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An analysis of the Divorce, Dissolution and Separation Act, 2020
This article is written by Varchaswa Dubey, from JECRC University, Jaipur. This article reflects the analysis of the Divorce, Dissolution and Separation Act, 2020. Further, the article also reflects the reasons and effects of divorce.
According to Black’s Law Dictionary, divorce refers to “the legal separation of man and wife, effected, for cause, by the judgment, of a court, and either totally dissolving the marriage relation, or suspending its effects so far as concerns the cohabitation of the parties”, while dissolution refers to “the act of terminating a marriage; divorce; but the term does not include annulment”, and separation refers to “separation of man and wife by decree of the court, less complete than an absolute divorce.”
Divorce laws provide the legal framework which administers the matters where marriage is brought to an end by either or both the parties to the marriage, i.e. the husband and wife. The rate of divorce has increased during contemporary times and has uniform rules to deal with arising matters of divorce.
Origins of divorce
Before human civilization was met with Christianity, the proceedings of divorce did not require any government intervention. During the eighth century, marriage was considered a breakable contract in western culture.
The Romans also did not consider marriage to be worthy enough of government intervention and the couples simply declared their marriage had ended.
The Romans from 27 BC to 14 AD introduced a law that required seven witnesses to the statement made by the parties to the divorce.
Germanic peoples also accepted unilateral divorce, that is, divorce instigated by only one partner. The Anglo-Saxons regarded marriage as a simple contract that could be dissolved by one or both partners at any time.
The oldest codified law in the history of divorce was traced to 1760 B.C. during the reign of King Hammurabi of Babylon. It is believed that the King carved 282 laws in stone tablets including the law on divorce.
During that period, a man could divorce his wife by simply saying, “You are not my wife,” which was followed by payment of a fine and returning the wife’s dowry.
However, if it was the wife who wanted the divorce, she was required to file a complaint to obtain a divorce.
In India, divorce was not considered very common in nature, and women were given high status in society. There are not many sources to reflect the divorce in ancient India.
Origins of divorce in England
Initially, the proceedings of divorce were governed by church courts by the Ecclesiastical Laws but after 1530 the Church courts in those countries had no power to annul a valid marriage and later on The Matrimonial Causes Act, 1857 was introduced which required a husband to prove his wife’s adultery if he wanted a divorce, but before the 1957 act, judicial divorce could only be attained by the act of the Parliament. A wife had to prove her husband’s adultery, and also that he had either treated her with cruelty, had deserted her, or had committed incest or bigamy eventually Matrimonial Causes Act, 1973 was introduced which acted as significant legislation in the history of laws concerning divorce in England and Wales.
Recently the Divorce, Dissolution and Separation Act, 2020, was passed by the Parliament of England and Wales, to make concerning marriage and civil partnership in England and Wales provision about divorce, dissolution, and separation, and for connected purposes.
The Divorce, Dissolution, and Separation Act, 2020
The bill was introduced in the House of Lords on 25 March 2020.
The objective of the bill
To provide for the revision of the legal process in England and Wales for married couples who shall opt for legal separation or dissolution of marriage or divorce. The Bill further aims at amending certain legal provisions reserved in the Matrimonial Causes Act, 1973 and Civil Partnership Act, 2004.
Background of the Act
Divorce and dissolution of a marriage are significant changes in the legal status that have an impact on people’s rights and responsibilities, property, inheritance, and the families of the concerned parties to the proceedings. Before The Matrimonial Causes Act, 1857, divorce was considered to be a part of church proceedings, however, the legislation post – 1857 changed the scenario.
The current law on divorce and dissolution of marriage can be traced back to the Divorce Reform Act, 1969 which gave the sole ground of divorce may be that marriage has broken down irretrievably and the reason for such break is adultery, dissertation, cruelty, etc. under the 1969 act, only one person could initiate legal proceedings against another and the respondent has to acknowledge that they have received the petition.
The grounds for seeking a divorce may be one under the old legislation but the reason that a marriage has broken down is:
- Parties to a marriage living apart for two continuous years,
- Parties lived apart for at least two years, before the presentation of the divorce petition.
The aim of the government behind the reformed law is that the decision to divorce should be considered as one and that separating couples should not be put through legal requirements which do not serve their or the state’s interests and which can lead to ongoing conflict and poorer outcomes for children.
New provisions in the Act
The 2020 legislation introduced the provision of application of divorce by either or both the parties to the marriage, it also introduced the concept of making the statement that the marriage has broken down irretrievably and such statement shall be considered conclusive evidence that the marriage has indeed broken down.
In the new amendment, the application for judicial separation must be accompanied by a statement that it is the intention of one or both parties to the marriage to be judicially separated from one another. Section 3 of the 2020 act replaced Section 44 of the Civil Partnership Act, 2004, which provides for an application to the court for dissolution to be made by either one or both civil partners.
According to the new legislation, every dissolution order is initially a conditional order and may not be made final before the end of 6 weeks from the making of the conditional order.
Section 56 of the Civil Partnership Act, 2004, is also amended by the 2020 act and the current legal provision states that any application for a civil partnership separation order must be accompanied by a statement stating that it is the intention of one or both civil partners to be separated from one another.
What are the implications of the Divorce, Dissolution, and Separation Act, 2020?
Dissolution of Marriage — Definition, Examples, Processes
The term dissolution of marriage refers to the ending of a marriage through legal proceedings, the same as divorce.
In many jurisdictions, a couple may file a petition for the court to terminate their marriage pursuant to a written agreement between the parties.
Such an agreement must cover all issues pertaining to the dissolution, allowing the matter to be concluded without a hearing or trial. To explore this concept, consider the following dissolution of marriage definition.
- A modern, more temperate sounding term for divorce.
- A term for divorce that is symbolic of a non-confrontational, no-fault approach to terminating a marriage.
- 1970s California family law
In most jurisdictions, divorce and dissolution of marriage are the same thing, each requiring the same legal proceedings to finalize. The proceedings may be adversarial, or the parties may work together to come to an agreement regarding all issues of distribution of marital assets, and payment of spousal support, as well as child custody and child support, if applicable.
If an agreement is reached, it is documented in a Marital Settlement Agreement, and presented to the court for approval and a final divorce order or decree.
Any issues not settled between the parties may continue to trial, during which both parties will present argument, testimony, and other evidence to make their case.
Leaving these things for the court to decide is a more expensive avenue for most litigants.
The process of obtaining a dissolution of marriage by Marital Settlement Agreement is easier, faster, and less expensive for the parties.
Without the need for the parties to engage in discovery, prove what each owned prior to the marriage, argue about how the marital assets should be divided, and argue over the care and custody of their children, getting a divorce without an attorney becomes a possibility for many people, especially in jurisdictions that offer the help of a family law facilitator.
Coming to an agreement on issues related to dissolution of marriage means less emotional conflict and stress for all parties, including children and extended family.
Submitting a Marital Settlement Agreement to the court also eliminates the stress of not knowing what the judge will order regarding the final divorce.
Many couples find that giving up a few things in order to meet in the middle for such an agreement is well worth it, in that the divorce can usually be finalized much more quickly, and they can get on with their lives.
Each state has specific requirements that must be met before filing for dissolution of marriage or divorce. These include residency requirements that the couple has resided in the state for a specified minimum period of time.
The time varies by jurisdiction, often between 6 months and 1 year.
Some states require the couple be officially separated for a minimum period of time before filing, yet others allow filing, but require a minimum separation time before the final divorce decree may be issued.
A petition for dissolution of marriage or divorce must be filed with the family court in the county where the couple has established residency, then served on the opposing party in person.
This may be done by process server, sheriff, constable, or any adult person who is not a party to the divorce.
These documents, as well as other documents needed in a dissolution proceeding, such as child custody documents, are available at the court clerk’s office for individuals filing for dissolution of marriage without the assistance of an attorney.
Once the petition for dissolution of marriage has been served, the other party, the “respondent,” must file an answer with the court. Following this, the parties may submit a Marital Settlement Agreement with the court.
If these documents satisfy the judge as to the equitable distribution of marital assets, and that the best interests of the children are being met, the agreement will become the order of the court, and the marriage will be terminated on a specified date.
If the parties are unable to agree, the matter will proceed to trial.
In many states, couples may file a “no-fault” divorce or dissolution of marriage, in which they state they have separated by agreement, and neither is claiming the other is at fault for the failed relationship.
In some states, including California, no-fault divorce is the only option, individuals being able to choose only between “irreconcilable differences” and “incurable insanity” as the reasons for the dissolution.
In a “fault” divorce, one spouse claims some wrongdoing of the other spouse caused the breakup, and this may entitle the wronged spouse to a greater share of the marital assets. In a “no-fault” divorce, the assets are divided equally with no regard for the reason behind the divorce. To prove fault in a divorce, the wronged spouse must prove an issue such as:
- Emotional or physical abuse
- Failure to help support the family
- Continued absence from the family home for one year or longer
- Habitual drug or alcohol use
In states that allow fault divorces, the couple is not usually required to endure a minimum separation period before the divorce will be granted.
Even if a couple initially files for dissolution of marriage with the intent of coming to an agreement, issues may arise that cannot be amicably resolved.
There is no extra step required to “convert” the case to a contested divorce, as the act of engaging in discovery, the filing of additional actions, such as motions, and requesting hearings or a trial automatically render the case a contested divorce or dissolution.
At any point prior to a trial, the couple may still decide to agree and submit a Marital Settlement Agreement.
In many states, the finalization of a dissolution of marriage or divorce ends with a decree or order for dissolution of marriage. Some states refer to this final court order as a certificate of dissolution of marriage, rather than a divorce decree.
In either case, the certificate, decree, or order details the issues of marital property distribution, as well as the exact date the dissolution or divorce takes effect.
This information contained in the certificate of dissolution of marriage is vital to many post-divorce activities, such as changing names on bank accounts, updating the beneficiaries of retirement accounts and life insurance, and dealing with other issues.
- Petitioner – The individual who initiates legal proceedings by filing a petition, also referred to as “plaintiff” in some cases.
- Respondent – The individual against whom a petition is filed, also referred to as “defendant” in some cases.
- Hearing – A proceeding before the court at which an issue of fact or law is heard, evidence presented, and a decision made.
- Discovery – The pre-trial efforts of each party to obtain information and evidence.
- Marital Assets – All property, financial assets, and debt acquired by the couple during the course of the marriage, regardless of who holds title to it.
- Jurisdiction – The legal authority to hear legal cases and make judgments; the geographical region of authority to enforce justice.
Divorce (or the dissolution of marriage) is the final termination of a marital union, canceling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between the parties (unlike annulment which declares the marriage null and void).
Divorce laws vary considerably around the world but in most countries it requires the sanction of a court or other authority in a legal process. The legal process for divorce may also involve issues of spousal support, child custody, child support, distribution of property and division of debt.
Where monogamy is law, divorce allows each former partner to marry another; where polygyny is legal but polyandry is not, divorce allows the woman to marry another.
Between 1971 and 2011, five European countries legalised divorce: Italy, Spain, Portugal, Ireland and Malta. This leaves two countries in the world—the Philippines and Vatican City—that do not have a civil procedure for divorce.
«Divorcing one's parents» is a term sometimes used to refer to emancipation of minors.
In some Western jurisdictions, divorce (legally referred to as 'dissolution of marriage') does not require a party to assert fault on the part of their partner leading to the breakdown of their marriage.
Prior to the onset of 'no-fault' statutes, a party would have to prove a ground, typically 'desertion,' 'abandonment,' 'cruelty,' or 'adultery.
' The requirement of proving a ground was revised (and withdrawn) by the terms of 'no-fault' statutes, which became popular in the United Kingdom, Australia, the United States, Canada, South Africa, and New Zealand in the late 1960s and early 1970s.
In 'no-fault' jurisdictions, a simple, general allegation of 'irreconcilable differences,' or 'irretrievable break-down' with respect to the marriage relationship, sufficed to establish the end of the marriage.
In jurisdictions adopting the 'no-fault' principle in divorce proceedings, some courts may still take into account the behavior of the parties when dividing property, debts, evaluating custody and support—facts which almost always have considerable weight in fault proceedings.
 This is particularly true in custody cases, where the courts might consider many factors which mirror 'fault' grounds, such as drug abuse, alcoholism, violence, cruelty, instability, neglect and possibly the preference of an intelligent, mature child.
Despite this, in some countries (or states of the United States), the courts will seldom apply principles of fault, but might willingly hold a party liable for a breach of a fiduciary duty to his or her spouse (See for example, Family Code Sections 720 and 1100 of the California Family Code).
In most jurisdictions, a divorce must be certified (or ordered by a Judge) by a court of law to come into effect.
The terms of the divorce are usually determined by the courts, though they may take into account prenuptial agreements or post-nuptial agreements, or simply ratify terms that the spouses may have agreed to privately (this is not true in the United States, where agreements related to the marriage typically have to be rendered in writing to be enforceable). In absence of agreement, a contested divorce may be stressful to the spouses. Contested divorces mean that one of several issues are required to be heard by a judge at trial level—this is more expensive and the parties will have to pay for a lawyer's time and preparation. Less adversarial approaches to divorce settlements have recently emerged, such as mediation and collaborative divorce settlement, which negotiate mutually acceptable resolution to conflicts. This principle in the United States is called 'Alternative Dispute Resolution' and continues to gain popularity.
In some other countries, when the spouses agree to divorce and to the terms of the divorce, it can be certified by a non-judiciary administrative entity. The effect of a divorce is that both parties are free to marry again.
The subject of divorce as a social phenomenon is an important research topic in sociology. In many developed countries, divorce rates increased markedly during the twentieth century.
Among the nations in which divorce has become commonplace are the United States, the United Kingdom, Canada, Germany, Australia and Scandinavia.
The only Western country where divorce is not legal is the British Crown Dependency of Sark.
Types of divorce
Though divorce laws vary among jurisdictions, there are two basic approaches to divorce: fault based and no-fault based. However, even in some jurisdictions that do not require a party to claim fault of their partner, a court may still take into account the behaviour of the parties when dividing property, debts, evaluating custody, and support.
Laws vary as to the waiting period before a divorce is effective. Also, residency requirements vary. However, issues of division of property are typically determined by the law of the jurisdiction in which the property is located.
Under a no-fault divorce system, divorce requires no allegation or proof of fault of either party. The barest of assertions suffice.
For example, in countries that require «irretrievable breakdown», the mere assertion that the marriage has broken down will satisfy the judicial officer.
In other jurisdictions requiring irreconcilable differences, the mere allegation that the marriage has been destroyed by these differences is enough for granting a divorce. Courts will not inquire into facts. A «yes» is enough, even if the other party vehemently says «no».
The application can be made by either party or by both parties jointly.
Prior to the late 1960s, nearly all countries which permitted divorce also required proof by one party that the other party had committed an act incompatible to the marriage. This was termed «grounds» for divorce (popularly called «fault») and was the only way to terminate a marriage.
Most jurisdictions around the world still require such proof of fault. In the United States, no-fault divorce is now available in all 50 states and the District of Columbia—New York, the last state to still require fault-based divorce, passed a bill in 2010 permitting no-fault divorce.
Fault-based divorces can be contested; evaluation of offenses may involve allegations of collusion of the parties (working together to get the divorce), or condonation (approving the offense), connivance (tricking someone into committing an offense), or provocation by the other party. Contested fault divorces can be expensive, and not usually practical as eventually most divorces are granted. Comparative rectitude is a doctrine used to determine which spouse is more at fault when both spouses are guilty of breaches.
A summary (or simple) divorce, available in some jurisdictions, is used when spouses meet certain eligibility requirements, or can agree on key issues beforehand.
- Short marriage (less than 5 years)
- No children (or, in some states, when the spouses have resolved custody and set child support payments for children of the marriage)
- Minimal or no real property (no mortgage)
- Marital property is under a threshold (around $35,000 not including vehicles)
- Each spouse's personal property is under a threshold (typically the same as marital property)
It is estimated that upwards of 95% of divorces in the U.S. are «uncontested», because the two parties are able to come to an agreement (either with or without lawyers/mediators/collaborative counsel) about the property, children, and support issues.
When the parties can agree and present the court with a fair and equitable agreement, approval of the divorce is almost guaranteed. If the two parties cannot come to an agreement, they may ask the court to decide how to split property and deal with the custody of their children.
Though this may be necessary, the courts would prefer parties come to an agreement prior to entering court.
Where the issues are not complex and the parties are cooperative, a settlement often can be directly negotiated between them. In the majority of cases, forms are acquired from their respective state websites and a filing fee is paid to the state. Most U.S.
states charge between $175 and $350 for a simple divorce filing. Collaborative divorce and mediated divorce are considered uncontested divorces. In the United States, many state court systems are experiencing an increasing proportion of pro se (i.e.
, litigants represent themselves without a lawyer) in divorce cases. In San Diego, for example, the number of divorce filings involving at least one self-representing litigant rose from 46% in 1992 to 77% in 2000, and in Florida from 66% in 1999 to 73% in 2001.
 Urban courts in California report that approximately 80% of the new divorce filings are filed pro se.
Dissolution of Marriage (Divorce) | Schedule a Consultation
Divorce is the most common legal mechanism by which two people formally, and legally, end their marriage. Divorce cases, termed “dissolution of marriage” under Colorado statute, are heard at the district court level.
A divorce case is commenced via the filing of a Petition for Dissolution of Marriage, a Summons (unless filed jointly), and a Case Information Sheet. When filing for divorce, there will be a roughly $200 filing fee, which is paid to the court at the time of filing.
For persons unable to afford the filing fee, a motion to proceed with the filing fee being waived may be filed.
The end result of a divorce case is the dissolution, or termination, of the marriage.
When the marriage is dissolved, the court will enter a Decree, which is a one or two page document indicating that the marriage is officially ended.
Colorado is a “no-fault” divorce state, meaning that there do not need to be specific grounds for the divorce other than stating that the marriage is “irretrievably broken with no chance of reconciliation.”
To obtain a divorce in Colorado, one of the spouses must have been domiciled in the state for at least 91 days prior to the filing. Once the other party has been served, or has jointly signed off on the Petition for Dissolution of Marriage as a co-petitioner, there is a 91 day waiting period. The decree of dissolution cannot be entered until that 91 day period has passed.
In a divorce case, there are several issues that will need to be resolved as part of the process. The primary issues include:
- Division of Marital Property
- Division of Marital Debt
- Maintenance (Alimony)
In cases in which there are minor children of the marriage, additional issues will also need to be resolved, specifically:
- Child Custody (Allocation of Parental Responsibilities)
- Child Support
The substantive issues in need of resolution will ultimately either need to be agreed upon by the parties, with those agreements being set forth in a written document, generally called a “separation agreement,” or they will be resolved by the court after an evidentiary hearing.
If the parties agree on some issues, but not all, they can file written agreements regarding the matters they agree upon and still proceed to a court trial for the judge or magistrate to rule on the issues they do not. When the parties agree upon all issues, the case is deemed to be “uncontested.
” When there are issue the parties cannot resolve on their own, the case is deemed to be “contested.”
The general sequence or process of a divorce case will be the filing, followed by an initial status conference, which is required to take place within 42 days of the case being filed. The initial status conference will either take place in front of a judge or magistrate, or more often in front of a Family Court Facilitator.
The primary purpose of the initial status conference is for the court to make an assessment of what the contested issues are, what financial or other disclosures need to be made, whether there is a need for financial or child related experts, and how long the parties believe they need before the case can be set for a final or “permanent orders” hearing.
As courts want people to attempt to resolve their contested issues, most people with a divorce case in the Denver area will be required to attend at least one session of mediation prior to their final hearing.
If there are temporary issues to be resolved while the divorce case is pending, either party may also ask for a “temporary orders” hearing at which issues of temporary child custody, parenting time, child support, spousal support, and use of property can be determined.
As part of the divorce process, even if the case is uncontested, the parties will be required to exchange comprehensive financial disclosures related to income, assets, debts, and expenses. The duty to provide these documents is mandatory and cannot be waived. If more information is needed by either party, formal discovery can also be issued.
In divorce cases which have contested issues, the time from start to finish will generally be somewhere between 5 months and 8 months, though each case is different and the process may take longer in some counties than others.
People can file for divorce on their own or with a family law attorney. Having an attorney can help ensure that your interests are represented, that you are treated fairly, and that you get an appropriate resolution, whether through settlement or a final divorce hearing.
Once the divorce is done, the court still retains jurisdiction to enforce its orders. The court also retains continuing jurisdiction over issues related to child support and child custody, as well as spousal maintenance in most cases in which maintenance is ordered.
Each case is different and some can be quite complex. Regardless of the complexities parties might face, the rules and general process for divorce in Denver is going to be the same.
Dissolution of Marriage
Our firm understands that every client is unique and their problems are individual. Our job is to ascertain the facts and then apply the facts to the law to implement strategies and techniques which are designed to protect rights and obtain client's goals.
In summary dissolution cases, it is important to make sure that the minimum legal requirements are met. Having an attorney can assist in making sure that the pleadings are done correctly and that the Judgment is entered.
It is important to hire the right San Diego divorce attorney and one who will give you personal service and realistic expectations.
Summary Dissolution: this is a divorce however is limited in San Diego to specific factual patterns. These include, but are not limited to, marriage of less than five years, no children, no real property, no retirements and personal property less than an aggregate value of $25,000.
These requirements change over the years as do the local rules and the above is a summary only. In this type of divorce, the pleadings are minimal and can be filled out by a person representing themselves [pro per] or by the hiring of an attorney.
In addition, in San Diego, a free service is provided by the Family Law Facilitator which assists persons representing themselves in filling out the forms properly and making sure all of the legal requirements are adhered to.
In this divorce, both parties must agree to all of the terms and conditions of the agreement in addition to the mandatory requirements for the filing so this is limited both factually and by agreement only.
This Joint Petition for Summary Dissolution of Marriage is contained on Family Law Form 800. In order to proceed with a summary dissolution in San Diego County, this must be a joint petition for a summary dissolution. If both parties do not agree, then the only option is a «regular» dissolution.
In a summary dissolution, both parties must certify under penalty of perjury that they have read and understood the Summary Dissolution Information booklet which is on Family Law form 810. One or the other must have lived in San Diego County for at least three months prior to the filing of the petition for a dissolution of marriage and six months in the State of California.
There must be no minor children. Neither party may have any interest in any real property anywhere however a lease is acceptable as long as this terminates within one year from the date of the filing of the petition. Except for obligations for automobiles, the parties cannot owe more than $5,000. Both parties must complete a Family Law Form 150 which is the Income and Expense Declaration.
This is a pleading signed under penalty of perjury which lists all of the income and all of the expenses and this must be disclosed and served upon the other party. In addition, both parties must complete and serve copies of the worksheets on pages 8, 10 and 12 of the booklet. In addition, the wife can choose to have her former name restored and this is her unilateral right.
There can be no spousal support ordered in a summary dissolution. In addition, the marriage cannot be for a duration of more than five years. The wife must certify that she is not pregnant as well as not having children between the parties.
Both parties must disclose any investment, business or other income-producing opportunities that have arisen since separation based upon investment or business or other factors which arose during the marriage. In California, the presumption is that all property acquired prior to date of marriage is separate property.
In California, the presumption is that all property acquired from date of marriage to date of separation is community property. In California, the presumption is that all property acquired post date of separation is separate property. Once the disclosure requirements are satisfied, this will meet the statutory requirement for the preliminary declarations of disclosure.
There is a notice on the bottom of the form on the back side that both parties need to read carefully and consider. The booklet and form are available at www.courtinfo.ca.
gov/selfhelp and there are many forms and other useful information on this website in general.
An attorney can make this process less frustrating and to lessen tension and conflict and the legal fees for a summary dissolution of marriage are not as much as for a standard divorce.
Contact Us Online or call us at 858-312-8500 in Southern California. Our lawyers will be pleased to offer you a complimentary and confidential consultation up to a length of 30 minutes to discuss strategies and techniques to assist in protecting your rights and trying to obtain your legal goals.
What Are The Grounds For Dissolution Of Marriage?
Ending a marriage is not easy; it can involve a long process. However, you need not always part ways after arguments and conflicts. There are certain legal procedures, which give the couple a chance to end the marriage on mutually agreed terms.
One such procedure is the dissolution of marriage. If you are looking for ways to end your marriage amicably, then this MomJunction post could be helpful. We tell you about the common procedure followed for the dissolution of marriage in the US.
What Is Dissolution Of Marriage?
Dissolution of marriage is the legal procedure to end a marriage officially. In dissolution, both the parties come to a mutual agreement on the division of marital property, spousal support, parental rights, and child support. So, there is no space for accusations and counter-accusations.
You can file for the dissolution of marriage on the grounds that fall within the legal framework of the state legislature.
Is The Dissolution of marriage different from divorce?
They are used synonymously. Both dissolution and divorce are the legal ways to end a marriage and are used interchangeably. However, in a dissolution of marriage, both the parties come to a mutual agreement regarding the distribution of property, child custody, alimony, etc., and the court passes the decree without any further trials.
On the other hand, divorce happens when the parties have a disagreement and decide to fight it out in court. The court intervenes and settles the disputes in a series of trials.
- [ Read: What Is Divorce Mediation ]
- In the US, each state has its own set of grounds. The below flowchart covers the most common grounds for dissolution of marriage, followed by a detailed explanation:
- * They are not the grounds but the type of marriage that the couple might have entered.
1. Grounds for no-fault dissolution of marriage
In this type, both the partners file a petition of mutual agreement to separate without the need to prove the fault of their spouse. The most common ground in the case of no-fault dissolution is “irreparable breakdown of marriage” or “irreconcilable differences”.
After both the partners have agreed and signed the petition for this type of dissolution, they cannot object to the other party’s plea for dissolution. In this type of dissolution, the couple needs to stay apart for a certain period of time before filing the petition.
In the US, a few states accept only the no-fault grounds. Next, we tell you about the various aspects of such dissolution of marriage.
I. The true no-fault states: 17 US states grant the dissolution on the no-fault grounds only. This means the divorce is granted on the basis of “irreconcilable differences” between the couple.
The court does not allow casting faults as a ground for the dissolution of marriage.
However, if there are faults, they could be considered as a factor at the time of granting child custody, dividing the property, providing alimony, etc.
The true no-fault states are Wisconsin, Kentucky, Washington, Oregon, Nevada, Nebraska, Montana, Missouri, Minnesota, Michigan, Kansas, Iowa, Indiana, Hawaii, Florida, Colorado, and California.
The below table covers the basic features of a true no-fault dissolution in each state:
|Oregon||Six months or 180 days before filing for dissolution||
|Nevada||At least six weeks||Community property: Any income or property earned by the couple during their marriage is community property and is divided equally.||Yes|
|Nebraska||One year||Equitable division||Yes|
|Montana||90 days||Equitable division||Yes|
|Minnesota||Six months or 180 days||Equitable division|
|Hawaii||Six months||Equitable division||Yes|
|Colorado||3 months or 90 days||Equitable division||Yes|
|Wisconsin||30 days||Community property division||Yes|
|Kentucky||180 days||Equitable distribution||Yes|
|Washington||90 days||Community property distribution||Yes|
|Missouri||90 days||Equitable distribution||Yes|
|Michigan||1 year||Equitable distribution||Yes|
|Iowa||1 year||Equitable distribution||Yes|
Child custody and support in the true no-fault states:
The court usually looks for joint custody. Where that is not possible, it will consider factors such as emotional ties, interest, desirability, and absence of abusive behavior while deciding the custody. The individual income levels are also a deciding factor.
[ Read: What is Divorce Decree? ]
II. Exceptions among the true no-fault states
A few states among the true no-fault states accept “incurable insanity” as a ground for dissolution, along with “irreconcilable differences”.
If the spouse is insane and mentally incompetent for some time, and the doctors have confirmed that there is no chance of recovery, or if the partner fails to perform marital duties, then the court will accept the dissolution of marriage. Those states include:
|California||6 months||Community property distribution||Yes|
|Florida||6 months||Equitable distribution||Yes|
|Kansas||60 days||Equitable distribution||Yes|
|Indiana||6 months||Equitable distribution||Yes|
|North Carolina||6 months||Equitable distribution||Yes|
Process For Dissolution Of Marriage Under No-Fault Grounds
- Both the partners must come to a mutual agreement that they are intending to dissolve the marriage due to irrevocable differences.
- Each state in the US has specific requirements when it comes to the residency, property settlements and child support, check what is applicable to you.
- Come to a mutual agreement on all the aspects of the dissolution, such as the distribution of marital property, child support and custody, and alimony.
- The official divorce forms can be obtained from the court clerk, online or from your local library.
- Fill in the forms and submit them, along with the necessary proofs, at the court clerk’s office. You may have to pay a filing fee.
- The spouse must be notified, and a proof of that must be attached.
- Unless there are any objections or obstacles, there will be one hearing, and the judge will ask for any additional information needed.
- After the waiting period, the judge will sign a certificate officially dissolving the marriage.
2. Grounds For Fault Dissolution Of Marriage
In this type, there is no agreement between the couple. The divorce is initiated by one of the partners stating one or multiple grounds for the dissolution. In such cases, the court will tell the defendant to counter.
The marriage cannot be dissolved and is now termed as a divorce, wherein both the parties have to hire lawyers and proceed to trial until the court grants divorce as well as decides on the property distribution and child custody rights. Fault dissolutions do not require the partners to live apart for a specific period of time.
The usual grounds for a fault dissolution of marriage are:
- Voluntary abandonment for a certain period of time
- When one of the partners is facing life imprisonment in any state for a period of more than one year and has a minimum sentence of seven years
- The commission of a crime against nature or a beast either before or during the marriage
- Getting into addictions such as alcohol, narcotics, etc., after marriage
- Confinement of the partner to an asylum and is declared incurable at the time of filing the petition.
- If the wife gets pregnant during their marriage without the husband’s knowledge
- In the case of violent, cruel and inhuman treatment
The rest of the states except the true no-fault states accept both fault and no-fault grounds for dissolution of marriage. However, as mentioned in the previous section, the five states from the no-fault category accept only insanity as the ground.