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 USED CAR HISTORY > CAR LEMON LAW > Car Lemon Law and Legal Resources

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The Decision Of Getting a Divorce

After becoming situated, the first thing to do is to hire an attorney who will draft and serve the divorce complaint. It makes no difference, though, whether you serve your mate or he serves you. After an answer is filed, the divorce usually proceeds like this: the couple spends several months or years trying to figure out how their assets and/or children can best be divided. Allegations fly back and forth. Children travel back and forth. The couple eventually tires of each other enough to allow for settlement. If they are really stubborn, they foolishly opt for trial.

A better course of action is less adversarial. While you may legitimately be angry at your husband, some things are better left unsaid. And they are left unsaid out of a desire to get the best possible result, not out of any misguided sense of altruism. The best deals, be they in business or divorce, are deals in which both parties get most of what they want. A one-sided deal invites the other side to breach it. You will find (possibly the hard way) that it is better to try to work with your spouse than to fight over everything. Although fights are inevitable, cooperation in the face of adversity is preferable.

Grounds for Divorce and Annulment

A divorce is different from an annulment. A divorce ends a valid marriage, whereas an annulment means that the marriage was invalid from its inception. Grounds for an annulment include being under age at the time of marriage, bigamy, fraud, duress, and mental incompetence. Annulling a marriage takes an act of court, and a decree of annulment means that the marriage never occurred.

Traditionally, a divorce was granted only if one of the partners was found to be at "fault"-if they did something wrong. This fault-oriented divorce concept was prevalent until the 1970s, and is still available today, albeit less often. Grounds for divorce because of fault include matters such as criminal convictions, nonsupport, adultery, imprisonment, insanity, impotence, violence, and alcoholism.

Every state now has some form of no-fault divorce (although some states are considering revoking no-fault). No-fault means precisely that: neither party needs to prove that the other did anything wrong in order to get a divorce. All the person seeking the divorce has to do is state at the outset of the proceedings that there are irreconcilable differences or that the marriage is irretrievably broken (depending upon the state).

Many states offer both fault and no-fault grounds for divorce, either can be alleged in the complaint, and the decision as to which way to go really depends upon your state laws. The main difference between the two is in the proof required to get the divorce. No-fault requires no proof, and fault requires proof of the fault alleged. If a wife decides to sue on fault grounds alone, she has to be prepared to prove that the husband did something wrong. If she cannot, the divorce could ostensibly be denied, although that is rare. More often fault is alleged in the complaint because the state's laws may grant some benefit to the spouse found not at fault-custody, increased child support, higher alimony.

In some states, an adulterous spouse will likely have a more difficult time getting custody of the kids, and many states permit the court to consider marital misdeeds when dividing property.

Defenses to Divorce

There is no defense to a no-fault divorce. If one partner wants one, then there is little he other spouse can do about it. Defenses to divorce are really only applicable in those thirty-five states that continue to allow fault-oriented divorces.

In the case where the petitioner chooses to proceed with a fault-oriented divorce, several defenses are available to bar the divorce and remain married (for whatever reasons one may have). An attorney can explain these defenses and clarify whether they might apply in a particular case.

Foreign Divorces

Many people, indeed most people, understandably want to get their divorce over with as quickly as possible. Rather than submit to the jurisdiction and tedious process involved in their state's legal system, some people opt to try to get divorced in a different state or country that may have a reputation for fast divorce proceedings. Collectively, divorces obtained in different countries or different states are called "foreign divorces."

In order for a divorce in a different state to be valid, generally, one of the spouses must be living in the state where the divorce is sought. Both spouses must also agree to the jurisdiction (authority) of that state to grant the divorce. Without both requirements-residency of one spouse and consent of both spouses-a foreign state's divorce will be invalid in the home state. It will have the same legal effect as if no divorce proceedings ever occurred.

Divorces in other countries are often also called quickie divorces. They can take place in Mexico, the Dominican Republic, or some other country. They happen much faster there than in the United States-often in a matter of a few days. Unfortunately, quickie divorces are quite risky, as they too are often deemed to be invalid once the couple gets back to the United States. Check with an attorney to see how these divorces are received in your state.

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