No matter how long spouses have lived apart, no matter what the financial arrangement between spouses is, and no matter if spouses interact with one another or lead completely separate lives, a married couple cannot be legally divorced without an order from a court. At a minimum, to obtain a legal divorce, one spouse must initiate a divorce action by filing a complaint in court alleging specific facts to meet certain statutory requirements and must subsequently prove his or her case before a judicial official.
While a legal divorce requires certain action by the court, the manner in which divorce litigation proceeds is greatly influenced by the behavior of the parties. Most people seek an “amicable” divorce, but the legal way of framing this procedure is either as a “contested” or an “uncontested” divorce. Interestingly, the overwhelming majority of family law cases settle before a judge has to make a decision. In cases with protracted litigation, a judge’s decision may be the only way a case can resolve. With this in mind, it is important to understand how the “emotional divorce” and the “financial divorce” affect the “legal divorce.” The likelihood of a procedurally simple legal divorce is greatly enhanced if parties make the effort to work through emotional and financial issues ahead of a formal filing with the court. In particular, a comprehensive and clearly written marital settlement agreement that is reached by the parties can serve as a map to remind the parties of their obligations to one another and to their children.
Mediation is a respectful process that can help divorcing couples work their way through the legal and financial aspects of divorce without emotional destruction. While an ethical and competent mediator will always advise parties that each is entitled to his or her own legal counsel before entering into an agreement, mediation can allow for significant savings of time and money because both parties are in the same space at the same time with the opportunity to communicate in safety and good faith. Navigating this territory alone can be a difficult undertaking. While most divorcing couples experience sadness and disappointment in this situation, for some a legal divorce is devastating. For others, a legal divorce represents liberation. For everyone, a legal divorce is truly the beginning of a new chapter in life.
