What You Wish You'd Known Before Filing for Divorce
The moment you ask for a divorce, you may feel disappointed or confused—certainly, you'll feel emotional. That turbulent storm is made worse by the fact that most people have no idea about the process they're about to enter into until they're suddenly immersed in it.
Information can make heavy things a little bit lighter, so if you've considered the possibility of divorce, you might find it helpful to know what to expect.
Of course, it's virtually impossible to provide generalized answers about divorce because every single case is going to be a little bit different. However, there are critical aspects to be prepared for no matter your circumstances.
Whether your need is real or if you're just curious, here are a few big-picture variables and hurdles to know about.
Do I need a reason to get divorced?
"It used to be that the only way to get a divorce was that you had to show there was fault. But now, all states have a no-fault option," said Negar Katirai, a law professor and the director of the Domestic Violence Law Clinic at the University of Arizona James E. Rogers College of Law in Tucson. "One person just has to go to court and say, 'I don't want to be with this other person,' and that's all you need."
If you want a divorce, there's no need to put off the process in order to collect evidence or deliberate endlessly between pros and cons. Most courts won't get involved in issues like adultery or infidelity of any kind—even if there are laws on the books about such matters, they are very difficult to enforce and regulate.
Divorce courts are chiefly concerned with the division of property, assets and, in the case of children, responsibilities. Custody law is a related but entirely complex issue in its own right, but when it comes to family law, it does pay to be prepared from a logistical and frugal standpoint, if nothing else.
How gender and household roles influence judges
For the most part, ideas about how gender inherently or overtly influences court decisions surrounding divorce are hyperbolic and outdated, though, of course, inherent biases do exist in courtrooms and judges' minds across the country.
However, clarifying household roles in detail may be important for many couples going through a divorce. Correctly cataloging contributions to household involvement and asset accruement during the marriage may have a significant impact on how courts consider things such as personal property ownership, commercial and private assets, and more.
"There's this whole concept called 'commingling,'' Katirai said. Commingling in a marital sense refers to the idea that all assets and property acquired by either party in a marriage becomes part of the commingled property and assets held within the legal marital bond. In other words, until death or divorce, everything you earn or acquire once you're married is also the property of your spouse.
This area of law gets complicated in different cases: Katirai said there are certain types of assets and property that can come into a marriage and still fall under the sole ownership of one spouse.
"The one exception to the marital property is that if it's a gift or inheritance, then it's not shared," she said. So, if a relative passes away and their will stipulates an inheritance for one individual, it is not by default viewed as marital property.
Let's say you inherit a vintage car from a parent or grandparent. The car has sentimental value and a bit of property value, and you have a more economic option already, so it mostly sits in the garage. At some point, your spouse gets a part-time job and relies on the vintage car to commute to and from work.
It could be argued the vehicle has become commingled property, and if ownership is disputed, it could be up to a divorce court judge. It all depends on how the car is used within the context of the marriage, how strongly it was stipulated that the car was intended for the inheriting individual without room for interpretation, and other details that may arise during mediation and court proceedings.
It's worth repeating that your best bet is to figure all of this stuff out amicably on your own or with mediation. A little bit of personal compromise and interpersonal poise can save a lot of headache and suffering later on. Although judges strive to achieve equitable and fair results in divorce proceedings, certain aspects can make it impossible for both parties to be happy with every decision.
Judges can be biased or hard-pressed
"I think judges are biased, but I think in this realm, it's not even about the personal biases of the judges, it's more about the tools they have at their disposal that are so problematic," said Albertina Antognini, a law professor at the James E. Rogers College of Law in Tucson. Her work and research focus on gaps in protections for domestic partnerships without a marriage in place, which lends her unique expertise and perspective in matters of family law and marital topics, in general.
She said the black-and-white outlook we have about a partnership—in the sense of couples being either married or unmarried—creates widespread and systemic issues when it comes to family law, coupled separations and marital divorces.
While courts have made strides to make divorce and the rights associated with it more accessible and equitable, Antognini said old ideas still influence how judges think of separation between men and women.
"The legal doctrines that they have at their disposal are so steeped in marriage and problematic gender roles that they don't even realize what they're doing," she explained.
'If you can reach an agreement, I think it's better than whatever a judge will decide.'
Same-sex couples have had more success separating and gaining court assistance due to the fact that those courts are more practiced at it thanks to the previous ban on same-sex marriage, she said. However, courts will "gender" same-sex couples, for instance, if either member seems to fit into the court's ideas of what a housekeeper or a breadwinner might be.
Regardless of the identities or sexual orientation of the people involved, most couples will benefit from negotiating privately and compassionately.
"If you can reach an agreement with your ex about how you want things divided, it's more likely that you're going to be happy with that agreement than anything that a judge comes up with," Antognini said. "Unless, you know, the other partner is being completely unreasonable."
Katirai added that couples can avoid a tremendous amount of grief, not to mention financial burden, by omitting the courts and lawyers from the process as much as is possible.
"A lot of relationships sour just because there are irreconcilable differences and you just don't want to be together anymore. So, it's amicable," she explained. "If you can reach an agreement, I think it's better than whatever a judge will decide."
The emotional toll
Of course, you can't talk about divorce without mentioning the psychological and emotional effects these proceedings can have on a person and family.
After all, disrupting the family unit is at the core of what makes divorce so difficult, especially when kids are involved, requiring dividing time and sometimes allegiance. Even without children, both members of the marriage are likely to feel a sense of loss: It's almost impossible to describe how invested in one another we become when life is a dually shared experience.
Be sure to have emotional support set up if you're set to proceed with a divorce. Family and friends can be helpful during these trying times but are likely to be subject to their own perceptions and feelings as people who are close to you. A third-party therapist or counselor can be an invaluable asset to have in your corner when your other assets, and your life, feel like they are being torn apart.
Emotional and/or psychological support can be a big help when it comes to communicating and negotiating with your former spouse.
Even if you don't feel the need to book an appointment right now, having access to the number of a good counselor (attorney or otherwise) can be a lifesaver if divorce becomes apparent. While you're looking up attorneys and county clerks, take the time to find out what your therapy resources could look like as you navigate the often rocky road of divorce.
A last note to consider: Divorce can take a long time. Be prepared to practice patience. This is good advice for any scenario or period of life, but patience will definitely help you when it comes to dealing with all of the other complications and challenges that come with ending a marriage.
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