Should I Get a Divorce, a Dissolution or a Separation?
July 12, 2012
DIVORCE- When legal action is taken to terminate a marriage, it begins with filing a Complaint for Divorce in the Domestic Relations Court. Within the complaint grounds for divorce must be evident, which include: at the time of the marriage, either party having a living husband or wife, a fraudulent contract, a willful absence of the opposing party for a year, if the parties have lived apart for a year, adultery, intense cruelty, neglect of duty, constant drunkenness, or imprisonment of the opposing party within a state or federal correctional institution at the time of filing. A “no fault” divorce may be granted under grounds of incompatibility.
During a divorce, a court will look to justly divide the parties’ debts and “Marital Property,” as well as establish support and address any child related issues. Included under the term Marital Property is all real and personal property owned by either party and obtained during the marriage, any interest in any retirement benefits or participant accounts acquired during the marriage, and all income and appreciation on items due to labor on monetary contribution of either person within the marriage. If it can be shown that the property was obtained previous to the marriage or during the marriage but as a gift or inheritance, it will not be considered marital property.
DISSOLUTION- A dissolution is another alternative for terminating a marriage. In a dissolution, the parties work together to create an agreement to address and resolve all issues. The terms of the agreement may address the same areas as in a divorce. The agreement is completed by the parties prior to filing a petition with the court. Once the Petition for Dissolution is filed, the court must set a final hearing no sooner than 30 and no later than 90 days after the date of filing.
A dissolution is most advantageous when the parties are in general agreement of all terms and conditions. If concerns of fraudulent conduct, hiding assets or income, or extraordinary child related issues are evident, it may be more appropriate to pursue a divorce or legal separation to preserve your rights and seek the protection and oversight of the court.
LEGAL SEPARATION- A legal action, which is initiated by the filing of a Complaint for a Legal Separation. The grounds for a legal separation are the same as the grounds for divorce. A legal separation may address all of the same issues as divorce and dissolution. The procedure is identical to a divorce, except that when complete the parties remain legally married while living separately. This is helpful for those individuals who have religious affiliations that do not support terminating a marriage as well as those persons who need to remain a “spouse” or “dependent” of the other for insurance or retirement purposes.
If a party seeks legal separation and later in life seeks to marry another person, a Complaint for Divorce must be filed and approved by a court.
Gregory S. Costabile is the Phillips, Mille & Costabile partner who handles the Domestic Relations Department. Contact him to discuss any concern you have as to ensuring your assets & rights are accurately protected. There are no legal fees for discussing a litigation matter until the scope of the needed legal services has been discussed & settled .