarla Atwell, “and should be handled by an experienced attorney specializing in Family Law.”

What Is No-Fault Divorce?

This is generally the classic “irreconcilable differences” type of divorce in which a couple realizes that, through no overt fault of one or the other, they just can’t live together anymore. “The no fault ground is the most common ground for divorce,” notes Atwell, who adds that it’s important to note that a complaint for divorce must indicate whether the divorce is being sought on a ‘no fault’ or ‘at fault’ ground.

What does it entail? In most states, per Breeden, the couple is required to separate for a period of time before they can proceed with the divorce. Thirty-four states have no specified separation period. But some states do. For instance, Connecticut has an 18-month waiting period, whereas Delaware, Illinois, Vermont, and Virginia have a six month waiting period. Once a couple has reached their specified separation milestone, they can obtain the divorce.

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Important to note: No fault and uncontested divorces sound similar, but they are not. A no fault divorce is called such because of the particular grounds for divorce, where as an uncontested divorce refers to the level of agreement between the couple about the grounds for divorce. There is also more than one type of No Fault divorce, and it is a good idea to look at what type matches your particular requirements. For example, you can sign a separation agreement and fashion your divorce around the terms of that agreement. “In some states, signing the Separation Agreement is called “Limited Divorce,” notes Marina Shepelsky, CEO and Founder of Shepelsky Law Group. “Limited Divorce is not a true legal divorce since the parties continue to remain legally married while separated.”

What Is Fault Divorce?

This is the kind of divorce that takes place when one spouse feels that the other has done or is doing something that is harmful to the marriage. “This type of divorce is usually filed based on grounds like: cheating, abandonment, cruel treatment, reckless spending, and using drugs or alcohol in a way that makes life intolerable,” says Breeden.

What does it entail? Generally, per Atwell, contested divorces will list one of the above at-fault grounds for the divorce. “The judge may consider these at-fault grounds when equitably dividing marital property and marital debt,” she says. “If a party would like to seek a divorce based on ‘at fault’ grounds, that party should seek an attorney to handle as ‘at fault’ divorces are complicated.”

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Important to note: A fault divorce, per Breeden, has to be based on marital misconduct recognized by the court. “And it does not require the legal separation period required in a no-fault divorce.”

What Is Absolute Divorce?

This is a formal order issued by the court that officially ends a marriage. Once an absolute divorce goes through, both parties are free to remarry and can no longer inherit property from one another (although any property held as husband and wife becomes common property held jointly).

What does it entail? In order for an absolute divorce to be granted, certain criteria has to be met, much of which is determined on the type of divorce that is being filed. “It honestly depends on if a no-fault or fault divorce is filed,” says Breeden. “Most states, like North Carolina where I practice, are no-fault states. That means there’s no proof required to confirm that there was misconduct. However, if the filing is based on fault, there will need to be proof provided that the other spouse did something that caused the marriage to fail.”

Important to note: “An absolute divorce is a permanent end to a marriage,” Breeden says, “and the divorce proceedings depend on the grounds for divorce available in the state.”

What Is Divorce From Bed And Board?

When one spouse is experiencing emotional physical injury, they can file for divorce from bed and board. Circumstances that apply include mistreatment, abandonment, drug or alcohol abuse, and adultery.

What does it entail? In order to move this divorce through, the spouse who is filing needs to prove the allegations that they’re citing as reasons for divorce. After that, the other spouse will have an opportunity to respond to those allegations. “If misconduct is confirmed and the judge issues a divorce from bed and board decree,” says Breeden, “then the couple may legally move apart.”

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Important to note: “In a divorce from bed and board,” says Breeden, “Emotional or physical injury must be proven and the couple is still viewed as legally married so if either of them want to remarry, they have to file for an absolute divorce.”

What Is Collaborative Divorce?

This is a fairly amicable proceeding where both spouses and their lawyers are able to sit down and work together to discuss the terms of the marriage dissolution.

What does it entail?

“This divorce proceeding doesn’t require a lot of time in a courtroom,” says Breeden. “Instead it simply requires both spouses and their legal representatives to sit in a room and reach an agreement that satisfies both parties on things like assets and child custody.” While similar to uncontested divorce, this collaborative process does involve lawyers working together.

Important to note: “This type of divorce works best if a couple can make decisions together and be completely honest about their assets,” says Breeden. “Also, it’s a quicker divorce option and typically results in a civil relationship between former partners.”

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The post Uncontested? Contested? No Fault? A Guide to the Different Types of Divorce appeared first on Fatherly.

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