Orange County Divorce Lawyers
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There are two types of divorce: uncontested and contested. There are significant differences between a contested and an uncontested divorce.
Uncontested Divorce
An uncontested divorce could also be called an amicable divorce. Uncontested means, first of all, that both parties agree to divorce.
It also means that both parties agree on everything: child custody, child support, spousal maintenance (AKA alimony), and division of all assets. There is nothing that is not agreed upon. The judge does not have to decide anything in an uncontested divorce. The judge simply grants the divorce, and the former spouses go their separate ways. Uncontested divorces are also the quickest divorces, most of the time. Since everything is agreed upon, and there is nothing to argue over or mediate, there’s nothing to delay the proceedings.
Contested Divorce
A contested divorce is any divorce that isn’t an uncontested one. It doesn’t necessarily mean that you and your husband are actively fighting over anything; it can simply mean that there is at least one issue that you are not in agreement on.
If your husband hasn’t consented to a divorce, you can still file, but it would be a contested divorce. This means you will need to serve him, and he will need to respond to your petition for divorce.
It also means that he will, most likely, argue over things such as child custody, child support, and spousal maintenance. This does not mean that you will not be granted your divorce.
However, contested divorces generally take longer because of the issues that need to be worked out. Once you file and serve him, he has 20-30 days (depending on how he was served) to file his answer. Then the case will be put on the court’s calendar and there will be court conferences to try to find agreements on the issues. There may be mediation, and ultimately, the judge may enter a decision on matters that cannot be agreed on.
An uncontested divorce is easier and faster than a contested one, but either one can ultimately lead to the same result: your marriage will be dissolved. It’s important, however, to make sure that you meet all the legal requirements before your file, so that you don’t drag out the case any longer than it absolutely has to be. It’s also important to make sure that you don’t put yourself in a position where you come out with the short end of the stick, so to speak.
A lawyer can help you ensure that your contested divorce isn’t harder than it needs to be. They’ll ensure that you meet all the legal requirements to file, that you properly serve your husband, and that you get the fairest outcome possible in a contested divorce. A lawyer will ensure the assets and debts are equitably distributed, custody and child support are fair, and the divorce is complete as quickly as possible. If your husband hasn’t consented to the divorce, it’s even more important that you hire a lawyer to help you through the process.
Is a separation agreement enforceable?
People enter into a marriage with the best of intentions. They want to make a life with someone they love. Over time, however, sometimes things can go wrong. A marriage may not be working for one or both partners. In that case, a couple may want to consider steps that allow them to move on or perhaps see if they might want to live apart for awhile. Getting a divorce can be in their best interests and the interests of their children. It allows each partner to dissolve the marriage ideally on favorable terms that both parties find satisfactory. However, while a divorce can sound ideal in the abstract, keep in mind that a divorce may require several steps before it is final and legal. One such step is for the parties to get a separation. This step means that both parties no longer live together. Anyone contemplating this process should know that there are generally two types of separations. They should also be aware that these kinds of separations are not necessarily available in all states. It’s important to be aware of the differences between the two before making any kind of choice about your future living arrangements in your state.
Informal Separations
Informal separations are common during the course of many marriages. People may choose to live apart for all sorts of reasons without getting a divorce. Someone has taken a job somewhere for a short period of time and his wife and kids don’t want to follow such a long distance. Military members often face separations from their spouses while serving overseas. While these separations happen, they are not necessarily anything related to a divorce. A couple may also choose to separate informally as part of the process that lets them ultimately dissolve the marriage. They might do so because they want to test the waters and see if this is a good idea. One partner may get an apartment while the other continues to live in the family home with the kids. These kinds of separations may be personally meaningful but they do not have the force of law. An informal separation may be good if the couple isn’t really sure about the divorce. They may want to see if this course of action is a good idea instead and then figure out if they are happier first. If the partners go through marital counseling, they can reconcile without the need to involve the legal system in any way. They are still married during this time.
A Legal Contract
A couple can also opt for a legal separation. The couple has two options here. They can go to a lawyer and draw up a highly specific contract that provides both parties with a legally binding agreement. This is not necessarily the first step to a divorce although it can be later. This is just a contract that the parties agree to separate and adhere to legally during the term of separation. A couple can stay legally separated for as long as they like without getting a divorce. Unlike informal separations, these are considered legally binding contracts that the court can enforce if breached. It may even include the right to see another partner even if they never choose to get divorced. For some couples this kind of arrangement can be useful in that it let them avoid divorce but also lets them have a form of legal separation that serves their best interests.
Heading For Divorce
While some people choose to separate and get a divorce, others want to move on as quickly as they can. At the same time, they may need to wait for the divorce to be finalized. During this time, the separation that has been agreed to by them will be in force. A separation agreement may be highly detailed. The couple have spelled highly specific questions such as the exact amount of child support required by one partner, how often each partner gets to use a vacation home, who will cover the children’s health care bills and even who gets custody of a beloved family pet. These agreements are legally enforceable both before the divorce and after it. If one party does not live up to the requirements spelled out in the agreement, they can file what is known legally as a motion to enforce. This is considered a dispute just like any other agreement. The court will consider the motion and then consider what should be done in order to enforce the contract.
State Laws
It’s important to remember that each state has different laws when it comes to separation and divorce. Time frames for separation before a divorce is granted vary greatly. The same is true of specifics such as how much child support is required as well as who gets to keep the family home and certain types of assets built up during the marriage. Some states do not allow the parties the option of a legal separation agreement. This is why it is important to contact a lawyer when planning any kind of formal or even an informal separation. Neither party’s rights should be compromised by planning that was wrongly executed. Both embers of the couple as well as their children are entitled to consideration during this process. A go lawyer can help make sure the separation agreement is in force at all times before the divorce.
Can I marry someone else if we’ve been separated for a long time?
When you’ve been separated for a long time, living in separate homes and leading separate lives, it can often feel like you’re already divorced. You may even be dating again, and if you’re seriously dating someone, it’s easy to start thinking about a future with your new partner.
But separated and divorced are two separate things, and it’s important that you don’t do something that could get you into major legal hot water.
Difference between separation and divorce
If you are separated, you are still married. You may be leading separate lives, with separate finances, homes, and plans for the future, but you are still married to each other. You still have all the legal obligations of a married couple. Emotionally, you may feel like the marriage is over, but it is not.
Divorce is the official, legal end of a marriage. When you are divorced, you are no longer married to your spouse and have no further legal obligations beyond any court orders regarding child or spousal support, or any debts that were assigned to you in the divorce.
Is there such a thing as common law divorce?
Some people mistakenly believe that if they live separately for a certain amount of time that they are automatically divorced. This is not the case. You could live separated from your spouse for the rest of your life, but until you file for and are granted a legal divorce, you are still married to your spouse.
This is why it’s important to file for and proceed with a divorce, if you truly do not want to be married to your spouse any longer.
When can I remarry?
As long as you are only separated, you cannot get married without committing a crime. That crime is called bigamy and it is a Class E felony in New York. This means it’s punishable by more than a year in prison.
Once your divorce is final, you are free to remarry. You will be required to list your marriage history, including the full name of your former spouse, the date the divorce was finalized, and the city and state in which it was granted in order to get a marriage license. You may also be asked to produce the divorce decree. Therefore, it is very important that you do not attempt to begin this process before your divorce is final.
If you are dating, and considering marrying your new partner, but are not divorced, it is important that you hire a lawyer and begin the divorce process. The sooner you begin the process, the sooner it will be complete, and you can get on with your life. It’s also important to get your divorce complete so that you can ensure that your new partner is fully informed of any support obligations or debts you may be dealing with as a result of your divorce before they agree to marry you. You don’t want another divorce because your new spouse feels you deceived them.
What happens if he refuses to sign after the divorce is filed?
Many people are still under the impression that they cannot obtain a divorce if one party refuses to sign their divorce paperwork. While a marriage requires two people, a divorce only needs one party. In any type of divorce, contested or uncontested, one person petitions the court by filing a Complaint of Divorce document. The other party is then served the Complaint via a service to process, and in cases filed in the state of New York and elsewhere, they are served a Summons as well.
In an uncontested divorce, the two parties may simply file a joint petition for divorce with the court. This is the simplest divorce process and the time between filing and finalization is usually quite short. Both parties are in agreement with the divorce, and they don’t have any issues of contention between them such as custody or property which will require attorneys to negotiate for them.
One party may have filed for a contested divorce on the grounds of cruelty, abuse, criminality, abandonment or any number of other reasons which will require the court to mediate or render judgment on. This means that whether the defendant party refuses to sign or not, a hearing is required to determine the details of the contention from the plaintiff. The defendant party still must be served under the law, but is neither required to sign for the plaintiff to proceed with the divorce nor must they be present at the hearing.
The party who has been served with a Complaint of Divorce has between twenty and thirty days to make a formal Answer to the Complaint either by simply signing the document and returning it indicating they are not going to contest the divorce or by signing it stating that they disagree with the divorce and want to proceed with hearings and a possible trial if that is what is required in that particular case. The served party might also simply ignore the Complaint document or refuse to sign it.
If your spouse has not responded to the Complaint of Divorce within the thirty days designated by the court, the petitioning party can file a request to enter a Default. A Default is filed when a spouse cannot be located or if they fail to respond within the stipulated thirty days or other time the judge has set forth.
The judge or court will then set a Default hearing for you to appear. At your hearing, the judge will examine the reasons and statements you made regarding your divorce and listen to any statement you want to make in the hearing. He may issue a ruling at that time for finalization. He could also extend the amount of time in which the defendant has to respond or enter other judgments.
Unless your case is a simple uncontested joint petition for divorce, there are always variables that can require different steps or details that may need more attention which only an expert can provide. Although it only takes one party in a marriage to end a marriage, each marriage is individual and unique. Only your attorney can advise how best to proceed especially if the marriage has children, property or other financial matters for which a disposition must be determined.
Who receives custody of the children when a divorce happens?
There are many ways custody can be decided in a divorce. Generally speaking, both parents have an equal right to custody. It’s important that both parents understand what custody is, precisely, before deciding who gets custody.
Physical and Legal
There are two kinds of custody: physical and legal. Physical custody is residential custody, or where the children live. Legal is the power to make major decisions regarding the children, such as healthcare, religion, or education.
Physical and legal custody can be ordered differently. For example, the mother can have sole physical custody, which means the children live with her, while the mother and father have joint legal custody, which means they must agree on all the major decisions. These orders can be in any combination, including one parent having sole physical and sole legal custody.
Once you understand the way custody can be ordered, let’s look at how it can be decided.
Parents can decide
If the divorcing couple is able to agree on things, they may be able to discuss and come to an agreement regarding child custody. If they can, in most cases, a judge will incorporate their agreement into the final divorce decree. This is typically the easiest, and fastest, way to resolve custody.
Mediation
If the parents are not able to agree, they can choose (or some states may order them) to go to mediation. In mediation, a neutral third party will help them try to find a compromise. The mediator will not usually make recommendations, but will help the couple consider the factors that affect custody to see if they can come to an agreement. If they can, this agreement will then be presented to the judge, and be incorporated into the divorce decree.
Guardian ad Litem
In particularly contentious cases, or in which both parents are very determined to have custody, a Guardian ad Litem can be appointed for the child(ren). A Guardian ad Litem is usually an attorney, and they represent the child. They’ll look at things like the home environment, the relationships the child has with each parent, parental incomes, the willingness of each parent to foster a relationship between the child and the other parent, and other factors to determine the best option for the child. This recommendation is then presented to the court, where the parents can disagree with it, but a judge will make a final decision.
The Judge Decides
When all else fails, or after a Guardian ad Litem has made a recommendation, a judge looks at “the best interests of the children” to decide where the children should live. He’ll look at parental incomes, who the primary caretaker was, and many other factors to decide, and his decision will be put in the divorce decree.
Unless the parents are able to agree on custody, most will find it helpful to hire a lawyer to help navigate the process and ensure that their interests are fully represented and heard by the court.
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