Marriage And Law: Breaking Points?

The breakdown of a marriage can be a distressing and disruptive experience, often requiring legal intervention to resolve matters such as separation, divorce, child custody, and property division. In some cases, mediation or counselling services may be sought to help couples reach an agreement on these issues without court involvement. When a marriage ends, spouses are no longer bound by the legal responsibilities of the covenant, and divorce serves as the legal means to terminate these obligations. While the specific laws vary across different countries and states, there are often requirements for residency, grounds for divorce, and waiting periods before finalisation. In most cases, it is advisable for each partner to seek independent legal advice to understand their rights and obligations during this process.

Divorce proceedings

Step 1: File a Divorce Petition

One spouse, known as the petitioner, must file a legal petition asking the court to terminate the marriage. This petition must include a statement that at least one spouse meets the state or country's residency requirements for divorce, a legal reason for divorce, and any other required statutory information. The reasons for divorce vary by state/country and whether the filing is for an at-fault or no-fault divorce. At-fault grounds include adultery, abandonment, and abuse, while no-fault grounds include irreconcilable differences.

Step 2: Serve the Divorce Petition

Divorce papers must be served to the other spouse, known as the respondent, and proof of service must be filed with the court. The respondent then has a limited time, typically 30 days, to reply and either accept or contest the terms presented in the petition. If the respondent does not respond, the court may grant a default divorce and immediately dissolve the marriage.

Step 3: Request Temporary Court Orders

If there are crucial matters that require immediate attention, such as financial support, marital property distribution, and child custody, either spouse can request temporary orders from the court. A hearing is held, and the judge typically acts quickly to grant a temporary order, which remains in force until the court modifies it or the divorce is finalized.

Step 4: Negotiate a Settlement

Unless both spouses agree on matters such as custody, support, and property division, a settlement must be negotiated. The court may schedule a settlement conference or mediation session to help resolve any remaining issues. Mediation can save time, money, and stress during the divorce process.

Step 5: Go to Trial, If Necessary

If negotiations fail, the court must intervene, resulting in a divorce trial. A trial is typically held before a judge, but in some cases, it may be held in front of a jury. Both sides present evidence and call witnesses to support their claims, and the court renders a final and binding decision.

Step 6: Finalize the Judgment

The final step in the divorce process is when the judge signs the judgment of divorce, also known as an order of dissolution. This ends the marriage and specifies the details regarding custodial responsibility, child and spousal support, and the division of assets and debts.

It is important to note that divorce proceedings can be emotionally and financially draining. Seeking legal representation and consulting with a divorce attorney can help protect one's interests and minimize stress during this challenging time. Additionally, understanding the specific laws and requirements of the state or country in which one resides is crucial for navigating the divorce process effectively.

Child custody and support

Child Custody

When a marriage breaks down, the welfare and best interests of any children involved are paramount. If the parents cannot agree on child custody terms, the courts will intervene and make a decision based on the children's best interests. In some jurisdictions, mediation is mandatory before approaching the courts. This process helps parents negotiate and decide on custody arrangements outside of court.

Child Support

Both married and unmarried parents have a legal obligation to financially support their children. When parents separate, they must establish child support arrangements to ensure the child's financial needs are met. These arrangements can be agreed upon mutually or, if there is disagreement, a court can order support payments based on federal and provincial/state guidelines.

Enforcement of Custody and Support Orders

If a parent fails to comply with a court-ordered custody or support arrangement, the other parent can take legal action to enforce the order. This may involve filing a violation petition, requesting a court hearing, or seeking emergency relief if the child is in immediate danger. The court has several enforcement mechanisms, including sanctions, wage garnishment, credit agency reporting, and license suspension.

Impact of Criminal Record

It is important to note that a criminal record can affect child custody and adoption rights. Parents with a criminal history may face additional challenges in securing custody or maintaining their parental rights. Seeking legal advice is crucial in such cases.

Unmarried Couples and Child Support

The laws governing child support for unmarried couples differ slightly across states/provinces. Generally, unmarried parents have the opportunity to work out a joint agreement without court intervention. However, if they cannot agree, the issues of custody, visitation, and child support will be handled similarly to married couples.

Property division

When a married couple divorces or separates, they must divide their assets and debts. This process is called property division, or property distribution, and it can be complex and contentious. The goal is to ensure a fair and equitable distribution of assets and debts between the parties.

Types of Property

Marital property, or joint property, includes assets and debts accumulated by the couple during the marriage. This can include paychecks, real estate, vehicles, personal property, cash, securities, bank accounts, retirement accounts, pensions, gifts to each other, and advanced educational degrees. Inheritances, personal injury compensation, and third-party gifts are generally considered separate property unless they are commingled with marital property.

Separate property is owned by only one spouse and is usually acquired by that spouse before the marriage or after separation. It can also include property inherited or gifted to one spouse during the marriage, as well as certain civil lawsuit awards or settlements intended for only one spouse.

Division of Property

In most cases, property division is decided based on the principles of equitable division, which means that property is divided fairly but not necessarily equally. Factors that may be considered when dividing property include the length of the marriage, the income and earning potential of each party, the contributions each party made to acquiring and maintaining the property, and the needs of each party, such as custody of children or ongoing healthcare costs.

Spouses can agree on the division of property through negotiation, mediation, or collaborative law. If they cannot agree, the court will decide which property is separate and which is marital, and will determine a fair and equitable division. In some cases, a spouse may be entitled to reimbursement if they used separate property to pay for marital expenses.

Preparing for Property Division

When preparing for property division, it is important to document all assets and debts, gather relevant financial documents, and identify any separate property. Working with a family law attorney can help ensure that an individual's interests are protected during the property division process.

Mediation and counselling

Marriage Counselling

Marriage counselling is a form of therapy that focuses on the relationship between the two partners in a marriage. The goal is to help couples improve their relationship, address specific issues or problems, and enhance communication skills. Counselling involves the exploration of emotions and feelings and is usually carried out with the goal of reconciliation in mind.

A counsellor may work with the couple to identify the underlying issues causing problems in their marriage and develop strategies to work through conflict in a constructive way. It can also be used post-separation to agree on their ongoing parenting relationship.

Family Mediation

Family mediation is a structured negotiation process facilitated by a neutral third-party mediator. The mediator helps the two parties to resolve disputes arising from a separation or divorce by improving communication and negotiation. Mediation can be used for divorce, separation, child arrangements, financial matters, and property division.

The mediator works to help the parties identify areas of agreement and negotiate solutions that are acceptable to everyone involved. The goal is to reach a mutually beneficial agreement that works for everyone, helping the couple to move forward with their lives.

When to Pursue Counselling and Mediation

The order in which counselling and mediation are pursued may vary depending on the specific circumstances. In some instances, family mediation may be the first step, especially if the parties have already tried counselling and it has been unsuccessful. In other cases, counselling may not be necessary, and family mediation may be the best option from the outset.

Marriage counselling is not generally a good choice if a marriage has involved domestic violence or substance abuse. In these cases, individual therapy is recommended before pursuing marital therapy.

If a couple is past the point of wanting to work on their marriage, marital therapy will not succeed, and divorce mediation is the next step.

Legal aid

• Domestic violence
• Family law
• Housing
• Public benefits
• Immigration
• Consumer issues
• Disability issues

Domestic Violence

If your partner is abusing you, legal aid can help you obtain a protective order, a child custody order, and divorce.

Family Law

If you have a child custody or divorce case, legal aid may be able to help. You can call your local legal aid office or ask the judge in your case to appoint a legal aid lawyer to represent you in court.

Housing

If you are being evicted from your home or your house is in foreclosure, legal aid may be able to help.

Public Benefits

If you have a problem with welfare, Food Stamps, Medicaid, Supplemental Security Income (SSI), or Social Security, legal aid may be able to help.

Immigration

Many legal aid offices can handle immigration issues. If you are a victim of domestic violence, legal aid can help you in any case that helps protect you from the abuse, even if you do not have legal immigration status. Legal aid may also file an immigration application on your behalf. Some legal aid offices specialize in a wide range of immigration law issues.

Consumer and Disability Issues

Some legal aid offices focus on one area of law, such as disability law or housing law, while others may handle a range of issues.

Other Services

In addition to legal aid, there are other services available for those who need legal help:

• Volunteer lawyer projects
• Pro bono projects
• Free legal workshops
• Self-help centers offered by state court systems
• Free legal clinics at local law schools
• Local Area Agency on Aging for seniors
• StatesideLegal.org for veterans, service members, and their families

Frequently asked questions