Separation and Divorce

1. When a couple becomes incompatible, there are two options a. Separation: couple lives apart for either a set amount of time or indefinitely, but remain legally married

i.Remain financially joined ii.Can’t re-marry iii. Often create separation agreement: a written document that states couple’s intentions in terms of alimony, child support, custody, (lists continuing legal rights of each parent)

1. Once signed by both, it becomes a legally enforceable document (meaning they can sue each other over violations of it)

2. Does not have to be approved by a court; can say anything the couple wants a. if a couple does choose to have it approved by court, it can not be changed without court’s approval

b. Divorce: court order that legally ends a marriage i. Half of marriages end in divorce ii. Pro se divorce: divorce done without the aid of lawyers

iii. Contested Divorce: If there are significant disagreements over divorce even happening, or legal issues within divorce (ex: Custody) (divorce now usually requires lawyers)

1. Lawyers usually recommend mediation (3rd party helps to solve problems) b. mediation must be reviewed by both lawyers before it goes to court 2. Without mediation the court determines grounds of a divorce in a trial setting

3. Historically, states only allowed divorce when one spouse could prove the other was doing something wrong.

b. Grounds for divorce include: i. adultery ii. desertion iii. mental cruelty iv. physical cruelty v. insanity

4. Recently, courts have allowed no-fault divorce: divorce in which proof of wrongdoing by either party is unnecessary a. only have to prove irreconcilable differences: problems that can not be worked out

iv. Alimony: Court-ordered allowance one spouse pays to the other a. can be enforced during separation, divorce, or while case is being decided

v. Palimony: support payment made by one unmarried cohabitant to the other after the couple split up a. common law marriages b. gay partners (domestic partnership)

vi. Prenuptial Agreement: Agreement Prior to marriage – provides for dispersal of assets in case of separation, divorce

vii. Issues to be settled during divorce hearing in court: a. child custody (joint, sole) b. division of assets (house, cars, bank accounts) c. support payments (to spouse, for child) d. visitation rights (frequency, length)