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- The Different Types of Divorce
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The Different Types of Divorce
By Divorce.com staff
Updated Feb 07, 2023
People often think of divorce as "one size fits all".
However, there are several different types of divorce processes. The method a couple chooses is typically influenced by their willingness and ability to reach an agreement – either in court or outside it – and how amicable or hostile the couple is.
Read on to discover which type is right for your unique situation.
What Types of Divorce Are There?
- DIY Online Divorce
- Uncontested Divorce
- Contested Divorce
- No-Fault Divorce
- At-Fault Divorce
- Limited Divorce
- Summary Divorce
- Default Divorce
- Collaborative Divorce
- Same-Sex Divorce
- Mediated Divorce
- Divorce Arbitration
DIY Online Divorce
Benefits: Affordable, fast, amicable, and does not require a divorce lawyer.
Negatives: Without legal advice, you could make a costly mistake – especially if you don’t understand the consequences of your agreement.
A DIY online divorce is a potential option to traditional divorce or alternative dispute resolution if and only if you and your spouse are able to cooperate and agree on all divorce-related issues, and if those issues are relatively simple and financially uncomplicated.
Filing for divorce online does not require a divorce lawyer – but we recommend having a lawyer review your documents and pointing out potential pitfalls in your agreement before you submit it. This process could potentially save thousands of dollars on legal fees.
As well as saving on legal fees, a DIY online divorce can save time and reduce the stress and anger associated with a long, drawn-out court battle.
If issues that require legal advice arise, you will need to consult with a divorce lawyer – but the time and financial costs associated with this should be minimal.
This is the most inexpensive divorce option.
Benefits: Affordable, fast, amicable, and does not require a divorce lawyer.
Negatives: It does not work if both parties cannot agree on all divorce-related issues.
In an uncontested divorce, a couple can amicably negotiate the material terms of the divorce and do not need the court to divide assets or make determinations for them about spousal or child support or custody.
This type of divorce is an example of collaborative law, wherein divorcing couples negotiate the terms of their marital settlement agreement without the threat of court litigation.
Sometimes referred to as a "friendly divorce", uncontested divorce is an attractive option for several reasons, such as time, cost, control and privacy. An online uncontested divorce is a good option for couples who can work together and agree on the terms of their marital settlement.
An uncontested divorce is far less expensive than a traditional litigated divorce and does not require attorneys or court appearances. With the exception of a DIY or summary dissolution of marriage, this is the cheapest way to get divorced.
Benefits: Allows a judge to negotiate the marital settlement agreement, suited for divorcing couples that cannot agree on child custody, support and community property.
Negatives: Expensive, time-consuming, stressful, and often become contentious when a divorce lawyer and judge are involved.
In a contested divorce, one or both spouses disagree about important terms of the divorce, including the division of community property, alimony and child support payments, custody or co-parenting.
A contested divorce requires that both spouses be represented by divorce attorneys in mediation and is typically much more expensive than an uncontested divorce.
A contested divorce in the United States costs an average of $15,000 and can greatly exceed this if the proceedings become contentious.
Benefits: Allows a spouse to file for divorce even if their partner is not in agreement, does not require a divorce lawyer, does not require a spouse to prove the fault of their partner as grounds for divorce, retains privacy in a relationship because grievances are not explained in court.
Negatives: Spouses cannot be financially penalized if they have committed wrongdoing in the marriage, such as extramarital affairs or abuse.
The introduction of no-fault divorces in the 70s and 80s caused seismic changes in family law. This edict allows a court to grant a divorce without the petitioner or plaintiff (person filing for divorce) needing to prove the fault of the respondent or defendant (the person responding to the divorce).
A "fault" or wrongdoing could be considered having an extra-marital affair, inflicting emotional abuse or secretly incurring debt that the other spouse did not agree to.
California was the first US state to allow no-fault divorces in 1969. Before no-fault divorces, the petitioner had to go to great lengths to prove wrongdoing on the part of their spouse.
In cases where the fault could not be proven, the court could stop the divorce proceedings. This was especially problematic in cases of emotional or physical abuse by one spouse.
Stephanie Coontz, a professor of history at Evergreen State College, states that "once you permit the courts to determine when a person's desire to leave is legitimate, you open the way to arbitrary decisions about what is or should be tolerable in a relationship, made by people who have no stake in the actual lives being lived."
The most common reasons for no-fault divorce are “irreconcilable differences” or “irreparable breakdown of the marriage.” Essentially, these are complicated ways of saying the two people do not get along anymore and no longer wish to be married or in a relationship.
One or both believe their problems are beyond repair and cannot peacefully coexist and live with one another any longer.
The benefits of no-fault divorce include:
- Spouses cannot be financially penalized for extramarital affairs or sexual activities. Therefore, if your spouse cheats on you, you could still be legally required to pay spousal support to your partner and give them half of your assets, depending on your situation.
- One spouse cannot object to the filing, as the court will see that opposition itself as an irreconcilable difference. In the years proceeding no-fault divorces, a spouse could block a divorce if they objected to what the court agreed with.
- This type of divorce avoids the costly blame-game type of mediation that would occur if a fault divorce was sought instead.
- Prevents divorcing couples from having to go into great detail about the private details of their marriage
All states in the US recognize no-fault divorces, and some states require that the couple live apart for a specified period of time before one of the spouses can formally file for a divorce. These living apart rules are in place because it's thought that if a couple spends some time living apart, there’s a chance they could work it out and reconcile.
Always check with your state's laws before you decide to file for a divorce without a divorce attorney. The more knowledge you have about the process, the better off you will be in the long run.
On the other hand, no-fault divorces do not allow people to share circumstances and facts that led to the marriage's breakdown, which can be an important psychological process for some people.
If it's important for you to feel your voice has been heard and validated by a third party, you might opt for a no-fault divorce while sharing your story with a family therapist or counselor specializing in divorce.
Benefits: Allows couples to explain their grievances in court and publicly justify their grounds for divorce.
Negatives: Not available in every US state; perjury (lying) about the fault ground; the spouse who is accused of "wrongdoing" may have to contribute more property and/or support to the other.
Fault divorces involve one or both spouses seeking to get divorced because of perceived wrongdoing in the marriage.
Depending on the state you live in and the specific circumstances surrounding your separation, a judge may find one party at fault or neither of the parties at fault in the situation. Knowing the difference between the two is important before seeking an online divorce.
Fault divorces are rarely utilized, although about two-thirds of the states also still permit them. You cannot use fault as a ground for divorce in California, Colorado, Florida, Hawaii, Indiana, Illinois, Iowa, Kansas, Kentucky, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, Oregon, Washington, and Wisconsin.
In addition to obtaining a divorce, some states also allow courts to consider fault in dividing property, awarding alimony, or awarding custody of the children. You should know that there is a difference between asking the court to consider fault when dividing property or awarding support and using fault as a ground for divorce.
In the states that still recognize fault grounds for divorce, a spouse can request that their divorce be granted based on an offence they believe their spouse has committed. One spouse files for divorce based on an identifiable “fault” of the other person.
If one spouse is successfully able to prove the fault of the other, this can prompt the judge to allocate a larger portion of the community property and/or alimony or child support payments to the spouse that did not commit the fault.
What qualifies as a fault? Some of the most common reasons include:
- Adultery: the person looking to apply fault must supply documented evidence of adulterous activity, including videotapes, phone calls and text messages.
- Spousal abandonment for a particular length of time means one of the spouses has left home where they reside with no intention of returning. If they left without the consent of the filing party and remained absent continuously, this would be considered abandonment of the marriage.
- Prison Time.
- Mental Illness.
- Absence of sexual intercourse in the relationship.
- Emotional or physical pain inflicted by the other spouse applies to cases of domestic violence or abuse inflicted by the other person.
For the states that offer the option of fault divorce, this type of divorce does not require the two parties to live apart for any time.
If the case is successful and the other party is found at fault, the person held without fault is sometimes rewarded a larger percentage of marital property (possessions acquired while the two people were married) and/or additional financial support, which appeals to some people.
The downside to filing for a fault divorce is that the other party can object to the fault claims. These defenses can drag out the mediation further. Another downside to a fault divorce is how costly it is and how much time it requires.
Divorce proceedings like these can go on for months, even years, costing both parties a lot of money in legal advice, fees and other expenses.
Benefits: Ideal for spouses that need time to organize matters such as community property and child custody.
Negatives: Not considered a legal divorce. Therefore, spouses cannot remarry, and all financial and custody claims are unresolved.
This type of divorce is not as common and is unavailable in every US state. It is comparable to legal separation and is ordered by the court when a couple needs extra time to resolve their financial and legal issues.
Limited divorce is not a final decree of divorce.
Limited divorce is a legal action monitored by the court. Therefore, spouses cannot remarry while community property and custody issues are still pending until the court issues the final divorce.
Spouses can negotiate their marital agreement during a limited divorce until the court determines they have negotiated a deal that qualifies for the full, absolute divorce decree.
The following legal mandates apply to a limited divorce:
- A spouse cannot remarry while the limited divorce order is in place.
- Community property claims and negotiations are still pending.
- Decisions regarding child custody, support payments and community property are temporary until the final divorce decree is issued by the court.
- If the court rejects a limited divorce case, the spouses will revert to legally married.
- The court determines which spouse is at fault, if applicable.
Summary Dissolution of Marriage
Benefits: Inexpensive, fast.
Negatives: Only available to couples with no children, and limited assets and debts. Not all states offer this option.
Most states offer some form of Summary Dissolution to married couples or those in a domestic partnership who meet the state’s eligibility standards. Summary Dissolution of Marriage is an easier way to end a marriage than a regular Dissolution of Marriage.
Like an uncontested divorce, this type of dissolution requires a couple to work together, possibly with a team of professionals if required, to legally terminate their marriage while avoiding court. The process requires less paperwork and can usually be done in less time than traditional divorce.
This type of dissolution is only for couples who do not have children, are not pregnant during the time of separation, and do not have significant debts or community property. Similar to uncontested divorce cases, summary dissolutions can be completed without the representation of a family law attorney.
Other requirements that must be fulfilled to qualify for a summary dissolution include:
- The marriage or domestic partnership must have been relatively short: e.g., five years or less in California.
- Neither spouse has an interest in or owns real estate.
- Neither spouse has accumulated more than a specified amount of debt since the date of marriage; requirements can vary state by state. For example, in California, the limit is $5,000, and in Oregon, it is $15,000. (Vehicle loans are excluded)
- Neither spouse has accumulated more than $25,000 – $35,000 in assets since the date of marriage. The exact amount is determined by the filing state. (Cars are excluded.)
- Neither party will ever request spousal support/alimony.
- Both parties agree to execute a Joint Petition and pay the court filing fees if required by their county.
- Both parties must agree to split community property before the Joint Petition is signed.
- One or both spouses must fulfill the residency requirements in their state. Requirements will vary from state to state. For example, in California, at least one spouse must live in a state for a minimum of 6 months.
- Neither party requests a temporary court order, such as a restraining or protective order.
Benefits: Can reduce attorney fees and court costs for hearings and trials. No need to provide financial information about your income, assets, and debts.
Negatives: Without full financial disclosure, you may be giving up your rights to a property settlement, retirement funds, and spousal support.
Although the steps required to complete a Default Divorce vary from state to state, the fundamentals are the same: when the spouse seeking a divorce (the plaintiff) files a Divorce Petition (called the “Divorce Complaint” in some states), which the other spouse (the defendant or respondent) fails to answer – and they also fail to appear in court in response to a summons – then the court enters a divorce judgment against the defendant.
A default divorce is common when one spouse is unable to find the other in order to serve the divorce petition, and can prove that they have made every effort to locate their missing spouse.
The court usually requires the plaintiff to take a number of steps to attempt service: for example, publishing the divorce petition in a newspaper distributed in the defendant’s last known location.
If your spouse is active on social media accounts – such as Facebook or Twitter – you may be able to serve them via their social media accounts. Most social media apps have a feature that lets you see when the other person has read (or at least opened) your message.
Ask your divorce lawyer (or call your local courthouse to ask for help, and failing that, where the closest family law self-help center is located) if the court will allow you to attempt service via social media, and prove service via the platform’s acknowledgment that your ex saw the notice.
Serving the petition via social media may be the only way if you don’t know what state or country your spouse now calls home.
However, even after the court enters a default divorce, if the defendant spouse later appears or contests the divorce in a certain amount of time, they can ask the court to overturn the default judgment.
The other reason to choose default divorce is to save time, money, and the stress of information gathering. If you and your spouse agree to a default divorce – and if you have resolved your divorce-related issues – then one of you files for divorce while the other does not answer the petition or show up in court.
With a default divorce, you don't have to gather and produce the financial information – e.g., tax returns, paystubs, bank and investment account statements, etc. – that you’d otherwise have to disclose.
Benefits: Faster than going to court; reduces the anger and hostility that accompany a court case; offers a team of professionals to help divorcing couples end their marriages equitably and amicably.
Negatives: The process moves at the pace of the slowest party (the spouse party who did not initiate the divorce proceedings may need to “catch up” emotionally and otherwise); one spouse can use the process to waste the other’s time and money by pretending to participate and then refuse the settlement at the 11th hour.
Collaborative Divorce is an alternative dispute resolution (ADR) process that requires both parties and their lawyers to sign an agreement stating that they will not go to court to settle their issues.
If the couple cannot reach a settlement, then the entire collaborative team – consisting of two attorneys, a mental health professional acting as a coach, and a neutral financial professional – must resign. Furthermore, no team member is permitted to assist the couple going forward with a litigated divorce.
This removes the fear of hiring an unscrupulous attorney who will drag out the process to drive up their fees, and it prevents one spouse from continually threatening to go to court unless the other accedes to their every demand.
The collaborative process is a team approach designed to help the parties reach an equitable resolution. The team consists of two collaboratively-trained attorneys, a mental health professional acting as a coach for both parties, and a neutral financial professional – although other professionals may be brought in depending on the couple’s situation.
If both parties enter the collaborative process with a commitment to honesty, transparency, and cooperation paired with a true desire to resolve their dispute equitably, then the process is likely to be successful.
The collaborative process will help to teach you how to negotiate and resolve any issues that arise post-divorce, and it will help you establish a successful co-parenting relationship if children are involved.
Since the process allows the parties to work out the details of their agreement, both of them are much more likely to honor the terms than if a judge handed down a ruling that really didn’t work for one or both of them.
The process may be difficult at times, but it will almost certainly be less difficult and stressful than a traditional litigated divorce.
Benefits: Saves time, money and stress; allows you to make your own decisions; promotes communication and cooperation between parties
Negatives: Mediators cannot provide legal advice – even if they are also lawyers; if there has been domestic violence or a large power imbalance between the parties, a mediator cannot protect the weaker party’s interests
Divorce mediation is another alternative dispute resolution process that helps spouses create their own divorce agreements. In mediation, a neutral third-party – the mediator – helps you work through your divorce-related issues and make your own decisions rather than having a judge make the decisions for you.
Most mediators are also divorce lawyers or mental health professionals, but regardless of their other credentials, their role is to facilitate negotiations between the divorcing couple.
A mediator will not make any decisions for you. Instead, they facilitate conversations leading up to a mutually agreed-upon settlement.
When a divorcing couple sets the terms of their agreement, they are much more likely to honor the terms of that agreement than one handed to them by a judge – a stranger who knows virtually nothing about you and your children.
Divorce mediation is usually much less costly than going to court; you and your spouse will share the mediator’s fees rather than each paying for a lawyer at higher hourly rates.
Divorce mediation is much faster than litigation in court. Mediation is also private, so no one can search court records to find the details of your divorce agreement.
Like the collaborative divorce process, you will learn how to negotiate and resolve issues during the mediation process; it will also set the stage for a cooperative co-parenting relationship if you have children together.
Mediation is a voluntary process, and you do not have to give your approval to anything you don’t like. The process fosters compromise on both sides, which could mean trading one asset for another, or deciding to forgo some of what you’re “owed” to get more of what you want/need.
Unlike collaborative divorce, if you can’t resolve every last issue, you can still keep the agreements you were able to reach and take your remaining issues to court.
Benefits: Saves time and (sometimes) money; promotes cooperation rather than hostility; generally cheaper and faster than litigation; parties can agree to keep the terms of their agreement private and confidential
Negatives: Arbitration is binding – even if the arbitrator's decisions are unfair, illogical, or unworkable; potential lack of objectivity and/or transparency
Like mediation, in divorce arbitration, you meet with a neutral third party. Unlike mediation, the arbitrator (usually a family lawyer or retired judge) will decide the terms of your agreement – and their decision is binding.
This is great for parties who want a chance to present their case but don’t want the responsibility for making their own decisions. If the decision is unfair or illogical, you may be stuck with it forever.
Most arbitrators encourage parties to participate fully in the process, and because there are no attorneys to pit the parties against each other, the divorcing couple is more likely to work together cooperatively than in litigation
Arbitration is always faster than litigation, but it isn’t always that much cheaper than litigation. Depending on where you are and the arbitrator’s experience, you could be paying $3,000 or $4,000 a day for your arbitrator. Your arbitrator may require the services of other divorce professionals (e.g., lawyers, financial professionals, parenting experts, etc.) before making their ruling, which will increase the cost of the process.
Like mediation, arbitration is generally private – unlike a messy court battle, which will have public records. You can agree to keep your settlement terms confidential, which can be important in the case of business owners, highly-compensated executives, celebrities, and professional athletes.
Same-sex divorce is now the same as a heterosexual divorce.
Although many Americans were concerned that the Supreme Court might take aim at same-sex marriage after they overturned Roe v. Wade, legislation to protect same-sex unions cleared the Senate on November 30, 2022 – which put Congress on track to enshrine the rights of same-sex couples in federal law.
Alternatives to Divorce
Benefits: Because an annulment acts as though the marriage never existed, there are generally fewer issues to deal with.
Negatives: You must prove fault based on grounds your state deems acceptable; could impact your rights to receive alimony or property acquired during the “marriage”
A divorce ends a marriage; an annulment declares a marriage invalid (or void or voidable) based on the grounds that vary from state to state. Because you must prove fault, it is harder to have your marriage annulled than to get a no-fault divorce.
Typical grounds for annulment include:
- Underage Party/Parties. One or both parties were too young to legally marry in that state.
- Bigamy. One or both parties were already legally married to someone else at the time of the wedding.
- Incest/Consanguinity. The parties are close-blood relatives.
- Forced Consent. One or both parties were under duress to marry each other.
- Fraud. One party was an addict, alcoholic, suffering from an incurable illness, carrying on an affair, bankrupt, etc., and did not disclose this to their financé prior to marriage.
- Lacking Mental Capacity to Consent. Examples include serious mental illness, being high or intoxicated, severely reduced mental capacity due to accident or developmental disability.
- Impotence. You can only use this ground if you did not know of your partner’s inability to consummate the marriage before you got married.
- Any Marriage Prohibited by Law in Your State. This one’s self-explanatory.
Benefits: Relatively easy to retract if you reconcile; less expensive than divorce; your separation agreement can become the blueprint for your divorce agreement
Negatives: Legal separation doesn’t exist in some states; you cannot remarry, reduces tax deductions when you file as “married filing separately”; health insurance will likely end for the non-employee spouse
Legal separation and divorce both give the parties the ability to live their lives independently. It affords each party the opportunity to move on without completely severing ties.
You are free to date – but not marry! – other people, and you can make your own decisions about how and where to live, what car to drive, and what financial investments to make.
A legal separation is for couples who don't feel that there is any hope of reconciliation – although there is nothing actually stopping them from getting back together down the road.
A legal separation essentially puts your marriage in suspended animation. You and your spouse start living separate lives – including finding and moving to a new home (although one of you might choose to remain in the marital home).
A legal separation requires more than just getting your own place: you must create a legal separation agreement that the court must approve.
A legal separation does most of the same work as a divorce agreement, dividing your assets and debts, creates a parenting plan for raising your children (including child support), and may award alimony to help one spouse become self-supporting. If a legally-separated couple decides to divorce, their separation agreement can form the blueprint for their divorce agreement.
Delaware, Florida, Georgia, Mississippi, Pennsylvania, and Texas do not recognize legal separation.