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My spouse has just told me that he/she wants a divorce. Can I oppose the divorce?
Basically, no. In the United States and Canada, you cannot prevent your spouse from divorcing you. A divorce will be granted whether or not you agree to it, whether you participate in the legal proceedings or not.
In most of the United States, "No Fault" divorce is the standard. Under "No Fault", your spouse may choose unilaterally to divorce you at any time without having to give any specific reason.
Many jurisdictions now in fact do not accept anything other than "irreconcilable differences" as the reason for seeking a divorce.
Does one of us have to move out of the house? If I move out, what happens?
Generally speaking, no, neither you nor you spouse has to move out of the marital residence.
Exceptions to this are when a Temporary Restraining Order (TRO) has been filed. TROs normally prevent one spouse or the other from remaining in the home.
Having both parties staying in the home is an obvious source of friction and trouble. The one indisputable reason to remain in the home is if there are children. Voluntarily moving out and leaving the children in the care of the other parent gives them a strong argument for primary custody.
The judge will reason that if you were a concerned parent, you wouldn't have left the children with the other parent unless you felt they could take adequate care of them. Moving out without good reason is often the single largest blow to a custody case.
Staying in the home can be the source of major problems, such as physical confrontations, ongoing fights and arguments, etc. Staying also provides numerous opportunities for false allegations to be made.
My spouse took the kids and moved out, and now she's telling me that I can't see them. Can she do this?
No. She can move out, but without a court order in effect, your spouse doesn't have the right to control your access to your children. With no court order in place, you can legally take the children whenever and wherever you want, for as long as you want. You have as much right to spend time with them as your spouse does.
Don't let your spouse dictate or interfere with spending time with your kids. Doing so 'validates' the notion that he or she actually has this control, and tends to legitimize their efforts to keep you and your children apart. If there is no court order in effect, you are free to visit and/or pick the children up from school, take them to your home, feed them, care for them, etc, just as any parent would be.
If there is no court order or parenting plan in place and your soon-to-be-ex is already attempting to interfere with the relationship between you and the children, we suggest Hiring An Effective Attorney immediately and filing for sole custody. Your attorney may suggest you locate your children and take them to your home until this matter is sorted out.
Be aware that behavior like this now bodes very badly for the future- if your spouse is acting this way now, they'll only become more difficult as time goes by. They will use your child as a tool and a weapon against you. Your child will be hurt by their actions, but they won't care. The fact is, your having custody may be your child's only hope of having a normal, healthy life.
If your soon-to-be-ex will not support your relationship between you and your children, then it is crucial for you to obtain legal custody. This is the only way that both parents' relationship with the children will be assured.
Hopefully, you are the more reasonable parent and would not interfere with the other parent's relationship with the children. Since the same can't be said for them, it would follow that you will need to be the one in control of the custody arrangements.
Read these pages to get started:
Will I get to keep my house/car/property?
In jurisdictions where community property laws are in effect, your spouse will normally be entitled to an equitable share of the marital, or communal assets. This usually includes all property, real estate, vehicles, and personal items purchased during the marriage.
In some cases property owned prior to the marriage may be considered a shared asset and is therefore community property.
The 'equitable share' is normally decided upon by the judge and may be set at more than 50% of all personal AND marital property. Currently, nine states - Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin - use what is called the 'community property system'.
Note that under "No Fault" divorce, a spouse's bad or destructive behavior (such as infidelity, drug use, psychological problems, etc) generally cannot be held against them or factored into the property settlement phase of the divorce action.
Do I really need an attorney? How do I hire an attorney?
Unless your divorce is entirely amicable, you will probably want to retain an attorney to represent you and your interests.
If you have minor children, we strongly suggest retaining an attorney to ensure that any custody issues are handled properly. To find out more about retaining attorneys, view the following pages: