What is a divorce?

Mother and son leaving home and father
David Seed Photography/Photographer's Choice/Getty Images

Question: What is a divorce?

People have many questions about divorce, what it involves, how to proceed with a divorce and so on. Therefore, I will try to answer some of the most common questions people seem to have when faced with divorce.

A divorce is a legal action between married people to terminate their marriage relationship. It can be referred to as dissolution of marriage and is basically, the legal action that ends the marriage before the death of either spouse.


What is no-fault divorce?

No-fault laws took away the need to find fault. No-fault divorce law gives either party the freedom to sue for divorce with only the claim of “irreconcilable differences.” Born of these laws was the concept of unilateral divorce: either partner feeling the urge to end the marriage could do so and was free to leave.

What is a legal separation?

A legal separation is a lot like a divorce. It involves the same process of filing papers with the court to start a legal action and the court has to make the same decisions about children, debts and assets as in a divorce. However, at the end of the process the parties are legally separated instead of being divorced. That means they are still married but not responsible for each other.

What happens in a divorce?

The purpose of a divorce is to terminate the parties’ marriage. In order to do that the parties and the court must decide how to handle the questions of custody and placement of the minor children and how to divide the property and debts of the parties. State laws presume each party is entitled to one half of the marital property and each party is responsible for one half of the marital debts. Non-marital property would be property inherited by one of the parties or given to just one of the parties by a third person and, if it has been kept separate it will remain with that person after the divorce.

What is marital property?

All the property of the parties is marital unless shown otherwise. Such things as pensions, bank accounts and stocks and bonds are marital property even if held in the name of only one of the parties. Property brought in to the marriage is still marital although depending on the length of the marriage and the nature of the property the court can decide to award it back to the party who had it before the marriage. Courts try to be fair to both parties and each party is responsible for making a full disclosure to the court and the other party of all assets and debts.

What about spousal support?

Depending on the length of the marriage, the age and health of the parties and each parties' ability to earn an income and maintain the marital standard of living, the court may order spousal support paid by one spouse to the other. This is a different question from child support. Alimony can be for a limited period or for an indefinite period depending on the circumstances. It can be reviewed if there is a significant change in the circumstances of either former spouse.

Do I need an attorney to get a divorce?

Individuals are always allowed to represent themselves in a court action. If you do, you will be referred to as a “pro se litigant.” However, if there are any serious questions involving the children, property, debts or spousal support, it is better to have the assistance of an attorney. The attorney can represent only one of the parties.