FAULT DIVORCE
or
NO-FAULT DIVORCE WITH AN AGREEMENT
or
NO-FAULT DIVORCE WITHOUT AN AGREEMENT
PART II: DIFFERENCES IN PROCEDURES
FAULT DIVORCE:
As stated in Part I, under this type of divorce action, one party to the
marriage blames the other for the marital
breakup and files a Complaint against the other. The Complaint is a form which
states a.) Who the parties are; b.) Where
they reside; c.) When and where they were married; d.)
Names and ages of children; and e.) The
basis for the "fault" in the marital breakup. Today, most
fault divorces are founded upon "cruel and abusive" treatment. Cruel
and abusive treatment does not have to include physical abuse, although it
frequently does, but can consist only of mental cruelty where one party has
verbally abused the other to such a degree as to negatively affect the other's
health. This is usually exhibited by the Plaintiff's not being able to sleep, gaining/losing
weight, inability to concentrate, interference with their being able to perform
their usual occupation, etc. In those instances, it is the emotional
destruction of the innocent spouse which forms the basis for a Complaint for
divorce due to cruel and abusive treatment.
The party filing the Complaint is the "Plaintiff" and the other
spouse is the "Defendant." Once the Complaint has been filed in the
appropriate Probate and Family Court, the other spouse needs to be formerly
notified of the pending divorce action. This is accomplished by serving a copy
of the Complaint, together with a Summons, on the other spouse. The Summons
acts as a cover letter, advising the spouse that he or she has 20-days from the
date of service to file his or her answer to the Complaint with the Court and
to send a copy of the answer to the Plaintiff or, if the Plaintiff has an
attorney, to the Plaintiff's attorney.
Unlike other types of civil actions whereby the Plaintiff may "win by
default" if the Defendant doesn't file his or her answer within the 20-day
period, no one "wins by default" in a divorce action. If no answer is
filed, the case may be considered "uncontested," and the Plaintiff
can then request a final hearing with the Court, which hearing will be scheduled
by the Court as soon as the Court has a date available. If the Defendant does
file an answer, with or without the assistance of an attorney, the case will be
considered "contested." Contested matters usually aren't scheduled
for final hearing until the parties, and/or their respective lawyers, have had
ample opportunity to negotiate a divorce settlement. As a result, there may be
considerable time between the time of the initial filing of the Complaint and
the date of hearing. In many counties, it may take several months for the Court
to be able to schedule the hearing.
In the interim, it may be necessary to obtain Temporary Orders establishing
issues of custody, support, visitation, etc. pending the final hearing. If
necessary, these can usually be scheduled quite quickly after the initial
filing of the Complaint.
At the time of the final hearing, all marital issues which have not been
resolved by agreement between the parties, will be
decided by the Judge. At that time, or within a short time thereafter, the
Judge will enter a decree of Divorce Nisi -- which means that the parties are
divorced, but that it is not final and absolute quite yet. The Decree Nisi will
ripen into a Decree Absolute 90-days later. Only at
that time will either party be free to re-marry someone else. No one has to go
back to Court at the end of the 90-days; the Decree Absolute enters due to the
mere passage of the 90- day period.
Contested, fault divorces are rarely challenged on the divorce itself, but are
usually fought over various marital issues: custody, support, division of
marital assets, liability for debts, etc. During the pendency
of the divorce action, either party may engage in "DISCOVERY."
NO-FAULT DIVORCE WITH
AN AGREEMENT: Usually, before anything has been filed in a
Probate and Family Court, both parties have arrived at a mutual understanding
that, for a variety of circumstances, the marriage is effectively over, neither
party wishes to blame the other for this breakdown, and they have entered into
a formal Divorce Agreement. Instead of a Complaint for Divorce being filed, a
Joint Petition is used, signed by the parties and/or their attorneys. As a
result, there is no necessity of having anyone served with a copy or with a
Summons. Once the formal Agreement has been reached, it is reduced to writing,
signed by both parties, and notarized before a Notary Public. The Joint
Petition, together with the Agreement, and a Supporting Affidavit of
Irretrievable Breakdown of the Marriage (along with the marriage certificate and
other related documents) are all filed with the Probate and Family Court.
Shortly thereafter, a hearing is scheduled by the Court (usually within
45-days). At the time of the hearing, the Judge will review the Joint Petition
and the Agreement, to be sure that it is fair and reasonable and that it makes
proper provision for the care, custody and support of any minor children, etc.
The Judge then will usually ask the parties several basic questions: are they
certain the marriage is irretrievably broken, have they read and understood the
Agreement, have they signed it freely and voluntarily, have they had an
opportunity to review it with an attorney, etc. If the Judge is satisfied, he
or she will the enter 1.) A Finding that there is an
Irretrievable Breakdown of the Marriage; and 2.) An
Order that the parties comply with the terms of the Agreement. Note that
no Decree of Divorce enters at this time, however. Without the necessity of
having to go back to Court, 30-days later a Decree of Divorce Nisi will enter
(copies will be mailed out by the Court), and 90-days later a Judgment of
Divorce Absolute enters on the Court's records. Again, it is only after this
90-day period (a total of 120 days from the day the parties were in Court) that
either party is free to re-marry someone else.
NO-FAULT DIVORCE WITHOUT AN AGREEMENT:
Again, in this type of divorce action one of the parties has determined that
the marriage is, for all intents and purposes, over. However, he or she does
not have sufficient grounds for a fault divorce or, even if he or she does have
grounds, he or she does not wish to blame the other. The procedures involved
here are somewhat similar to a Fault Divorce (see above), and a Complaint is
necessary to be filed. No blame is placed upon the Defendant, but rather, the
Plaintiff simply states that he or she has determined that an irretrievable
breakdown of the marriage has occurred. Again, often during the pendency of this type of divorce action, the parties are
able to negotiate a mutually acceptable Agreement and, if so, the case may be
converted to a No-Fault Divorce with an Agreement, and will proceed on that
basis. Again, the other spouse must be served with a copy of the Complaint and
a Summons.
A significant feature of this type of divorce is, however, that no final
hearing can be held until 6- months AFTER the Complaint was filed. Effectively,
the 20-day period in which the Defendant has to file an answer, is meaningless.
He or she will usually be permitted to file an answer at any time prior to the
final hearing which, again, cannot be held until 6-months have passed.
Temporary Orders may be necessary in the meanwhile, to establish temporary
custody of children, etc.
At the time of the final hearing, the Judge will hear testimony and accept evidence
regarding the disputed issues. Following the hearing, the Judge will make his
or her decisions, and enter the Decree Nisi immediately thereafter. Again,
however, there is still a 90-day waiting period following the entry of the
Decree Nisi before the divorce is final and absolute.
Which of the three procedures described above depends upon the parties
themselves, the facts of the case, and the circumstances surrounding the
marriage. Naturally, if a case is "uncontested" it may proceed rather
quickly (except for the 6-month waiting period described above). On the other
hand, contested matters can drag on for months and, in some instances, years.
It is always an attorney's obligation to assist the Court in expediting these
matters, or at least to streamline the case, by attempting thorough
negotiations. In that way, certain of the disputed issues might get resolved,
and the disputed issues can be narrowed so that a trial might only involve
those issues. For the most part, how well the parties can communicate with each
other will drive the time table on a divorce action. Parties who fight like
cats and dogs may never reach agreement on any issues (and in those cases, the
attorneys probably haven't done a good job) and their cases will drag on. In
the interests of both parties and their children, it is best (and usually
cheaper) to negotiate, communicate, negotiate, and communicate.