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Types of divorce

In some jurisdictions, 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 (for example, see Family Code Sections 720 and 1100 of the California Family Code). Grounds for divorce differs from state to state in the U.S. Some states have no-fault divorce, some states require a declaration of fault on the part of one partner or both; some state allow either method.

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.

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.

Contested divorce

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. In such a divorce the spouses are not able to agree on issues for instance child custody and division of marital assets. In such situations, the litigation process takes longer to conclude. The judge controls the outcome of the case. 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 has gained popularity.

 At-fault divorce

Before the late 1960s, nearly all countries that permitted divorce 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 available in all 50 states, as is the case with Australia, New Zealand, Canada and other Western countries.

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.

 Summary divorce

A summary (or simple) divorce, available in some jurisdictions, is used when spouses meet certain eligibility requirements, or can agree on key issues beforehand.

No-fault divorce

Some Western jurisdictions have a no-fault divorce system, which 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 irreparable 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.

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 that almost always have considerable weight in fault proceedings. (citation needed) In custody cases, courts might consider factors that may appear like 'fault' based issues but are really related to protection of the child or children. These may include but are not limited to one or both parent's substance abuse, history of violence, cruelty, instability, neglect or endangerment.

• 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)

 Uncontested divorce

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 (citation needed

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.^[32] Most U.S. states charge between $175 and $350 for a simple divorce filing. Collaborative divorce and mediated divorce are considered uncontested divorces.

Because of additional requirements that must be met, most military divorces are typically uncontested.

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

Collaborative divorce

Collaberative divorce is a method for divorcing couples to come to agreement on divorce issues. In a collaborative divorce, the parties negotiate an agreed resolution with the assistance of attorneys who are trained in the collaborative divorce process and in mediation, and often with the assistance of a neutral financial specialist and/or divorce coach(es). The parties are empowered to make their own decisions based on their own needs and interests, but with complete information and full professional support.

Once the collaborative divorce starts, the lawyers are disqualified from representing the parties in a contested legal proceeding, should the colaborative law process end prematurely. Most attorneys who practice collaborative divorce claim that it can be more cost-effective than other divorce methods, e.g., going to court. Expense, they say, has to be looked at under the headings of financial and emotional. Also, the experience of working collaboratively tends to improve communication between the parties, particularly when collaborative coaches are involved, and the possibility of going back to court post-separation or divorce is minimized. In the course of the collaboration, should the parties not reach any agreements, any documents or information exchanged during the collaborative process cannot be used in court except by agreement between the parties.

Neither can any of the professional team retained in the course of the collaboration be brought to court. Essentially, they have the same protections as in mediation. There are two exceptions: 1) Any affidavit sworn in the course of the collaboration and vouching documentation attaching to same and 2) any interim agreement made and signed off in the course of the collaboration or correspondence relating thereto. The parties are in control of the time they are prepared to give their collaboration. Some people need a lot of time to complete, whereas others will reach solutions in a few meetings. Collaborative practitioners offer a tightly orchestrated model with meetings scheduled in advance every two weeks, and the range of items to be discussed apportioned in advance of signing up as well as the more open ended process, the clients decide.

Mediated divorce