Divorce in General
The major changes in all phases of divorce law, discussed in other articles in this category have begun to incorporate the equally important changes that have taken place in society in general during the past 35 years. Economics has replaced morality as the overriding concern in many aspects of American society. Women are gradually being treated more equally and fairly under the law. They are no longer considered as the subordinate spouse in a marriage. In awarding child custody, maintenance, and property, both spouses are on a more equal footing under the new divorce laws.
These changes have been very rapid and dramatic. They have, in fact, often outpaced the ability of the legal system to cope with them. Judges and lawyers have had a somewhat difficult time putting these new laws into practice where there is no precedent to deal with potential problems that may arise. The change to no-fault divorce has made the area of divorce law the only area of law in which the traditional win/lose context of the legal system does not seem to apply. Lawyers and judges are both trained and experienced in a system of law which has antagonistic and adversarial competition as its basis, and thus are often ill-suited to effectively deal with the no-fault basis of the new divorce laws.
The change to no-fault divorce has somewhat reduced the potential for conflict in divorce by removing the need to prove that one of the spouses is guilty of some form of marital misconduct. However, there is still considerable room for difficulty in the decisions regarding child custody and support and in the division of property.
Just because a divorce is obtained on a no-fault basis does not mean that it is an un-contested divorce. A true uncontested divorce is one in which the opposing spouse takes no legal part in contesting any of the decisions made regarding property, custody, maintenance, or child support. There is no necessity for an actual trial regarding aspects of a divorce in an uncontested divorce, although there is generally still a court hearing held to determine compliance with basic legal requirements.
In an uncontested divorce, the opposing spouse may take no part at all, can be entirely absent from the state, or may file legal documents agreeing not to contest any terms of the divorce. An uncontested divorce in which only one spouse makes the decisions on the legal matters (usually an uncontested default divorce) is not generally the most effective manner to obtain a divorce which is fair and just to both spouses. Uncontested divorces may be obtained, however, on the basis of an agreement between the spouses, as explained in the next section.
In a contested divorce, the spouses are both involved in a legal battle over some or all of these aspects of divorce. A contested divorce can be brought on no-fault grounds, yet include a bitter dispute over child custody, alimony, or property. Despite the advances made in overcoming some of the trauma of divorce by the switch to a no-fault system, contested divorces still provide an arena for lengthy and bitter hostilities.
© Nova Publishing Company, 2005